Bowman v Nambucca Shire Council - [2020] NSWSC 1121

Supreme Court

New South Wales

Medium Neutral Citation: Bowman v Nambucca Shire Council [2020] NSWSC 1121
Hearing dates: 19-21 November 2018; 24-25 June 2019
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The defendant is to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

Catchwords:
TORTS – negligence – personal injury – slip and fall on boat ramp – determination of liability – risk of harm – duty of care – precautions taken – whether reasonable person in position of defendant would have taken precautions – s 5B(2) considerations – causation
LOCAL GOVERNMENT – legal proceedings – torts – negligence
TORTS – defences – Civil Liability Act 2002, s 5M – whether recreational activity – obvious risk – warnings – Civil Liability Act 2002, ss 5H, 5F and 5G – contributory negligence

Legislation Cited:
Civil Liability Act 2002 (NSW)

Cases Cited:
Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Angel v Hawkesbury City Council
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7
Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340
Bunnings Group Ltd v Giudice [2018] NSWCA 144
Carey v Lake Macquarie City Council [2007] NSWCA 4
Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780
Collins v Clarence Valley Council [2015] NSWCA 263
Council of the City of Sydney v Bishop [2019] NSWCA 157
Fallas v Mourlas [2006] NSWCA 32
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350
Goode v Angland [2017] NSWCA 311
Jones v Bartlett (2000) 205 CLR 166
Kanwar v Lynch [2020] NSWCA 152
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Letang v Ottawa Electric Ry Co [1926] AC 725
McKenna v Hunter & New England Local Health District [2013] NSWCA 476
McNeilly v Imbree (2007) 47 MVR 536
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Neindorf v Junkovic [2005] HCA 75
Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Randwick City Council v Muzic [2006] NSWCA 66
Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Rootes v Shelton (1967) 116 CLR 383
Sharp v Parramatta City Council [2015] NSWCA 260
Streller v Albury City Council [2013] NSWCA 348
Tame v New South Wales (2002) 211 CLR 317
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320
Waverley Council v Ferreira [2005] NSWCA 418
Waverley Council v Lodge [2001] NSWCA 439
Weber v Greater Hume Shire Council [2018] NSWSC 667
Weber v Greater Hume Shire Council [2019] NSWCA 74
Wyong Shire Council v Shirt (1980) 146 CLR 40

Category: Principal judgment
Parties: Colin Bowman (Plaintiff)
Nambucca Shire Council (Defendant)
Representation:
Counsel:
K Andrews with J Wydell (Plaintiff)
R Sheldon SC with H Chiu (Defendant)
Solicitors:
Slater + Gordon Lawyers (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2017/31232

TABLE OF CONTENTS

INTRODUCTION

THE PARTIES

ISSUES IN DISPUTE

PLEADINGS

THE BOAT RAMP AND SURROUNDS

THE RISK OF SLIPPING AT THE BOAT RAMP

SIGNAGE AT THE BOAT RAMP

THE ACCIDENT

RELEVANT LEGISLATION

STATUTORY DEFENCES UNDER THE CLA

RECREATIONAL ACTIVITY

RISK OF HARM

OBVIOUS RISK

BREACH OF DUTY

CONCLUSION: LIABILITY

SECTION 42 OF THE CLA

CONTRIBUTORY NEGLIGENCE

DAMAGES

OVERALL CONCLUSION

DIRECTIONS

Judgment

INTRODUCTION

HIS HONOUR: By an amended statement of claim filed on 27 August 2018 (“the ASOC”), Mr Colin Bowman (“the plaintiff”) brought negligence proceedings against Nambucca Shire Council (“the defendant”). The proceedings arise from a slip and fall by the plaintiff that occurred on 22 February 2015 on the Scotts Head Marine Boat Ramp (“the boat ramp”) at Forster Beach, Scotts Head (“the accident”). The defendant had the care, control and management of a boat ramp. The boat ramp was constructed with the approval of the defendant.
On Sunday, 22 February 2015, due to the rough seas caused by a cyclone, Forster Beach was closed from 8.30am to 2pm. Later that afternoon, the plaintiff, together with his family, drove to the north-eastern end of Forster Beach to enjoy afternoon tea at a popular picnic spot which adjoined the beach on the headland at Scotts Head (“the headland”). The plaintiff’s son, James Bowman (“James”), was the driver. In addition to the plaintiff, there were two other passengers in the vehicle: Debora Bowman, the plaintiff’s wife at the time of the accident, and James’ then girlfriend. James drove the family down to a picnic spot via an access road which moved in a northerly direction up the headland (“the access road”), which road eventually ended with a wooden staircase continuing north towards the Scotts Head Lookout.
Driving north to the picnic spot, the family drove through two car parks and past the Scotts Head Surf Life Saving Club (“the surf club”) and the boat ramp. The boat ramp was used by members of the public accessing Forster Beach and/or launching boats.

Photograph 1 – Location of the Boat Ramp at Scotts Head

The first car park was situated south of the boat ramp (“the southern car park”). To the east of the access road, on the opposite side of the road to the southern car park, was the surf club. Continuing north up the access road, prior to reaching the second car park (“the northern car park”), the family drove past the boat ramp. The northern and southern car parks were referred to, interchangeably, as the upper and lower, the northern and southern, and the eastern and western. For avoidance of doubt, any reference to the upper, northern or eastern parking concerns the car park to the right of the boat ramp when facing the boat ramp (which shall hereinafter be referred to as “the northern car park”).
On either side of the boat ramp was signage. The signage to the north of the boat ramp entrance was clearly visible and featured the words “WARNING” in large red letters (“the warning sign”). Prior to the accident, the defendant was aware that the boat ramp was slippery due to contamination by moss or other vegetation growth. The defendant erected in the area pictogram and written signs to warn the area was slippery.
Photograph 2 (below) is a picture of the access road leading to the northern car park, with the boat ramp and warning sign visible.

Photograph 2

After passing the boat ramp and the warning sign, James parked the vehicle in the northern car park, adjacent to the picnic area. The picnic area consisted of a grass area, trees and featured tables and benches overlooking the water. The picnic area was bordered by a combination of rocks on the water’s edge (“the rock wall”) and a row of logs marking the border of the northern car park (see pictured below in Photograph 3).

Photograph 3

The family walked from their vehicle, parked in the northern car park, over to a distinctive “whale-shaped” table (“the table”), situated north of the northern car park in the picnic area and overlooking the beach, to enjoy afternoon tea together.
When moving from the table to the boat ramp, which provided access to the beach, there was a worn and well-trodden path, referred to as the dirt track throughout the proceedings, that track proceeded through the picnic area to the boat ramp by passing behind the warning sign (“the dirt track”). The dirt track ended at a rocky area to the north of the boat ramp entrance, where people would climb down. The distance between the table and the boat ramp was around 20 metres.
In Photograph 4 (below), the table is in the foreground, with the northern car park in the background. The northern-end of the access road appears to the left. The dirt track stretches south behind the logs bordering the northern car park.

Photograph 4

A close up of part of the dirt track is pictured below.

Photograph 5

Following afternoon tea, at some stage that afternoon, James stepped in dog faeces and decided to wash his feet in the water. He walked from the table towards the boat ramp. He made his way down to the water via the rocks on the northern side of the boat ramp, which were approximately 2 metres away from the boat ramp, to the water to wash his feet. At the time of his father’s fall, James was at the bottom of the boat ramp, with his feet submerged.
In Photograph 6 (below), the rock wall is pictured extending from the boat ramp, bordering the northern car park and continuing north up the headland into the water. There is all a rock wall bordering the southern park and continuing south towards the beach (see Photograph 7).

Photograph 6 – The rock wall (north)

Photograph 7 – The rock wall (south)

The plaintiff made his way towards his son. He walked from the table along the dirt track, behind the logs bordering the northern car park, and continued south towards the boat ramp. He followed the dirt track, which continued, as mentioned, behind the warning sign, before finally stepping over some rocks to reach the surface of the boat ramp.
As the plaintiff reached the surface of the boat ramp, Mrs Bowman was standing on the grass, within the picnic area, on the northern side of the boat ramp. Both Mrs Bowman and James saw the plaintiff on the surface of the boat ramp from the grass area and water’s edge, respectively. Upon taking a few steps at a walking pace the plaintiff slipped and fell on the boat ramp.
I will return to a more detailed account of the accident later in this judgment.

THE PARTIES

The Plaintiff

The plaintiff was a fisherman and boat owner. He would fish from rocks, the beach and his boat from time to time. As to fishing from his boat, he described the process of launching the boat from the land to the water “[b]y a car and trailer, reversing” down a boat ramp. (I will return to particulars with respect to the plaintiff’s health prior to the accident later in this judgment).
During the hearing, the plaintiff gave evidence that he had used boat ramps at, inter alia, Georges River and La Perouse. Whilst he had visited Scotts Head previously and prior to the accident, he had not used the boat ramp (namely, at Scotts Head) prior to January 2015.
Between 2005 and 2015, the plaintiff rented and/or owned holiday accommodation in South West Rocks. He would stay at that holiday accommodation, with his family, throughout the year. Most visits would result in a day trip to Scotts Head. During re-examination, the plaintiff clarified that “most” amounted to about once a year, on average, prior to the accident.
Prior to the accident, the plaintiff was employed as a “security operations controller for traffic and security, for all security matters and for traffic matters” at Sydney University. He also worked on a casual basis with Southside Security.

The Defendant

The defendant is a local government council within the mid north coast region of New South Wales, Australia. That region consists of the following, inter alia, towns: Allgomerra, Bowraville, Hyland Park, Macksville, Medlow, Nambucca Heads, Scotts Head, Talarm, Wirrimbi and Yarranbella. It may be noted, following the commencement of proceedings, the defendant changed its name to “Nambucca Valley Council” in 2019.

ISSUES IN DISPUTE

The parties did not agree a common set of issues in the proceedings, although the characterisation of responsive sets of issues by the parties given by the defendant, namely, that apart from the plaintiff repeating its case as set out in the pleadings, as summarised below, the difference was essentially one of form.
It might also be noted that the plaintiff identified the two remaining issues in dispute, in the broad, at the outset of the hearing, as follows:

Does the warning sign on the eastern side of the boat ramp, adequately provide warning of the risk of slipping?

At the time of the slip and fall, was the plaintiff engaged in a “recreational activity”?

