City of Rockingham v Curley

[2000] WASCA 202

CITY OF ROCKINGHAM -v- CURLEY & ANOR [2000] WASCA 202

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 202
Court:	THE FULL COURT (WA)
Case No:	FUL:12/1999	Heard:	7 & 8 FEBRUARY 2000
Coram:	WALLWORK J MURRAY J ANDERSON J	Delivered:	4/08/00
No of pages:	56	Judgment Part:	1 of 2
Result:	Appeal by City of Rockingham allowed Plaintiff's responsibility for contributory negligence increased from 20 per cent to 33-1/3 per cent
PDF Version

Parties:	CITY OF ROCKINGHAM STEPHEN ANTHONY CURLEY FREMANTLE PORT AUTHORITY
Catchwords:	Negligence 20 year old plaintiff dived from Palm Beach jetty Water too shallow Plaintiff badly injured Jetty vested in Fremantle Port Authority City of Rockingham had promoted area for swimming and recreation Whether either authority liable in negligence for plaintiff's damages Whether contributory negligence by plaintiff
Legislation:	Fremantle Port Authority Act 1902, s 24 Local Government Act
Case References:	Aiken v The Warden, Councillors and Electors of the Municipality of Kingborough (1939) 62 CLR 179 Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 Davies v Adelaide Chemical and Fertiliser Co Ltd (1946) 74 CLR 541 Inverell Municipal Council & Anor v Pennington; Grennan & Anor v Pennington & Anor (1983) A Tort Rep 81-234 Inverell Municipal Council v Pennington (1993) Aust Torts Rep 81-234 Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Romeo v Conservation CMN (NT) (1998) 192 CLR 431 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40 Voli v Inglewood Shire Council (1963) 110 CLR 74 WA v Dale (1996) 15 WAR 464 Western Australia v Dale (1996) 15 WAR 464 Wyong Shire Council v Shirt (1980) 146 CLR 40 Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Barrett v Enfield LBC [1999] 3 WLR 79 Bradford v Mayor and Councillors of Eastbourne [1896] 2 QB 205 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 Cant v Fleay [1996] WASCA 381 Caparo Industries Plc v Dickman [1990] 2 AC 605 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 City of Perth v Crystal Park Ltd (1940) 64 CLR 153 Clayton v State of Victoria [1968] VR 562 Creed v McGeogh and Sons Ltd [1955] 1 WLR 1005 Davies v Adelaide Chemical and Fertilizer Co Ltd (1946) 74 CLR 541 Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 Haines v Bendall (1990) Aust Torts Reports 81-005 Hanson v Matthew Bros Contractors Ltd and Federal Commerce and Navigation Ltd (1991) 55 SASR 183 Hill v Van Erp (1997) 188 CLR 159 Hutchinson v London and North Eastern Railway Co [1942] 1 KB 481 H Jones & Co Pty Ltd v Kingsborough Corporation (1950) 82 CLR 282 Kondis v State Transport Authority (1984) 154 CLR 672 Lee-Verhulst (Investments) Ltd v Harwood Trust [1973] 1 QB 204 Livock v Suncorp Insurance and Finance (1995) 1 Qd R 206 Municipal Council of Sydney v Young [1898] AC 557 Nagle v Rottnest Island Authority, unreported; SCt of WA; Library No 940724; 22 December 1994 Northern Territory of Australia v Shoesmith (1996) 91 LGERA 17 Perre v Apand Pty Ltd (1999) HCA 36; (1999) 164 ALR 606; (1999) 73 ALJR 1190 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 Public Trustee v Sutherland Shire Council (1992) A Tort Rep 81-149 Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147 R v Forty-Nine Casks of Brandy 3 Hagg Adm 275 San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 Schiller v Mulgrave Shire Council (1972) 129 CLR 116 State of Western Australia v McFarlane [1998] WASCA 248 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Thompson v The Commonwealth (1969) 70 SR (NSW) 398 Warren v Coombes (1979) 142 CLR 531 Wheat v Lacon [1966] AC 552 Wilmot v Shire of South Australia (1993) A Tort Rep 81-259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CITY OF ROCKINGHAM -v- CURLEY & ANOR [2000] WASCA 202 CORAM : WALLWORK J

MURRAY J
ANDERSON J

HEARD : 7 & 8 FEBRUARY 2000 DELIVERED : 4 AUGUST 2000 FILE NO/S : FUL 12 of 1999 BETWEEN : CITY OF ROCKINGHAM

Appellant (Second Defendant)

AND

STEPHEN ANTHONY CURLEY
First Respondent (Plaintiff)

FREMANTLE PORT AUTHORITY
Second Respondent (First Defendant)

FILE NO/S : FUL 18 of 1999 BETWEEN : FREMANTLE PORT AUTHORITY

Appellant (First Defendant)

AND

STEPHEN ANTHONY CURLEY
First Respondent (Plaintiff)

CITY OF ROCKINGHAM

Second Respondent (Second Defendant)

(Page 2)

Catchwords:

Negligence - 20 year old plaintiff dived from Palm Beach jetty - Water too shallow - Plaintiff badly injured - Jetty vested in Fremantle Port Authority - City of Rockingham had promoted area for swimming and recreation - Whether either authority liable in negligence for plaintiff's damages - Whether contributory negligence by plaintiff

Legislation:

Fremantle Port Authority Act 1902, s 24

Local Government Act

Result:

Appeal by City of Rockingham allowed

Plaintiff's responsibility for contributory negligence increased from 20 per cent to 33-1/3 per cent

Representation:

FUL 12 of 1999

Counsel:

Appellant (Second Defendant) : Mr K J Martin QC & Mr D M McKenna
First Respondent (Plaintiff) : Mr E M Heenan QC & Mr R V Lonnie
Second Respondent (First Defendant) : Mr N W McKerracher QC & Ms D Colvin

Solicitors:

Appellant (Second Defendant) : Jackson McDonald
First Respondent (Plaintiff) : Friedman Lurie Singh
Second Respondent (First Defendant) : Freehill Hollingdale & Page

(Page 3)

FUL 18 of 1999

Counsel:

Appellant (First Defendant) : Mr N W McKerracher QC & Ms D Colvin
First Respondent (Plaintiff) : Mr E M Heenan QC & Mr R V Lonnie
Second Respondent (Second Defendant) : Mr K J Martin QC & Mr D M McKenna

Solicitors:

Appellant (First Defendant) : Freehill Hollingdale & Page
First Respondent (Plaintiff) : Friedman Lurie Singh
Second Respondent (Second Defendant) : Jackson McDonald

Case(s) referred to in judgment(s):

Aiken v The Warden, Councillors and Electors of the Municipality of Kingborough (1939) 62 CLR 179
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1
Davies v Adelaide Chemical and Fertiliser Co Ltd (1946) 74 CLR 541
Inverell Municipal Council & Anor v Pennington; Grennan & Anor v Pennington & Anor (1993) A Tort Rep 81-234
Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Romeo v Conservation CMN (NT) (1998) 192 CLR 431
The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40
Voli v Inglewood Shire Council (1963) 110 CLR 74
WA v Dale (1996) 15 WAR 464
Western Australia v Dale (1996) 15 WAR 464
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Barrett v Enfield LBC [1999] 3 WLR 79


(Page 4)

Bradford v Mayor and Councillors of Eastbourne [1896] 2 QB 205
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529
Cant v Fleay [1996] WASCA 381
Caparo Industries Plc v Dickman [1990] 2 AC 605
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
City of Perth v Crystal Park Ltd (1940) 64 CLR 153
Clayton v State of Victoria [1968] VR 562
Creed v McGeogh and Sons Ltd [1955] 1 WLR 1005
Davies v Adelaide Chemical and Fertilizer Co Ltd (1946) 74 CLR 541
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430
Haines v Bendall (1990) Aust Torts Reports 81-005
Hanson v Matthew Bros Contractors Ltd and Federal Commerce and Navigation Ltd (1991) 55 SASR 183
Hill v Van Erp (1997) 188 CLR 159
Hutchinson v London and North Eastern Railway Co [1942] 1 KB 481
H Jones & Co Pty Ltd v Kingsborough Corporation (1950) 82 CLR 282
Kondis v State Transport Authority (1984) 154 CLR 672
Lee-Verhulst (Investments) Ltd v Harwood Trust [1973] 1 QB 204
Livock v Suncorp Insurance and Finance (1995) 1 Qd R 206
Municipal Council of Sydney v Young [1898] AC 557
Nagle v Rottnest Island Authority, unreported; SCt of WA; Library No 940724; 22 December 1994
Northern Territory of Australia v Shoesmith (1996) 91 LGERA 17
Perre v Apand Pty Ltd (1999) HCA 36; (1999) 164 ALR 606; (1999) 73 ALJR 1190
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492
Public Trustee v Sutherland Shire Council (1992) A Tort Rep 81-149
Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147
R v Forty-Nine Casks of Brandy 3 Hagg Adm 275
San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340
Schiller v Mulgrave Shire Council (1972) 129 CLR 116
State of Western Australia v McFarlane [1998] WASCA 248
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Thompson v The Commonwealth (1969) 70 SR (NSW) 398
Warren v Coombes (1979) 142 CLR 531
Wheat v Lacon [1966] AC 552
Wilmot v Shire of South Australia (1993) A Tort Rep 81-259

(Page 5)

1 WALLWORK J: These are the reasons for judgment after the hearing of two appeals and a number of cross-appeals and notices of contention arising from an award of damages to a young man who dived into shallow water from the Palm Beach jetty near Rockingham in Western Australia and badly injured himself. The learned Commissioner who heard the action found both the Fremantle Port Authority (the Authority) and the City of Rockingham (the City) liable in damages for negligence to Mr Curley (the plaintiff). The Commissioner apportioned liability 75:25 to the Authority and the City respectively. He held that the plaintiff's damages should be reduced by 20 per cent for contributory negligence on his part.

