Berrigan Shire Council v Ballerini
[2005] VSCA 159
•22 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5244 of 2001
| BERRIGAN SHIRE COUNCIL | |
| Appellant | |
| v. | |
| JASON IAN BALLERINI and FORESTRY COMISSION OF NEW SOUTH WALES | 1st Respondent 2nd Respondent |
| FORESTRY COMMISSION OF NEW SOUTH WALES v. JASON IAN BALLERINI and BERRIGAN SHIRE COUNCIL | Appellant |
| 1st Respondent 2nd Respondent |
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JUDGES: | CALLAWAY, CHERNOV and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 May 2005 | |
DATE OF JUDGMENT: | 22 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 159 | |
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NEGLIGENCE – Duty of care – Shire council – State Forests Commission – Passive recreational park under management and control of Council – Abutting town swimming hole in section of river under management and control of Commission – Park thus providing access to log customarily used as a platform for diving into swimming hole – Whether Council or Commission owed a duty of care to persons using log for diving – Whether duty extended to taking steps to reduce risks of diving by removing log or warning of risks of diving – Causation – Sixteen year old diver hitting bed of swimming hole made shallow by recent abnormal flooding – No sign warning of risk of insufficient depth for diving – Whether sign would have deterred diver – Contributory negligence – Whether diver guilty of contributory negligence in failing to check depth before diving.
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| APPEARANCES: | Counsel | Solicitors |
| For the Council | Mr P.R. Garling, S.C. with Mr P.A. Scanlon, Q.C. | Phillips Fox |
| For the Forestry Commission For the Plaintiff | Mr R.P. Gorton, Q.C. with Mr F.D. Saccardo, S.C. with | Victorian Government Solicitor as agent for the Crown Solicitor for the State of New South Wales Maurice Blackburn Cashman |
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment written by Nettle, J.A. I agree in the disposition of the appeals and cross-appeal that his Honour proposes. As he explains, we are concerned with the liability of the Council and the Commission and the plaintiff’s challenge to the finding of contributory negligence. If there was contributory negligence, he no longer challenges the judge’s assessment that it was just and equitable to reduce the damages recoverable by 30%.
The Council
I agree with Nettle, J.A., for the reasons his Honour gives at [26], [31] – [33], [35] – [37], [40] and [44] – [47][1], that the Council owed a relevant duty of care to the plaintiff. This is not a case at the cutting edge of the law of negligence. It is clear, in my opinion, that such a duty was owed.
[1]Except the last three words of the second-last sentence of [47]. The distinction between active and passive recreation is imprecise, but I can see what counsel was driving at.
I also agree that the duty was breached. The Council permitted what was, in effect, a dangerous diving board to remain attached to its land. It could, at negligible cost, have either removed the log or erected a warning sign. It did neither and, as a result, the plaintiff suffered injury. Inaction is sometimes a reasonable response to a risk, perhaps more often than has been realised in the past, but it was not a reasonable response in this case.
Causation is not in issue as regards removal of the log, but Mr Garling argued that the plaintiff did not establish, on the balance of probabilities, that a warning sign would have averted the accident. There may be more than one answer to that contention. The swimming hole was regularly used by young people of the plaintiff’s age and had been so used for many years without recorded incident. It presented an insidious danger, to which a warning sign may not have been an
adequate response. But, if a warning sign was an adequate response, there is every reason to believe that it would have been effective for a responsible young person like the plaintiff. The judge saw him give evidence and, even if his Honour erred in relation to the rule in Jones v. Dunkel[2], he was entitled to find that the plaintiff did not hear Ms Sorenson’s warning. In any event, its terms were uncertain and it was not comparable with an authoritative warning emanating from the Council.[3]
[2](1959) 101 C.L.R. 298. I am inclined to think, with respect, that his Honour did err in relation to that rule, or a variant of it, but the point need not be decided.
[3]In this paragraph I am speaking of a warning sign erected at any time. I do not confine myself to a warning sign following the 1996 flood.
The Commission
The judge’s adverse finding concerning Mr O’Brien’s knowledge was challenged on more than one basis, but I am prepared to assume, without deciding, that the Commission did owe a relevant duty of care to the plaintiff as an entrant on land under its control and management. The difficulty is that I do not consider that it was open to his Honour to find that that duty was breached. As Nettle, J.A. points out, in the Central Murray Forest Group alone, the Commission controlled about 1,000 kilometres of rural frontage and there were literally thousands of logs jutting out over the river along that frontage. Mr O’Brien himself supervised about 4,000 hectares. Even after the 1996 flood, this swimming hole was just one among many locations that may have been affected and the accident took place only a month after the flood subsided. The Commission’s omission to take any action with respect to the log did not fall short of the standard expected by the community of a public authority with only peripheral responsibilities in relation to recreation.[4]
[4]The suggestion that the Commission should have “abated the nuisance” raises its own problems, because the right of abatement is given to a landowner not with a view to protecting others but with a view to protecting his or her enjoyment of the land.
Contributory negligence
Reasonable care does not require over-caution.[5] That is true of defendants and it is also true of plaintiffs. I was, for a time, attracted by Mr Saccardo’s argument that what the plaintiff did was exactly what any normal 16 year-old boy would do, given his and his peers’ previous experience of the swimming hole. For better or worse, the law of negligence affects the kind of society in which we live and we do not want the law to nurture a nation of ninnies. Mr Garling persuaded me, however, that even a normal 16 year-old could be expected to realise that diving into the opaque waters of an alluvial anabranch after an exceptional flood posed a danger against which at least some precaution should have been taken. It need not have been, as the judge suggested, wading into the hole first. There were other ways in which the depth of the water could have been tested.
Concluding unscientific postscript[6]
[5]Compare Swain v. Waverley Municipal Council (2005) 213 A.L.R. 249 at 250 [5].
[6]This is the conventional translation of Kierkegaard’s Afsluttende uvidenskabelig Efterskrift. I realise that “unscientific” does not accurately capture the sense of uvidenskabelig.
The relationship between duty and breach in the law of negligence is causing more perplexity than it used to do but, as I have said, this case is not at the cutting edge.[7] I would leave the quelling of that perplexity to the High Court. I simply wish to make two brief observations.
[7]Mr Garling wisely argued that it mattered not for his purposes whether obviousness of the risk was considered under the heading of duty or breach, although he submitted that, if it were to be considered under the former heading, the Council’s position was stronger.
