Bennett v Manly Council and Sydney Water Corporation

[2006] NSWSC 242

Reported Decision: 146 LGERA 60

New South Wales

Supreme Court

CITATION:	Bennett v Manly Council and Sydney Water Corporation [2006] NSWSC 242
HEARING DATE(S):	22/11/2004 - 25/11/2004, 29/11/2004, 01/12/2004 - 03/12/2004, 06/12/2004, 30/05/2005 - 01/06/2005, 06/06/2005 - 07/06/2005, 09/06/2005.
JUDGMENT DATE :	4 April 2006
JUDGMENT OF:	Hislop J
DECISION:	1. Verdict and judgment for the plaintiff against the defendants in the sum of $1,750,000; 2. The defendants to pay the plaintiff’s costs other than the costs of the adjournment on 6 December 2004; 3. The plaintiff to pay the defendants costs of the adjournment on 6 December 2004; 4. Verdict and judgment for the first defendant against the second defendant on the first defendant’s cross claim in the sum of $875,000; 5. The second defendant to pay the first defendant’s costs of the first defendant’s cross action; 6. Verdict and judgment for the second defendant against the first defendant on the second defendant’s cross claim in the sum of $875,000; 7. The first defendant to pay the second defendant’s costs of the second defendant’s cross action.
CATCHWORDS:	Negligence - Foreseeable risk of injury - Liability of a statutory authority - Shirt calculus - Duty of care - Breach - Causation - Personal responsibility - Contributory negligence.
LEGISLATION CITED:	Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Local Government Act 1919 - ss 353, 354 Local Government Act 1993 - ss 633, 733 Sydney Water Act 1994 - s 38
CASES CITED:	Bulmer v Ryde Municipal Council (1976) 34 LGRA 300 Chappel v Hart (1998) 195 CLR 232 Hadland v Council of the City of Blacktown (NSWCA 21 May 1997 unreported) James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 Joslyn v Berryman (2003) 214 CLR 552 Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 Nagle v Rottnest Island Authority [1992 – 1993] 177 CLR 423 Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports 81 – 149 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Swain v Waverley Municipal Council (2005) 220 CLR 517 Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234 Vairy v Wyong Shire Council (2005) 221 ALR 711 Wyong Shire Council v Shirt (1979 – 1980) 146 CLR 40
PARTIES:	Plaintiff - Glenn Bennett First Defendant - Manly Council Second Defendant - Sydney Water Corporation
FILE NUMBER(S):	SC 20106/02
COUNSEL:	Plaintiff - Mr M Williams SC with Mr R Cheney First Defendant - Mr M McCulloch SC with Mr S Glascott Second Defendant - Mr J Gleeson QC with Mr S Torrington
SOLICITORS:	Plaintiff - Mr J Govan (Carroll & O'Dea Solicitors) First Defendant - Ms S Kelly (Phillips Fox Lawyers) Second Defendant - Ms R Santangelo (Ebsworth & Ebsworth Lawyers)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

4 April 2006

20106/02 Glenn Bennett v Manly Council & Sydney Water Corporation

JUDGMENT

INTRODUCTION

1 The plaintiff sustained injury at Manly beach at about 3:15pm on 8 October 2000 when, as he bodysurfed a wave to the shore, he hit his head on stormwater pipes which extended into the sea. He was surfing outside the designated safe swimming area when injured.

2 The plaintiff seeks damages from the defendants for his injury, essentially on the basis they were negligent in failing to indicate the position of the pipes to persons in the sea; in permitting the pipes to be present; in failing to conduct a risk assessment; and, in the case of the first defendant, in failing to prohibit swimming in the vicinity of the pipes.

3 The defendants deny they were negligent. They assert the plaintiff was the sole cause of his injury and that he consented to the risk of injury or, if he establishes liability, his damages should be significantly reduced for contributory negligence. Reliance is also placed on other, more technical, defences.

4 The plaintiff suffered incomplete quadriplegia as a result of the incident. Agreement has been reached by the parties as to the damages recoverable by him should he be successful in his claim.

5 Each of the defendants has issued a cross claim against the other seeking contribution or indemnity in respect of any verdict recovered against it by the plaintiff.

6 It is common ground the liability provisions of the Civil Liability Act2002 do not apply to the proceedings.

BACKGROUND

7 Manly beach is the southernmost of three adjoining beaches located between two headlands. The northernmost beach is Queenscliff, the other, North Steyne. The Manly Life Saving Club building is located at the southern end of Manly beach.

8 South Steyne Street runs parallel to Manly beach. It is set back from the beach and there are paths, lawns, trees and public amenities in the area between it and the sand. This area is considerably higher than the sand of the beach and is separated from it by a rock retaining wall. There are steps leading down onto the beach at intervals. The beach and surrounding area is popular with locals and tourists, particularly in the summer months when large numbers of people frequent the area. The first defendant actively promotes the beach and surrounding area.

9 A number of streets run at right angles to South Steyne Street. The most prominent of these is the Corso which runs between Manly beach and the ferry wharf on Sydney Harbour. Raglan Street is the next street north of the Corso and is parallel to it. On the southern corner of South Steyne Street and Raglan Street is a block of apartments and on the northern corner the Manly Pacific Hotel. Each is a substantial building containing a number of storeys.

10 Two 24 inch diameter stormwater drainage pipes extend from Raglan Street across the beach. It was the eastern end of those pipes which the plaintiff struck. The pipes emerge from the sand at about the mean high water mark and extend eastward into the sea, save at very low tides when the pipes are wholly above the water line. In conditions such as those at the time of injury the pipes would be concealed to a surfer beyond the break and in front of the pipes when a swell passed over them. They would also be concealed from such a person by swells between the surfer and the pipes unless he was in a higher position on another swell. If a swell was not passing over the pipes the upper part of the pipes would be clear of the water. In most conditions other than around low tide the pipes are obscured or concealed by the sea to persons swimming or surfing beyond them.