Putting aside particular factual issues and noting that the parties submissions will be further discussed below, the defendant’s statement of issues as to liability then represents a reasonable starting point.
The defendant’s statement of issues filed on 14 November 2018, as to liability, intersects with the two discrete issues raised by the plaintiff asset out above, in particular, their relevant intersections with the Civil Liability Act 2002 (NSW) (“CLA”). They are extracted below:

What is the scope of any duty of care owed by the defendant to the plaintiff, having regard to the considerations in s 42 of the CLA?

What is the relevant risk of harm for the purposes of s 5B of the CLA?

Was that risk of harm “foreseeable” for the purposes of s 5B(1)(a) of the CLA?

Was that risk of harm “not insignificant” for the purposes of s 5B(1)(b) of the CLA?

What precautions (if any) would a reasonable person in the position of the defendant have taken in response to that risk of harm for a person taking reasonable care for their own safety, having regard to (among other things) the considerations in ss 5B(2), 5C, 5G(1) and 42 of the CLA?

Was the defendant negligent in failing to take any such precautions?

If so, was the negligence a necessary condition of the accident for the purposes of s 5D(1)(a) of the CLA, in that the fall would not have happened had the defendant taken the relevant precaution(s)?

Was the risk of slipping on the boat ramp an “obvious risk” for the purposes of s 5F of the CLA?

If so:

Is there a presumption under s 5G of the CLA that the plaintiff was aware of that risk?

Having been aware of that risk, did the plaintiff voluntarily assume responsibility for that risk by proceeding to cross the boat ramp, such that there is no liability imposed on the defendant?

Does the defendant owe any duty to warn of that risk, given s 5H of the CLA?

Was the plaintiff engaged in a “recreational activity” for the purposes of s 5K of the CLA?

If so:

Was the risk of that activity the subject of a “risk warning” for the purposes of s 5M(3) and (5) of the CLA?

Does the defendant owe any duty of care for that activity, given s 5M(1) of the CLA?

Was the plaintiff guilty of failing to take reasonable care for his own safety?

Similarly, the defendant’s statement of issues as to damages is broadly adequate:

What damage did the plaintiff suffer as a result of his fall?

What (if any) ongoing disability does the plaintiff suffer as a result of his fall?

What reasonable and necessary past and future treatment was/is required for the fall?

What reasonable and necessary gratuitous assistance was/is required for the fall?

Was the plaintiff’s decision to take a redundancy from his job at the University of Sydney caused by any disability attributable to his fall?

To what extent (if at all) has the fall caused a diminution in earning capacity?

To what extent (if at all) has or will any such diminution in earning capacity been productive of economic loss?

PLEADINGS

Duty of Care

The plaintiff pleaded that at all material times the defendant was under a duty to take precautions against the risk of harm (set out below), which was foreseeable, not insignificant and, in the circumstances, a reasonable defendant in the defendant's position would have taken precautions (ASOC at para 13).
The defendant denied para 13 and each particular of the precautions to be taken. Further, in answer to para 13 stated “that the precautions which it took with respect to the ramp including a routine system of cleaning and signage were reasonable and sufficient to satisfy any obligation further to Section 5B(1) of the Civil Liability Act, 2002”.Additionally, with respect to duty, the defendant further pleaded:

18. Further, and/or in the alternative, in the event the Defendant is found to have owed any duty of care to the Plaintiff, which is denied, the Defendant says it was not negligent pursuant to the principles in Section 5B and 5C of the Civil Liability Act, 2002 and if it is found to be have been negligent (which is denied) it relies on the principles set out in Sections 5D and 5E of the Civil Liability Act, 2002.
19. Further and/or in the alternative if the Defendant is found to have owed a prima facie duty of care to the Plaintiff, the Defendant says:
a) If the Plaintiff's accident occurred as alleged (which is denied) the risk of slipping on algae on a wet boat ramp was an obvious risk within the meaning of Section 5F of the Civil Liability Act, 2002;
b) The Plaintiff is presumed to have been aware of this obvious risk further to section 5G of the Civil Liability Act, 2002;
c) It does not owe a duty of care to the Plaintiff to warn of the obvious risk pursuant to section 5H of the Civil Liability Act, 2002;
d) The common law ordinarily expects person to exercise reasonable or sufficient care by looking where they are going and perceiving and avoiding obvious risks or hazards;
e) The risk of slipping on algae, the presence of algae not being admitted, was not concealed or obscured and typical of a boat ramp in a marine environment;
f) In any event, despite the above the Defendant provided a warning of the risk of the area being slippery both way of pictogram and words; and
g) Accordingly it is not liable to the Plaintiff.

Nonetheless and subject to the availability of stator defences, in written submissions, the defendant submitted: “as the occupier of the boat ramp at the time of the accident, the defendant owed a duty of care to the plaintiff. The duty owed by an occupier is to exercise reasonable care so that the premises are safe for pedestrians and other users”. Reference, in that respect, was made to the following authorities: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [24].

Precautions to be taken

The precautions were particularised at para 13 of the ASOC, they are extracted below:

Precautions To Be Taken
i) To ensure that the said boat ramp was cleaned at least once every month.
ii) To ensure that the said boat ramp was built in accordance with the drawings prepared for the construction of the boat ramp which included 25mm x 25mm gaps to prevent the boat ramp being slippery.
iii) To ensure that the boat ramp complied with Australian Standard 1657-1992 in relation to the gradient of the boat ramp.
iv) To warn members of the public using the said boat ramp that it was slippery when wet and/or covered with vegetation such as moss.
v) To close the said boat ramp if there was a risk of injury to persons using the boat ramp.
vi) To ensure that signs were placed in an obvious position which would warn pedestrians using the boat ramp of the risk of slipping on the said boat ramp.
vii) To ensure that appropriate grooves were cut in the said boat ramp to reduce the risk of slipping due to the boat ramp being wet and/or covered in vegetation and/or moss.
viii) To place large rubber mats on the said ramp.
ix) To investigate means of reducing the risk of persons slipping on the said ramp due to moss or algae.

As mentioned above, the defendant denied the above pleading and particulars.

Risk of Harm

The risk of harm was pleaded at para 14A of the ASOC:

14A. The risk of harm comprised the risk of the plaintiff suffering personal injury as a result of slipping and falling on the said boat ramp due to it being contaminated by algae, moss and/or other substances.

The defendant did not admit para 14A. In written submissions, the defendant contended that the relevant risk of harm was “the risk that a pedestrian might slip on the ramp and suffer physical injury”.

Breach of duty

The plaintiff contended that the loss and damage suffered by the plaintiff, as particularised in the Third Statement of Particulars (set out below), was a result of the defendant’s breach of duty.
The following was pleaded at paras 11, 11A and 12 of the ASOC:

11. On and/or about 22 February 2015 the plaintiff was a pedestrian walking across part of the said boat ramp when he slipped and fell as a result of the condition of the said boat ramp.
11A. At all material times the defendant was aware and/or ought to have been aware that the boat ramp would and/or could be used by pedestrian to access the beach.
Particulars
i) Section C of the Better Boating Program - Grant Application Form with a closing date of 29 July 2011.
ii) Section D of the abovementioned document.
iii) Email of 8 May 2012 from Tim Woolnough to Noel Chapman and others under the heading “Summary”.

12. As a result of the plaintiffs slip and fall he suffered injury, loss and damage as is set out in the statement of particulars.

The defendant did not admit paras 11, 11A or 12. Further, the defendant stated that whatever be the reason the plaintiff fell it was not because the boat ramp was slippery in or about the location of where the plaintiff alleged he slipped and fell.
The breach of duty was particularised at para 14 of the ASOC, extracted below:

Particulars of Breach of Duty of Care
i) Allowing signs to be obscured by trees.
ii) Failure to place appropriate warning signs warning of the risk of slipping on the said boat ramp.
iii) Failure to close the boat ramp after advice of Noel Chapman, manager of civil works of the defendant on 6 February 2013.
iv) Failure to rectify the said boat ramp after a report from Joanne Hudson to the defendant of a slip and fall which occurred on 6 February 2013.
v) Failure to seek expert opinion as to means of preventing the boat ramp from being slippery after reports of slip and falls on the boat ramp in 2013 and following thereafter.
vi) Failure to rectify the boat ramp after reports of injuries occurring from persons slipping on the said boat ramp which were reported by the Scotts Head Beach Surf Lifesaving Association and/or club members.
vii) Failure to cut appropriate grooves in the said boat ramp.
viii) Failure to regularly pressure clean the said boat ramp.
ix) Failure to regularly inspect the said boat ramp and arrange immediate cleaning if it was contaminated by vegetation or other materials that would cause it to become slippery.
x) Failure to carry out rectification of the slip hazard following advice of the hazard on 6 February 2013 by the general manager of Nambucca Shire Council.
xi) Failure to rectify the risk of slipping and falling on the ramp after an email dated 24 January 2014 from Michael Coulter to Ken Fowler.
xii) Failure to ensure that the boat ramp had a slip resistant surface.
xiii) Failure to comply with Australian Standard 1657-1992 in that the boat ramp exceeded a 1 in 8 gradient.
xiv) Failure to ensure that the boat ramp was constructed in accordance with the drawings with 25mm x 25mm gaps and if it wasn't so constructed arranging for such gaps to be placed within the boat ramp and/or to alter the boat ramp accordingly.
xv) Failure to place large rubber mats on the said ramp.
xvi) Failure to investigate means of reducing the risk of persons slipping on the said ramp due to moss or algae.

In answer to the plaintiff’s pleading, with respect the alleged breach of duty, the defendant denied the allegations of breach of duty of care pleaded at para 14.

Further Defences under the CLA

In answer to the whole of the ASOC, and without limiting its defence, the defendant it relies upon s 42 of the CLA and says it is a public authority limited in its functions by financial and other resources available to it for the purposes of exercising its functions.
Further, in answer to the whole of the ASOC, at para 20, the defendant said:

a) that the time of his alleged accident the Plaintiff was engaged in a recreational activity within the meaning of Section 5K of the Civil Liability Act, 2002;
b) the recreational activity involved in it a risk;
c) the risk was the subject of a warning within the meaning of Section 5M of the Civil Liability Act, 2002; and
d) in the circumstances the Defendant owed no duty of care to the Plaintiff.