The first is that the imposition of general duties of care in negligence has no sure foundation in legal principle. It involves trade-offs and value judgments that may have been better left to the legislature in 1932 and again in 1963 and 1976.[8] The search for a principle is worse than looking for a needle in a haystack. The needle is not there. The second observation is that, however the difficulties are to be resolved, duty is a question of law and breach is a question of fact. The discipline of civil juries, which we still have in Victoria, conduces to clear thinking. It reminds us that
questions of breach, unlike questions of duty, cannot involve legal policy. At common law the same is true of causation.[9]
CHERNOV, J.A.:
[8]Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 and Caltex Oil (Australia) Pty. Ltd. v. The Dredge “Willemstad” (1976) 136 C.L.R. 529.
[9]That does not mean, of course, that the formulation of the test to be applied by the tribunal of fact, whether for breach or causation, is not a question of law or that a judge cannot rule that a particular finding of fact is, or is not, open. See State ofVictoria v. McIver [2005] VSCA 50 at [10] – [12] but compare s.51 of the Wrongs Act 1958.
I have had the considerable advantage of reading the draft reasons for judgment of Nettle, J.A. For the reasons given by his Honour, I agree that the appeals and the cross-appeal be disposed of as he proposes. As his Honour explains, the Council owed persons in the position of the plaintiff a duty of care. A principal factor that gave rise to the duty was the Council’s relationship with persons such as the plaintiff, which sprang from its encouraging those persons to use its parkland and adjoining swimming hole and, hence, the log as well as from its actual control over that area.
It is irrelevant, I think, that the Council had not placed the log in position or that, from a strict legal position, it was the Commission that had de jure control of it, at least to the extent of its protrusion over the river. As the Council well knew, during the summer months in particular, the swimming hole and the log were used by local young people, like the plaintiff, as if they were part of a typical swimming pool with diving facilities. The Council effectively encouraged such activity by creating and maintaining a complementary environment in the nature of a parkland over which those using the swimming hole ordinarily passed. As is apparent from the reasons of Nettle, J.A., the log was essentially a feature of that area enacting as a magnet to attract locals to the swimming hole and its adjacent parkland. In the circumstances, the Council owed such persons a duty to take reasonable steps to guard them against reasonably foreseeable risk of injury arising from use of the log as an entry point into the river.
The extent of the Council’s duty, and whether it was breached, must be analysed in the context of the prevailing circumstances, one of which was that, as the evidence established, the depth of the riverbed in the vicinity of the log varied depending on the range of occurrences, particularly prolonged floods. As his Honour makes plain, the Council ought to have known this and could have responded appropriately to the risk created by the changing water depth by, in the first instance, erecting a warning sign or removing the log. Either course would have involved a little effort or expense on its part. I respectfully agree with his Honour that there is no basis for claiming that such a sign would not have been effective in respect of the plaintiff. The Council’s failure to take such action meant it breached its duty to the plaintiff.
It is true that, in the abstract, the dangers associated with diving from the log into the river would have been obvious enough to a person in the position of the plaintiff who exercised reasonable care for his or her safety. But it does not follow that, by reason of this, the Council owed no duty to the plaintiff. From his perspective, given his experience at the swimming hole, the risk was a concealed one. The Council, on the other hand, ought to have known of the latent dangers associated with diving off the log and thus, taken steps to protect the plaintiff from such risks.
I also agree with Nettle, J.A. that it was open to the learned trial judge to find that the plaintiff did not hear whatever it was that Ms Sorensen may have said to him before he dived off the log and that no error has been established in relation to the trial judge’s conclusion as to the existence and extent of the plaintiff’s contributory negligence.
I further agree with Nettle, J.A. that the judgment against the Commission cannot stand. As his Honour points out, the Commission had a very different charter and purpose from that of the Council, which involved it in supervising vast areas with many kilometres of river frontage and it had no relevant relationship with
the plaintiff. In the circumstances, it is difficult to see how it could be said that it owed the plaintiff a relevant duty of care, but even if it did, it was not open to find that it was breached.
NETTLE, J.A.:
By Writ filed on 3 April 2001 Jason Ballerini instituted proceedings in the Common Law Division against Berrigan Shire Council (“the Council”) and the Forestry Commission of New South Wales (“the Commission”) for damages for personal injuries suffered on 29 December 1996 when he dived from a log into the Old Barooga swimming hole at Collie Park, Barooga in New South Wales. After a trial before judge alone, on 1 September 2004 it was adjudged that the Council and the Commission were both liable in respect of the injuries suffered by Mr Ballerini (as between themselves, in the proportions of 80% to 20%) but that Mr Ballerini had by his own negligence contributed to his injuries to the extent of 30%. In the result Mr Ballerini was awarded judgment against the Council and the Commission in the sum of $5,600,000 (being $8.2 million reduced by 30% to reflect the extent of Mr Ballerini’s contributory negligence), and as between the Council and the Commission the judge ordered that the Council bear 80% of the damages recoverable and that the Commission bear the remaining 20%. The Council and the Commission now appeal against the judgment and orders for contribution, and Mr Ballerini cross-appeals against the determination that he was guilty of contributory negligence.
The judgment below
The facts as found by the judge were that on 29 December 1996 Mr Ballerini, then aged 16 years and eight months, went to a public reserve known as Collie Park in the town of Barooga. The reserve was on land between Golf Course Road, Barooga and the edge of an anabranch of the Murray River which was called “Bullanginya Lagoon”. Mr Ballerini was accompanied by a friend, Ms. Imbie Sorenson, and her boyfriend and they each took their lunch with them. After finishing lunch by a tree near to the bank of the lagoon, Mr Ballerini decided to go swimming in the area of the lagoon which was then called the “Barooga Swimming Hole”. It had been used as the local swimming hole for many years and Mr Ballerini had swum in it on a number of previous occasions. As on those previous occasions, Mr Ballerini went down the park to the bank of the swimming hole and out on to a log which extended from the bank of the swimming hole over the water, and from there he dived into the water. In the past the water had always been deep but on this occasion there had been prolonged recent flooding and unknown to Mr Ballerini it had made the water shallow; the bottom of the swimming hole having risen. Mr Ballerini thus struck his head on the bed of the swimming hole and suffered severe spinal injuries which rendered him quadriplegic.
Collie Park was reserved for public recreation in 1964 by New South Wales Government Gazette No 15 of 7 February 1964. It was given the reference number 84,738. The diagram published in the Gazette showed the reserve as bounded towards the south by the bank of the lagoon and towards the north by Golf Course Road. A few months later, the Council was appointed the trustee of the reserve under the Public Trusts Act 1897 (NSW). In 1995 the Council Crown Reserve Trust was appointed trustee of the reserve and the Council was appointed under s.95(1) of the Crown Lands Act 1989 (NSW) to manage the affairs of the Reserve Trust. The park was “community land” for the purposes of the Local Government Act 1993 (NSW) and in accordance with s.35 of the act the Council was required to manage the land in accordance with “the plan of management applying to the land”. By force of s.48 of the act the Council had control of the park with core objectives under s.36G of the act (a) to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities, and (b) to provide for passive recreational activities or pastimes and for the casual playing of games, and (c) to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management.