11 There were no signs or other markers on the beach or pipes specifically indicating the position of the pipes to swimmers or surfers. Although the concentration of swimmers was between the flags people swam all along the beach, including in the area opposite the pipes.

12 Installation of the 24 inch diameter pipes was completed in 1974. They replaced two 18 inch diameter stormwater pipes at that location and the first defendant’s storm water pipe which had crossed the beach at the Corso. The 18 inch diameter pipes had been installed in 1903 and had been transferred to the second defendant in that year. They had replaced a single 18 inch diameter pipe at that location. Thus for over one hundred years a stormwater pipe or pipes has crossed the beach at Raglan Street.

13 The above facts, which I accept, were either common ground or not seriously in dispute. In so far as there may have been any dispute as to the visibility of the pipes I have relied on the evidence of Mr Branson (a very experienced surfer who for a time resided in an apartment on the corner of Raglan and South Steyne Street) and Mr Johnston (an expert retained by the plaintiff), the photographs exhibited and my view of the scene for the conclusions expressed in [10].

THE PLAINTIFF’S EVIDENCE

14 The plaintiff was born on 10 September 1979. He was a strong and experienced surf swimmer. At the time of injury he was a professional triathlete skilled and experienced in swimming, running and cycling.

15 He had been a visitor to Manly Beach countless times commencing when he was a child. He had swum there on many previous occasions including swimming beyond the break. He had competed in ocean swims at the beach.

16 The plaintiff had observed the Raglan Street pipes on previous visits to the beach. He knew the pipes extended beyond the shoreline into the surf, that they were constructed of metal or concrete and that if he collided with them while swimming he could be injured.

17 On the day of injury he was in the company of a group of friends. The group had set up their position on the sand at the end of the Corso about 20 metres north of the northernmost of the red and yellow flags which delineated the safe swimming area on that day.

18 At about 3pm the plaintiff and three of his male friends, who were also triathletes, entered the water more or less in a straight line from where the group was seated. They were each wearing wetsuits and goggles. They swam to the designated safe swimming area and caught a few waves. They caught the waves head up as there were other people in that area and care had to be taken to avoid colliding with them. The friends were identified by the plaintiff. The plaintiff has remained in contact with them.

19 After about five minutes they swam out behind the breakers and took up a position about 100 metres off shore. It was their intention to do swim training in 200 metre repetitions, i.e. swimming parallel to the beach 200 metres to the north and then swimming 200 metres south back to the start point. It was too crowded to do training in the designated swimming area.

20 The start point for the repetitions was about 20 metres north of the flags. The plaintiff was aware of this as he looked in and saw the northernmost red and yellow flag.

21 The group commenced the training swim. The plaintiff was not wearing a watch. He swam north for a distance that he assumed was about 200 metres based on his estimate of the time that had elapsed. As he was the fastest swimmer he then stopped, waited for the others to catch up and then swam back to the start. He said:

… you just know when the time of 200 metres is up. It's about three to four minutes … It's like you get to the point where you can swim 50 metres at a certain pace and stop two metres before the end of the wall with your eyes shut.


The latter comment was a reference to his experience whilst training in a pool.

22 At the completion of the first (or perhaps the second) repetition the plaintiff noticed the pipes as he waited for his companions to catch up with him at the start point. He could see the pipes to the north where they exited the sand and extended into the ocean. The diagonal distance from him to the pipes was about 100 metres. He agreed the pipes would have been only about 80 metres from where he entered the water and that he swam past them on each lap. He said he did not see them as he did so. He warned his companions to be aware of the pipes. He said:

There are the pipes. Watch out for them.

He said he warned his companions because he was aware that the pipes were submerged and dangerous because the actions of waves or current might take one closer to them.

23 The group decided to practice the finishing and starting of triathalons. After completing about 5 - 7 or 6 – 8 repetitions the plaintiff stopped about 100 metres from the beach. He waited about 30 seconds during which time he looked in to the beach. He saw no dangers and raced to catch a wave in. If he had seen a person, a board-rider or anything to signal some sort of problem in swimming in that area he would not have swum in. His usual practice in catching a wave was to always stop, look in, make sure there was no person or board-rider or any obstacle in front and catch the wave in.

24 He swam onto the wave assuming a racing position with his arms above his head and his head tucked down. One of his companions was on the same wave. They were racing. The plaintiff was trying to get to the beach as fast and most directly as he could, expending the least amount of energy. He said:

As best you can, depending on rips, the type of wave, you'd try to go straight in - the most direct path into the beach.

Because of the position he adopted he was not able to see anything in front of him unless he lifted his head. He did not lift his head and did not see the pipes until his head hit them.

25 At the time of injury there was a three to four foot swell. There was a slight onshore breeze when the group started training which picked up slightly as the training continued. There was a slight rip going from south to north. He noticed this after the first or second repetition when he became aware he was being pulled very slightly north. He agreed the current took him further north while carrying out the training exercise.

26 At no stage once the training swim had commenced did the plaintiff look for any land marker to determine his position, nor did he do so when he decided to catch the wave to shore. In particular he did not look for the Corso, did not look for the red and yellow flags on the beach, did not notice the red and yellow flag he had seen immediately before starting the training swim, did not remember seeing the gap between the buildings on the corner of Raglan Street and did not look for the pipes. Instead he relied solely upon his ability to time himself through the water to determine where he was.

27 Later in his evidence the plaintiff said he looked for the pipes before he caught the wave in. However, in view of his earlier evidence I do not accept this as indicating he specifically looked for the pipes as opposed to simply looking in to the shore.

28 The plaintiff said he assumed he was back at the start point when he caught the wave. He thought the pipes were further north from where he caught the wave. He concluded:

… what I remember on the day is not only drifting, but also mistiming, or I believe I mistimed …

29 He said the waves were going pretty much forward. He was not completely sure whether the current would take him north when he caught the wave but there was not a monstrous tow.