Background

2 The Palm Beach jetty extends out to sea from Palm Beach in a northerly direction. At the seaward end of the jetty there is a section of the jetty which extends in an easterly direction, at a right angle to the main jetty. That section is lower than the main jetty and is referred to as the head of the jetty.

3 There is a road along the foreshore from Rockingham towards Point Perron which passes closes to the southern or land end of the Palm Beach jetty. On the right of that roadway at the land end of the jetty is an area which is a reserve vested in the City. That reserve extends to the high water mark, "essentially from the road."

4 The description of the area between the low water mark and the high water mark has been given as the foreshore. The Authority has vested in it under the Fremantle Port Authority Act,the shores. It is agreed that that encompasses the foreshore up to the high water mark.

5 To the sea side or to the north of the high water mark is part of the outer harbour which is vested in the Authority. There is a complication in that the territorial jurisdiction of the City at the relevant place extends to the low water mark. So there is a difference between the City's reserve which extends to the high water mark and the territorial jurisdiction of the City which extends to the low water mark. In my view however, that should not affect the outcome of this matter.

6 The plaintiff was injured on 11 January 1989, when he dived into the water from the eastern edge of the main jetty. There were at that time no signs on or in the vicinity of the jetty which prohibited or warned against diving from the jetty. After the plaintiff was injured, signs were erected

(Page 6)

on five light poles on the left hand side of the jetty proceeding out to sea, to the north. The signs said "diving prohibited". The signs are circles with a "stick figure trying to dive", with a red slash through the circle.

7 The first light pole, when proceeding out on the jetty, is within the area of the reserve vested in the City. The second pole is half-way between the high water mark and the low water mark. The third, fourth and fifth poles are on the jetty above the water at low tide, with the fifth pole at the northern left-hand extremity of the jetty.

8 The plaintiff dived into the water from the eastern edge of the jetty at a place approximately 77.5 metres from the land end of the jetty. His friend Mr Harris had just a little earlier done a "bombing type" jump with his knees clasped into his chest. His other friend Mr Bazzica had also performed an orthodox "flattish" dive very shortly after Mr Harris. The plaintiff was the third of the group to enter the water.

9 On the southern side of the head of the jetty was a ladder entering the water at a point 6.3 metres from the closest eastern part of the main jetty.

10 After the plaintiff's injury when photographs were taken, the five light poles already mentioned had affixed to them the sign with the circle and the figure and the words "Diving Prohibited". None of those signs were there at the time of the injury. The Authority had put the diving prohibited signs on the light poles after the plaintiff's accident. There was also a sign which said "Riding of bicycles prohibited".

11 The plaintiff's evidence was that he had dived from a place between the fifth and sixth vertical poles on the jetty. He said he had not dived in the direction of the ladder on the head of the jetty because he was fearful that if he did, he might hit it. He had opened his dive up a bit and dived more towards the eastern end of the head of the jetty. In order to make the dive he had ducked under the horizontal rail of the railing which ran along the eastern edge of the jetty.

12 At the hearing of the appeal the Court was told that after the accident and in about 1992, a section of Mangles Bay which included the jetty, was excised from the outer harbour of the Authority and transferred in fee simple to the Department of Marine and Harbours. After that, and in 1992, there had been an agreement executed which had passed the care, control and management of the jetty to the City of Rockingham. In 1998 the abovementioned signs were changed to read: "No diving. No swimming. Maximum Penalty $5000." And they read: "Bicycles Prohibited. City of Rockingham."

(Page 7)

13 At the trial concerning liability only, which took place after the parties had reached agreement on the quantum of damages, the learned Commissioner found that the Authority as first defendant and the City as second defendant were both liable in negligence to the plaintiff. He apportioned responsibility at 75 per cent in the Authority and 25 per cent in the City. He held that the plaintiff had contributed to his own injuries to the extent of 20 per cent.

14 In his reasons for judgment the learned Commissioner observed that the Authority's boundary was to the seaward of the high water mark and that the landward end of the jetty abutted a reserve held by the City which extended to the high water mark. The plaintiff had alleged that the City of Rockingham was the occupier of that part of the jetty which was situated above the high water mark.

15 The Authority had admitted that it had owed visitors who lawfully entered onto the jetty a duty to take reasonable care. However, it had denied that the scope of that duty had extended to a duty to warn or otherwise protect such persons concerning risks which were obvious.

16 The City on the other hand, had denied that it owed any duty to members of the public in relation to any activity undertaken on the jetty or in relation to any injuries suffered by persons diving from the jetty.

17 Both defendants had alleged contributory negligence on the plaintiff's part in the event of their being found liable. They had also claimed contribution from one another with the Authority alleging that at all material times the City had owed members of the public a duty to take reasonable care to avoid such persons suffering injury by diving from the jetty.

Plaintiff's evidence

18 In his evidence the plaintiff had said that he could not give an exact figure on how many times he had dived from the jetty before the accident, but it had been many times. He said he had always dived from around the same part of the jetty. He said he had chosen that area because he could dive from there and then swim around and exit the water by using the ladder on the head of the jetty. That ladder was on the southern side of the head of the jetty and about 6.3 metres out from the eastern side of the main jetty.

(Page 8)

19 On the day of the accident the temperature had been about 42 degrees. The plaintiff who was then 20 years of age, had finished work about 11.30 am. He had then slept for a couple of hours. He had then gone to Warnbro Beach with his two friends. They had then decided to go to Palm Beach. The plaintiff said that he had gone to where people dived and where he went the majority of the time. He said that where he had dived was the point where everyone entered the water. He said he had dived from the same location previously on many occasions. He had never struck his head on the sea bed before during the course of a dive. That had been his first dive from the jetty during that summer. His last dive from the jetty previously had been during the summer before, probably in January 1988.

20 The plaintiff said he had not applied his mind to the issue of tides on the day of the accident. He said he had never had any problem diving there before and he had not turned his mind to that question. He agreed that in the course of his lifesaving training, part of his training had been that he should check the depth of the water before he went into it.

21 In answer to interrogatories the plaintiff had said that he did not remember looking to see if he could see the sea bed in the area into which he had dived. He said he had dived towards the eastern tip of the head of the jetty. He had dived more to seaward and into deeper water than he would have entered had he dived at a 90 degree angle out from the jetty. He agreed that as he had walked out on the jetty, consciously or subconsciously, he would have had to have made a decision about where it was deep enough to dive. They had casually strolled out to the spot. His friend Harris had gone in first. He said: "We would have just - we knew where we were going; to the same place we would always go."

22 The plaintiff said he believed he would have noticed a sign if one had been there. When he was asked: "It wouldn't have necessarily stopped you diving would it?" He said: "I think, yes, it would have."

23 When the plaintiff was queried concerning his education about checking the depth of water before he dived, he said: "For unfamiliar waters. That's exactly - I was familiar with that particular area." He said he believed that with the education he had had, if he had seen a sign there, he would have known that he would have "had to take the precaution". He might have tested it out first. He would have seen signs, had they been there, as he was walking out. He agreed that the real reason he had not had any worries about diving in, was because the waters were familiar to

(Page 9)

him. He said that if he had seen a sign, he believed he would probably have jumped into the water first.

Other evidence

24 Mr Bazzica gave evidence that there were a lot of people in the water and a lot of people on the jetty. He added that it was a very popular spot in summer. Mr Bazzica said that Mr Harris had jumped into the water first, in the form of a "bombie", with his backside hitting the water and his knees near his chest. Mr Bazzica was second. He did a flat-type dive and scuffed his head on the sea bed before he returned to the surface. He was 5'4" or 5'5" tall. He said that when he returned to the surface, the plaintiff was already in the water. He saw that the plaintiff was in difficulties and helped him to the shore. The plaintiff then had no feeling in his legs.

25 In an earlier statutory declaration Mr Bazzica had said that when they had got out on the jetty the water had looked all right. It had not struck him as being obviously too shallow to dive into.

26 Mr Harris said that at the time of the accident he had been about 18 and a half years of age. He had known the plaintiff for about a year. He said that during the summer months he went to the jetty three or four times during the week and probably two or three times in the weekend, depending on how hot it was. He gave evidence that prior to the accident he had seen people diving from most sections of the jetty. He had seen people dive and do "bombies" from a section of the jetty closer to the shore than the section from which the plaintiff had dived on the day of the accident.

27 In a statutory declaration Mr Harris had said that the jetty and the water around it was always crowded during the summer months with fishermen and swimmers. There had always been people diving from the jetty. He said in evidence that until recently before he made the statutory declaration, there had never been any signs on or about the jetty warning people of the danger of diving from it or saying that the water might be too shallow to dive into it, or telling people not to dive from the jetty. The signs on the jetty had only been put up after the plaintiff's accident.

28 Mr Ashfield had been employed by the City as a Ranger between 1977 and 1988 and was a Senior Ranger from 1988 to 1996. He gave evidence that the jetty was a very popular swimming location, particularly during the summer months when children were on school holidays. Swimming classes were held on the eastern side of the jetty. There was a

(Page 10)

toilet block immediately to the west of the jetty. That had been there for 20 years. Further to the west there were two boat ramps and another larger toilet block. That toilet block had been there for at least 20 years. Almost immediately to the west of the jetty was a shower with two outlets.