The bed of the lagoon and the land to the south of the lagoon was land under the control and management of the Commission. It operated under the Forestry Act 1916 (N.S.W.) Section 8A of that act provided that the objects of the Commission shall be:
(a)to conserve and utilize the timber of Crown-Timber lands and lands owned by the Commission or otherwise under its control or management to the best advantage of the State,
(b) to provide adequate supplies of timber from Crown-Timber lands and land owned by the Commission or otherwise under its control or management for building, commercial, industrial, agricultural, mining and domestic purposes,
(c)to preserve and improve, in accordance with good forestry practice, the soil resources and water catchment capabilities of Crown-Timber lands and land owned by the Commission or otherwise under its control or management,
(d)to encourage the use of timber derived from trees grown in the state,
(e)consistent with the use of state forest for the purpose of forestry and or flora reserves for the preservation of the native flora thereon:
(i) to promote and encourage their use as a recreation and
(ii) to conserve birds and animals thereon and
(f) . . ."
The powers and duties of the Commission were set out in s.11 of the Act as follows:
“11. Powers and duties of the Commission
Subject to this Act the Commission:
(a) shall have the control and management of State forests, timber reserves and flora reserves and shall control and manage them in such manner as best serves the public interest and, in so doing, may maintain and improve indigenous species of trees and may on State forest and timber reserves establish, maintain and improve plantations of indigenous species and exotic species, of trees,
(b) . . ."
The judge proceeded on the basis that the Council and the Commission had each conceded that it owed a duty of care to persons using land which was under its management and control but disputed that the log was under its management and control. The issue was whether the log emanated from the land under the management and control of the Council or from land under the management and control of the Commission. The judge determined the issue on the basis of expert evidence and provisions of the Crown Lands Act 1989. His Honour held that the log emanated from the land under the management and control of the Council and, for that and other reasons, that the Council owed a duty of care to Mr Ballerini as a person using the log. As his Honour put it:
“…the log from which the plaintiff dived emanated from land occupied and controlled and managed by the Council and was, therefore, under the control and management of the Council. It, therefore, owed a duty of care of the kind referred to above in paragraph 11 to persons using the log on the basis that it had the control and management of the log. But that is not the end of the issue of the existence of a duty of care. There are other matters relevant to the existence of a duty of care in the Council - and the content of that duty. The Council's control and management was of a specific area pursuant to its appointment to manage the area for the Trustee. Further, it encouraged the recreational use of that park and the log and swimming hole by its management of the park. Whether the log emanated from the land controlled and managed by it, the land gave uninterrupted and ready access to the log and the log clearly continued underground into that land. As the Commission argued, the Council had de facto control of access to the log.”
The judge held too, however, that the Commission also owed a duty of care to Mr Ballerini, which his Honour said derived from the fact that a substantial part of the log extended above the water and therefore over land of which the Commission had management and control. As the judge put that:
“…while the log did not emanate from land occupied, controlled and managed by the Commission, a very substantial part of the log extended some five metres or more over the bed of the anabranch over which it did have control and gave access to the bed and so entry to the land under its control and management. In my view, the admitted duty of care arising from occupation, management and control of land must extend not only to the use by lawful visitors of the land once entered but also the use of the points of entry by such visitors. In this instance, as it happened, the log provided a point of entry and it was the hidden level of the bed of the anabranch which posed one of the major dangers for anyone using the log in that way. I, therefore, consider that it also owed a duty of care to the persons using the log for the purposes of diving into the anabranch. If the log had emanated from the Commission's land, it would have had the additional problem that the log was part of the land it managed and controlled. Whatever the source, however, in addressing its duty of care, it had to determine what reasonable steps should be taken to avoid foreseeable risks of injury to lawful visitors having regard to the presence of the log over the bed of the anabranch and the access it gave to the bed of the anabranch.”
The judge further found that the Council and the Commission knew or ought to have known of the danger of the flood reducing the depth of the swimming hole and thereby creating a hidden danger of serious injury, and that each of them could have guarded against that risk by removing the log, and his Honour held that the Council could also have guarded against the risk by erecting an appropriate warning sign. The judge rejected contentions that Mr Ballerini knew of the risk when he dived and that he had ignored an oral warning given by Ms Sorenson. It followed, his Honour held, that each of the Council and the Commission had breached the duty of care which it owed to Mr Ballerini and had thereby caused his injuries. But the judge was persuaded that Mr Ballerini had been guilty of contributory negligence in failing to check the swimming hole before diving, and that it was just and equitable having regard to his share of the responsibility to reduce the damages recoverable by 30%. The judge determined that the Council and the Commission should contribute to those damages in the proportions of 80% and 20% respectively. Quantum was not in issue.
The Council contends that the judge erred in holding that the Council owed a duty of care to Mr Ballerini to take steps to prevent harm from the danger of diving into the swimming hole. It says that, contrary to the judge’s reasons, it did not concede below that it owed a duty of care in relation to Mr Ballerini’s use of the log[10] and it submits that it does not follow from the fact that the log emanated from park land under its management and control that the log was under its management and control. To the contrary, it submits that once the log passed onto or over the land of the Commission, as the log did at the point at which it emerged from the near vertical earthen bank of the swimming hole, control and management of the log belonged to the Commission and so it was the Commission which had responsibility for it and for those who made use of it.
[10]Transcript 575.17 - .22; 617.23 -.31.
If it matters, I think that the Council did make the concession which the judge attributed to it. At least that is the way in which I would construe the following exchange between the judge and counsel for the Council:
“HIS HONOUR: Can I go back to your preamble because at the moment I’m inclined to think that your Questions 1 to 5 may be sufficient for those matters. But going back to your preamble, you say the jury having decided the question of ownership, occupation and control; what will the jury have to decide there?
COUNSEL: Perhaps I can deal with it this way: the jury will only have to decide between two experts.
HIS HONOUR: So this is the definition of the bank, is that what you’re talking about?
COUNSEL: Yes, and they will take direction from your Honour on matters of law [upon] which your Honour will direct them as a matter of law, and then they’ll apply the facts before them from the experts to the law that your Honour directs them to in relation to the definition of the lake.
HIS HONOUR: That will determine ownership and what flows from that which is occupation and control in that sense. As I understand the plaintiff is also arguing that whatever be the legal position, who [has] de facto control?
COUNSEL: Yes.