Loss and Damage

The loss and damage suffered by the plaintiff, pleaded at para 12 of the ASOC, was set out in the Third Statement of Particulars.
The Third Statement of Particulars sets out particulars of “injuries received” and “continuing disabilities”, as follows:

PARTICULARS OF INJURIES RECEIVED
1. Head injury.
2. Brain injury.
3. Injury to the lumbar/thoracic spine.
4. Injury to the elbow.
5. Injury to the ribs.
6. Injury to the hearing.
7. Obstructive Sleep Apnoea.
8. Significant Anxiety.
9. Sleep Anxiety.
PARTICULARS OF CONTINUING DISABILITIES
1. Traumatic brain injury.
2. Reduced cognitive ability.
3. Concussion.
4. Post-traumatic amnesia.
5. Reduced recollection.
6. Reduced memory.
7. Reduced hearing.
8. Hiccups.
9. Sleeplessness.
10. Mood swings.
11. Headaches.
12. Pain and discomfort in the lumbar/thoracic spine.
13. Restriction of movement of the lumbar/thoracic spine.
14. Pain and discomfort in the elbow.
15. Restriction of movement of the elbow.
16. Pain and discomfort in the ribs.
17. Reduced ability to engage in social and/or recreational activities.
18. Reduced ability to perform work related activities.
19. Reduced ability to perform domestic activities.
20. Fatigue
21. Frustration, anxiety and the risk of further injury due to fatigue.
22. Sleep apnoea.
23. Cognitive dysfunction.
24. Difficulty in planning and organisation
25. Panic attacks.
26. Constructional Apraxia.
27. Impaired spelling
28. Visual Aura.
29. Mood disturbance.
30. Anger Bouts.
31. Severely impaired spontaneous incidental recall of complex visual information
32. Forgetfulness.
33. Difficulty concentrating.
34. Lack of motivation.
35. Frustration.
36. Behavioural changes.
37. Irritability.
38. Need for medication.
39. Need for further treatment.
40. Frustration and emotional distress related to his functional restrictions.
41. Reduced Energy
42. Restless Leg Syndrome.
43. Loss of interest in activities.
44. Reduced capacity to find pleasure in activities
45. Loss of confidence in decision-making.
46. Difficulty standing for extended periods of time.
47. Family Disruption.

By that same statement of particulars, the following was also included:

a partial particularisation of “out-of-pocket expenses” was included with a notation that “full particulars” would be provided in due course;

particulars of future out of pocket expenses were listed, with a notation that a claim would be made for those items in accordance with the medical evidence that will be served;

particulars of claim for domestic assistance or attendant care;

particulars of loss of income;

particulars of loss of earning capacity and future economic loss; and

superannuation, it was noted that the plaintiff would claim a loss of superannuation on both past and future economic loss at statutory rates.

Relief

The plaintiff claims damages, interest and costs (see para 15 of the ASOC).
As to the relief claimed by the plaintiff, the defendant provided the following answer:

22. Denies the Plaintiff is entitled to the relief sought or any relief at all sought in paragraph 15.
23. Further, says if the Plaintiff is entitled to an award of damages (which is denied) then those damages ought to be calculated in accordance with the Civil Liability Act, 2002.
24. Says if the Plaintiff suffered injury, loss and damages (which is not admitted) then section 16 of the Civil Liability Act, 2002 operates to affect the amount that may be awarded to the Plaintiff as damages for non economic loss.
25. Further, and in the alternative, if the Plaintiff suffered injury, loss or damage (which is not admitted) says such injury, loss and damage was caused or contributed to by the negligence of the Plaintiff and the Defendant relies upon Sections 5R and 58 of the Civil Liability Act, 2002.
Particulars
a) Walking along the ramp without taking care in the circumstances.
b) Walking along the ramp in the water thereby being unable to see what he was walking upon
c) Failing to avoid an obvious risk
d) Failing to take not of the warning signs present
e) Failing to take reasonable care in the circumstances.
f) Wearing unsuitable footwear
g) Failing to keep any proper or adequate look out for his own safety.
h) Failing to test the area where he is alleged to have slipped with is foot before he moved onto it.
i) Failing to have regard to the marine environment in which he was walking.

Before turning specifically to the issues in the proceedings, it is appropriate to traverse a series of controversies, largely factual in nature, raised in the submissions of the parties. Expressed broadly, those topics concern the following subjects or, more particularly, subsidiary subjects:

the location, dimensions and features of the boat ramp;

the risk of slipping at the boat ramp;

the signage at the boat ramp; and

the nature of the risk.

THE BOAT RAMP AND SURROUNDS

Location of the Boat Ramp

The boat ramp commences at the north-eastern end of Forster Beach (also referred to, interchangeably, as “Scotts Head Beach” throughout submissions). The boat ramp is within a reserve area that includes a bitumen sealed road (the access road), car parking spaces overlooking Forster Beach (namely, the northern and southern car parks), picnic facilities and the beach. The boat ramp extends generally westwards down to the water’s edge. The entrance to the boat ramp is at its eastern end, where it joins an access road. A photograph of a portion of the boat ramp with the photograph facing east is found in Photograph 8.

Photograph 8 – The Boat Ramp (facing east)

The northern and southern car parks are depicted pictorially below. Photograph 9 is the view of the northern car park from the northern end of the access road, looking south towards the boat ramp. Photograph 10 is the view of the southern car park from the boat ramp, looking south-east, with the surf club in the background.

Photograph 9 – northern car park

Photograph 10 – southern car park

As mentioned, the surf club is also located to the south-eastern side of the boat ramp, as is Scotts Head Reserve. It may be noted the surf club was not operated seven days a week. It was operated on weekends from October until late April.
On the northern side of the ramp there is a rock wall forming the coastline. On the south-western side of the ramp is Forster Beach. A map showing the geographic location of the boat ramp was before the Court and appears at the outset of this judgment.

Refurbishment of the Boat Ramp

In 2012, three years prior to the accident, the boat ramp was refurbished by the defendant. Before turning to the dimensions and features of the boat ramp at the time of the accident, in light of the course of argument pursued by the parties, it is useful to set out the background with respect to the refurbishment of the boat ramp. Throughout this section reference will be made to “the old ramp” and “the new ramp” in order to distinguish between the pre- and post-refurbished status of the boat ramp, respectively.

Better Boating Program Grant Application Form

In 2011, the defendant applied to the NSW Government for funding under the “Better Boating Program” (“BBP”). The application form was entitled “Better Boating Program Application Form” (hereinafter, “the BBP application form”). The program concerned the provision of financial assistance for the provision of waterway infrastructure on New South Wales waterways. By the application form, the defendant sought financial assistance for the refurbishment of the boat ramp.

Management of the Project

Section B of the application form set out the details of the project manager. The project manager for the project was Stephen Fowler, a structural/civil engineer and employee of the defendant. Stephen Fowler was not called to give evidence. (He may be distinguished from Mr Kenneth Fowler, a Risk Safety Officer with the defendant who did give evidence).

Project Details

Section C of the application form set out the “Project Details”. The project name was described as “Scotts Head Boat Ramp”. Under the heading “Project Description”, the defendant provided the following description:

The existing Scotts Head boat ramp/access point is a severely degraded concrete ramp extending from the level of the car park down 14m towards the beach. In summer, the sand in this area is scoured out, often leaving a drop of 30-50cm to the rocks and sand below. The proposed project will construct a boat ramp that is useable in all tide and sand conditions by creating a wider and longer concrete ramp, enabling boats to launch at high tide on one side or at low tide at the end of the ramp… The end of the boat ramp will be designed so sand is trapped below the concrete pad and not washed out, as currently happens. The project includes the removal of some of the existing concrete, plus the construction of a rock spillway on the southern end of the stormwater outlet to attenuate wave action at that point, which will help protect the sand deposited in that area. The proposed work will include filling in an existing dip where the ramp meets the car park so that the ramp is a smooth decline to the water.
[Emphasis added.]

Under the heading, “Consultation” appeared the following question and answer:

What consultation has been undertaken on the need and appropriateness of the project with the people/groups most likely to be affected and what views have been received? (eg. Local Council, Boat Owners Association, Estuary Management Committee, Aboriginal Land Council, disability groups or others)
The project has been discussed with representatives of the Scott Head Fishing Club, the Macksville Scotts Head Surf Life Saving Club (which is located approximately 20m from the ramp) and the Nambucca Heads Offshore Fishing Club. Opinions have also been sought from individual boat ramp users on two recent site visits where possible options were discussed. In all instances, the current inadequacy of the boat ramp was highlighted, and the need for a better all-conditions boat ramp was agreed to be important. Another issue that was brought up which is related to the boat ramp, is that of pedestrian access to the beach. As recent wave action has demolished the only wooden walkway down to the beach at this location, the boat ramp had been the only access to the beach for pedestrians, and the 30-50 cm drop onto rocks has meant that any disabled or frail walkers could not get to the beach. The new boat ramp is expected to provide better access for all users, not just boats.
[Emphasis added.]

Evaluation Criteria

Section D was entitled “Evaluation Criteria” and required a response by the defendant with respect to seven categories of evaluation, outlined below:

A Lasting Nature: “Demonstrate that the project involves infrastructure works of a lasting nature, which will improve the amenity on the New South Wales waterways for a significant period of time”.

Benefits: “Applications must clearly demonstrate that the project infrastructure is available to be used by a broad cross-section of the boating public and marine sector, with unrestricted public access and its use is free of charge … The specific benefits to users and the broader community must be identified”.

Completion Date: “Demonstrate that the project will commence within six months of the announcement of the funding grant and be completed within 18 months of this date”.

Good Management: Application must provide evidence of, inter alia, realistic budgeting, a well-defined project scope and work plan, and support in writing from project stakeholders, including the owner of the site, the Local Council and the organisation who will be providing ongoing management of the facility.

Non-BBP Project Funding: Provide evidence of matching funding for the project.

Ongoing Operation/Maintenance Costs: “Demonstrate that where required, adequate ongoing operation/maintenance costs for the infrastructure works will be raised or made available”.

Desirable Criteria: Administrative arrangements, community support, environmental benefit and socioeconomic benefits.

As to the “lasting nature” of the project, the defendant provided the following response:

The boat ramp will be constructed to provide boat launching facilities for all-season conditions. The ramp will be poured concrete, using high-strength concrete, rated for marine conditions, and will be reinforced with either galvanised iron or stainless steel. This method of construction is simple and straightforward, and will require little maintenance over time. The lifespan of the new ramp would be at least 10 years. The ramp has also been designed to provide non-boating beach users with safe and easy access to the beach, removing the sharp drop off onto rocks which occurs with the current ramp; this is particularly important for disabled users.
[Emphasis added.]

The section addressing “benefits” listed five benefits, as follows:

The boat ramp “will enable safer access to the ocean at the only point within 30km to the north (Nambucca) and 20km to the south (Stuarts Point)”.

The boat ramp “is located on a public reserve and is open to all members of the public with no charges incurred for use of the ramp”.