30 The plaintiff accepted that he voluntarily caught the wave. He intended, if possible, to keep his head down until he reached the shore. He knew if he had misjudged the earlier inspection there was a possibility he might collide with someone or something, and if that occurred he could suffer serious injury. He did not know whether there were concealed rocks in the area or not. He said:

A. I accepted that there was a risk, but very minimal risk, so the risk I accepted was a small one.

Q. You had no way of knowing, did you, where you were going on this wave unless you looked up?

A. I knew I was going in a westward direction.

Q. You accept, don't you, in catching the wave the way you did and knowing, as you told us, that very generally you were aware that the pipe was in the area, that if you struck it, you would be accepting any risk of injury that arose from that collision?

A. I wouldn't accept any injury, because I'd looked forward to see if there was any pipe or any indication of the pipe, and I didn't see it.

Q. What I am getting at is in the 100 metres after you’d looked and after you’d caught your wave to when you hit the pipe, you didn’t give yourself a chance after that to see anything in front of you because you had your head down?

A. Once I'd commenced the wave?

Q. Yes.

A. I caught the wave after I thought it was safe to proceed.

31 The plaintiff said he would have seen, from the point at which he commenced to catch the wave, a brightly coloured flag on a post of the same height as the flags indicating the safe swimming area positioned in the sand at the point where the pipes entered the water. He would also have seen from that point a sign one metre high, of rectangular shape with a red “x” on a yellow background on a post two metres above the end of the pipe, 2 two metre tall PVC poles fixed at the end of the pipes, or PVC poles in the sand on either side of the pipes with crime scene tape put around them, a large circular or oval float over a metre high and anchored to the sea floor or a buoy for mooring boats.

32 He said that had he seen any of those indicators it would have drawn his attention to the pipes and he would not have swum in at that point. He had never seen a buoy for mooring boats located in the surf and he could not see how a large circular or oval float would stay close to the shore with waves breaking over it.

33 The plaintiff presented as an intelligent young man, well aware of the issues in the case. He was prepared, on occasions, to give non-responsive answers in order to assist his case. Somewhat unusually, although he was present in court for most, if not all, of the evidence given by his witnesses, he was the second last witness called to give evidence. None of his companions were called to give evidence.

34 The defendants, relying upon these matters, submitted the plaintiff’s evidence as to his lack of knowledge of the position and location of the pipes at the time he caught the wave should not be accepted.

35 However the defendants called no evidence. The names and addresses of the plaintiff’s companions had been supplied to them. It was submitted a Jones v Dunkel inference should be drawn against the defendants for failing to call those persons. I would not draw such an inference as I would infer those witnesses were in the plaintiff’s camp so as to make it unrealistic for the defendants to call them.

36 The plaintiff’s evidence as to his version of events was not significantly damaged in cross-examination. It was therefore not necessary for the plaintiff to call any of his companions to give evidence. Accordingly I would not draw a Jones v Dunkel inference against the plaintiff in this regard. I accept the plaintiff’s evidence as outlined earlier in this judgment. There is no other evidence before me as to the circumstances in which the injury occurred.

DISCUSSION

The liability of the first defendant

Duty of care

37 The first defendant was the local authority pursuant to the Local Government Acts 1919 and 1993. There is no issue it owed a duty of care to the plaintiff. It conceded:

a) that at all material times it occupied and had the care, control and management of Manly beach;
b) it had a duty of care with respect to persons who lawfully entered onto the beach;
c) there was a foreseeable risk of injury by collision with the pipes to people surfing near them.

38 In Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 Hayne J held at [50]:

… a statutory authority having the care, control and management of land to which the public has access owes each member of the public who enters the land a duty to take reasonable care.

39 McHugh J in Mulligan held at [18]:

In so far as a public authority owes a duty to an individual entrant, it is correlative with the duty to the class and is not measured by reference to the personal characteristics of that individual member.

Breach

40 The plaintiff alleged the first defendant breached its duty of care to him. In order to establish breach the plaintiff must establish:

(a) that there was a risk of injury which was reasonably foreseeable;
(b) that there were reasonably practicable means of eliminating or reducing such risk;
(c) that the injury was caused or materially contributed to by the failure to adopt such means of eliminating or reducing the risk;
(d) that the first defendant’s failure to eliminate or reduce the risk showed a want of reasonable care for the plaintiff’s safety.

41 The test for determining whether a risk of injury was reasonably foreseeable is undemanding.

… a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. – Wyong Shire Council v Shirt (1979 – 1980) 146 CLR 40 at 48.

That persons swimming or surfing in the vicinity of the pipes may collide with them and suffer injury was not far-fetched or fanciful. Accordingly I find the risk of injury was reasonably foreseeable.

42 There was evidence, from Mr Speer who had been a lifeguard, lifesaver and regular surfer at the beach, that he had on one occasion struck the pipes whilst swimming and on another had hit them whilst riding a surfboard. He had observed other people strike the pipes whilst swimming or riding surfboards. He had also observed a number of near misses. This evidence confirms my conclusion that the risk of injury was reasonably foreseeable. Additionally, in a letter from the first to the second defendant dated 19 June 2003, the second defendant wrote:

Council as you know has numerous Insurance claims in relation to public Liability associated with the stormwater pipes on the Ocean Beach.

43 The real issues as to breach were whether there were reasonably practicable means of eliminating or reducing the risk, whether the failure to take such measures caused or materially contributed to the injury and whether the first defendant’s failure to take such measures showed a want of reasonable care for the plaintiff’s safety.

44 The plaintiff alleged the first defendant breached its duty of care in four ways. It is convenient to consider each alleged breach separately.

Positional marker

45 The plaintiff, in his further amended statement of claim, particularised this alleged breach as follows:

(a) Failing to erect a sign or other warning of the presence of the pipes which could be seen from the water;
(e) Failing to warn the plaintiff of the position of the pipes, including by use of bunting such as crime scene tape or the like, PVC pipes and fluorescent flags or marine buoys.