HIS HONOUR: Is that an issue the jury will also have to decide?
COUNSEL: Yes, we say that is a proper matter for the jury because that will determine the breach. You see there’s no - - -
HIS HONOUR: If there is control, are you saying that it follows there is a duty?
COUNSEL: Look if we have control and exercise control in the legal sense of the word, it would be difficult for us to argue that we had no duty…”
In point of fact, however, it appears that the concession was of little consequence. The judge’s analysis was independent of it. The essence of his Honour’s reasoning was that the Council so exercised its powers of control and management over the park as to encourage the recreational use of the park and the log and swimming hole and provided uninterrupted and ready access over the park to the log in effect for that purpose.[11]
[11]See [6].
The Council’s duty of care
I agree with the judge that the Council did owe a duty of care to Mr Ballerini in relation to his use of the log as a diving platform. Like the judge I think it to be beside the point that Mr Ballerini dived from a point above the swimming hole and therefore beyond the boundary of the land which was under the Council’s management and control. The duty arose because the log emanated from the park, which was land under the Council’s management and control, and because the Council by its management and control of the park encouraged the recreational use of the park and thus of the log for diving. In point of principle the position is the same as in Nagle v Rottnest Island Authority[12]. Rottnest Island Authority was held to owe a duty to bathers diving from a rock platform which was part of a beach under the management and control of the Authority. In my opinion the Council owed a similar duty to bathers diving from the log which emanated from the park and beach under the control of the Council. It is true, as counsel for the Council contended, that the Rottnest Island Authority actively promoted the beach in question as a tourist swimming spot and that it encouraged its use for swimming by setting up signs and a path leading from the ferry wharf directly to the beach, with facilities for changing and showering and the like. It is also true, as the Council contended, that the Council did not actively promote the swimming hole for swimming, or set up a path or signs, and that generally speaking such facilities as it provided at the park were of a scale and quality less grand than those provided in Nagle. Nevertheless, the Council had the park under its management and control and it maintained the park by mowing the lawns and providing play equipment and providing and cleaning toilets and it knew that the swimming hole was attractive to young people and that they made use of the park to obtain access to the log from which they dived into the swimming hole. In my opinion those activities were just as much calculated to encourage young people to use the swimming hole and to assume that the log was suitable for the purpose of diving into the swimming hole as the Authority’s activities in Nagle were calculated to encourage members of the public to use the rock platform in question to dive into the sea.
[12](1993) 177 C.L.R. 423 at 427 .
In any event, the scale of promotional activities and other encouragement is not the sole criterion of an authority’s duty to those who make use of facilities under its management and control. There are a number of cases in which it has been held that the mere fact of providing a recreational facility can be enough to impose a duty to guard against attendant foreseeable risk. While each case involves questions of fact and degree, and therefore cannot be used as a precedent,[13] the reasoning is instructive. One such case in which the reasoning is instructive is The Public Trustee as Administrator of the Estate of the late Peter Saroukas v Sutherland Shire Council[14]. The council there had the care, control and management of a park beside a bay and also of tidal baths that were separated from the bay by a walkway constructed by the council. The walkway had a rail fence around the outside of it but it was possible to climb through or over the fence and to dive from it into the bay, in which the depth of the water varied and was difficult and frequently impossible to assess. The council had installed signs to warn of the danger of diving into the baths and of the variable depth of the water in the baths but did not erect signs to warn of the risk of diving from the walkway into the bay. The plaintiff dived from the walkway into water after losing his shoe into it. Unbeknown to him, the water was only three feet deep at that point and he hit the bottom and was rendered quadriplegic. Gleeson, C.J., with whom Priestley and Handley, JJ.A. agreed, held that the council owed a duty to persons diving from the walkway into the bay and that it breached the duty by failing to erect an appropriate pictorial sign warning of the danger of diving from the walkway into the bay. As Gleeson, C.J. explained:
"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 of 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.
…The very existence of the Council's walkway going out into the bay creates the possibility that people will jump or dive from it and once it is accepted as a possibility that the Council's recreational facility will 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 in another."
[13]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR at 32 [73].
[14](1992) Aust Torts Reports 81-149.
I do not overlook the differences between Saroukas and this case. In Saroukas the council created the structure which caused the risk, whereas in this case there was no evidence that the council installed the log. In Saroukas there were some signs warning of the risks of diving into the baths and possibly, because of the absence of signs warning of the risks of diving into the bay, an implication that it was safe to do so. But I do not think that the differences are material. Once the Council developed the park, and thereby made the log available as a point from which it was likely that swimmers would dive into the swimming hole, it became just as foreseeable that swimmers would dive from the log into the water and put themselves at risk as it was foreseeable in Saroukas that swimmers might dive from the walkway into the bay and put themselves at risk.
I also do not overlook that foreseeability is not a sufficient basis for the
imposition of a duty to guard against a particular risk - it is plain that it is not[15] - and that there is also some uncertainty as to whether Saroukas would be decided today as it was thirteen years ago. The course of authority has not been consistent:
[15]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 C.L.R. 254 at 268[35]; Sullivan v Moody; Thompson v. Cannon (2001) 207 C.L.R. 562 at 572-573[25], 576[42], 583[64]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 C.L.R. 540 at 555[9].
1)In the passage from Gleeson, C.J.’s judgment in Saroukas which is set out above, there is reference to “the necessary relationship and proximity”. It resonates with the centrality which the High Court at the time accorded to the concept of proximity.[16]
[16]Jaensch v Coffey (1984) 155 C.L.R. 549 at 584.
2) Later, in Sullivan v Moody, the majority of the High Court said that:
“…Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited. The present appeals provide an illustration of the problem. To ask whether there was a relationship of proximity … might be a convenient short-hand method of formulating the ultimate question in the case, but it provides no assistance in deciding how to answer the question. That is so, whether it is expressed as the ultimate test of a duty of care, or as one of a number of stages in an approach towards a conclusion on that issue.”[17]
3)In Pyrenees Shire Council v Day[18] Kirby, J. proposed the adoption of the three part test[19] of reasonable foreseeability, proximity and whether it is fair, just and reasonable, and his Honour reprised that conception in Romeo v Conservation Commission of the Northern Territory[20].
4)Later, in Sullivan v Moody[21], all members of the High Court except Kirby, J. rejected that idea, saying:
“What has been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia. Lord Bridge himself said that concepts of proximity and fairness lack the necessary precision to give them utility as practical tests, and ‘amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope’. There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. The proximity question has already been discussed. The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.”