29 Mr Ashfield said he could not recollect any complaint being received by the City concerning any persons diving from the jetty. The main complaints relating to the jetty had concerned bicycles on the jetty, arguments amongst fishermen, and children doing "bombies" from the jetty into the water close to where swimming classes were being held. He said he had seen people diving from the jetty over the years. They would generally dive from the head of the jetty into deeper water than the water closer to the shore. He agreed that since he had begun working with the City in about 1977, the bay in which Palm Beach is located had been a very popular recreational facility. The area around the jetty was particularly popular.

30 Mr Ashfield agreed that the City had promoted the usage of the area by the community generally, ratepayers and tourists. He agreed that the erection of facilities in and around the jetty area had been designed to make the amenity more attractive to such people. Mr Ashfield agreed with the proposition that up to 1989 the only matters he had observed the Authority deal with on the jetty were maintenance and repairs, and placing bollards in the centre of the landward end of the jetty. He could not remember when that was done.

31 Mr Woolhouse, a Hydrographic Surveyor employed by the Authority, gave evidence that he had concluded that the depth of water at a point 77 metres seaward from the shore end of the jetty on the eastern side of the jetty at 3.30 pm on 11 January 1989 had been 1.38 metres. That depth was at a distance about half a metre east of the eastern side of the jetty. He had measured the location where the plaintiff had dived as being 78.45 metres from the shore end of the jetty. He had concluded that on 11 January 1989 the distance between the deck of the jetty and the water surface would have been about 2.7 metres. He agreed with the proposition that it would be fair to say that there appeared to be a rapid increase in the depth of the water to the seaward of the 78.45 metre mark along the length of the jetty.

32 Mr Prance, a diving expert gave evidence that it would be most unwise and suicidal for a person to dive from a height of approximately 2.7 metres above the water into water which was approximately 1.3 to

(Page 11)

1.4 metres deep. He said it would be dangerous to dive into the water from any location on the eastern side of the length of the jetty and to the southern or shore side of the head of the jetty. He said it would be dangerous no matter whether it was high tide or low tide. When asked whether it was difficult to judge the depth of water he replied: "Most definitely." He agreed that if the sea bed was sandy you would be battling to judge whether the depth was between 1 metre and 3 metres, depending on the conditions.

33 Associate Professor Hartley, who had delivered lectures and papers on principles in relation to signage, said that as a general rule of thumb, the compliance rates with signs is something in the order of about 25 per cent, unless there is enforcement. He thought that enforcement was vital.

Appeal by City

34 It was contended for the City that so far as shallow water was concerned, the plaintiff had known about shallow water and the dangers of diving into it. He had obtained life saving certificates and he had been given that information and training. It was submitted that the reason he had dived from the relevant place was that he had dived from that same spot without any difficulty on many prior occasions. Additionally it was said that he had answered an interrogatory to the effect that he did not remember looking at the surface of the water before he had dived. It was submitted that it could not be contended that the plaintiff had been misled by a mistaken impression about the depth. It was submitted that signs such as "shallow water - be careful diving" would have been of no use because all they would have done would have been to convey information that the plaintiff had known of. It was submitted that the plaintiff's case had been that he had thought it was safe to dive in that particular place because he had dived there before. It was said that he had used the area for swimming and recreational purposes for quite some time. That had been his evidence.

35 It was argued for the City that as the learned Commissioner had found that the City was not an occupier of the jetty and not in control of it, and that the Authority had exclusive control of the jetty, if anyone had owed a duty of care to the plaintiff, it had to be the Authority - that a person is not liable for a breach of duty by a neighbour. It was submitted that once a person left the jurisdiction of the City and its control and walked out onto a jetty controlled by somebody else, there was no duty of

(Page 12)

care in the City. It was said that therein lay an error on the part of the learned Commissioner.

36 It was alternatively submitted that the jetty had been used since the 1960s for public purposes with no incident or problem of any injury at all. That it might have been a different situation if people had been hurt before, but this jetty had been incident free. No-one else had been injured. The question then arose as to the risk it was said that the City had to protect people against.

37 It was submitted that what had injured the plaintiff had not been an obvious risk. That he had known about the dangers of diving into shallow water and had not needed to be told about those dangers. Although it had been pleaded against the City that it should have erected a warning sign, there had been no precision in terms of what kind of sign should have been put up.

38 It was submitted that the trial had been conducted on the basis that diving should have been prohibited. It had not been pleaded that the City should have told the Authority what to do.

39 It was further submitted that the learned Commissioner had been in error when he had found that because the City had known that people dived from the jetty and that the jetty passed over water which was shallow, that was sufficient to require the City to make proper inquiry into the safety of diving from the jetty.

40 It submitted that it was revolutionary to suggest that where in this case the Authority had owed a duty of care to persons on the jetty, the City had also a duty of care - "to in effect second guess or prompt the person responsible." It was submitted that the City was not its "brother's keeper". It would have been different if the City had said: "Look, go ahead; everything is fine."

41 A further submission was made that the learned Commissioner had found that the City would have found out about the problem of diving into the relevant area by embarking on a course of inquiry. He had not found that the City had known of the problem or that the problem could have been seen as in the case of a dirty needle on a jetty.

42 It was submitted that the plaintiff had known the water was shallow. Also that he had known about the dangers of diving into water in circumstances when he could not tell what the depth was. Therefore a warning concerning the danger of diving in shallow water would not have

(Page 13)

affected him, whereas a "diving prohibited" sign might have. That the case for the plaintiff had been put on the basis of a "diving prohibited" or a "no diving" sign. That a finding by the learned Commissioner based on anything other than a "diving prohibited" sign had not been available on the evidence.

43 It was further submitted that there had simply been no evidence that a sign warning of the danger of diving into shallow water at the start of the jetty would have prevented the plaintiff from diving from the jetty. That the only evidence which the plaintiff had given was that he might have changed his conduct had he seen a "diving prohibited" sign.

44 It was submitted that the attack against the City had been in relation to the area which it controlled (which was not the jetty) and the putting up of a sign there. However the learned Commissioner had found that the City should have made a recommendation that the Authority prohibit diving from the jetty generally.

45 Counsel for the plaintiff made the point that the depth of 1.38 metres at the place where the plaintiff dived was the depth immediately under the jetty and not necessarily the depth at some distance out from the jetty where the plaintiff had struck the bottom. That was important because on the southern side of the head of the jetty towards which the plaintiff was said to have dived, the depth of water at the edge of the main jetty was 2.8 metres. Proceeding out in an easterly direction on the head of the jetty, the subsequent readings were 2.8, 4.4, 3.8, 4.5, 5.2 and 5.8 metres respectively, which indicated that at the eastern end of the head of the jetty, there was nearly 20 feet of water.

46 The point was made that the learned Commissioner had found that the plaintiff was a truthful witness. The Commissioner said:

"The plaintiff had worked and studied for several years as an apprentice baker. He worked in the night time and through the early hours of the morning. I accept his evidence that he virtually ran the bakery. I find that the plaintiff was a mature and responsible person at the time of his accident. I was impressed by the plaintiff and found him to be a truthful witness. He did not flinch from giving evidence contrary to his interests."

47 The learned Commissioner said that he accepted the plaintiff's evidence that he had not dived from the jetty since the previous summer. Because of that there would have been a greater prospect of the plaintiff

(Page 14)

complying with a warning sign adjacent to the southern end of the jetty and a diving prohibited sign on the jetty, than if he had dived from the jetty in the summer of 1988/1989 prior to the relevant day. He also accepted that the plaintiff's dive was not impulsive.

48 In my view it is relevant that the plaintiff had previously dived from around the same place at the jetty and had never before encountered difficulties. Also that Mr Bazzica did not think that the water was "obviously way too shallow to dive into". There was evidence that there had been other people diving from the jetty. Until very recently there were no signs on or about the jetty warning people that it was dangerous to dive from it, or that the water might be too shallow to dive into.

49 Counsel for the plaintiff submitted that the Authority had admitted that it knew, or ought to have known, that members of the public bathed around the jetty. The City had also known before the plaintiff's accident that people dived and jumped from the jetty. The City had promoted the area near the jetty as a swimming area. The City had encouraged people to visit the area of Palm Beach where the jetty is located for recreational purposes, including swimming.

50 The learned Commissioner found that the City no doubt knew that some people who attended at the Palm Beach jetty dived off the jetty. He accepted the evidence of the plaintiff, Mr Harris and Mr Bazzica, that people had dived off the jetty before the date of the plaintiff's accident. He said that no doubt there would have been occasions when a ranger employed by the City would have observed a person dive from the jetty. Mr Ashfield had given evidence that he had dived off the jetty and had observed other people do so.

51 The Commissioner said:

"The evidence of Mr Arntzen, Mr Woolhouse and Mr Prance supports the finding which I now express that it is difficult to accurately judge the actual depth of water when the depth is between 1 and 2 metres, or up to 3 metres."

52 The Commissioner found that the depth of water where the plaintiff had entered the water and struck his head was about 1.38 metres. He found that at the location where the plaintiff dived from, it would not have been obvious to a person exercising reasonable care that a dive could not be performed safely.
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53 The Commissioner found that the sea bed sloped away relatively quickly from about the 70 metre mark to the 90 metre mark, going out along the jetty. It was at the 78 metre mark that the plaintiff had dived. The Commissioner said:

"… it would not have been obvious to a person exercising reasonable care that it was unsafe to dive in a north-east direction from about the 78 metre mark. That is what the plaintiff did."

54 The Commissioner also found that it had not been obvious to Mr Harris and Mr Bazzica that it was unsafe to jump or dive from the jetty where the plaintiff had made his dive. He was satisfied that if the City had erected a "diving prohibited" sign adjacent to the southern end of the jetty, the plaintiff would not have dived from the jetty. He said:

"… there was no obvious indication on the day of his accident of anything that would or should have caused him to reconsider his understanding of where he could dive from the jetty and [that] it [would] be 'OK'."