The “new boat ramp will make the spot able to be used by more people because the current ramp requires quite good trailering and launching skills to navigate the small space and to take the trailer over the lip of concrete and down to the sand”.

The boat ramp “will also be used by non-boating beach users to gain access to the beach as recent wave action has destroyed the wooden walkway to the beach, and continual beach erosion at that point means that a replacement will not be possible for some time”.

The defendant will continue to maintain the boat ramp and the defendant’s policy is “for free access to facilities across the Shire”.

The section on ongoing operation/maintenance costs stated:

Once completed, the new Scotts Head boat ramp will be incorporated into the Nambucca Shire Council’s ongoing works program, with maintenance costs determined on a yearly budget cycle and works carried out as required. Due to the nature of the construction, there are expected to be few costs associated with maintenance, and of these costs are likely to be minimal.
[Emphasis added.]

Under the heading “Desirable Criteria”, the project was described as having “a high level of community support” (based upon on-site interviews with boat ramp users), including from the Macksville Scotts Head Surf Life Saving Club and “two local fishing clubs”. All three clubs provided letters of support.

Project Costs and Funding

Section E set out the cost breakdown of “the major project elements”. The following details were included on the application form:

Provide a cost breakdown of the major project elements

Cost ($) Per Element (GST exclusive costs)

Materials

$32,620

Labour and equipment hire

$50,395

Project management

$12,452

The total project costs were $95,467. The defendant had already committed to funding $47,734 of the project. By the application form, the defendant applied for a “BBP funding grant” of $47,733.

BBP Grant and Conditions

By a letter dated 9 January 2012, the Minister for Roads and Ports offered a grant of $47,733, being half the costs of the project. The Hon Duncan Gay MLC stated:

The NSW Government is pleased to offer Nambucca Shire Council a grant totalling $47,733 for the development of boating infrastructure in Nambucca.
This amount consist of the following project:
1) $47,733 towards the Scotts Head Boat Ramp Reconstruction.
A letter of offer, which includes the grant conditions and details of funding, will be issued to the council’s General Manager by Roads and Maritime Services.

On 16 January 2012, the Roads & Maritime Services (“RMS”) confirmed that the grant was subject to certain conditions. Those conditions are extracted below:

1. Council is required to obtain engineering certification of the concrete boat ramp on the sand, to ensure the ramp is stable with appropriate allowance for erosion.
2. Substantial progress on the project is demonstrated by September 2012 otherwise the BBP reserves the right to withdraw funding or consider offering the above funding amount to another BBP project applicant.
3. Ensuring detailed drawings of the proposed Project are submitted to the BBP for concurrence (if not already submitted) prior to any work being undertaken.
4. Council must inform the BBP prior to commencement of construction and liaise with BBP staff at least 3 weeks before completion of the project to install appropriate recognition signage. Signage options are attached.

The BBP grant of funding was accepted by Mr Michael Coulter, General Manager of the defendant, as an authorised representative of the defendant.
On 8 May 2012, Mr Tim Woolnough, A/Project Officer, BBP, sent an email to Mr Noel Chapman, Manager Civil Works for the defendant and Ms Coleen Henry, Grants Officer for the defendant.
The subject of the email was “Scotts Head Boat Ramp Reconstruction – Maritime Feedback” and followed Mr Woolnought’s review of the plans for the boat ramp and a consultation with the local Boating Safety Officer. He provided the following feedback:

• The ramp is vulnerable and requires robust engineering to prevent undermining and exposure to surf conditions. I note that the new ramp is to be over existing ramp so it should be on a solid foundation and the grade and addition of the extra sections of ramp should assist.
• Engineering certification of the concrete ramp needs to be provided, to ensure the ramp is stable with appropriate allowance for erosion.
• Manoeuvring in the car park proper could still be an issue, however could be overcomes [sic] with a code of practice for launching.
•The Maritime signage is outdated and the local Maritime Boating Safety Officer will be able to work with Council on some suitable signage encased in one frame or on a single signage board (keeping in mind there is also a requirement for recognition signage at the location before the grant funds can be paid).

Under the heading “Summary”, Mr Woolnought made the following further observations:

A new improved ramp should increase usage and could potentially create safety issues for beachgoers and the general public. Without seeing the engineering detail this will need to be addressed – as previously suggested a pedestrian, trailer/vehicle management plan is needed.
The local BSOA has advised that there has been some opposition to boating from the current Scotts Head Ramp by the Three Valleys Branch of National Parks Association. Several letters have been forwarded to Maritime requesting the ramp be shut down, although none of late. I understand there has been conflict between vessel operators and swimmers/surfers, so I suggest a need to make sure that the design takes into account the safety of all users and stakeholders.
I note that NSC signage has changed from the attached photograph (the former yellow sign had a restriction of between 8am – 5pm for authorised vehicles only). I am unsure of the current restrictions.
…

The Engineering Plan

The structural engineering plan for the new ramp was prepared by Dennis Partners (“the engineering plan”). The engineering plan shows that the new ramp was to comprise of several concrete slabs. The three primary slabs were identified as follows:

parking/entry slab (“the eastern slab”).

existing slab; and

boat launching ramp (“the western slab”);

I now turn to a summary of the features of each slab.

The eastern slab

On the eastern and southern sides of the boat ramp, nearest to the entrance to the boat ramp from the access road and the southern car park area was to be a 160mm thick concrete slab. This slab was described on the plan as “parking/entry”. The section of the engineering plan relating to this slab shows that its surface was not to have grooves.
For a much shorter distance, the eastern slab also extends south-westerly. The beach then continues towards the south-west. This section of the boat ramp was described by Mr Warwick Kiernan, engineer, as “the southern leg”.
Occasionally during the course of the proceedings the parties referred to the eastern slab or, more particularly, the southern leg, as the south eastern slab or south eastern extension. These concepts should be treated as being coextensive.

The existing slab

At about the middle of the boat ramp was a retained concrete slab from the old ramp, described as “existing slab”. The plan did not provide for any changes to this slab.

The western slab

At the western end extending towards the water line there was to be a 200mm thick concrete slab with 25mm x 25mm grooves (which were also described interchangeably, throughout the proceedings, as “gaps”) cut into the surface, 100mm apart. This slab was described on the plan as “boat launching ramp”. The section and surface finish detail for this part of the ramp shows that the grooves were to be cut horizontally as one goes north towards the water line.
It is uncontroversial that these grooves were not present at the completion of the construction of the boat ramp or at the time of the accident. In answer to that issue, the defendant stated the grooves were to promote vehicle grip in the use of the boat ramp by vehicles and are irrelevant to pedestrian access (and, it follows, as a precaution against the risk of slipping). I will return to this consideration, below, in the context of causation vis-à-vis precautions to be taken by the defendant.

Dimensions of the Boat Ramp

The overall dimensions of the boat ramp were approximately 26 metres from the access road to the end of the western slab and approximately 21 metres from the rock wall on the northern edge to sand covering the concrete to the south.

Slope and Gradient of the Boat Ramp

Mr Kiernan produced a report with respect to the proceedings. The report was entitled: “Colin Bowman: Investigation of a Slip and Fall Incident on a Boat Ramp at Forster Beach Scotts Head, NSW”, dated 18 February 2016 (“the investigation report”). The following summary is based upon the evidence of Mr Kiernan, an expert witness in these proceedings.
The dimensions and the slope towards the water of each concrete slab were variable. They were distinguished by Mr Kiernan as follows:

The slopes near the access road were a “moderate” 7%. It may be noted that Mr Kiernan did not consistently distinguish between eastern, existing and western slabs, but rather, “upper levels” and “lower levels” of the boat ramp. As to the “upper levels” near the access road, Mr Kiernan described the slopes as “moderate”.

The slopes on the southern leg were between 9% and 10%.

The slopes on the western slab were between 10% and 16%.

The slopes between the southern and western legs had “a very steep gradient of 17%”.

Based on Australian Standards AS 1657-1992 and RMS Boating Guidelines, the maximum gradient for pedestrian surfaces is 1 in 8 (12.5%). In light of that criterion, Mr Kiernan observed, “some ramp slabs exceed the maximum pedestrian gradient for pedestrian surfaces”.
The plaintiff contended that the gradient of the boat ramp is relevant to causation, namely, the defendant had a duty of care to take precautions to reduce the risk of slipping and falling, which included, inter alia, “to ensure that the boat ramp complied with Australian Standard AS 1657-1992”.
As to the gradient of the slopes at the location of the plaintiff’s fall, Mr Kiernan opined:

The most westerly slab on the ramp, where the slip occurred, was exposed at 2.30pm, (tide level 0.31 metres), and was covered with a thin layer of sand. The gradient of this slab was 14.7%.

It may be noted that opinion is based upon a presumption that the location of the plaintiff’s slip occurred on the western slab. In light of that opinion, the plaintiff contended that the boat ramp exceeded a 1 in 8 gradient, in contravention with that standard. I will return to that argument under the heading “Location of the Plaintiff’s Fall” but I do not find that the defendant slipped at that location.
As mentioned above, in his report, Mr Kiernan referred to the eastern and western levels of the boat ramp as the “upper” and “lower” levels, respectively. There was a distinction between the eastern (higher) and western (lower) levels of the boat ramp, separated by the existing slab. The distinction between the two levels of the ramp is evident by the colour change between the two slabs, visible in Photograph 8 above.
The colour change reflects the different concrete surface colour of the new 160mm “upper” concrete slab which is brighter on the photograph (the eastern slab), and the older retained concrete slab from the previous ramp (the existing slab). According to Mr Kiernan, the part of the ramp that was retained as well as a south eastern extension in the reconstruction was obvious from the surface when he inspected it after the accident. During cross-examination, Photograph 8 was shown to Mr Kiernan. The expert accepted:

“the portion which is closest to the camera represents the old slab”; and

“the portion which is furthest away is new material”.

He also accepted, on the basis of the engineering plan, the “new material” would be 160 millimetres thick.
Mr Kiernan gave evidence as to the following matters, which are uncontroversial:

The western level has a 200mm thick slab because it is expected to have high loads for launching boats and also because it was to be subject to wave action and inundation.

The eastern level, being 160mm thick, would not permit grooves to be cut into it without weakening the concrete slabs.

The eastern level is exposed to less effect from the sea; and would be covered by sea water only from time to time, and not for long.

It was an acceptable means of reconstructing that eastern level without grooves.

The slopes measured on site were a moderate 7% near the access road, where this eastern level was located.

It is appropriate to have a different engineering regime in respect of the eastern and western levels of the ramp.