5)In Crimmins v Stevedoring Industry Finance Committee[22] McHugh, J. with whom Gleeson, C.J. agreed, said that there is no longer any general test for determining whether a duty of care exists and that the correct approach now is to commence by ascertaining whether the case comes within a factual category where duties of care have been held to arise. His Honour added, however, that while a statutory authority may frequently be held to owe a duty of care because the facts of the case fall within one of those categories, it is not enough to look for factual similarities in decided cases. In novel cases it is necessary to examine the precedent cases to reveal their bases in “principle and policy” and thus to determine whether fact A in the instant case is truly analogous to fact B in the precedent case.
6)More recently, in Graham Barclay Oysters Pty Ltd v Ryan[23], Gleeson, C.J. spoke in terms of the “the total relationship between the parties”. On one view of the matter, “the total relationship between the parties” is proximity by another name.
7)More recently still, in Swain v Waverley Municipal Council, McHugh, J stated that the identification of a duty of care is dependent upon a “fact-value complex” in which are inherent “questions of fairness, policy, practicality, proportion, expense and justice”.[24] With respect that looks like the test of “fair, just and reasonable” advocated by Kirby, J. in Romeo and rejected by the majority in Sullivan v Moody.
[17]Sullivan v Moody (2001) 207 C.L.R. 562 at 578[48], per Gleeson, C.J; see too Hill v Van Erp (1997) 188 C.L.R. 159 at 177-178, 188-189 and 210 -211.
[18](1998) 192 C.L.R. 330 at 360[74].
[19]Adumbrated by the Lord Bridge in Caparo Industries Plc. v Dickman [1990] 2 A.C. 605 at 617-8.
[20](1998) 192 C.L.R. 431 at 476[117].
[21](2001) 207 C.L.R. 562 at 579[49].
[22](1999) 200 C.L.R. 1 at 29 [61].
[23](2002) 211 C.L.R. 540 at 596[145].
[24](2005) 213 A.L.R. 249 at 273 [79].
Accompanying the change in nomenclature there has also been a change in the specificity with which a duty of care may need to be defined, at least in some cases, and consequent change in the importance attributed to the standard of care as a discrete concept:
1)In the past and still at the time of Nagle, the majority of the High Court spoke in terms of a statutory authority having a “generalized duty of care” to members of the public who made use of facilities under the management and control of a statutory authority to take reasonable steps to avoid foreseeable risk of injury to those persons.[25] It was the same sort of duty as was held in Australian Safeway Stores Pty Ltd v Zaluzna[26] to be owed by an occupier to a visitor or the class of persons of which the visitor was a member. Specificity was reserved for description of the standard of care, or at least the breach of it, in terms of the particular action which “a reasonable person in the [authority’s] situation would have taken to guard against the foreseeable risk of injury which existed”.[27]
[25](1993) 177 C.L.R. 423 at 430.
[26](1987) 162 C.L.R. 479 at 488.
[27]ibid.
2)At the time only Brennan, J. was against that approach. He preferred the test formulated by Dixon, J. in Aiken v The Warden Councillors and Electors of the Municipality of Kingborough Corporation[28], of a duty to take reasonable care to prevent injury to the users of facilities under the charge of the authority to prevent injury through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. His Honour considered that it was a superior test because it focussed attention on the nature of the danger itself as assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public.[29]
[28](1939) 62 C.L.R. 179.
[29](1993) 177 C.L.R. 423 at 440.
3)In Romeo[30] a majority of the court adhered to the Zaluzna/Nagle test. Brennan, C.J., however, reiterated preference for the Aiken test which he had advocated in Nagle and his Honour added with emphasis that there was no warrant for extending the duty to the taking of steps to protect the particular entrants from the consequences of their failure to take reasonable care to protect themselves.[31]
[30](1998) 192 C.L.R. 431 at 454 [49], per Toohey and Gummow, JJ., at 458[66] –[67], per Gaudron, J., and at 460[75] and [78], per McHugh, J.
[31](1998) 192 C.L.R. 431 at 444.
4)Kirby and Hayne, JJ., also spoke of the need for more precise identification of the risk against which a statutory authority was said to owe a duty to guard, with consequent effect upon the concept of breach. Kirby, J. said:
“The ordinary formulation of the common law is that a body 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.“[32]
[32](1998) 192 C.L.R. 431 at 478 [123].
5) Hayne, J. stated:
“In this case the Commission owed visitors who lawfully entered land which it managed, a duty to take reasonable care to avoid foreseeable risks of injury to them. But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the enquiry about the scope of the Commission's duty[33]. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.”
[33]His Honour referred at this point to the passage of the judgment of Mason, C.J. in The Council of the Shire of Wyong v Shirt and Ors (1980) 146 C.L.R. 40 at 47-48 which is concerned with breach of duty.
6)In Modbury Triangle a majority of the court spoke in terms which suggest rejection of the Zaluzna/Nagle conception of “generalized duty of care” in favour of more precise identification of the risk or harm against which a defendant is required to guard. Gleeson, C.J., with whom Gaudron, J. agreed, said:
“That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty…”[34]
7)Kirby, J. referred to what he had said in Romeo about the importance of identifying the scope of a duty and went on to define the duty in question precisely as one to take reasonable care for the avoidance of foreseeable risks of injury arising out of the criminal acts of a third party.[35]
8) Hayne, J., with whom Gaudron, J. also agreed, said:
“Noting that the appellant and first respondent could, respectively, be described as the occupier of land and an entrant upon that land does not wholly resolve the duty of care issue. There can be no dispute that an occupier of land owes some duty of care to those who enter it. But detecting that the parties stood in a relationship where one owed some duty of care to the other by no means exhausts the first in the traditional trilogy of issues in an action for damages for negligence: duty, breach and damage. The relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes.”[36]
9)Callinan, J. approached the matter on the basis that a different rule applies to the control of actions or conduct of third persons than applies to the duty of a public authority to guard against other sorts of risks.[37]
[34](2000) 205 C.L.R. 254 at 263 [17], per Gleeson, C.J. and at 270 [42] per Gaudron, J.
[35]ibid. at 274 [59] and at 276 [65].
[36]ibid. at 289 [102] and at 270 [42] per Gaudron, J.
[37]ibid. at 299 [139] and [140].
Be that as it may, the case against the Council appears to be clear. To begin with, it comes within a factual category where duties of care have been held to arise. As Hayne, J. put it in Romeo:
“It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land. It is the management of the land by the authority which provides the necessary relationship of proximity between the authority and members of the public.”[38]
[38](1998) 192 C.L.R. 431 at 487 [152]; see too Brodie v Singleton Shire Council (2001) 206 CLR 512 at 576[147].