55 He accepted the plaintiff's evidence that he "did not have any reason to believe that it was not safe."

56 The learned Commissioner made a very meticulous and detailed examination of the facts. In my view his findings of fact are supported by the evidence.

57 I agree with the proposition advanced for the plaintiff that any assumption by an Authority such as the City, of responsibility over an area, in circumstances such as those presently relevant, will create a relationship of proximity with a corresponding duty of care.

58 In Inverell Municipal Council & Anor v Pennington; Grennan & Anor v Pennington & Anor (1993) A Tort Rep 81-234 at 62,399 the facts were that the 17 year old plaintiff had dived head first into a public swimming pool owned by the first defendant and managed by the second defendants. The first defendant had retained control over the pool but had generally acted upon the second defendant's advice. Mahoney JA said:

"Those in control of the pool had, in general, a duty to take care for the safety of those using it. This is reasonably plain. The risk of injury from diving in shallow water is well recognised. They were, in the relevant sense, in sufficient proximity to users

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of the pool to require that they take proper precautions. This, I think, has not been seriously in question: see generally Nagle v Rottnest Island Authority …."

59 Mahoney JA at 62,400 said:

"What, then, was the relevant default? It must, in my opinion, have been that the defendants did not bring the danger and the depth to the plaintiff's immediate attention, so that he was subjectively aware or conscious of it when he decided to dive where he did. The significance of the absence of signs warning of the danger of diving and of depth indicators, was essentially that it resulted in the plaintiff not being then warned and subjectively aware of the danger he was taking."

60 Mahoney JA quoted from the judgment of Mason J in The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40 where his Honour said:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."

61 It was submitted for the plaintiff that there can be more than one body with an interest in, or control of, or influence over land which may give rise to a duty of care. Reliance was placed on the authority of Voli v Inglewood Shire Council (1963) 110 CLR 74; also on Kennedy J's comments in Western Australia v Dale (1996) 15 WAR 464.

62 In my view it is likely that when the plaintiff dived into the water he thought the water was much deeper than it was. There was uncontradicted evidence that other people had dived in that general area.

63 It is reasonable to assume that the City and the Authority knew, or ought to have known that people dived from the jetty in that area; also that

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they would have known or should have found out that at certain times the water in that area was only 1.38 metres in depth. Both authorities should have taken steps to prevent persons diving from the jetty in that area.

64 In Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at 15, McHugh J said:

"It is a case where the plaintiff claims that a statutory authority owed him a duty to take affirmative action to protect him. The question of duty must therefore be determined by reference to what has been decided in similar cases. Basic to that determination, as always, is the question: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? A negative answer will automatically result in a finding of no duty but a positive answer then invites further inquiry and a close examination of any analogous cases where the courts have held that a duty does or does not exist. In determining whether the instant case is analogous to existing precedents, the reasons why the material facts in the present case did or did not found a duty will ordinarily be controlling. The policy of developing novel cases incrementally by reference to analogous cases acknowledges that there is no general test for determining whether a duty of care exists."

65 At 16 McHugh J said:

"In Australia the starting points for determining the common law liability of statutory authorities for breach of affirmative duties are the decisions of this Court in Sutherland Shire Council v Hayman (1985) 157 CLR 424 and Pyrenees Shire Council v Day (1998) 192 CLR 330. In Hayman, Mason J speaking with reference to a failure to exercise power said:

'Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so … but an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power'."

66 It is relevant that in Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 at 430, Mason CJ, Deane, Dawson and Gaudron JJ said:

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

67 In the Nagle decision, Mason CJ, Deane, Dawson and Gaudron JJ said at 432:

"It is also significant that counsel for the respondent conceded that the Board had power to erect signs at the probable point from which the appellant dived. Diving from the wave platform was an activity which commenced within the reserve though it ended beyond the boundaries of the reserve. There was no reason why the Board could not erect signs on the wave platform warning of the danger which existed immediately beyond the boundaries of the reserve, that being a danger to which swimmers encouraged by the Board would be exposed."

68 In Romeo v Conservation CMN (NT) (1998) 192 CLR 431 Hayne J, at 488, said:

"What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring, and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry

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on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and the adventurous, or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case."

69 In Western Australia v Dale & Anor (1996) 15 WAR 464 at 477, Kennedy J, when discussing a swimming hole located on a Crown reserve which had been created under the Land Act 1933, said at 478:

"The swimming hole had been popular for very many years and the appellant clearly knew this to be the case. It is further apparent that a substantial degree of control over the area had been exercised by the appellant. In my opinion there was sufficient evidence to justify her Honour's conclusion that the appellant was the occupier of the reserve; but if this be wrong, then I am of the view that there was a sufficiently proximate relationship between the appellant and Mr Dale to give rise to a duty of care on the part of the appellant. A foreseeable risk of injury from diving, which cannot be categorised as remote or fanciful, could have been guarded against by means which involved little difficulty or expense. There was evidence before her Honour as to the effective use of standard signs prohibiting diving and warning of shallow water. Her Honour concluded, appreciating that the matter was required to be determined after grave injuries had been sustained, and approaching this question with some caution, that Mr Dale would have heeded a warning

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sign. In my view her Honour's finding of liability on the part of the appellant has not been shown to be erroneous."

70 In my opinion it can be seen from the above comments that the question of sufficient proximity depends on all the circumstances of the case and the connection which the local authority has with the facility concerned.

71 It was contended for the City that there was no case which has gone so far as the learned Commissioner went in this particular case in finding a duty of care, not in the person responsible as occupier or having the care, control and management of a particular area, but in somebody who had a vesting in relation to a bordering adjacent area. That may be correct but in my opinion it does not invalidate the findings of the learned Commissioner.

72 In my opinion, the Commissioner was entitled to make the findings he made which are in accord with the law as stated in the authorities to which I have referred. Grounds 1 to 3 of the City's appeal should not be sustained as there was no error by the learned Commissioner.

73 Grounds 4 and 5 do not improve the City's position in the light of the above law and the learned Commissioner's finding as to the facts.

Appeal of Authority

74 Amongst other matters the Authority relied upon the words of Kirby J in Romeo v Conservation CMN (NT) (supra) at 478 where his Honour said:

"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."

75 Secondly his Honour said:

"The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff, but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct."

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76 It was submitted for the Authority that a dive by a person such as the plaintiff, from a height of 8 feet into a depth of 4 feet of water was suicidal. It was submitted that the plaintiff, who had been trained to the level of a bronze medallion and who had other life saving certificates, had exhibited no care for his own safety. Further, that it was inherently and obviously dangerous to dive from a jetty which was 2.5 metres above the water without first checking the depth of the water.

77 It is however an important consideration that although the plaintiff was an experienced swimmer with various swimming qualifications, he had said in evidence (and he was accepted as a witness of truth) that he had dived at that place many times before and it had never been a problem.

78 It was submitted by the Authority that the plaintiff had a great deal of knowledge about the jetty and the water below, having been there many times before. He had dived there every summer. It was said that he had made no inquiry or attempt to consciously assess the depth of the water prior to diving from the jetty at the relevant time. He had simply assumed that it would be safe.

79 In my view those matters are relevant to contributory negligence on the plaintiff's part.

80 It was submitted for the Authority that the duty of care on the jetty did not extend to expressly warning jetty users not to dive into the water at the point at which the plaintiff did so. That there was an inherent obligation or expectation that people would take reasonable care for their own safety. That there was no obligation to warn of the blindingly obvious, just as there is no need to put signs on highways saying "it is dangerous to cross this highway".

81 Those submissions for the Authority are all contrary to the findings by the learned Commissioner which are referred to earlier in these reasons. So is the assertion in Ground 3 that an appropriate sign would not have prevented the plaintiff from diving as he did.

82 Grounds 1 to 3 are not sustained.

83 Ground 4 concerns the learned Commissioner's finding that the plaintiff's contributory negligence should be assessed at 20 per cent. It was submitted that the contributory negligence of the plaintiff should have been assessed at a figure substantially higher than 20 per cent.

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84 The conduct of the plaintiff and his background generally were relied on in support of this ground concerning contributory negligence. Primarily it was submitted that anybody taking reasonable care would not have dived in at the relevant place without first ascertaining the depth of the water. Secondly, it was said that with his qualifications and experience in swimming, it was all the more careless of the plaintiff to do what he did.

85 In my view the findings of the learned Commissioner should have resulted in an assessment for contributory negligence at 33-1/3 per cent. My reasons for this view are stated later in these reasons when discussing the cross-appeal by the plaintiff on the question of contributory negligence.

Cross-appeal by Authority

86 There are seven grounds of appeal occupying more than four pages of the appeal book. I will not set them out in the reasons, but I have considered them all.

87 It was argued that the City had the power and control over all the adjacent areas leading up to, and surrounding the beginning of the jetty. It was contended that the City derived, unlike the Authority, most of the benefit from the control of those areas. It was further submitted that similarly to the actions of the Rottnest Island Board concerning the Basin in the Nagle decision, the City had actively induced patronage of the Palm Beach jetty and of the surrounding areas. It had promoted the jetty as a tourist facility. It had been open to the City to warn of the danger. It was submitted that the City had breached a duty it owed to the Authority to notify it of the relevant danger so that the Authority could take steps to counter that danger, including the prohibition of the diving.

88 It was submitted that the City had had rangers in the area. Because it was intimately involved with the activities on the jetty, the City could have put up a sign to the effect: "Diving off this jetty into shallow water may cause serious injury". It was noted that after the jetty was transferred to the City in 1992, the City had put up signs prohibiting diving.