Surface of the Boat Ramp

The boat ramp from time to time was covered by seawater to varying depths for varying periods of time. In consequence, it was subjected to the growth of marine life on its surface. The following summary as to the surface of boat ramp is also derived from the evidence of Mr Kiernan.
Mr Kiernan opined: “[t]he surface finish of the concrete slabs was inconsistent”. During cross-examination, the expert explained what he meant by “inconsistent”:

I would have expected a - a more slip resistance surface, and I found that looking at various parts of the ramp, you had varying slip resistance. In other words, you had some smooth areas, and you had some rough finish areas.

The “upper levels” of the boat ramp have a “safe dry slip resistant surface”. As mentioned earlier, it is not controversial that the eastern slab is considered an upper level of the boat ramp. Upon observing the site, Mr Kiernan opined that it “would not be inundated by the tidal waters, as often as the lower [western] levels of the ramp”. Turning to the western level, the “end slab” had a “green stained surface” (see Photograph 11, below). This indicated that the area was “constantly inundated and subject to marine growth”.

Evidence as to Pedestrian Access at the Boat Ramp

The elements of the design and construction of the boat ramp that suggest that pedestrian access vis-à-vis the boat ramp was directed from the eastern slab of the boat ramp in a southern direction were as follows:

The gradient of the eastern slab was between 7-10%, which is well within the maximum gradient for pedestrian surfaces (namely, 12.5%).

The eastern slab had a “safe dry slip resistant surface”.

The eastern slab had a thickness of 160mm, which was less than that of the western slab. The western slab required a thicker layer of concrete as it was to carry heavier loads for the purpose of boat launching and subject to greater inundation of water.

Mr Kiernan’s Evidence

As earlier mentioned, Mr Kiernan inspected the site on 8 February 2016. Following his inspection, Mr Kiernan observed that following differences between the engineering plan and the boat ramp as constructed:

• Additional concrete slabs constructed between the proposed westerly and southerly extensions to the existing boat ramp that had some steep sections in excess of the safe pedestrian surface with a maximum slope of 12.5%.
• Grooving of the concrete slabs was not carried out which improves slip resistance in wet conditions and visually warns persons using the ramp for boat launching or walking down to enter the water for swimming, that caution is required.

Following his observation as the steep sections between the southern leg and western slab and the absence of grooving, Mr Kiernan turned to pedestrian access. He opined:

The boat ramp design did not take into account that pedestrians use the ramp as a short cut to enter the water for swimming and to access the beach to the south of the ramp. This pedestrian ramp usage is possibly greater than that of boat launching persons. While I was on site (a Monday with variable weather conditions), there was only one boat that used the ramp compared to about 20 people who walked down the ramp to access the beach or the water.

In the inspection report, particular attention was placed upon the western slab and pedestrian access at that point. He observed:

At the time of the inspection the ramp was clean and only the westernmost slab had a green stained surface when the sand was partially removed, indicating this lower area is subject to marine growth. This slab with the sand partially removed is shown in Photograph 3.
[Photograph 3]
During the time I was at the site (about 3 hours), I saw several people walk down the ramp to enter the water for a swim. The parking areas beside the boat ramp are a convenient location to park and swim. Thus apart from people launching boats, there is a demand for pedestrian access to the water at this location.
Information provided by Council recorded that people were using the ramp as access to the water and the beach to the south. Since the incident, pedestrian crossing markings have been placed on the concrete ramp directing pedestrians to walk adjoining the rock edge on the southern side where the gradient is moderate and the ramp is subject to less inundation by seawater. The pedestrian crossing markings are shown in Photograph 1. The pedestrian crossing markings were not used by persons walking down the ramp.

Mr Kiernan captioned “Photograph 3”: “northerly view of the westernmost concrete slab near where Colin Bowman slipped”. That photograph is extracted below. However, as earlier found, that is not the location of the plaintiff’s slip and fall.

Photograph 11 – “Photograph 3” from the inspection report

The scope of Mr Kiernan’s report did not extend to whether the slabs that “exceed[ed] the maximum gradient” were, in fact, “pedestrian surfaces”.
In summary, Mr Kiernan’s evidence, as to pedestrian usage of the boat ramp, was as follows:

Information provided by defendant “recorded that people were using the ramp as access to the water and the beach to the south”. However, further precision as to the route was not included.

Since the accident, “pedestrian crossing markings have been placed on the concrete ramp directing pedestrians to walk adjoining the rock edge on the southern side where the gradient is moderate and the ramp is subject to less inundation by seawater”.

On the day of his inspection of the site, Mr Kiernan observed that “[t]he pedestrian crossing markings were not used by persons walking down the ramp”. He also observed “several people walk down the ramp to enter the water for a swim”. As that second observation was made in the context of a discussion about the western slab, which included a photograph of the same, it may be inferred that Mr Kiernan was referring to a westerly route down the boat ramp.

Following his observation as to “additional concrete slabs” between the “westerly and southerly extensions”, with a gradient of 12.5%, Mr Kiernan’s observed: “The boat ramp design did not take into account that pedestrians use the ramp as a short cut to enter the water for swimming and to access the beach to the south of the ramp”. The short cut being referred to appears to concern pedestrians traveling in a southerly direction towards the beach (and vice versa) in order to enter and exit the water or access the beach. His criticism of that design is based upon that fact that if pedestrians were to take such a short cut, it would appear from his evidence, at or above the intersection of the existing slab and the western slab, they would, in part, be traversing a gradient of 12.5% - well above the maximum Australian Standard.

Mr Fowler and Mr Coulter’s Evidence

Mr Fowler, Risk and Safety Officer of the defendant, gave evidence that the boat ramp served a dual purpose, namely, to launch boats and provide vehicle access for four wheel drives to the beach. During cross-examination, he gave evidence that he was not aware that “pedestrian access” was an intended purpose of the boat ramp. That evidence is extracted below:

Q. You're also aware that the ramp was constructed for pedestrian access, weren't you?
A. No, I wasn't told that.
Q. Has anyone ever told you that it was there for the purpose of pedestrian access?
A. No.

That evidence needs to be considered in the context of the following:

As Risk and Safety Officer, Mr Fowler conducted regular inspections of the eight public boat ramps within the defendant’s area. During cross-examination, he stated:

Every time there's a public liability complaint, or could potentially be a public liability complaint, I go out and have a look to obviously gather some evidence and also to determine whether to obviously accept the complaint, or not to.

The 2012 refurbishment of the boat ramp was completed prior to the commencement of Mr Fowler’s employment with the defendant.

On 30 January 2014, following an inspection of the boat ramp, in response to a separate slip and fall incident prior to the accident, Mr Fowler sent the following communication to Mr Coulter:

Michael, I inspected all of our sea boat ramps on Tuesday and found that Scott’s head was no better or worse than the other ramps. It did appear to be in a better state of repair though.
The difference being that it allows 4x4 access to the beach … The problem is not boaties using the ramp as intended, but instead lazy pedestrians taking a short cut across the ramp to the car park rather than using the pedestrian ramp.
Other than deep grooves cut into beach access ramps (any other treatments would be wrecked by 4x4s wheels & the action of the salt water) & additional signage I’m not sure what else could be done. …

The complaint that sparked that communication was forwarded by Mr Peter McNally, a former captain (2012-14) and vice-captain (2014-15) of the surf club (and is set out below).

On 23 April 2015, following notification of the accident, being a potential public liability complaint, Mr Fowler visited the site of the accident. Mr Fowler took photographs of the site, which included a close up of pedestrian crossing markings that had been painted onto the eastern slab (some time after the accident).

During cross-examination, Mr Fowler gave the following evidence:

He accepted when driving through the area around the boat ramp you would have to be very careful of pedestrian and vehicle traffic in the area, which included: tourists, children, cyclists, people walking dogs and any vehicles that were on the boat ramp.

He was “not aware” that people with prams used the boat ramp.

He was aware that the surf club used to the boat ramp to “launch their rescue gear”.

He would not recommend climbing over the rocks on either side of the boat ramp entrance.

He accepted that pedestrian used the grass area to the north of the boat ramp. He stated: “I saw pedestrians walking everywhere including on the ramp”.

As to his knowledge of pedestrians frequenting the area, Mr Fowler gave the following evidence:

Q. And knowing that you believed that the ramp wasn't for the use of pedestrians, as a safety officer did that concern you?
A. It did and if you notice in the photos that's why I've got those white squares painted on there as a walk way.
Q. When did they go off?
A. Some time in 215/216.
Q. Yes, it was after Mr Bowman's accident?
A. Yeah. Yeah. We discussed a number of things to improve the safety of those ramp - well, that particular ramp, but I didn't realise people were actually walking straight off the grass over the rocks onto the ramp, because it's something I wouldn't have done.

The reference to “off” in the second question appears to be an errata and the question should read “When did they go on”. The reference to “white squares” appear to be a reference to the pedestrian crossing markings pictured in the photographs annexed to Mr Fowler’s statement (referred to above).
Mr Coulter, General Manager of the defendant (as earlier mentioned), gave evidence that the boat ramp was not for pedestrian access to the beach and identified the relevant pedestrian access to the beach as being “around 70 metres away from the bay”. By that evidence he referred to “stairs down the other end of the surf club were still available. They were wooden type stairs that went down”.
During cross-examination, Mr Coulter was taken through the BBP application form and accepted that, the defendant’s position, at the time of submitting that application, was that the boat ramp “was for use for persons wishing to get down to the beach” – not just persons launching boats.
During cross-examination, Mr Coulter also gave evidence that participants in the surf club’s “Nippers” program utilised the boat ramp. That evidence is extracted below:

Q. If the surf club is running a carnival type day - you have those quite regularly during summer, don't you?
A. Yes.
Q. How many children would show up on one of those types of days?
A. For a Nippers day we might have 80 to 100 children.
Q. That 80 to 100 children are all using the ramp to access the beach?
A. The large majority.
Q. Is it correct to say that often what happens is that those Nippers and other persons are required to congregate on the ramp to get their activities worked out before moving onto the beach?
A. No, no. It's a multi-use ramp. There's people launching boats. For example, I launch a surf boat from the ramp. There's lots of activities around the ramp. Pedestrians don't tend to stand on it for that very reason.

The plaintiff sought adverse findings be made against the defendant, particularly in light of the position held by Mr Fowler, namely, that the two employees of the defendant were unaware that pedestrians used the boat ramp to access Forster Beach.
The plaintiff submitted:

The Court would be entitled to find that, due to the fact that Mr Fowler was unaware that the ramp was used for pedestrian access to the beach, that lack of knowledge, having regard to his position as Risk and Safety Officer for the defendant, “showed a failure to investigate and/or to put into place appropriate means of removing the risk of injury which was well known and admitted to by the defendant”.