Reasonably practical means of eliminating or reducing the risk of injury

46 The plaintiff must establish that there existed a reasonably practicable means of avoiding or reducing the risk. The suggested alternative or alternatives must not only eliminate or reduce the risk of injury but must not expose the plaintiff or others to similar or other risks – Swain v Waverley Municipal Council (2005) 220 CLR 517 at [22, 40 – 45].

47 Mr Baxter, a former Manly lifesaver, gave evidence on behalf of the plaintiff that prior to the plaintiff’s injury he had made a number of suggestions to the first defendant’s senior lifeguard, Mr McDougall, aimed at stopping people hitting the pipes whilst in the water.

48 Mr Baxter said that he understood the correct protocol was to make the suggestions to Mr McDougall rather than directly to the first defendant. Mr McDougall dismissed these suggestions with a shrug of the shoulders according to Mr Baxter.

49 These suggestions were:

1. Two 2 metre tall flexible coloured PVC poles should be attached to the pipes one on either side.
2. Plastic PVC poles should be placed on either side of the pipes with crime scene tape placed around the poles to cordon off the area.
3. A large brightly coloured circular or oval float over a metre high should be anchored to the sea floor about ten feet from the end of the pipes or a buoy should be similarly placed.
4. A submersible waterproof strobe light should be attached to the pipes.

50 Mr Baxter was strongly attacked in cross-examination, it being suggested that he was an untruthful witness, biased against the first defendant and that his suggestions were recently invented. There were troubling aspects relating to Mr Baxter’s evidence. However, Mr McDougall was not called to give evidence and there was placed in evidence an email to the first defendant from him dated 15 July 2002 in which he said:

Some time ago you asked me if I could put down a couple of ideas on improving the safety of the stormwater pipes. I had at the time two thoughts. One that a orange pole, heavy rubber type that had some flex, be affixed to the end of the pipe so that swimmers or surfers would be more easily aware of the pipe. Two that the pipe be shortened in a manner similar to the pipe opposite Steinton Street.

51 There was no evidence as to what was meant by “some time ago”.

52 It is unnecessary to determine where the truth lies on this issue as I am not satisfied it has been established that any of Mr Baxter’s suggestions were practicable as:

1. The large float was unlikely to remain tethered in an area where waves were breaking over and around it. It would also be likely to be an attraction to children. It’s presence would convey no warning of danger to the average beach-goer.
2. The mooring buoy was unlikely to remain tethered in an area where waves were breaking. It’s presence would convey no warning of danger to the average beach-goer and it would not be readily discernable in the turbulence created by breaking waves.
3. It is doubtful the crime scene tape would remain in position with waves breaking over it. This may be an attraction to children enticing them to play on the pipes and would be impractical to put up each day.
4. There was no acceptable evidence that it would be practical to fit a strobe light at about the end of the pipes or that it would remain illuminated and capable of being seen in daylight.
5. The two metre tall flexible coloured PVC poles, even if they could be firmly attached to the pipe may be unlikely to remain with waves breaking over them, would be likely to be an attraction to children.

53 The plaintiff also relied upon the evidence of Mr Johnston, an engineer retained by him. Mr Johnston in his initial report said:

(An) option is to simply signpost the location of the pipes such that it was visible to persons in the surf to whom the location of the pipes represented a hazard. This could most simply be achieved by means of a sign placed above the pipes with say a red cross on a yellow background or more specific wording if Council preferred. This could be simply placed as an upright sign at the end of the pipes … alternatively the sign could be partially cantilevered from a post closer to the beach.

54 Mr Johnston was cross-examined about the feasibility of such a sign, whether it would be effective or would itself create a danger. Mr Johnston said he believed the sign and any hazards associated with it far outweighed the negatives of someone possibly hitting the pipes. He concluded:

I believe that the signpost I proposed would have worked. I don’t have any doubt about that.

55 Mr Johnston said of the other alternatives that were put to him that they would require further assessment.

56 The defendants called no evidence to rebut Mr Johnston’s evidence. I accept Mr Johnston’s evidence as to the practicality of such a sign.

57 The first defendant submitted it had no power to attach anything to the pipes as they were within an easement in favour of the second defendant and there was no evidence the second defendant would have consented to anything being affixed to them. In my opinion, even if it be correct that the second defendant’s consent was required, the probabilities are that the second defendant, if approached, by the first defendant with a request to erect an appropriate sign on the pipes or in the easement would have agreed to the proposition. Even if it did not, the first defendant could have placed the sign on land under its control in sufficient proximity to the pipes to provide an effective marker.

Causation

58 The next issue is whether, had a sign as described by Mr Johnston been present, it would have resulted in the injury being avoided. The plaintiff gave evidence he would have seen such a sign, it would have alerted him to the position of the pipes and he would not have surfed in at that point.

59 The issue of causation is to be determined subjectively. Warnings have been given by the Courts as to the dangers of relying on a plaintiff’s own testimony concerning causation as:

Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. - Chappel v Hart (1998) 195 CLR 232 at 246

60 I have accepted the plaintiff’s evidence that he waited 30 seconds before catching the wave and that during that period he looked in to the beach to check his course was clear. It seems to me the probabilities are that had the suggested sign been on or in the vicinity of the pipes the plaintiff would have seen it and it would have alerted him to the position of the pipes. It would have been a very reckless act for an intelligent person such as the plaintiff to seek to come ashore close to the pipes when there was no need to do so. I therefore conclude the probabilities are that he would not have sought to come ashore in the vicinity of the pipes had such a sign been present with the result injury would have been avoided.

Reasonableness

61 In Vairy v Wyong Shire Council (2005) 221 ALR 711 at [124] it was said:

The enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”. (see also Mulligan v Coffs Harbour City Council at [3])

62 The plaintiff submitted the failure of the first defendant to provide a positional marker for the pipes showed a lack of reasonable care for the plaintiff’s safety. The first defendant submitted the fact that it had not installed a marker did not evidence a want of reasonable care on its part for the plaintiff’s safety.