In the second place, there were aspects of the total relationship between the Council and Mr Ballerini or the class of persons of which he was a member which made it reasonable that the Council should be under a duty to take reasonable care to guard him against foreseeable risk of injury which existed[39]. The development and encouragement of the use of facilities under an authority’s management and control have long been recognised as important aspects of the relationship between the authority and members of the public who make use of them. Examination of the precedent cases reveals that it accords with principle and policy that such an authority be bound to take reasonable care to guard entrants against foreseeable risk. Shirt and Nagle are both examples. In Nagle the majority said:
“... In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with activity so encouraged.”[40]
[39]cf. Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19 at [24].
[40](1993) 177 C.L.R. 423 at 430.
In the third place, it makes no difference in the circumstances of this case whether the relevant duty is to be defined in the broad terms of the Zaluzna/Nagle approach, as one to take reasonable care to guard against the foreseeable risk of injury which existed, or in the more precisely defined terms of the Aiken test, of a duty to prevent injury through dangers arising from the state or condition of the premises which are not apparent. I have referred already to the nature of the park and the significance of the swimming hole and log as features of the park. I add that the park was established by the Council in 1970 and thereafter maintained by the Council as an attractive recreational facility. It was immediately adjacent to what appears to have been the centre of Barooga, directly across the street from the hotel and police station and houses. Throughout the whole period of its operation the park and the swimming hole had been used by the community with the knowledge and tacit encouragement of the Council as the sole swimming facility in Barooga. For the whole time the log had stood at the edge of swimming hole and been used by countless children for diving and jumping into the swimming hole without incident. In effect the log was a diving platform for diving from the park into a swimming hole which was a feature of the park. And until the time of the accident the risk that there was insufficient depth of water below it to dive was not apparent to the children that used it. In the result I consider that the log was so placed, adapted for diving and known to be used for diving that the Council owed to those children using the log for diving a duty no different to that which it would have owed if it had installed the log for the purposes of diving.
The Council contends that if any duty were owed in respect of the log it was owed by the Commission alone. As I follow the argument, it is said that just as a landowner is obliged to abate a nuisance emanating from the landowner’s land, the Commission was obliged to remove the risk of injury resulting from the use of the log on its land, and it could have done that by cutting down so much of the log as passed over the lagoon. I do not accept that contention. If there is any parallel to be drawn between the law of nuisance and the law of negligence, and for present purposes I doubt it,[41] it would work against the Council. Just as a landowner is obliged to abate a known nuisance constituted of roots or boughs emanating from the landowner’s land and affecting the enjoyment of other land,[42] the Council would be obligated to ameliorate the risks of use beyond its land of a log emanating from its land and creating a risk of injury on the other land.
[41]cf. Buckle v Bayswater Road Board (1936) 57 C.L.R. 259 at 280-281; Brodie v Singleton Shire Council (2001) 206 C.L.R. 512 at 566[120]-[126].
[42]Sedleigh–Denfield v O’Callaghan [1940] A.C. 880; Proprietors of Strata Plan No.14198 v Cowell (1989) 24 N.S.W.L.R. 478; Delaware Mansions Ltd. v Westminster City Council Ltd. [2002] 1 A.C. 321.
The Council further contends that the judge was wrong in fact in finding that the Council by its management of Collie Park encouraged Mr Ballerini and others to swim in the swimming hole and to dive from the log into the swimming hole. It says that its management of Collie Park was essentially confined to mowing the grass and keeping the equipment of an enclosed playground in order[43] and that that is very different to the sort of management and control that was exercised over the beach in Nagle v Rottnest Island Authority. According to the Council the sort of management and control which it exercised over Collie Park was no different to that exercised by the Conservation Commission over the road and car park in Romeo v Conservation Commission (NT)[44]. That was not enough for the creation of a duty and the Council submits that the present case is a fortiori because the danger which was found to exist was on adjoining land. The Council says that the judge erred in failing to differentiate between the Council’s statutory functions and its duty to take positive steps to avoid a foreseeable risk of harm to Mr Ballerini when he used the log to dive into the swimming hole.
[43]Reasons for judgment at [62].
[44](1998) 192 C.L.R. 423.
It will be apparent from what I have said already about the Council’s establishment and maintenance of the park that I do not accept that contention. Nor do I accept that the judge confused the Council’s statutory functions with the Council’s duty to guard against the risk of harm from use of the log as a diving point. The basis of his Honour’s decision was the positive finding of fact that the Council:
“… occupied, controlled and managed the area of the log and the park which gave access to that area. It, therefore, controlled entry to the log and to the lagoon via the log. It actively encouraged the use of the park and the log through its landscaping and regular maintenance of the reserve as a recreational park. This made it attractive and encouraged visitors, particularly school children, to gather and swim in the swimming hole and use the log for diving. The way the park, the log and lagoon were presented, and the absence of any warning signs to the contrary, also carried the impression of a facility which might be considered by visitors to be safe and free from hazard, and one the use of which was encouraged. The past safe history would have reinforced this impression for visitors to the facility from the Barooga community.”
The evidence bears that out. Mr McCallum and Mr McCormack gave uncontradicted evidence that the Council maintained the park by trimming branches and watering and mowing the lawns which stretched from the street down to the swimming hole. The photographic evidence, still shots and a DVD, show the park as a formed and maintained recreational facility close to the centre of Barooga. Mr Ballerini, Mr Brooks, Mr Dunn, Ms Ballerini and Mr. Wadeson all gave uncontradicted evidence that it was their own practice and the widespread and longstanding practice of the Barooga community to dive from the log without first checking the water. It was regarded as being so deep as to be without risk. Mr McCallum and Mr Perkins of the Council gave evidence that they knew how the park was used and knew that the log was used for diving into the swimming hole.
The Council contends that even if it owed some duty of care to Mr Ballerini the judge was in error in imposing a duty which extended beyond the central concept of reasonableness.[45] It says that his Honour failed to have regard to:
[45]cf. Swain v Waverley Municipal Council (2005) HCA 4 at [5], per Gleeson, C.J.
1)The fact that the Council did not create the actual danger. The Council contends that Graham Barclay Oysters Pty Ltd v Ryan[46] is authority that a duty of care will not ordinarily be imposed in such a case.
2)The fact that there was no evidence to implicate the Council in the placement of the log in the position it was and accordingly it did not create the access to the place of danger.
3)That the particular danger, if one existed, was the product of a transient act of nature, ie. a flood, which caused the bed of the lagoon to suffer a significant reduction in depth.
4)The fact that the log was not the only entry point into the swimming hole from Collie Park. Entry could be gained from any part of the park by descending the bank, which may have been easier or more difficult depending upon the depth of water in the swimming hole.
5)That there was no evidence that the Council was aware of any previous serious injuries being suffered by users of the log.