The defendant was aware via Mr Coulter of a large proportion of children using the ramp to access the beach as part of the Nippers Program as well as many hundreds of people using that ramp during the summer seasons without any appropriate warnings being put into place.

In reply, the defendant contended, the objective reasonableness of the defendant’s response to the risk cannot rationally be determined from Mr Fowler’s subjective understanding of the facts giving rise to that risk. In any event, Mr Fowler had no involvement in the boat ramp, or any investigation into its slipperiness, until two months after the plaintiff’s accident. This is evident, it was contended, from Mr Fowler’s first statement. Further, it was contended, that the factual conclusions flowing from the analysis concerning the place of the fall and the characteristics of the ramp in that location deprive the submission of relevance.
The defendant also highlighted the following aspects of Mr Fowler’s evidence from the hearing:

he was aware that the boat ramp in fact had a lot of pedestrian and vehicle traffic, especially in the summer periods; and

he was aware that the surf club used the ramp to launch their rescue gear.

In reply, the plaintiff submitted:

The defendant’s submission that Mr Fowler was aware that the boat ramp had a lot of pedestrian vehicle traffic, especially in the summer months, is a misreading of Mr Fowler's evidence. I do not accept that reflects Mr Fowler’s evidence.

Mr Fowler set out the evidence in relation to what would occur if you were driving into the eastern car park and drove past the surf club. It was indicated that you would then drive past the ramp on your left hand side, that there is a lot of activity on the beach, a lot of people in the area, lots of cars are moving in and out of the area, there are a lot of tourists and children in the area and that they are all within at various times the area around this ramp.

Mr Fowler went on to describe the pedestrians and traffic within the area, especially during summer periods, but specifically stated when asked whether he was aware that often people with prams used the ramp that he was not aware. He was unaware of anything occurring on the ramp except for the surf club launching their rescue gear. His answer that he was “not aware” was in answer to a questions directed to his knowledge of “people with prams us[ing] the ramp” and the scope of use by the surf club.

Overall, I accept the submissions of the defendant in this respect.

Evidence of Mr McNally

Mr McNally gave the following evidence as to pedestrian usage of the boat ramp:

4. In order to access the beach, it was my observation that people regularly used the boat ramp, as it is the only ramp to the beach. It is the only means for disabled people or mothers with prams, to gain access to the beach. The other means was via a narrow set of steps near the amenities block, or to climb across the rocks.
…
7. While there was originally other access available to the beach via a wooden ramp prior to 2013, this was lost in 2013 and was never replaced. It wasn't replaced notwithstanding the fact that the boat ramp was renovated or updated after 2013 and prior to the 2015 season. The boat ramp also has a pedestrian crossing and a pedestrian walkway leading to the beach.
8. The initial access via the wooden ramp was lost as a result of a storm, and has not been replaced to this day.
9. Once that access had been lost the only way to access the beach was via some stairs near the amenities block or from the caravan park which was not available to the general public and would not have been visible to the general public using the car park or by walking along the ramp or climbing over the rocks.

Travelling west down Boat Ramp

As to evidence of pedestrian access to Forster Beach via the boat ramp, in a westerly direction from the eastern to western slab, the following was before the Court:

Both James and the plaintiff gave evidence of accessing the boat ramp via two separate points along the rock wall to the north of the boat ramp. It is accepted that upon reaching the eastern slab, the plaintiff proceeded in a westerly direction, down the boat ramp, towards his son.

The complaint by Jamie Lamont dated 5 February 2013 (set out below), indicated the boat ramp was used by surfers to access the water by walking from the eastern slab down to the western slab.

The complaint by Mr McNally dated 24 January 2014, made on behalf of a 60-year-old woman who fell at the bottom of the ramp at low tide, indicated that pedestrians may utilise the length of the boat ramp from the eastern slab through to the western slab at low tide.

During cross-examination, Mr Coulter gave evidence that “the majority” of participants in the Nippers Program would utilise the boat ramp as access to Forster Beach. The witness was not asked to clarify the route taken in this respect.

As to the intention of the boat ramp being used as “access to the beach”, the defendant contended that submission was “only partially correct”. Reliance, in that respect, was placed upon the engineering plan and the evidence of Mr Kiernan (summarised above). It was contended, in light of that evidence:

24. Logically, the various references in the documentation and in the evidence of Mr Peter McNally, the surf club captain, to the ramp being intended for pedestrian use to access the beach must be understood by reference to the southerly or south-westerly direction most pedestrians would walk to access the beach. This can be seen from the photograph in Ex 8, p 27, which looks from the ramp entrance to the beach towards the south.
25. Hence those pedestrians would be walking on the “higher level” and the “southern leg” as described by Mr Kiernan.
[Emphasis added.]

The photograph referred to in that submission is extracted below as Photograph 12.

Photograph 12 – Ex 8, p 27

In reply, the plaintiff submitted there is no evidence to indicate that pedestrian access, as described by the defendant above, did or did not occur. It was contended, to speculate as to where pedestrians would be walking at any particular time on the boat ramp “is to ignore the evidence including the defendant's own evidence of a knowledge that the boat ramp was there for persons to use to access the beach area”.
Save for the above evidence with respect to design and construction of the boat ramp, there appears to be little evidence called by the parties as to whether pedestrians accessed Forster Beach via the eastern slab or southern leg. The evidence of usage of the boat ramp by members of the surf club and surfers suggests that a common route, with a view to entering the water, in an east to west direction.

Conclusion – Pedestrian Access to Boat Ramp

The BBP application made clear that the boat ramp was intended to provide better access for boat launch by the construction of a wider and longer ramp (for high and low tides and the elimination of dip at the access road end) and to provide pedestrian access to the beach after the demolition of a wooden stairway to the beach (a replacement not being possible due to erosion). Regard was had to disabled or frail persons not being able to traverse the rock wall.
The reconstructed ramp was to provide “safe and easy access to the beach” removing “the sharp drop off onto the rocks which occurs with the current ramp”. It may be inferred that this is a reference to the southern eastern side of the existing ramp.
Reference was made to potential safety issues for beach goers and the general public from the reconstruction of the boat ramp, but this was subject to the engineering design.
The engineering plan (and construction of the boat ramp in accordance with the plan, save for some minor variations) demonstrated that a different engineering regime was drawn between the western and eastern slabs both in terms of the thickness of the slab and the gradient of the slab which corresponded to the location and use of the slab. The eastern slab would have much less exposure to the sea and bear less load from launching boats and was accordingly thinner. The gradient on the eastern slab (including the southern leg) was 7-10%, which was within the maximum gradient for pedestrian access under the Australian Standard whereas the western slab was between 10-16% corresponding to the ramp extending to a lower level, to give little water access. The existing slab, situated between the eastern slab and western slab, it follows, had a gradient between 7-10% (corresponding with the gradient of the respective slabs bordering the existing slab).
Mr Kiernan also opined that the “upper levels” had a safe slip resistant surface in contrast to the lower levels which were smoother and more greatly affected by algae and the like.
The design and construction of the boat ramp provided access to the beach from the access road and northern and southern car parks via the eastern slab using a south-western transit. It was not suggested that that “pathway”, which was marked after the accident with a zebra crossing, was unsafe either in terms of gradient, surface or mode of access or egress.
Access to the water or beach via the western slab, or the additional concrete slabs between the western slab and southern leg, presented much greater risk of harm by virtue of gradient, slab surface and/or the increased presence of seawater and the growth of algae and moss.
Evidence as to the use of the boat ramp for pedestrian access to the beach at or about the time of the accident was limited, although the complaints to which I will refer in the next section of this judgment and the evidence of Mr McNally would suggest that some persons were travelling down the boat ramp to the sea in a western direction.
There is little or no evidence as to access by pedestrians to the beach via the south eastern extension or southern leg.
Overall, however, it is clear that the boat ramp was used for pedestrian access to the beach at and before the accident.
One view taken after the accident reveals a substantial number of persons accessing the beach via the boat ramp. Mr Kiernan’s evidence is, in effect, that persons were traversing the ramp in a south westerly direction to access the beach. It would appear this occurred at the lower section of the boat ramp travelling down the ramp in a westerly direction.
Mr Fowler also referred to alternative route taken by the pedestrians. In response to a slip and fall that occurred at the western slab, he described a “short cut” route taken by “lazy pedestrians” which was not the “pedestrian ramp”. Whilst the short cut was not precisely defined it may be inferred that he was referring to the lower levels of the boat ramp. His reference to the “pedestrian ramp” was, it may be inferred, referring to the upper levels on the eastern slab and a pedestrian movement in a south easterly direction across the eastern slab. That reference to a “pedestrian ramp”, however, gives rise to an inference that at least the Risk and Safety Officer of the defendant perceived that such a route was an acceptable pedestrian pathway. This is further illustrated by the fact that after the accident, Mr Fowler arranged for the painting of pedestrian crossing markings (in the form of “white squares” resembling a zebra crossing) onto that section of the boat ramp.
Further, as to plaintiff’s contentions vis-à-vis the knowledge of the defendant as to the fact of pedestrians accessing the beach, I accept, as previously noted, the submission of the defendant that the objective reasonableness of the defendant’s response to the risk cannot rationally be determined from Mr Fowler’s subjective understanding of the facts giving rise to that risk.

THE RISK OF SLIPPING AT THE BOAT RAMP

Prior to turning to drawing a conclusion with respect to the risk of slipping at the boat ramp, in light of the Court’s finding as to the relevant risk of harm and pedestrian access at the boat ramp, consideration must be given the evidence as to the slipperiness of the boat ramp vis-à-vis each concrete slab both at the time of the accident and prior to the same.

Slipperiness of the Boat Ramp

At this juncture I will turn to a summary of the evidence relevant to the slipperiness of the boat ramp, both prior to and at the time of the accident. Reference will also be made to the inspection of the boat ramp after the accident. Whilst part of this evidence will be relevant to arguments vis-à-vis inspections and cleaning regiments, I will return to deal with those arguments separately in the context of precautions.

Prior to the accident

The following summary of correspondence set out the correspondence before the Court, received or sent prior to the accident, with respect to two incidents of slipping on the western slab of the boat ramp in 2013 and 2014, respectively. The first complaint was by Mr Jaimie Lamont, a surfer, in 2013. The second complaint concerned a sixty-year-old woman and was made by Mr McNally in 2014.