89 A further contention was that to the extent that the jetty was within the City's district, the City had the responsibility for the care, control and maintenance of it for all purposes other than those prescribed by the Fremantle Port Authority Act 1902 (the Act). It was said that the City had responsibility for all the land and the jetty above the low water mark

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because of the City's territorial boundary and pursuant to the provisions of the Local Government Act.

90 Concerning the question of which body had control of the jetty, s 22 of the Act provided that all jetties within the boundaries of the port "shall be vested in the Port Authority for the purposes of this Act". Section 24 of the Act gave the Authority exclusive control of the port and charged the Authority with the maintenance and preservation "of all property vested in it under this Act".

91 The Authority agreed that it was obliged to maintain and preserve the jetty. Also that the historical relationship between the parties had been such that as a matter of practice the Authority had carried out maintenance on the jetty, frequently in response to requests from the City.

92 It was said to be relevant that when the Commonwealth Government had ceded the jetty to the State prior to the plaintiff's injuries, in a relevant letter it was stated that the purpose of the grant was for the benefit of the Rockingham community or words to that effect. It was contended for the Authority that the jetty was thereafter always recognised as a recreational jetty which would benefit the City of Rockingham and its environs. It was conceded that the Authority had an entitlement to run the affairs of the Port from the jetty to the extent that that was required. It was conceded that activities concerning boats using the jetty were within the exclusive control of the Port.

93 It was conceded that s 22 of the Act had vested the jetty in the Authority. It was however submitted that the City had kept a close eye on activities on the jetty and had informed the Authority on all occasions of anything which it regarded as being likely to give rise to a difficulty or an accident. The City had also informed the Authority if there was a problem concerning safety in relation to the jetty. The Authority would then promptly react. Testimony was given by Mr Ashfield concerning this.

94 It was submitted that because of the relationship between the City and the Authority concerning the jetty which had developed over a number of decades, and in the light of the benefits which the City received from the jetty, the City should have alerted the Authority to any obvious danger connected with the jetty. It was submitted that although his Honour had reached the view that the exclusive control over the jetty was legally held by the Authority, that control was held by the Authority over the port and it did not necessarily apply to the jetty itself. In practice

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it was said, the parties had not acted as though the Authority had exclusive control of the jetty. The City itself had made decisions in relation to the use of the jetty without reference to the Authority.

95 It was also submitted that the final words of s 22 of the Act "within the boundaries of the port" had been overlooked by the learned Judge. As stated above, s 22 of the Act vests all jetties "within the boundaries of the port" in the Authority. The boundaries of the port went to the high water mark. The boundaries of the City went to the low water mark. The boundaries of the reserve went to the high water mark. There was an area of overlapping jurisdiction between the City and the Authority.

96 It was conceded for the Authority that there was clearly a duty to maintain and preserve the jetty up to the high water mark. Section 26 of the Act also gave the Authority the power to maintain roads and approaches to the jetty. It was however submitted that on a clear reading of the relevant legislation that part of the jetty above the high water mark was not vested in the Authority.

97 A question arises whether pursuant to s 22, a jetty "within the boundaries of the port" means the whole jetty or only so much of it as might be within the boundaries of the port. The learned Commissioner took the view that it was whole jetties referred to in the section and not parts of jetties. It was however submitted on appeal for the Authority, that one-third of the jetty was clearly within the area controlled by the City. The low water mark, being the boundary of the City, was at a point which was a little short of half way along the jetty. The Authority contended that in law and in fact it did not have exclusive control of the jetty. Almost half of the jetty ran over land vested in the City. It was submitted for the Authority that the only part of the jetty vested in the Authority for the purposes of the Act was that part below the high water mark.

98 It was submitted that so far as the vesting was concerned, the learned Commissioner had not taken sufficient notice of the opening words in s 22 being "for the purposes of the Act". He had also not been influenced at all by the concluding words in s 22(3) being "within the boundaries of the port."

99 It was submitted that although the Commissioner had not dealt with the question, it had always been permissible for the City to make regulations to prohibit diving for a distance of 200 metres to seaward. It was not to the point that no such by-laws had been made.

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100 In my view if s 22(3) had vested "that part of the jetty" within the boundaries of the port in the Authority, part of the Authority's contentions could be correct. However "all jetties" within the boundaries of the port are vested in the Authority. Once "a jetty" is vested in the Authority, that is a different concept to half of a jetty being vested in the Authority.

101 In my view the findings of the learned Commissioner on the questions of vesting and control arising from the Act are correct.

102 It was also argued by the Authority that the question of "proximity" was determined by a variety of other factors. It was said that as a matter of practice, in relation to matters concerning public safety, the City had clearly exhibited substantial control and played a very active part over the full length of the jetty. It was said that the learned Commissioner had reached findings that as a practical matter the City had exercised those sorts of functions.

103 The Commissioner found that the evidence clearly established that the City had promoted the area about the jetty as a swimming area. Rangers employed by the City had visited the area once a day during winter and twice a day during summer. Swimming classes were held at Palm Beach in summer. He had no doubt that the City was aware that Palm Beach was a very popular swimming venue, before and at the time of the plaintiff's accident. He also had no doubt from all the evidence that the City was aware that people had dived and jumped from the jetty before the date of the plaintiff's accident.

104 The learned Commissioner found that the jetty had provided a ready platform for people to jump or dive from it into the water. He found that the City had encouraged people to visit Palm Beach, where the jetty was located, for recreational purposes including swimming. He referred to a promotional document entitled "Rockingham, the Third City", and to Palm Beach and Rockingham jetties being promoted for fishing and swimming. Permission had been sought by the City to approach the SEC for lights to be erected on the jetty. There had been letters written by the City to the Authority over a lengthy period in relation to problems experienced on the jetty.

105 It was submitted for the Authority that the effect of the findings by the learned Commissioner was that there had been a more direct relationship between the City and the plaintiff than between the Authority and the plaintiff. That the City had had the hands-on management of safety issues and "people" issues. The City had been in the position where

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it had been directly concerned with the activities of people diving from the jetty. Therefore it should bear a significantly higher proportion of responsibility for the plaintiff's injuries than 25 per cent. That on all the evidence the City was more responsible for safety problems than the Authority was. With rangers attending on a day to day basis, it could be seen that the City was undertaking responsibility. It was submitted that the conduct of the City and the Authority over the years should be looked at. Safety matters had invariably been referred by the City to the Authority.

106 It was further submitted that there had been no consideration given to the fact that the specific responsibility of the Authority in the legislation was to maintain and preserve the jetty. In the Local Government Act there were powers given to the City to deal with matters of safety. The jetty had been vested in the Authority only to assist it to run the port. The original purpose of the jetty had actually passed. The correspondence had disclosed that in practice the City had borne a responsibility in relation to matters of safety for the entirety of the jetty. The City had promoted the jetty as one of its attractions.

107 It appears from the learned Commissioner's reasons that by arrangement with the Authority, the City had agreed to erect bicycle racks at the foot of the jetty so that people going onto the jetty could leave their bicycles there. Further, that in the lead-up to the America's Cup, documentation had shown that the City had considered applications from business interests to allow boats to berth at the jetty. Approval was subject to the approval of the Authority. Further, the City's rangers had regularly inspected the jetty. They had responded to unruly behaviour on the jetty, including preventing people doing "bombies" during swimming classes.

108 The learned Commissioner said that he had no doubt that there would have been occasions when a ranger employed by the City would have observed a person dive from the jetty. He accepted evidence that other people had dived from the jetty besides the first appellant and his friends. It was these matters which influenced the learned Commissioner to conclude that a relationship of proximity existed between the City and the first appellant.

109 In my view there is quite a similarity between the conduct of the Rottnest Island Board which is discussed in Nagle at 427 and following and that of the City in this case. Both Authorities had erected change-rooms and toilets near where the diving accidents had occurred.

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Both Authorities had maintained paths in the relevant area. Both had promoted the relevant area for swimming and recreational activities.

110 In Nagle the learned trial Judge said:

"While the dangers of diving into the sea may be usual or expected in general, the position seems to be different where the [Board's] antecedents acts are directed towards facilitating the entry of the [appellant] into the sea. Where such entry entails a foreseeable risk of danger if executed in a certain manner, the duty to warn arises in my opinion. No such notice having been given, breach is established."

111 In that case the learned trial Judge found that the activities of the Rottnest Island Board in encouraging persons' attendance at the Basin by promotion and by the provision of facilities, had constituted an assumption of responsibility by the Board in relation to persons attending the Basin.

112 Mason CJ, Deane, Dawson and Gaudron JJ said:

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

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113 In my opinion, the City in this case was a de facto occupier of the jetty in the sense that it had encouraged the use of it for the City's purposes with the permission of the legal owner which was the Authority. It is significant also that there was evidence which was accepted by the learned Commissioner that over many years the City had cooperated with the Authority and alerted the Authority to perceived dangers and problems in connection with the jetty. The City's ranger had kept an eye on behaviour at the jetty.

114 It was submitted for the Authority, that the Authority would not have been able to close the jetty off from the public in the bona fide exercise of its powers unless for a reason associated with the use of the jetty. However, in my view there is no basis for that submission.

115 In any event the question is not whether or not the jetty could be closed by the Authority but whether the City could have been held liable to some degree for its part in encouraging people with the permission of the Authority to go onto the jetty for recreation.