6)The fact that the park was an area set aside for passive recreation.
It is convenient to deal with those points in turn.
[46](2002) 211 C.L.R. 540 at 575-576 [81].
Graham Barclay Oysters Pty Ltd v Ryan
In my opinion the Council’s reliance on Graham Barclay Oysters Pty Ltd v Ryan is misplaced. That case was concerned with circumstances in which courts will recognise an affirmative duty of care in a situation that has not yet been recognised by the common law. The point at issue was whether local and state governments were liable for failing to exercise such powers as they may have had to prevent the risk to commercial oyster production of infection from the polluted waters of Wallace Lake. The conclusion was that a public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power of which the exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But as was also made clear in that case, if such an authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care.[47]
[47]Ibid. at [99].
The situation in this case is not one in which the law has yet to recognise an affirmative duty of care. For the reasons already given I consider that the situation here is akin to that in Shirt and Nagle and Saroukas. Nor is this a case in which the Council had not used its powers so as to increase the risk of harm to persons. To the contrary, as the judge found, it used its powers of management and control by constructing and maintaining the park in such a way as to afford ready access to the log and swimming hole, and thereby to cause children to think that the log was suitable for use as a diving platform. This is just the sort of situation where the law has recognised that an authority is under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the park and using the log and swimming hole.[48] As I have also said already, it does not matter whether there was evidence to implicate the Council in the placement of the log. The point is that the Council created and maintained the park with the log emanating from the park, extending over the swimming hole, and so appearing to be suitable for diving and jumping into the swimming hole. It was likely and the judge found it to be the fact that users of the park and in particular children using the park assumed that it was suitable for that purpose and the log was in fact habitually used for that purpose. It is those features which set this case apart from others like Vairy[49] and Tomlinson v Congleton Borough Council[50].
[48]Nagle v Rottnest Island Authority (1992) 177 C.L.R. 423 at 430; The Council of the Shire of Wyong v Shirt and ors (1980) 146 C.L.R. 40 at 48.
[49]Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) N.S.W.C.A. 247.
[50][2004] 1 A.C. 46.
Transient act of nature
The suggestion that the danger of shallow water was the product of a transient act of nature is correct as far as it goes. The judge found that it was the result of a flood which caused the bed of the swimming hole to undergo a significant reduction in depth. It remains however that the risk was found to be one which for the Council was reasonably foreseeable. Based on the evidence of two fluvial geomorphologists, a farmer who had lived all his life in the area, and a surveyor, the judge held that the Council ought to have been aware that there could be significant changes in the depth of the swimming hole in the vicinity of the log and the introduction of hazards because of the alluvial nature of the lagoon and the flow of water through it from time to time and particularly in times of flood.
The Council criticises the judge’s conclusion that the change in depth of the swimming hole was the product of the 1996 flood. It says it is an example of post hoc propter hoc reasoning that was unsupported by the evidence. According to the Council there was no expert evidence as such that the reduction in depth was due to the 1996 flood and, in the absence of that sort of evidence, there was no saying that the reduction in depth may not have occurred at any time after the end of the previous summer and as a result of no more than ordinary river flow and alluvial deposition and erosion. In that event, it is said, the risk which eventuated was an obvious risk which Mr Ballerini should have been able to foresee just as well as the Council, and thus against which the Council had no duty to guard.
I reject the argument. It was plainly open to the judge on the evidence to conclude that the change in depth was the result of the 1996 flood, and I would find on the evidence that the change in depth was the result of the flood. No doubt it could have occurred at some other time during the off-season period. The expert evidence to which I have referred shows it is possible if not probable that the floor of an alluvial river may change constantly with the deposition and scouring of alluvial material. But given that the pool had been very deep for at least twenty five years, that in that period of twenty five years there had been several floods of lesser duration than the 1996 flood, that none of those floods had affected the depth of the swimming hole, and that the 1996 flood was far and away larger and longer than any flood in living memory, it is more likely than not that the 1996 flood caused the change in depth.
In terms of the “fact-value complex” there are also good reasons of “fairness, policy, practicality, proportion, expense and justice” for concluding that the Commission did not owe to Mr Ballerini a specific duty to take reasonable steps to guard against the risk of harm resulting from the use of the log for diving.[80] The Commission had responsibility for a vast area of forest, it could not control entry on to it, it could not be expected to supervise or maintain areas of it in the way in which the Council could be expected to supervise and maintain recreational facilities in the middle of Barooga, and it did not encourage and would not have wished to encourage the use of the Barooga swimming hole for swimming. It did not create the danger to which use of the log gave rise, and while it could have removed the log at negligible cost, the burden of the obligation needs to be assessed in light of the totality of the Commission’s obligations to supervise and exploit literally thousands of hectares of state forests. It is surely not enough to impose a specific duty of care on the Commission to guard against the risks of diving into a length of river under the Commission’s management and control that a person might make use of one of the thousands of logs that overhang that length of river. In my opinion it is also not enough to impose such a duty on the Commission in respect of a particular log that the log may emanate from a point of particular development (not under the Commission’s management and control) such as the many parks, camping grounds and caravan parks that are dotted along the river. From the Commission’s frame of reference, and judged by reference to its charter, each such area is of no more significance that any other along the thousand kilometres of river in which it has an interest, and although a particular development may make it more foreseeable that harm will be suffered at that point, foreseeability is not sufficient basis for the imposition of a duty of care.[81]
[80]Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431 at 488 [157], per Hayne, J.
[81]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 C.L.R. 540 at 555[9]; Secretary, Department of Natural Resources v Harper (2000) 1 V.R. 133 at 149 [48].
Finally, there are powerful reasons of policy, practicality, proportion and expense which militate against the imposition of such a duty; not least the expense and redirection of resources away from forest protection and exploitation to risk assessment and prevention which would inevitably have to follow.[82] Reasons of fairness and justice warrant that the duty should be upon the authority whose management and development of facilities under its management and control encourage the use of those facilities by members of the public for purposes to which they appear to be adapted. That is why the Council owed a duty of care. There are no such reasons in the case of the Commission.
[82]Brodie v SingletonSC (2001) 206 C.L.R. 512 at 626[304].
I return to the question of whether Mr O’Brien had knowledge of the fact that children made use of the log for diving into the swimming hole and whether if he did it should make any difference. Mr O’Brien swore that he did not know of the swimming hole or the log in 1996. The judge found that he did. His Honour took the evidence to show that Mr O’Brien had lived at Cobram in the period 1994 to 1995 and in Barooga in the period late 1995 to 1996, that he walked opposite Collie Park approximately once every two weeks for three years and that he had removed two rope swings from the southern bank of the swimming hole. The judge also said that Mr O’Brien had denied any knowledge of Collie Park and its layout and any knowledge of the log, the lagoon and their use, and that in the circumstances he regarded the assertions of lack of knowledge of Collie Park, the log and the swimming hole as false.