The Complaint by Jamie Lamont – 5 February 2013

On 5 February 2013, by email from Jamie Lamont to Mr Coulter, an accident was reported by Mr Lamont that as a result of there being “a large amount of slime” on the boat ramp and “no traction”. An extract of that communication appears below:

Unfortunately today I had an accident on the new boat ramp at Scotts Head and felt it necessary to get this acknowledged by Nambucca Council.
At approximately 10.30AM I was chatting to a fellow at the boat ramp surfboard under arm. I walked from the dry area of the ramp down to the wet area to get in the water to go for a surf.
The boat ramp I found out has a large amount of slime on it down near the wet area and as there are no cuts or ribs in the concrete there is no traction.
Anyway I ended up with my two feet in the air landing on my back and elbow.
My near new surfboard hit the concrete very hard and has received quite a bit of damage (dents, scratches and cracks).
I was very lucky that I did not hit my head on the concrete.
The fellow I was chatting to came over to assist me and I heard some people sitting on the grass yell out.
The fellow that helped me said that this was not the first accident on the slippery surface.
At present I have a very sore area at the back of my rib cage and I hope that this is a lot better tomorrow.

On 6 February 2013 at 7.38am, Mr Coulter forwarded the email of Mr Lamont onto Ms Joanne Hudson, Manager of Human Resources for the defendant. That communication is extracted in full below:

Joanne,
I think something needs to be done to provide better traction on the wet section of the boat ramp. Putting a series of cross cuts in might be one solution. But there may be others.
Can you please discuss with Kev Clews what he reckons should be done.
In relation to the surf board, I’d suggest asking Jamie to provide us with a quote for its repair.
thanks [sic]
Michael Coulter

By an email dated 6 February 2013 at 8.43am, Ms Hudson directed her reply to Mr Coulter’s inquiry to Mr Chapman (with Mr Coulter copied into the communication). Her response is extracted in full below:

Noel
I spoke to AI about the ramp. It is on the Parks and Reserves maintenance program to be pressure cleaned once per month and at the moment, they are just waiting for a low, low tide.
I have advised Michael that cross cuts will be ineffective (as advised by AI) but he wants more investigation into a solution, such as installing a hard rubber surface.
Apparently, signage is adequate.
As the Surf Club is aware of a number of slips on the boat ramp (the one below is the only official report to Council), Michael has asked that the matter be addressed as a matter of urgency.
Can you please report back to Michael on the action taken.
Thanks, Jo

Mr Coulter sent a reply to Ms Hudson at 8.55am, again including Mr Chapman, in the following terms:

My query is that a structural solution should be investigated. I know that programmed maintenance with a pressure cleaner and algaecide would do the job but my concern is that if the maintenance doesn’t get done for whatever reason (floods, tides, illness etc) the risk is significant.
Jason [O’Donnell] believes that cross sections should be saw cut and a series of valleys cut out with a jack hammer.

[Emphasis added.]

In any event, the records of the defendant show that the cleaning in the months before the accident substantially conformed with a monthly regime of inspection followed by cleaning.

In those circumstances, the plaintiff has not proven that the defendant’s implementation of its system of inspections and pressure cleaning fell short of reasonable standards.

As to the contentions of the plaintiff as to the closure of the boat ramp at the time of the accident, I do not consider the plaintiff has made good its contentions for the following reasons:

The plaintiff’s case is that a very large number of people used the ramp for access to the beach, in part because other means of access were either unavailable or far away. The documents tendered by the plaintiff show that:

the boat ramp afforded safer access to the ocean for boats; and

there was broad community support and socioeconomic benefits to the ramp.

Although there was evidence from Mr McNally that he had seen a number of pedestrians slipping on the ramp, there were only isolated instances in the evidence of people suffering injury or complaining to the defendant and the slipperiness of the boat ramp surface. It can be inferred that the hundreds of pedestrians using part of the ramp to access the beach were aware that it could be slippery but nonetheless managed to walk on it with care without slipping. Unlike in Randwick City Council v Muzic [2006] NSWCA 66, which concerned sea baths with concrete promenades that had heavy surface algal growth, there is no evidence here of numerous people suffering severe injury, including back and neck injuries, from slipping on the boat ramp.

More globally, there is considerable force in the defendant’s submissions The plaintiff’s contentions seems to be that any public location that poses a risk of injury should be closed, even if the risk is obvious, the subject of a warning sign, and able to be accommodated by people taking care for their own safety.

Conclusion: s 5B

I note that in Tame v New South Wales (2002) 211 CLR 317 at [101]. McHugh J stated:

[101] …I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall - perhaps it already has fallen - into public disrepute if it produces results that ordinary members of the public regard as unreasonable. Lord Reid himself once said [73] '[t]he common law ought never to produce a wholly unreasonable result'. And probably only some plaintiffs and their lawyers would now assert that the law of negligence in its present state does not produce unreasonable results.

In all the circumstances of this matter, and when the precautions are viewed as a whole, I do not consider the plaintiff has satisfied the onus of demonstrating that a reasonable person in the defendant’s position would have taken the precautions, as identified by the plaintiff, in response to the risk of harm that a pedestrian might slip on the ramp and suffer physical injury.

Section 5D

The question of causation is governed by s 5D of the CLA. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below:

5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

The application of the CLA requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the CLA.
The relevant authority on causation was summarised in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [85]-[94], which I adopt and extract below:

[85] The traditional approach to the question of causation requires a determination of a question of fact, namely what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the “but for” test or “causa sine qua non”.
[86] The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 (“March v Stramare”) (at 430) and summarised as follows:
(1) The application of the “but for” test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and
(2) The applicability of value judgments and considerations of policy.

[87] In March v Stramare, the High Court ruled that the “but for” test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense.
[88] This development addressed the oft-cited difficulty in application of the “but for” test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a “supervening cause” or “novus actus interveniens”, are well established: March v Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 (“Chapman v Hearse”) at 124-125. This difficulty was summarised by Mason CJ (March v Stramare at 431-432) and extracted below:
… the “but for” test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the “but for” test.
The facts of, and the decision in, M'Kew illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action.
The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.
…
As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the “but for” test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.

[89] Deane J also relevantly observed (March v Stramare at 435–436):
… the mere fact that something constitutes an essential condition (in the “but for” sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a “cause” of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a “cause” of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a “cause” of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred “but for” the original gift. As Lord Reid pointed out in Stapley (at 681):
The question [of ‘what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.

[90] Further relevant developments by the High Court, cited in March v Stramere, included the following:
(1) In Chapman v Hearse, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, “it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act” (at 122).
(2) In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725):
A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [[1970] SC(HL) 20 at 25]. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 [at 124–5]. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid, at p 122).

[91] The two-fold common law approach in March v Stramare, set out above,is now reflected in s 5D of the Civil Liability Act. A determination that the defendant’s negligence caused particular harm requires satisfaction of the following:
(1) whether the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and
(2) whether it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

[92] Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of “probable causal connection between the breach of duty and the harm suffered”: C Sappideen and P Vines (eds), Fleming’s The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70].
[93] Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a).
[94] In Carangelov State of New South Wales [2016] NSWCA 126 (“Carangelo”) at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect:
[71] Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41]-[43]).

Plaintiff’s Submissions

In addition to submissions earlier advanced with respect to the precautions, summarised above, the plaintiff also made submissions as to causation:

95. In relation to the question of causation as set out within s.5D of the Civil Liability Act once the knowledge of the defendant is established, which was established by the admission of paragraph 9 of the amended statement of claim and the fall having occurred in circumstances whereby the uncontested evidence is that the ramp was slippery with various witnesses having fallen immediately after the plaintiff’s fall at the same place and noting that the cleaning regime to prevent the slipping on the boat ramp had not been followed was established.
96. To the extent that the defendant relies upon paragraph 12 of its defence to allege that the ramp was not slippery there was no challenge to the evidence of Mrs Bowman or James Bowman and the evidence of Michael Coulter and Jamie Lamont clearly established that the ramp was slippery.

Conclusion: s 5D

In my view, the plaintiff has failed to establish factual causation for the purposes of s 5D for the following reasons:

In relation to the signage, the plaintiff was aware of the warning sign having previously seen it. He was also aware that it provided warnings. He already had experience of boat ramps being slippery, and agreed that he would approach any boat ramp on the basis that it could be slippery. In those circumstances, a separate sign warning only of a slippery ramp could not, on the evidence, have changed the outcome, particularly as there was no evidence as to where such a sign would have been placed so as to make it more noticeable or more visible to the plaintiff.

In relation to the pressure cleaning, the part of the boat ramp where the plaintiff slipped was not inundated, and was not exposed to marine growth at the time of the accident. It is therefore difficult to see how additional pressure cleaning, even if it had occurred about a month after it last occurred on 30 December 2014 but before the accident on 22 February 2015, would have made any difference to the slip resistance of that part of ramp. Further, the plaintiff has not proven that the difference between the amount of growth if cleaned one month after the last cleaning and the growth present when the slip occurred would have been such as to avoid the harm.

In relation to the grooves precaution, the part of the boat ramp where the plaintiff slipped was never designed to have grooves. According to Mr Kiernan, the thickness of the eastern level was not compatible with having grooves cut into it. Because it was not inundated or exposed to marine growth, there is no evidence to suggest that grooves would have changed its slip resistance at all, or improved it sufficiently to avoid the accident. Mr Kiernan after all conducted no slip resistance testing.

In relation to the gradient case, there was no evidence as to how changing the gradient from a 7% slope (to maximum 10% - see my earlier finding) would have made any difference to the outcome. Nor is there evidence to support the removal of the existing slab so as to alter the slope in the ramp at the slip location.

In relation to the rubber mat and further investigation cases, the same problems identified in relation to the assessment of breach apply equally to an assessment of causation.

Accordingly, I am not satisfied that causation has been established with respect to any relevant breach of duty, if a breach had been established.

CONCLUSION: LIABILITY

The defendant is not negligent for failing to take (to the extent it did fail to undertake) the precautions relied upon by the plaintiff against the risk of harm. In any event, the plaintiff has not demonstrated factual causation for the determination of negligence for the purposes of s 5D of the CLA. I will, nonetheless, discuss or mention the issues of the defendant’s reliance on s 42 of the CLA, contributory negligence and damages.

SECTION 42 OF THE CLA

The defendant raised a defence under s 42 of the CLA.
Section 42 provides:

42   Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies—
(a)  the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b)  the general allocation of those resources by the authority is not open to challenge,
(c)  the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d)  the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

The Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74, provided guidance with respect to the construction of s 42 of the CLA:

The drafting of s 42(a) is awkward, but it is the resources available for the exercise of functions which are limited, not the functions themselves: [59].