116 Part of the Authority's argument was that the vesting of the jetty in the Authority was not for all purposes. That is not necessarily in conflict with the Authority giving the City permission to use the jetty under certain circumstances. The fact that the City had made arrangements with the Authority to allow for mooring by the public at the jetty and for swimming operations does not detract from the Authority's right to exclude people from the jetty. Neither does the fact that the City had agreed to pay the cost of some repairs to another jetty controlled by the Authority in the same area. Those matters indicated that the two bodies were cooperating very closely and that the Authority was leaving some matters concerning the jetty to the City.

117 Reference was made to an agreement reached between the Authority, the Main Roads Department and the City concerning the provision of hand-rails on another jetty in the area. Reference was also made to a letter from the Authority to the City pointing out that funds were not available to meet the many requests received for improvements: "and that in general it is considered that such work should be financed by the local authority concerned." Although that letter and probably some of the others related to other jetties in the area than the one in question, they showed the cooperation between the Authority and the City.

118 The plaintiff's notice of contention dated 8 February 2000 seeks to confirm the findings of the learned Commissioner on the questions of the

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control of activities on the jetty and the finding that the responsibility for the injuries should be divided between the Authority and the City.

119 I agree with the learned Commissioner's findings that legally the Authority had exclusive control of the entire Jetty. I also agree that the learned Commissioner's apportionment of liability between the Authority and the City at 75:25 per cent was the correct apportionment, for the reasons given by the learned Commissioner. The apportionment was based in part upon the past conduct of the two Authorities in relation to the jetty, the Commissioner's findings of fact concerning the activities at the jetty, the fact that the Authority had relied upon the City to a certain extent concerning problems with the jetty and the duty of care arising from the notion of the "proximity".

120 I agree that the de facto sharing of responsibility between the two Authorities in all the circumstances required the City to bear some responsibility for the plaintiff's injuries. I would not disturb the Commissioner's findings as to the apportionment of responsibility between the two appellants.

Contributory Negligence of Plaintiff

121 It was argued for the plaintiff on the cross appeals that the finding of the learned Commissioner had been that an ordinary person exercising reasonable care would not have realised that it was unsafe to dive from the place where the plaintiff dived. The plaintiff had not been held to have been impulsive. He had not been reckless. He had been mature and responsible. There was an express finding that had there been a warning, the plaintiff would not have dived.

122 In my opinion the above argument leaves room for a finding that the plaintiff dived into water which he did not know was deep enough.

123 In answer to that proposition, it was submitted that the plaintiff had had no reason to think it was not safe because of his past diving and the prevalence of other persons diving in the vicinity. Reliance was placed on the reasons of Nicholson J in Nagle where in that case the plaintiff had been of the opinion that he had passed all the submerged rocks and had thought that the water was clear.

124 At 63 of his findings in this case, the learned Commissioner said that at the place where the plaintiff dived: "it was no longer obvious to a

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person exercising reasonable care that a dive could not be performed safely."

125 At 64 of his reasons the Commissioner said:

"In my opinion, all of this shows that it would not have been obvious to a person exercising reasonable care that it was unsafe to dive in a north-east direction from about the 78 metre mark. That is what the plaintiff did."

126 The Commissioner also said:

"I am satisfied that on the day of the plaintiff's accident it was not obvious to both Mr Harris and Mr Bazzica that it was unsafe to jump or dive from the jetty where the plaintiff made his dive."

127 It was said for the plaintiff that the learned Commissioner had said it was difficult to accurately judge the depth of the water at the relevant time. In those circumstances it was difficult to support a finding that there had been a lack of care by the respondent for his own safety when he knew that two other people had gone into the water before him and that he had dived from that place without incident a year before. It was submitted that the plaintiff had fallen victim to a false sense of safety. He had fallen victim to a risk which an adequate warning would have eliminated.

128 It was submitted for the plaintiff that the learned Commissioner had failed to identify what it was that the plaintiff should have done which he did not do or what he did that he should not have done, and what difference it would have made.

129 In his reasons for judgment, the learned Commissioner said:

"I think that the plaintiff had some appreciation of the need for care, albeit subconsciously, because he attempted a 'long dive' ie one that was not straight down. Such a dive would achieve a shallower entry than a vertical dive. I also find that he dived towards deeper water. In my opinion the plaintiff should have focused more attention on the water at his entry point and made a conscious effort to assess its depth before he dived. This is particularly so given that it was his first dive from the jetty that summer. Applying the test in Podrebersec v Australian Iron & Steel Pty Ltd, I find that the plaintiff's damages should be

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reduced by 20 per cent because of contributory negligence on his part."

130 In my view, a person who is contemplating diving from a jetty in the vicinity of obviously shallow water, who does not know the depth of water into which he or she is diving, would not be taking reasonable care for his or her safety if that person dived, without ascertaining that the water was deep enough to dive safely. Generally I agree with the observations of Murray J with regard to the contributory negligence of the plaintiff.

131 Having regard to all the arguments which have been advanced by counsel, it is my view that the learned Commissioner was incorrect in his assessment of the contributory negligence of the plaintiff. I would increase the apportionment for contributory negligence from 20 per cent to 33-1/3 per cent.

132 In my opinion the result of these appeals should be that, apart from the increase from 20 per cent to 33-1/3 per cent for the contributory negligence of the plaintiff, the appeals and cross-appeals should be dismissed.

133 MURRAY J: In respect of these several appeals and cross-appeals involving related notices of contention, I have had the advantage of reading in draft the reasons for judgment of Wallwork and Anderson JJ. That being the case I am relieved of the need to discuss factual matters at any length. I propose merely to summarise what I conceive to be the relevant facts as established by the evidence and as found by Reynolds C of the District Court at trial.

134 The Commissioner delivered typically careful and thorough reasons for judgment on 29 January 1999 following a six day trial on the issue of liability conducted in October 1998. The Commissioner gave judgment for the first respondent in both appeals, to whom I shall refer for convenience as "the plaintiff", for damages reduced by 20 per cent for his contributory negligence. As between the appellants in the two appeals, to whom I shall refer as "the City" and "the FPA", liability was apportioned 75 per cent to the FPA and 25 per cent to the City.

135 I do not propose to set out the various notices of appeal and cross-appeal and the notices of contention. It is sufficient I think to state the various issues which seem to me to arise in the appeals and cross-appeals. They are as follows:

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(1) Did the City owe the plaintiff a duty of care? Subsidiary to that broad question are the questions whether the jetty was under the exclusive control of the FPA or effectively under the joint control of both the City and the FPA, was reliance placed upon either the City or the FPA by the plaintiff in respect of his safety in the course of his recreational use of the jetty, and did the City invite or encourage the public, including the plaintiff, to use the jetty or any part of it for recreational purposes, including by diving from it?

(2) If the City was under such a duty, what was required of both defendants, or alternatively the FPA alone, to discharge the duty of care? Were the City and the FPA obliged to place signs in areas under their control prohibiting diving or warning of the danger of diving into shallow water? Was the City obliged to request the FPA to erect any such sign at an appropriate location?

(3) If either or both the City and the FPA were liable to the plaintiff in negligence, was he guilty of contributory negligence or merely of inattention borne of familiarity and repetition? If he was guilty of contributory negligence, to what degree should his damages have been reduced?

136 In my view the facts relevant to the resolution of those questions as established by the evidence and the findings made by the learned Commissioner are as follows:

(1) At about 3.30 pm on 11 January 1989, a very hot day, the plaintiff dived from the Palm Beach jetty, striking the sandy bottom of the sea with his head and suffering spinal injuries which resulted in quadriplegia.

(2) He was then a young man aged 20 years who lived in the general area and who was quite familiar with the jetty and the surrounding water. He was used to diving off the jetty and had done so from about the point where he dived on this occasion many times previously. He was a competent certificated swimmer.

(3) The jetty itself is situated in Mangles Bay at Rockingham. It runs out into the water from the shore in a northerly direction. At the northern end of the jetty there is a lower decked landing platform which runs east, making an L-shape. At its southern end, access to the jetty is obtained from paths, a paved area where there are bike racks and from an area where parking bays for cars are provided. At this point there is a reserve vested in the City.

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(4) Although the precise details do not matter, it is clear that as the jetty passes over a sandy beach and beyond high and low water marks into the bay, it passes into an area which is part of the Port of Fremantle and no longer part of the district of the local government. The plaintiff dived at a point about 77.5 metres from the start of the jetty, a point well into the area comprising the Port.

(5) He dived from the eastern side of the jetty by ducking under a 1 metre high pipe rail fence. At that point the water was still relatively shallow, although the depth of the water was increasing rapidly. At the point where the plaintiff dived the platform of the jetty was about 2.7 metres or 9 feet above the surface of the water. The depth of the water was about 1.38 metres or about 4-1/2 feet. The plaintiff angled his dive out towards the landing stage at the head of the jetty and therefore towards deeper water, but he did not angle his dive in that way by reason of any concern about the depth of the water.

(6) Before he dived the plaintiff was in the company of two friends, young men of about the same age as he was. They all went into the water from about the same point. The first friend jumped in with his body upright and his legs curled up and held to his chest - a "bombie". He had no difficulty with the depth of the water. The second friend dived in head first in a flat trajectory. His head touched the bottom, but he was not injured. The plaintiff followed without waiting for this friend to surface.

(7) The point from which they dived was one where they had often previously entered the water without difficulty. Indeed there was no recorded incident of personal injury having been sustained by any person as a result of diving from the jetty.

(8) The water at the time was relatively clear. It was a sunny day and the bottom could be seen at the point from which the plaintiff and his friends entered the water, but it was practically impossible to accurately assess the depth of the water from their position on the jetty. The difficulty would be increased by any ruffling of the surface of the water, but in the conditions applying at the time the depth of the water would probably appear to be shallower than it really was. The changing colour of the water as it got deeper was not an accurate guide to its depth.