63 The determination of the issue thus joined may have given rise to little difficulty in 1993 when Nagle v Rottnest Island Authority [1992 – 1993] 177 CLR 423 was decided. In that case a person was injured when he dived into the water at a reserve managed by a statutory authority and hit his head on a submerged rock. The trial Judge found that when the appellant dived into the water the glitter effect of the sun on the water 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. The High Court held (by a majority of 4:1) that the injury was caused by the authority’s failure to warn, by an appropriate sign, of the presence of submerged rocks in breach of its duty to the injured person.

64 However recent case law has placed greater emphasis on the personal responsibility of individuals for their own actions. Thus, where the risk is obvious and such that a normal adult would not incur it, this will be, at least, a factor to be taken into account in determining the reasonableness of the defendant’s response. It may be of such significance and importance, indeed of such a very high degree of importance as to be overwhelmingly so, and effectively conclusive in some cases – Mulligan per Callinan and Heydon JJ at [75] though, as was observed in Thompson v Woolworths (Queensland) Pty Limited [(2005) 221 CLR 234 at [37]:

If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence.

65 The recent cases of Mulligan and Vairy illustrate the current approach of the High Court in this area of the law.

66 In Mulligan the plaintiff dived into a tidal estuary of variable depth striking his head on the sandy bottom sustaining injury. In Vairy the plaintiff dived from a rock platform into the sea striking his head. In each case the plaintiff failed, unanimously in Mulligan and by majority in Vairy.

67 In Mulligan it was held that it was not reasonable to require the defendant to erect a warning sign. Gleeson CJ and Kirby J in a joint judgment held at [6]:

The danger that materialised was one that exists at virtually every Australian beach, and in most waterways. It is one of many dangers involved in swimming. It is difficult to see how such common dangers can be addressed by particular warnings at particular locations.

68 McHugh J at [25] said:

The risk of a diver striking the bottom of a creek bed is well known and likely to be present to the mind of a swimmer at all times. Ordinarily, the occupier or controller of a creek or river bed is not acting unreasonably if that person does not erect a sign warning of the danger of a swimmer striking the bed of the creek or river. But in particular situations, other features of the creek or river or the swimming may require a warning sign.

69 Gummow J at [31] said:

The trial judge held that the scope of the duty of care owed by each of the relevant defendants did not require that the plaintiff be warned of the risk "that was plainly inherent in the activity he was undertaking.”

His Honour approved this statement.

70 Hayne J approached the matter differently, whilst Callinan and Heydon JJ, in a joint judgment, decided the risk of diving in uncertain and unfamiliar clouded waters was obvious and precluded recovery.

71 In Vairy Gleeson CJ and Kirby J, who dissented in the result, said at [7] and [8]:

… When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. … It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning.

72 Gummow J doubted there was anything to distinguish this rock platform from the remainder of the coastline with the management of which the Council was charged.

73 Hayne JA held that the risk was one which could come to pass at any beach:

It was not and could not be suggested that a reasonable council would have marked every point in its municipal district from which a person could enter a body of water, and warned against or prohibited diving from that point. (at [137])

74 He concluded that every form of physical recreation carried some risk of physical injury including the risk that a solitary swimmer may collide with an obstacle or strike the seabed. It was not reasonable to expect the Council to warn of the particular danger in Vairy. The Council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discovered by someone contemplating diving or plunging into the water at this point [158 – 161].

75 At [131] his Honour noted:

… it is important to notice that it was not alleged in this case that the Council had done anything to make the risk of diving injury at Soldiers Beach any greater than it was. Nor … was it alleged that there were any particular hidden dangers of which the Council was or ought to have been aware but a visitor to the area would not.

76 Callinan and Heydon JJ concluded:

[217] We do not think it could be seriously suggested that a shire should erect a multiplicity of signs in the vicinity of its beaches saying "swimming can be dangerous". But the point in particular that we wish to make here is simply that the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be a dangerous thing to do.

77 The first defendant submitted the fact that it had not installed a positional marker did not evidence a want of reasonable care for the plaintiff’s safety as:

(a) The plaintiff was swimming outside the designated safe swimming area. There was no representation by the first defendant as to the safety of that area not was there any encouragement by the first defendant to swim in that area.

(b) The pipes were, by their very nature and size, a significant visual obstacle on the beach and created a presence which could not go unnoticed. It would be obvious to all that to swim too close to the pipes would be to court the risk of collision and consequent injury perhaps significant.

(c) There are risks inherent in body surfing. They include the risk of being dumped, of being taken by a shark, caught in a rip, of colliding with other persons, of colliding with surf craft and of colliding with objects concealed in the surf such as rocks, sand bars or debris.
(d) The first defendant’s duty extended throughout the whole of the area under it’s control. The standard of behaviour required of it must be viewed without the benefit of hindsight and having regard to its wide area of responsibility.

(e) The imposition of a duty on the first defendant to put location indicators on every item in it’s municipality which could be concealed in the surf and represent a hazard to swimmers and surfers far exceeds anything which could be regarded as reasonable. It would be unreasonable to single out the pipes for particular attention.

(f) There were, in any event, adequate means for a surfer to check his position vis-à-vis the pipes by reference to the position of the safe swimming flags, or the position of the Corso or the gap between the buildings on the Raglan Street corner, the latter being the marker chosen by both Mr Johnston and Mr Branson to orientate themselves.

78 However the risk in the present case was not that posed by a natural hazard commonly occurring at most Australian beaches. On the contrary, the risk of injury posed by the pipes was an unusual risk to encounter on an Australian beach. The evidence of Professor Short, which I accept, was that on only two other beaches in Australia was there a similar stormwater outlet. The pipes were a hazard created by the actions of the defendants in constructing, or agreeing to the construction of, the pipes. It is well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety – Nagle v Rottnest Island Authority at 431; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [137].