In determining whether it would be reasonable to require the taking of additional precautions, the Court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are “limited”. A court can, however, find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff’s case, is undertaken in accordance with s 5C(a): [97].

The reference to “functions required to be exercised by the authority” in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a): [98].

A court is not permitted to allow a plaintiff to “challenge” the general allocation of “those resources”, that is, the resources reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities in s 42(c). A court may not reach the conclusion that additional resources should have been made available although they had been allocated to the exercise of other functions at the relevant time. A court can conclude, however, that more unallocated resources should have been provided: [99]-[100].

In Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340 (“Bathurst Regional Council v Thompson”), the appellant council submitted the primary judge erred in failing to take into account the principles under s 42. The factual background concerned the respondent who fell when descending the steps of a rotunda and sued the appellant owner and occupier of the relevant park.
In Bathurst Regional Council v Thompson, Hoeben JA (as he then was) observed, to succeed under s 42, there has to be evidence of the financial and other resources that are available to the authority, the general allocation of those resources, and the range of the authority’s activities. Without such evidence, such matters cannot be taken into account by a Court, and there is no subject matter to which the s 42 principles can be applied (at [46]-[50]):

[46] Implicit in the appellant's submission is an assumption that the trial judge was obliged to take into account those "principles" even if no evidence of any of the matters in s42 was adduced. That is not so. A simple reading of the section makes that clear. There has to be evidence of "the financial and other resources" that are available to the authority and "the general allocation by it" of those resources. There needs to be evidence as to the range of the authority's activities. Without that basic material, a court has nothing upon which to apply the principles in the section.
[47] If there were any doubt as to the correctness of that approach to s42, it was resolved by the careful analysis of the section by Campbell JA and Sackville AJA in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263. There, Campbell JA relevantly said:
"395 The effect of section 42(a) in the present case is that what the RTA can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the RTA for the purpose of carrying out the care, control and management of freeways and any other roads that are under its care, control and management. Its budget for that purpose is so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget.
396 When section 42(b) uses the expression "those resources" it is referring back to section 42(a). What section 42(b) requires not to be challenged, in the present case, is the "general allocation" by the RTA of those resources that are reasonably available to the RTA for the purpose of the care control and management of freeways and other roads under its care control and management.
397 There is an important difference in prepositions between section 42(a) and section 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while section 42(b) is concerned with the allocation of those resources by the authority. In other words, section 42(b) starts from the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources."

[48] Sackville AJA made observations to similar effect:
"449 Subject to the effect of ss 42 and 43A of the Civil Liability Act, I see no compelling reason in the present case, whether deriving from distinctions sometimes drawn between policy and operational matters or otherwise, for the Court to shy away from undertaking the assessment contemplated by s 5B, in particular weighing up the matters identified in s 5B(2). This requires the Court to determine whether a reasonable person in the position of the RTA would have fenced the Glenlee Bridge notwithstanding competing claims on its resources to address similar risks of serious injury elsewhere. In making this determination, the Court needs to consider whether the RTA's ordering of priorities was a departure from standards to be expected from a reasonable person in the RTA's position. The Court should also take account of the opportunities reasonably available to the RTA to gain additional funding from the Commonwealth or other sources for the purpose of addressing particularly acute risks of which it was aware or should have been aware.
450 Campbell JA's analysis of the facts in this case seems to me to show that the RTA appreciated in a reasonably timely fashion the nature and magnitude of the risk to road users, including the risk to users of the F5 from the Glenlee Bridge, by reason of objects being thrown or falling from overpasses. The RTA's response to the risk, having regard to the burden of taking precautions to alleviate the risk of harm to all road users from similar sources, was not shown to be unreasonable. The RTA adopted a rational and apparently systematic (although not perfect) approach to assessing priorities for the erection of protective fencing on the basis of the magnitude of risk. It acted on that assessment within the limits of available resources. The evidence does not demonstrate that a reasonable authority in the position of the RTA would have sought additional funding from the Commonwealth or that, if it did, such funding would have been made available for fencing the Glenlee Bridge before the incident that led to Mr Evans' death."

[49] Not only do those paragraphs helpfully set out how s42 is to be applied but it is apparent from their content that the issues there under consideration depended upon the evidence which the RTA gave concerning the particular subject matter of s42. Without that evidence, there was no subject matter to which the s42 principles could be applied.
[50] No evidence of any of those matters was adduced by the appellant. It follows that even if his Honour had found that s42 applied to this case, the section had no practical application in the absence of some evidence with respect to the various subject matters referred to in it. These grounds of appeal have not been made out.

The plaintiff submitted:

91. It is further to be noted that the council prepared and managed the reconstruction of the boat ramp with allocated funds for that purpose.
92. To the extent that the defendant seeks to rely upon limited financial and other resources, the resources had already been put into place for the cleaning of the ramp and the grant itself included signage.

The defendant did not develop and has not established on the evidence a statutory defence under s 42 of the CLA.

CONTRIBUTORY NEGLIGENCE

In McNeilly v Imbree (2007) 47 MVR 536 at [106], Basten JA said of the “just and equitable” test, where used in assessing contributory negligence:

The test of apportionment, based upon what is “just and equitable”, undoubtedly requires an evaluative judgment of an imprecise kind, permitting the trial judge a reasonably broad range within which any particular finding will not be open to challenge: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492.

In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, another case of contributory negligence, the High Court said (at 532-533):

The making of an apportionment as between a plaintiff and a defendant of the respective shares in the responsibility for the damage involves a comparison of both culpability, ie. of the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

The plaintiff submitted:

108.   To the extent that the defendant relies upon an obligation upon the plaintiff to look where they are going, perceiving and avoiding risks or hazards the defendant has not established that the plaintiff was in any way contributory to the fall the evidence being that he walked slowly onto the ramp, was looking ahead of him towards where his son was and that there was nothing to alert the plaintiff to the risk.
109.   To the extent that the defendant particularises its contributory negligence it has failed to establish that the plaintiff was not taking care in the circumstances. It failed to establish that the plaintiff was walking in water, that being contrary to the evidence of James Bowman, it failed to establish that the risk was obvious or that he saw warning signs or ought to have seen warning signs or that he was wearing unsuitable footwear.
110.   The balance of the contributory negligence pleadings are also not established.

The defendant contended that the following factors necessitate a finding of contributory negligence in the present case:

The plaintiff was aware of the warning sign, having previously seen it. He was also aware that it provided warnings. He already had experience of boat ramps being slippery, and agreed that he would approach any boat ramp on the basis that it could be slippery.

The plaintiff chose to walk down the ramp towards James, even though he knew that the ramp, as with any marine boat ramp, might be slippery or very slippery, particularly in the weather conditions then present.

Based upon my earlier findings, the defendant’s submissions, in this respect, must be accepted. Further, I have found that there was an obvious risk of slipping whilst the plaintiff walked down the boat ramp.
Taking these matters into account, if required to determine contributory negligence, I would find the loss should be apportioned 10% to the defendant and 90% to the plaintiff.

DAMAGES

I have given consideration to expressing my view as to the question of damages, notwithstanding my conclusions as to liability, consistent with the conventional approach of providing such views in the event that my judgment as to liability is found to be wrong. However, I do not consider that an expression of such views is the preferable course in this matter.
In its submissions on damages, the defendant has raised significant issues of credit as to the plaintiff, James and Mrs Bowman. Those submissions, by and large, did not feature in issues going to liability (even though some aspects of the damages submissions traverse relevant questions such as James’ view of his father approaching the boat ramp) and it has been otherwise unnecessary to make credit findings in order to resolve the liability issues.

OVERALL CONCLUSION

Upon the findings of the Court pursuant to s 5M of the CLA, as to breach of duty and causation, the plaintiff’s claim in negligence must fail. The plaintiff has not established liability. Judgment should be entered for the defendant and an order for costs made in favour of the defendant.

DIRECTIONS

The defendant is to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

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Decision last updated: 26 August 2020

Medium Neutral Citation:	Bowman v Nambucca Shire Council [2020] NSWSC 1121
Hearing dates:	19-21 November 2018; 24-25 June 2019
Date of orders:	21 August 2020
Decision date:	21 August 2020
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The defendant is to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.
Catchwords:	TORTS – negligence – personal injury – slip and fall on boat ramp – determination of liability – risk of harm – duty of care – precautions taken – whether reasonable person in position of defendant would have taken precautions – s 5B(2) considerations – causation LOCAL GOVERNMENT – legal proceedings – torts – negligence TORTS – defences – Civil Liability Act 2002, s 5M – whether recreational activity – obvious risk – warnings – Civil Liability Act 2002, ss 5H, 5F and 5G – contributory negligence
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 Angel v Hawkesbury City Council Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7 Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340 Bunnings Group Ltd v Giudice [2018] NSWCA 144 Carey v Lake Macquarie City Council [2007] NSWCA 4 Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780 Collins v Clarence Valley Council [2015] NSWCA 263 Council of the City of Sydney v Bishop [2019] NSWCA 157 Fallas v Mourlas [2006] NSWCA 32 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350 Goode v Angland [2017] NSWCA 311 Jones v Bartlett (2000) 205 CLR 166 Kanwar v Lynch [2020] NSWCA 152 Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308 Letang v Ottawa Electric Ry Co [1926] AC 725 McKenna v Hunter & New England Local Health District [2013] NSWCA 476 McNeilly v Imbree (2007) 47 MVR 536 Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 Neindorf v Junkovic [2005] HCA 75 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 Randwick City Council v Muzic [2006] NSWCA 66 Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Rootes v Shelton (1967) 116 CLR 383 Sharp v Parramatta City Council [2015] NSWCA 260 Streller v Albury City Council [2013] NSWCA 348 Tame v New South Wales (2002) 211 CLR 317 Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Waverley Council v Ferreira [2005] NSWCA 418 Waverley Council v Lodge [2001] NSWCA 439 Weber v Greater Hume Shire Council [2018] NSWSC 667 Weber v Greater Hume Shire Council [2019] NSWCA 74 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Colin Bowman (Plaintiff) Nambucca Shire Council (Defendant)
Representation:	Counsel: K Andrews with J Wydell (Plaintiff) R Sheldon SC with H Chiu (Defendant) Solicitors: Slater + Gordon Lawyers (Plaintiff) Mills Oakley (Defendant)
File Number(s):	2017/31232

Provide a cost breakdown of the major project elements	Cost ($) Per Element (GST exclusive costs)
Materials	$32,620
Labour and equipment hire	$50,395
Project management	$12,452