(9) Diving was not prohibited from the jetty, but after the accident signs of a standardised type that diving was prohibited were affixed to light poles on the western side of the length of the jetty.

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The plaintiff would probably have heeded such a sign, or one warning of the danger of diving into shallow water.

(10) Both the City and the FPA employed rangers or other officers who in fact caused the two entities to act in a cooperative fashion one with the other in relation to the jetty and its use for recreational purposes, although in the case of the City its officers proceeded upon the recognition that they lacked de jure power to control the activities of persons on the jetty, including the landing stage, once the jetty passed beyond the boundaries of the City and commenced to pass over the outer harbour of the Port of Fremantle.

137 The FPA admittedly owed the plaintiff a duty of care in relation to the safe use of the jetty. The City contests that it owes such a duty. So far as the FPA was concerned, the duty arose out of the relationship between the plaintiff as an entrant upon the jetty under the management and control of the FPA. It is still appropriate to say that that was a sufficient relationship of proximity to found a duty of care. The plaintiff was there as a member of the public, permitted access to the jetty for recreational purposes, and whose presence was to be reasonably anticipated: Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 per Mason CJ, Deane Dawson and Gaudron JJ at 429 - 430, a decision applied, despite a contrary invitation, by the majority of the High Court in Romeo v Conservation CMN (NT) (1998) 192 CLR 431; and see WA v Dale (1996) 15 WAR 464, 472 - 473.

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consciously investigated the water for the presence of submerged rocks and where he was misled by the conditions into thinking the place to be safe for a dive to be executed when it was not in fact so. Neither is the case like that of Dale where again a visual check had been made for any diving hazard, but it was difficult to see into the water which deceptively appeared to present no difficulty if a dive was executed.

163 It is appropriate to approach the question of contributory negligence in the manner endorsed by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493 - 494. It must first be determined in the light of the defendant's failure to discharge its duty of care that the plaintiff has been guilty of a negligent want of care for his own safety, rather than that his conduct amounted to mere inadvertence, inattention or misjudgment.

164 In this case upon the evidence and findings of the Commissioner, it was in my opinion clear that the plaintiff was well aware of the danger of diving from the jetty if the water was too shallow. He knew the area, but he simply relied upon the fact that he had dived safely from about the same position on previous occasions. He made no attempt prior to diving to gauge the depth of the water. He did not wait for the friend who had dived immediately before him to surface so that he might see if that person encountered any difficulty. The Commissioner found that, "he did not turn his mind to the height of the jetty above the water or the depth of the water" and that was the case, although the danger of the water being too shallow was obvious and the severe nature of the harm which might occur was or should have been very evident.

165 As has been seen the Commissioner's assessment of the degree of responsibility for his own injuries borne by the plaintiff led him to apportion 20 per cent to the contributory negligence. In Podrebersek the High Court pointed out that this matter of apportionment is essentially a matter of judgment, balancing the degree of contribution to the ultimate harm made by the lack of care of the plaintiff and the defendant. That being so, the Court pointed out that, "Such a finding, if made by a Judge, is not lightly reviewed." Appreciating that that is the case it is, however, my view that the plaintiff's lack of care for his own safety was very considerable, although not as great as the lack of care exhibited by the FPA in the manner discussed above. With respect to the Commissioner, I am unable to accept the view that 20 per cent against the plaintiff was an appropriate apportionment. To my mind, having regard to the nature of the lack of care exhibited by the plaintiff for his own safety and the direct contribution that made to the harm he so tragically suffered, the minimum

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apportionment of liability to him would be at the level of 33-1/3 per cent and I would so order.

166 Having regard to the above reasons I would therefore allow the appeal of the City (Ful 12 of 1999), set aside the judgment entered by the learned Commissioner, and order that the plaintiff's claim against the City be dismissed. In that appeal I would dismiss the cross-appeals by the FPA and the plaintiff. As to the appeal Ful 18 of 1999, I would allow that appeal to the extent necessary to vary the judgment entered by the Commissioner by increasing the apportionment to the plaintiff on the ground of contributory negligence from 20 per cent to 33-1/3 per cent. I would dismiss the plaintiff's cross-appeal.

167 The damages to be awarded to the plaintiff, including special damages, were agreed in the sum of $1,853,547.75. In the result I would enter judgment for the plaintiff against the FPA in the sum of $1,235,760.20.

168 ANDERSON J: This is an appeal from a judgment of Mr Commissioner Reynolds delivered in the District Court on 29 January 1999, whereby he found the Fremantle Port Authority and the City of Rockingham liable to pay damages to the plaintiff for personal injuries sustained on 11 January 1989. The trial was on the issue of liability only.

169 The action arises out of a diving accident. The plaintiff, then of the age of about 20 years, sustained severe spinal injuries when he dived into the sea from the Palm Beach jetty in Mangles Bay at Rockingham. Liability was apportioned as to 75 per cent against the Fremantle Port Authority and 25 per cent against the City of Rockingham. The plaintiff was found to have been contributorily negligent to the extent of 20 per cent.

170 Rockingham is a seaside town, not quite 40 kilometres south of Perth. It is a popular weekend and holiday destination, especially in summer months. There is a number of jetties in Mangles Bay and they go by various popular names. The beach in the vicinity of the jetty in question is named Palm Beach and the jetty is known as the Palm Beach jetty, although it is commonly called by other names.

171 The jetty was built during the Second World War by the Commonwealth Government for use by the navy. The evidence is not clear as to the uses to which it was put, but from the historical material in evidence it is possible to gain the impression that it was used by small craft servicing the naval base at Garden Island, which is a small island

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some few kilometres offshore now connected to the mainland by a causeway. The dimensions of the jetty suggest that it would not have been used by warships or large vessels. In the early 1960s the Commonwealth handed the jetty to the State and it came under the control of the Fremantle Port Authority in the following way. The Port Authority is constituted as a body corporate by the Fremantle Port Authority Act 1902. By force of the Act, all jetties and landing stages in the Port of Fremantle are vested in the Port Authority and by s 24, the Port Authority "shall have the exclusive control of the port and shall be charged with the maintenance and preservation of all property vested in it under the Act". At the time of this accident Palm Beach, to high-water mark, was part of the outer Port of Fremantle.

172 The jetty abuts land in a manner that allows vehicles to be driven onto it. Pedestrians can stroll onto it from the pathways along the beachfront. The coastline at this point in Mangles Bay lies east-west. The jetty runs straight out to sea, due north for about 91 metres to a jetty head, which runs due east for about 37 metres. The head of the jetty is actually a landing stage. Its deck is 1.6 metres lower than the deck of the jetty. There are steps down from the jetty to the landing stage.

173 The best way to describe the relationship between the jetty and the water beneath it is perhaps to say that, after stepping onto the jetty from land, one would walk for 33.55 metres above a sandy beach before reaching the line of high-water mark. It is a further 34.45 metres to the line of low-water mark; ie, some 70 metres from the commencement of the jetty.

174 The seabed in this part of Mangles Bay is sandy and flat and the waters are sheltered and clear. The evidence was that it is this which makes the area such a popular family holiday destination. The gradient of the seabed from the waterline is very gradual and the water very shallow to a point just beyond low-water mark; that is, just beyond the point which is about 70 metres out on the jetty. From about that point seawards, the seabed in the vicinity of the jetty head begins to dip, and it dips quite steeply. The depth of water at any given time at any point along the jetty length depends on the tide, of course. The evidence was that in the immediate vicinity of and beneath and seaward of the landing stage the water is deep. At some points adjacent to the landing stage, it is as much as 7 metres deep. Although there was no direct evidence that the berth at the landing stage had been dredged, it can safely be concluded that at some time in the past there had been dredging. This is as one would naturally expect, if the berth was to accommodate craft of any size.

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175 The learned Commissioner found that the plaintiff dived from the eastern side of the jetty at about the 78-metre point. He found that, at the time he made this dive, the tide was such that the deck was about 2.7 metres above the surface of the water and the dive was into only about 1.38 metres of water. The plaintiff struck the bottom and tragically he is now quadriplegic.

176 The plaintiff was an experienced and strong swimmer. He lived at Rockingham and had dived from the Palm Beach jetty without incident on many occasions. He claimed that he usually dived from "around the same area" on the jetty from where he dived on the day he was injured. On that day, he was in the company of two friends. According to the plaintiff (t/s 75), the day was "very hot" and "very still" and all three went out onto the jetty and stood at the railing for a time. A number of swimmers were on the landing and diving from it. There is no evidence that anyone else was diving from the jetty itself. One of the plaintiff's friends, John Harris, jumped from the jetty into the water in a curled attitude, bottom first, knees to chest. He described what he did as a "bombie", a word familiar enough to most people, I imagine. Harris did not hit the bottom, but when he came to the surface he was able to "wade", as he put it. The plaintiff's other friend, Michael Bazzica, then dived in head first. He described his dive as a "flat-type dive". Bazzica did touch the bottom. His evidence was that "I scuffed my head" on the bottom. He sustained no injury. The plaintiff then dived in head first. There is no finding as to the type of dive that he executed. Harris described it in the following words (t/s 107):

"Then both of us watched - well, then Bazz eventually come up and he was wading in the water as well and then we watched Steve dive off, and he sprung up and did a proper dive and his arms were fully stretched."

177 The plaintiff gave evidence that (t/s 56):

"When I entered the water I remember going - blacking out for a short period of time and then I guess I must have come back around and then I knew straightaway that something was wrong and I floated back up and I just remember I could just move my hands a tiny little bit and floating up to the surface."