79 In Wyong Shire Council v Shirt (1979 – 1980) 146 CLR 40 at 47 – 48 Mason J held:

(Having determined there was a foreseeable risk of injury) … it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

80 Applying that test it is clear the risk of injury was foreseeable, the magnitude of the risk was great, the degree of probability of injury occurring was not insignificant, (though there was no evidence an injury of this severity had occurred at the pipes before), the expense of erecting a sign was minimal, there were no difficulties or inconveniences or conflicting responsibilities in erecting the sign and there were only two sets of pipes in the first defendant’s local government area which created such a risk and would require the erection of a sign.

81 The first defendant submitted it had control of the beach to the mean low water mark; a survey report made in 2002 showed a small portion of the ends of the pipes extending beyond the mean low water mark; therefore it was no part of the scope of the first defendant’s duty to provide warning in respect of the hazard outside its land. The plaintiff submitted, correctly, that the position of the mean low water mark varied from time to time and that when the easement was granted both it and the pipes did not extend beyond the mean low water mark. I accept the plaintiff’s submission that the later movements in the mean low water mark did not affect the original easement boundary and his further submission that in any event the duty to warn was not limited to the land territorially occupied by it. See particularly the Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports 81 – 149 at 61,139; Bulmer v Ryde Municipal Council (1976) 34 LGRA 300 at 303, 308 and 318. See also Nagle at 432.

82 Accordingly, notwithstanding the first defendant’s submissions to the contrary, in my opinion, reasonable care required the provision of an appropriate sign by the first defendant.

Removal of the pipes

83 The plaintiff in his further amended statement of claim particularised this alleged breach as follows:

(b) Permitting the pipes to remain in a position in which they constituted a danger to swimmers and surfers;
(c) Permitting the second defendant or its predecessors to erect and leave the pipes on the beach;
(d) Failing to insist that the pipes be placed underground, under sand and under water;
(g) Failing to adopt an alternative and safer stormwater outlet that did not involve pipes extending into the sea.

84 It appears to be common ground that:

(a) The two 18 inch diameter pipes which were replaced in 1974 were the responsibility of the second defendant.
(b) The 18 inch diameter pipes drained a catchment of 64 acres.
(c) The second defendant was responsible for a trunk drainage line that fed the 18 inch diameter pipes and that the trunk drainage line was fed by a number of drains the responsibility of the first defendant.
(d) The catchment area for the 18 inch diameter pipes was excessively prone to flooding.
(e) There was another stormwater pipe which crossed the beach at the Corso. This was the responsibility of the first defendant.
(f) The 18 inch diameter pipes became defective and the second defendant decided to replace them with a single 24 inch pipe.
(g) On 3 August 1971 the second defendant proposed to the first defendant that two 24 inch diameter pipes should be constructed, one to be the first defendant’s responsibility and the other the responsibility of the second defendant.
h) On 6 April 1971 the first defendant obtained a report from Gutteridge, Haskins and Davey, consulting engineers, which concluded inter alia:
Investigations show there is no real alternative to the pipe outfalls across the beach.
(i) It was agreed the first defendant would remove the stormwater pipe at the Corso and divert the stormwater from there to Raglan Street. On 4 April 1972 the first defendant wrote to the second defendant in the following terms:
Council desires to construct its Raglan Street outfall on common foundations with the Board’s outfall as it feels that this is the most logical and economical solution to the situation.
(j) It was agreed the second defendant would arrange for the design and construction of the pipes and the defendants would share the costs.
(k) The installation of the pipes was completed in 1974 at a total cost of $85,600.
(l) On 22 October 1975 an easement or right to use in any manner for protection and maintenance of the works was resumed by the second defendant. The easement was 10 metres wide and both pipes were included within it’s boundaries.

85 In my opinion, the action of the first defendant in obtaining the opinion of a firm of expert engineers to advise it as to the second defendant’s proposition and then acting in accordance with the expert’s advice was reasonable and does not bespeak negligence on its part. In any event I am not satisfied the first defendant had power to prevent the second defendant installing the single 24 inch replacement pipe proposed by it.

86 The first defendant submitted the second defendant owned and was solely responsible for the pipes since 1974 and that it had no power to remove or relocate the pipes or to require the second defendant to do so. Accordingly there was no breach by it in this regard.

87 The first defendant referred to a memorandum of the second defendant dated 24 January 1975 to support this submission. That document, in my opinion, does not establish the first defendant’s contention. Indeed it appears to confirm the responsibility of each defendant for one pipe.

88 The first defendant in this context also referred to correspondence between the defendants. However this correspondence appears to relate to problems in the catchment area west of the wall and in respect of which the second defendant conceded responsibility, at least for the trunk drainage line. Reference was also made to the statutory powers of the second defendant and other documentary material. I am not satisfied that the material to which my attention has been drawn establishes that the pipe constructed for the first defendant was transferred or vested in the second defendant to the exclusion of the first defendant at any time prior to the plaintiff’s injury.

89 It is however unnecessary to finally determine that question as, even if the first defendant had ownership, possession or control of one of the pipes after 1974 there was no breach of duty in not removing, shortening or relocating it.

90 The removal, shortening or extending of the pipes after 1974 could not be viewed in isolation. There was a problem of stormwater drainage and flooding in the catchment area for the Raglan Street pipes. It was a significant and difficult problem to resolve as attested to by the volume of documentary material tendered. Whether the stormwater pipes crossing the beach should remain or be removed in whole or part was a matter which Dr Blumberg, the plaintiff’s expert, agreed required an overall assessment of the catchment area and the problems associated with it. He had not done such an assessment. The ascertainment and implementation of a solution to the drainage problems involved a balancing of many factors including engineering difficulties, cost, inconvenience, interference with the amenity of the area, other demands on the first defendant and the like. The decision to remove, shorten or extend the pipes was not to be determined solely by reference to the risk of injury to people swimming opposite the pipes. Until the wider problems were resolved there was no warrant for removing the pipes. In my opinion the failure to remove, shorten or extend the pipes prior to the plaintiff’s injury did not show a want of reasonable care for the plaintiff’s safety.