The Commission attacks the judge’s conclusion as based upon a misunderstanding of the evidence. It submits that Mr O’Brien did not deny all knowledge of Collie Park - he said that he knew the area but did not know that it was called Collie Park - and it contends that once the judge is shown to have based his finding upon misconception, the finding must be disregarded. It submits that it cannot be assumed that the judge would have come to the same conclusion if not mistaken about Mr O’Brien’s evidence concerning his knowledge of the park, and so it is necessary for this court to consider the evidence afresh. The Commission contends that once the evidence is looked at afresh there is nothing inherently improbable about Mr O’Brien’s assertions that he was not aware of the log and had not seen children diving from the log.
I do not accept that the judge was mistaken about the effect of the evidence. Although his Honour did say that Mr O’Brien denied knowledge of the park and its layout, and in a sense that is contrary to Mr O’Brien’s testimony that he knew the area but not what it was called, Mr O’Brien said in chief that he did not recall visiting the area and that he could not recall seeing the log sticking out of the bank. When asked in cross-examination whether he said that he had “no idea about the existence of Collie Park and its swimming hole” he answered “yes”; when taxed about his knowledge of what was in the area he said that all he knew was that it contained a library and possibly a pumping house; and when asked, he denied that he had while driving over the bridge ever seen people swimming down at Collie Park. In the circumstances I read his Honour’s reference to Mr O’Brien denying “any knowledge of the park and its layout and any knowledge of the log” as a compendious summary of that testimony.
In the result, I see no basis to reject the judge’s conclusion that Mr O’Brien’s denials were not to be accepted or with his Honour’s finding that it was probable that Mr O’Brien had knowledge of those matters. As the judge said, Mr O’Brien had been living and working in the area and passing it regularly by road and over the nearby bridge. As a local it is probable that he would have seen and noticed children swimming and diving into the swimming hole from the log at its edge. The rest of it came down to an assessment of Mr O’Brien’s credit.
That said, I do not consider that Mr O’Brien’s state of knowledge makes any difference to whether the Commission owed a particular duty to Mr Ballerini to take steps to guard against the risks of his use of the log for diving into the swimming hole. At the risk of repetition, mere foreseeability of harm is not a sufficient basis for the imposition of such a duty of care. There must also be such factual similarity with a recognised category of case as to mean that in terms of principle and policy a similar result should be held to apply or there must be attributes of the total relationship which make it reasonable, or perhaps fair just and reasonable, that the authority be under a duty to take reasonable care to guard against the foreseeable risk of injury which existed. In terms of the “fact-value complex”, “questions of fairness, policy, practicality, proportion, expense and justice” must be answered with that result. And for the reasons already given, I do not think that they are.
Contributory negligence
Mr Ballerini attacks the judge’s conclusion that his share of responsibility for his injuries was such as to reduce his entitlement to damages by 30%. He accepts that the judge identified the relevant principles of law but contends that his Honour made errors of principle in allowing himself to be unduly influenced by the decision of the Western Australian Supreme Court in Uzabeaga v Town of Cottesloe[83] and by failing to take into account the relevant “experience” of Mr Ballerini and all of the relevant “circumstances under examination”. Mr Ballerini also contends that the judge failed to consider or attribute sufficient weight to the following facts, findings and evidence:
[83](2004) Aust Torts Reports 81-739; see on appeal to the Supreme Court of Western Australia Court of Appeal [2004] WASCA 57 (31 March 2004); special leave to appeal was refused on 4 February 2005 in Uzabeaga v Town of Cottesloe [2005] HCA Trans 16.
a)that it was the practice of Mr Ballerini, his peers and other members of the community who swam in the swimming hole to dive from the log without first checking the depth of the water and that the practice was regarded as safe and without risk because no-one had ever encountered dangers in so doing;
b)that the Council actively encouraged the use of the park and the log through its landscaping and regular maintenance of the reserve as a recreational park;
c)that the Council presented the log and the swimming hole, in the absence of any warning signs to the contrary, as a facility which might be considered by visitors to be safe and free from hazard; that Mr Ballerini was not aware that the bed of the swimming hole might change;
d)that the safe history of swimming in the swimming hole would have reinforced the impression that the swimming hole was safe and free from hazard;
e) that Mr Ballerini had received no warning or education as to the potential danger of the activity in which he was engaged;
f)that Mr Ballerini and his peers who swam at the swimming hole had never encountered dangers when diving or jumping from the log in the past;
g)that it was common practice for children using the swimming hole to dive and jump from the log.
h) the use of the log and the swimming hole were easily seen from the bridge.
i)the Council knew of the use of the park and the log as a diving platform and a means of entering the water;
j) the Council knew that the swimming hole was one of only two swimming holes associated with towns in the Shire.
I am not persuaded that the judge erred in any of the respects alleged or in his assessment that Mr Ballerini’s responsibility for the injuries which he sustained should be assessed at the level of 30%. His Honour mentioned each of the matters which are referred to and there is no reason to doubt that he took them into account in his conclusion.
As the judge observed after referring to those factors, the risk of very serious injury was great and the measures available to address it were simple and of negligible cost. It followed that primary responsibility rested with the Council. But the fact that the Council was negligent does not mean that Mr Ballerini was not also negligent and for the reasons given by the judge, I think that he was. Mr Ballerini was an intelligent, educated and relatively mature 16 year old young man. He was aware that the area had recently been flooded and he had not swum in the area since long before the flood. As a 16 year old of reasonable intellect and education exercising reasonable care for his own safety, he might properly be expected to consider the question of safety. He could not be expected to have the same foresight, appreciation and assessment of the risk as a mature adult. But at his age and stage in life he could be expected to exercise some degree of caution, even if it were no more than jumping feet first from the log into the water before diving head first into it. In my view his failure to exercise at least that degree of caution was significant and it was blameworthy. Its quantification was dependent to a large extent upon an assessment of Mr Ballerini’s maturity, orientation and perception of risk, and in that respect the judge had the singular advantage of seeing Mr Ballerini at first hand in evidence and throughout the course of the trial. In all the circumstances, I see no reason to disagree with the judge’s assessment of 30% responsibility.[84]
[84]Commissioner of Main Roads v. Jones [2005] HCA 27 at [10] and [54].
Conclusion
For the reasons I have given I would dismiss the Council’s appeal and Mr Ballerini’s cross-appeal, but I would allow the Commission’s appeal.
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