178 His two friends helped him to shore, from where he was taken to hospital by ambulance.

179 In par 10 of the statement of claim, it is pleaded that the injury which the plaintiff sustained was a:

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"Burst compression fracture of C6 vertebra and damage to the adjacent part of the spinal cord."

180 Because the proceedings before the learned Commissioner were the trial of the issue of liability only, no medical evidence was tendered. There is no direct evidence that the plaintiff struck the bottom. What part of the plaintiff struck the bottom and how hard, and matters of that kind, were not really pursued by counsel. But the proceedings were conducted on the basis that the plaintiff did sustain the injury pleaded in the statement of claim and that it was caused by the hitting of his head on the seabed.

181 Although I hardly think that expert evidence was required, counsel for the Fremantle Port Authority called an expert diving instructor, Mr Prance, who gave the opinion that it was extremely dangerous to dive from the height of about 2.7 metres, or nearly 9 feet, into water only 1.38 metres, or about 4 feet 6 inches, deep. That it is dangerous to do so was never in issue, nor could it possibly have been. The danger, of course, is that, depending on precisely how the dive is executed, the depth of water will be insufficient to retard downward motion before the bottom is reached. It is a matter of common experience and anyone who has engaged in swimming and diving would know that to dive from 2.7 metres into 1.38 metres of water is to risk striking the bottom, and striking it very hard indeed.

182 It was the plaintiff's case that it was not obvious that there was a risk of injury diving head first into the sea from this point on the jetty. The plaintiff, Harris and Bazzica each gave evidence that it did not occur to them that they might be injured. Events show that it was not inevitable that any one of them would hit the bottom so hard as to be injured. Harris did not hit the bottom at all. Bazzica touched the bottom, but only lightly and sustained no injury. Naturally, the depth of penetration into the water would depend on the manner and angle of entry. However, I am unable to accept that the risk from diving into the water under the conditions then prevailing was not an obvious risk. I cannot accept that it was not obvious to these young men. They may have been heedless of the risk, but that does not mean they were not fully aware of it. The learned Commissioner came to a different conclusion. His finding was expressed in the following terms at 62 - 63 of his reasons:

"I disagree with the argument that the risk of injury as a result of diving from the jetty at the location where the plaintiff did so was obvious to a person exercising reasonable care. The

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evidence of Mr Arntzen, Mr Woolhouse and Mr Prance supports the finding which I now express that it is difficult to accurately judge the actual depth of water when the depth is between one and two metres or up to three metres. I find that the depth of water was about 1.38 metres where the plaintiff entered the water and struck his head on the seabed. In this particular case the risk of danger was magnified because of the height of the deck of the main length of the jetty above the surface of the water.

While there is no doubt that it would have been obvious to a person exercising reasonable care that it was unsafe to dive from the jetty and into the water close to the shore it would have become less and less obvious that such was the case the further one walked out on the jetty. I find that at the location on the jetty from where the plaintiff dived it was no longer obvious to a person exercising reasonable care that a dive could not be performed safely. Beyond this and on the northern side of the head of the jetty it would have been obvious that a person could dive safely into the sea."

183 The statement in the judgment that it was "no longer obvious … that a dive could not be performed safely" can only be intended to mean that it was not obvious to the eye that the water was dangerously shallow beneath the dive point. Accepting that this is what the learned Commissioner meant, I am unable, with respect, to see on what evidence or by what process of reasoning he came to that conclusion. It seems to me to be contrary to the evidence.

184 From answers he gave to questions asked in cross-examination, it appeared that the plaintiff was able to and did see the bottom before he dived. I take the following from the cross-examination by counsel for the Fremantle Port Authority, Mr McKerracher (t/s 64):

"On this particular day did you take any notice of the depth of the water, at all?---I can't say that I was taking any - there's a point on the jetty when you look - you get out to that point where we dived and - actually it was different to what it is now, but you can see where it slopes down, where the bottom slopes down, and that's where we - and, of course, that's where I figured that's where it would be okay and that's where we would enter the water."

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185 That evidence is a clear acknowledgment that the slope of the seabed was visible from the jetty on the occasion in question and that the plaintiff adverted to the danger that the water might not be deep enough. Hence, the need to make a decision "where it would be okay". It is also clear from the above answer and from the answers given in further cross-examination that the plaintiff was well-aware of the dangers of diving into shallow water. I take the following from further cross-examination by counsel for the first defendant (t/s 66):

"You see Michael [Bazzica], who you have agreed would be about 5 foot 4 or 5 foot 5 said that after he dived in he found that the depth of the water was up to the middle of his chest. Would you agree with that?---I don't recall, sorry.

If you had waited to see him come up and had noticed that the water was up to the middle of his chest, you would have been very cautious about diving, wouldn't you?---If I had seen he was standing.

Yes?---Correct.

Because that would be far too shallow and too dangerous to dive?---Yes.

But you didn't wait to see whether he came up, did you?---I don't think so."

186 In cross-examination by counsel for the City of Rockingham, Mr Martin QC, the plaintiff admitted that the jetty commenced over land and there was some distance to be walked along the jetty until the water's edge was reached. He was asked at t/s 77:

"It almost goes without saying that just at that point where - we will call that the water's edge - you would never have attempted the dive that you did on the day from that spot on the jetty?---That's obvious.

It would be crazy, wouldn't it?---Correct.

So you would agree with me, then, that as you walked out along the jetty, consciously or subconsciously you would have to make a decision about where it was deep enough to dive?---Yes."

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187 Apart from the plaintiff's evidence, there was evidence that a person standing on the deck of the jetty at about the point from which the plaintiff dived could readily see the bottom. Once again, I do not think this was a question on which expert evidence was required. It is a matter of common experience that the bottom is clearly visible through 1.4 metres of calm, clear seawater. Nevertheless, there was positive evidence to that effect. The hydrographic surveyor, Mr Woolhouse, gave evidence that he attended at the jetty to measure water depths. This he did with a lead line, working from the jetty. His evidence was that he could see the lead weight on the bottom when he lowered it to the seabed from the jetty at the point from where the plaintiff dived. It was not suggested that the conditions were different in any material respect on the day on which the plaintiff sustained his injury.

188 In my opinion, it is clear that the plaintiff knew what anyway is notorious - that it is dangerous to dive into shallow water. It is clear that he could see the bottom and did see the bottom. He must have appreciated, if he had given it any thought at all, that the water at this location on this day was dangerously shallow for a head-first dive from the deck of the jetty at the point from which he dived.

189 There was no hidden sandbar or submerged pylon or a reef hidden from view, or anything of the kind. There was no specific finding that by reason of some optical illusion the water may have appeared to be deeper than it was.

190 The learned Commissioner did refer to the evidence of Mr Woolhouse and Mr Prance and to the evidence of another witness, Mr Arntzen, in a way which suggests that it was upon their evidence that he based his finding that "it was no longer obvious to a person exercising reasonable care that a dive could not be performed safely". But their evidence does not support the proposition implicit in that finding that, at the point from which the plaintiff made his dive, the plaintiff may have reasonably believed that the water was appreciably deeper than it was. Mr Prance gave evidence not that the water might seem deeper, but that if the water "is clear enough to see, it magnifies it. It brings the bottom closer and makes it more shallow than it is" (t/s 229). This evidence, as to what is the optical illusion when one looks into water, is in accordance with common experience. The optical illusion is, of course, explained by the laws of physics relating to the refraction of light. Because light bends when it enters a medium of different optical density, such as water, objects appear closer to the surface than they are. That they do, is a matter of common experience and does not, I think, require any expert

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evidence. Mr Prance's evidence that the optical illusion "brings the bottom closer and makes it more shallow than it is" was not challenged, nor could it have been; and it was not contradicted, nor could it have been.

191 Mr Woolhouse did not speak about optical illusions in his evidence. He gave evidence that he personally was able to judge whether water was 1 metre deep or 2 metres deep and also (although with more difficulty) whether water was 1½ metres deep rather than 2 metres deep (t/s 217). He gave no evidence that could support a finding that the water into which the plaintiff dived might have appeared deeper than it was.

192 Mr Arntzen's evidence was that, depending on prevailing conditions, water can look shallower than it is, or deeper than it is. He said (t/s 135):

"If it's cloud cover over sandy bottom it actually tends to look a bit deeper than what it is and when it is bright sunlight it tends to look a bit shallower than what it is but, again, to what degree I don't know, I really don't."

193 The correctness of the evidence he gave that water can "look deeper" if there is "cloud cover over sandy bottom" need not be considered. It was beside the point and irrelevant because there was no evidence that on this day there was any cloud cover. His other evidence supports that of Mr Prance.

194 Hence, there is no evidence that would justify a conclusion that the water at the point where the plaintiff made his dive might have appeared to the plaintiff to be deeper than it in fact was. On the contrary, the evidence was that, if anything, it would have appeared shallower than it was. There being no evidence that the plaintiff, or anyone in the position of the plaintiff, would have been misled by the conditions prevailing on that day into believing that he or she was diving into water deeper than 1.4 metres, it is not to the point, with respect, to say that it was "difficult to accurately judge" the depth of the water. Accepting that it is difficult to accurately judge the depth of water by eye, it simply does not follow that someone thinking about diving into 1.4 metres of water from a height of 2.7 metres could reasonably conclude that he could do so safely.

195 In my opinion, the conclusion ought to have been that the danger of striking the bottom should a dive be made from the point at which the plaintiff made the dive was obvious to the plaintiff. He required no warning signs to alert him to it. There should have been a finding that no person exercising reasonable care for his or her safety would have executed the dive by which the plaintiff was injured. Mr Prance was