91 Further, the alternatives suggested by the plaintiff were not reasonably practicable alternatives as:

(a) The shortening of the pipes to the retaining wall would require the raising of the invert (or siphoning). This would be difficult owing to the proximity of the sewer line in Raglan Street. It also would increase the degree and frequency of flooding in the catchment area which was already excessive. If the invert was raised this would result in beach scouring and the pooling on the beach of stormwater, the resultant risk of bacterial growth, and the risk to children of playing in or near contaminated pools of water.
(b) The shortening of the pipe to above the waterline would create problems of silting up the pipe with sand. The pipes were deliberately constructed between the high and low tide marks to facilitate flushing of the system with each tide pattern. The use of Tideflex ® valves to avoid silting was described by Mr Blumberg in examination in chief as worthy of consideration. However he agreed in cross examination it was novel technology in this sort of application and that it would have an adverse impact on the beach landscape. He was unaware how often such valves would require replacement.
(c) The extending of the pipeline to a greater distance from the shore would be expensive and would in periods of low tide simply replicate the problem which presently exists.
(d) The cost of removing the pipes and substituting a pipeline entering the ocean at the southernmost end of the beach would be extremely costly and disruptive and could create a risk to persons swimming at the far southern end of the beach.

92 There would be little purpose in removing, or shortening, one pipe and not the other as the risk would remain. The second defendant, in 1996 advised the first defendant:

… that the Raglan Street project at present does not feature in the Sydney Water priorities. Funds are not available at present for the project to proceed. It is currently Sydney Water’s practice to have a maintenance role only in respect of storm water drainage catchments that are its responsibility.

The first defendant had no power to effectively require the second defendant to remove the pipe.

93 The duty of care is to act reasonably in all of the circumstances. It would not have been reasonable to require the first defendant to carry out any of the suggested alternatives of removing, shortening or extending the pipes when a reasonably practical alternative, namely, the erection of a sign indicating the position of the pipes, was readily available at insignificant cost. The removal, shortening or extending of the pipes in the circumstances of this case would be a disproportionate and unreasonable requirement to impose.

94 The first defendant also relied upon a good faith defence pursuant to s 733 of the Local Government Act 1993. It is unnecessary to determine this issue in the light of my finding that there was no breach of duty in respect of the non removal or shortening or extending of the pipes.

Prohibition on swimming

95 The plaintiff in his further amended statement of claim particularised this alleged breach as follows:

(f) Failing to exercise the statutory powers (in ss 353 and 354 Local Government Act 1919 , s 633 Local Government Act 1993 ) to prohibit bathing in the vicinity of the pipes.

96 The first defendant conceded that it had power under s 633 by notice to regulate bathing on the beach including to prohibit bathing in areas specified by it. It was not disputed the first defendant had not erected a notice prohibiting bathing in the vicinity of the pipes.

97 There was no evidence that had the plaintiff observed such a notice he would not have swum where he did. As he was swimming 100 metres off shore and proposed to return to the shore 80 metres to the south of the pipes there was no reason why he should have concluded the notice was applicable to him. Thus, even if such a notice had been erected it has not been established by the plaintiff that it would have prevented the injury which he sustained. This allegation of negligence fails.

98 It may also be that the first defendant’s failure to erect a prohibitory sign could not in any event attract liability in tort – Vairy per Gummow J at [87] and [92].

Risk assessment

99 The plaintiff in his further amended statement of claim particularised this alleged breach as follows:

(h) Failing, prior to installing the pipes, or at any time thereafter, to conduct any or any adequate assessment of the relevant risk, in circumstances where the first defendant knew at least as early as 1971, that the pipes created a danger for bathers.

100 The plaintiff submitted the first defendant took no measures to assess the risk of injury posed by the presence of the pipes, that if such an assessment had been made it would have resulted in the collection of information as to previous injuries at the pipes and this would have lead to the taking of action to obviate the risk of injury.

101 The defendant conceded it had not conducted a risk assessment.

102 In my opinion, this particular does not provide an independent head of liability. It is coincidental with the knowledge of risk (actual or assumed) which must be attributed to the first defendant if the plaintiff is to succeed in his claim.

103 It has not been established that any such assessment, if it had been conducted would have resulted in action by the first defendant which would have removed or reduced the risk of injury. This allegation of negligence fails.

Voluntary assumption of risk

104 This is a defence upon which the first defendant relies and on which it carries the onus of proof. Clarke JA in Hadland v Council of the City of Blacktown (NSWCA 21 May 1997 unreported) held:

Three quite separate elements must be established before the defence, which in my experience has rarely arisen, much less been successful, will succeed. In short, the defendant must establish that the plaintiff:-
a) knew of the danger;
b) fully appreciated the risk of injury created by the danger – a subjective question; and
c) voluntarily agreed to accept that risk – that is, to absolve the defendant from any responsibility for injury resulting from the danger which the plaintiff may suffer. …
The weight of authority and the observations of text writers seem to me to support the proposition that it is only where the inference is drawn that the plaintiff consented to run the risk at his or her own expense, in the sense that he or she could not sue if injured, that the defence will prevail.

The other members of the Court were Handley JA and Grove AJA. Handley JA agreed with Clarke AJ save he did not accept it was necessary that the plaintiff agree to absolve the defendant from responsibility for the injury. Grove AJA found it unnecessary to opine upon this reservation.

105 In this case the plaintiff was under the impression that he was 80 metres south of the pipes. If that had been correct the pipes would have posed no risk to him. Accordingly I find that the plaintiff did not fully appreciate the risk of injury posed by the pipes to him in the circumstances nor did he voluntarily accept the risk of physical injury. Additionally, I find that the plaintiff did not agree to absolve the defendants from any responsibility for injury.

106 In my opinion the first defendant has not established the plaintiff had voluntarily assumed the risk of the injury which befell him and accordingly this defence fails.

107 I find the plaintiff has established negligence on the part of the first defendant.

The liability of the second defendant

Duty of care

108 In Sutherland Shire Council v Heyman (1985) 157 CLR 424 Mason J said at 459:

Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so. But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the case in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning.

109 The second defendant inspected the pipes and beach regularly. It was present during the construction of the pipes in 1974. It would have been aware that people swam along the whole length of Manly beach including the area opposite the pipes. It would have been apparent that there was a risk of such persons colliding with the pipes and sustaining injury. As the defendant had created the danger in constructing the pipes in 1974, in my opinion, it owed a duty of care to such persons.

Breach

Positional marker

110 The plaintiff’s claim against the second defendant in respect of a positional marker was particularised in the same terms as the claim made by him against the first defendant. I have held that the first defendant was negligent in failing to provide a positional marker. That conclusion, in my opinion, is equally applicable to the second defendant. Accordingly I find breach of duty by the second defendant in failing to provide a sign of the type proposed by Mr Johnston. I reject the submission that the second defendant had no power to erect such a sign on the pipes or within the easement.

Removal of the pipes

111 The plaintiff in his further amended statement of claim particularised this breach as follows:

a) placing or leaving the pipes on the beach;
b) placing or leaving the pipes in such a way that the end of the pipes could be struck at particular points of the tide rather than taking the pipes further out to sea so that they presented a less dangerous angle to a surfer or swimmer who struck them;
e) permitting the pipes to remain in a position in which they constituted a danger to swimmers and surfers;
f) failing to place or remove the pipes underground;
g) failing to ensure that its statutory functions were conducted in a manner that did not pose a risk to public safety and in particular to the safety of the plaintiff;
h) failing to exercise the statutory power (pursuant to s 38 of the Sydney Water Act 1994 );
i) failing to adopt an alternative and safer storm water outlet that did not involve pipes extending in to the sea.

112 The decision of the second defendant in replacing the 18 inch diameter pipes in 1974 involved a consideration and balancing of many relevant factors. The decision which it took was not an inappropriate or unreasonable one having regard to those considerations. It conformed with the opinion expressed in the report of Gutteridge, Haskins and Davey previously referred to. In my opinion the plaintiff has not demonstrated negligence by the second defendant in this regard, nor in regard to the non removal, shortening or extending of the pipes after 1974 for the reasons essentially stated in paragraphs [89], [90], [92] above.

Risk assessment

113 The plaintiff in his further amended statement of claim particularised this breach as follows:

j) failing, prior to installing the pipes, or at any time thereafter, to each conduct any or any adequate assessment of the relevant risk.

114 An allegation of this nature does not give rise to an independent head of liability. Further there was no evidence that a risk assessment had not been carried out by the second defendant or that the carrying out of the risk assessment would have resulted in steps which would have removed or reduced the risk of injury to the plaintiff. This allegation of negligence fails.

Voluntary assumption of risk

115 The second defendant also relies upon this defence but it fails for the same reasons as it failed in relation to the first defendant.

116 I find the plaintiff has established negligence on the part of the second defendant.

Apportionment between the defendants

117 It is necessary to apportion liability between the defendants pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. This requires a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage… the whole conduct of each negligent party in relation to the circumstances of the accident must be subject to comparative examination - James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 at 446.

118 In my opinion the liability of the defendants is substantially the same. In summary each was responsible for the presence of at least one pipe on the beach. The presence of the pipes created the risk of injury which became a reality. Each incurred an obligation to eliminate or reduce the risk by, as I have found, the provision of an appropriate sign. Neither caused such a sign to be erected. I apportion liability equally between the defendants.

Contributory Negligence

119 The defendants also rely upon the defence of contributory negligence:

At common law, a plaintiff is guilty of contributory negligence where the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff is exposed – Joslyn v Berryman (2003) 214 CLR 552 at [16] per McHugh J.

120 In my opinion the plaintiff was guilty of contributory negligence for the following reasons:

(a) He was swimming outside the designated safe swimming area. There was no representation that the area where he chose to swim was safe. This required him to be alert as to possible areas of danger.
(b) He was aware of the existence of the pipes, that they entered the surf and were concealed or rendered difficult to see. He was aware if he hit them he could sustain serious injury.
(c) He was reminded of the presence of the pipes when he observed them in the surf. He recognised they were a potential danger to him and his companions.
(d) He was aware that there was a rip moving him north and that his position also could be altered by wave action. He did not wear a watch and his method of judging the 200 metre swim distance was imprecise, the more so as he was not swimming in a pool.
(e) It should have been apparent to him, if he had acted with reasonable care, that he may not have returned to his starting position at the end of each repetition and that he should seek to orientate himself by reference to a marker on the beach before catching a wave in.
(f) It would have been possible for the plaintiff to orientate himself with his position by looking for a marker on the beach such as the red and yellow safe swimming flag, the gap in the skyline at Raglan Street, between the apartment building and the hotel, or the Corso. If he had done so injury would have been avoided.
(g) Additionally he should have monitored his position as he surfed in by keeping his head up as was done by Mr Branson. If he had adopted this precaution again it is probable he would not have sustained injury.

121 It is necessary to assess the plaintiff’s contributory negligence. The principles to be applied are those set out above in relation to the apportionment between the defendants.

122 A comparison of the whole conduct of each of the parties leads me to conclude that an apportionment of 50% to the plaintiff for contributory negligence is appropriate.

Damages

123 The total damages were agreed at $3,500,000. After deduction for contributory negligence of 50% the plaintiff is entitled to a verdict of $1,750,000.

ORDERS

124 I make the following orders:

1. Verdict and judgment for the plaintiff against the defendants in the sum of $1,750,000.

2. The defendants to pay the plaintiff’s costs other than the costs of the adjournment on 6 December 2004.

3. The plaintiff to pay the defendants costs of the adjournment on 6 December 2004.

4. Verdict and judgment for the first defendant against the second defendant on the first defendant’s cross claim in the sum of $875,000.

5. The second defendant to pay the first defendant’s costs of the first defendant’s cross action.

6. Verdict and judgment for the second defendant against the first defendant on the second defendant’s cross claim in the sum of $875,000.

7. The first defendant to pay the second defendant’s costs of the second defendant’s cross action.

**********