Great Lakes Shire Council v Dederer

[2006] NSWCA 101

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006]  NSWCA 101

FILE NUMBER(S):
40257/05
40294/05

HEARING DATE(S):               20/03/06, 21/03/06

DECISION DATE:     05/10/2006

PARTIES:
CA 40257/05
Great Lakes Shire Council (Appellant)
Philip James Dederer (First Respondent)
Roads & Traffic Authority of NSW (Second Respondent)
CA 40294/05
Roads & Traffic Authority of NSW (Appellant)
Philip James Dederer (First Respondent)
Great Lakes Shire Council (Second Respondent)

JUDGMENT OF:       Handley JA Ipp JA Tobias JA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          SC 20122/02

LOWER COURT JUDICIAL OFFICER:     Dunford J

COUNSEL:
CA 40257/05
M McCulloch SC/S Glascott (Appellant)
D T Kennedy SC/G Graham (First Respondent)
M J Cranitch SC/A C Casselden (Second Respondent)
CA 40294/05
M J Cranitch SC/A C Casselden (Appellant)
D T Kennedy SC/G Graham (First Respondent)
M McCulloch SC/S Glascott (Second Respondent)

SOLICITORS:
CA 40257/05
Phillips Fox (Appellant)
Emery Partners (First Respondent)
Henry Davis York (Second Respondent)
CA 40294/05
Henry Davis York (Appellant)
Emery Partners (First Respondent)
Phillips Fox (Second Respondent)

CATCHWORDS:
NEGLIGENCE - boy rendered paraplegic after diving off bridge - duty of care owed by Council as Road Authority for public road under Roads Act 1993 (NSW) - miscellaneous defences - obviousness of risk - fourteen year old boy - Civil Liability Act 2001 (NSW) s 5F.
NEGLIGENCE - duty of care owed by RTA - consequences of RTA's predecessor designing and building bridge - knowledge of RTA of allurement and dangers constituted by bridge - signs prohibiting diving - signs ineffective for many years - RTA's knowledge that signs not achieving purpose - situation was "accident waiting to happen" - whether different signs should have been installed - whether bridge should have been modified to make diving more difficult - the justifiability of policy decisions in cases of negligence involving statutory authorities - availability of resources and competing priorities - causation - contribution negligence.  D

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), Pt 1A, ss 5F, 5G(2), 5K, 5L
Main Roads Act 1924 (NSW), s 25
Roads Act 1993 (NSW), ss 4, 7(3), 7(4), s 48(1), 63, 64, 71, 145(3), 249(1)
Transport Administration Act 1988 (NSW) Sch 7 Pt 5 cl 24(e) and (g)

DECISION:
(1)  The appeal by the Council is upheld with costs.  (2)  The orders made by Dunford J against the Council are set aside and substituted by a judgment in favour of the Council with costs.  (3)  Mr Dederer is granted a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled.  (4)  The appeal by the RTA is partially upheld.  (5)  The orders of Dunford J in regard to the apportionment of damages is set aside and substituted with an apportionment of 50 per cent.  (6)  Otherwise, the appeal by the RTA is dismissed.  (7)  No order is made as regards the costs of the appeal by the RTA.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40257/05
CA 40294/05
SC 20122/02

HANDLEY JA
IPP JA
TOBIAS JA

Thursday 5 October 2006

GREAT LAKES SHIRE COUNCIL v DEDERER & ANOR
ROADS AND TRAFFIC AUTHORITY OF NSW v DEDERER & ANOR

FACTS

On 31 December 1998, the respondent, Mr Philip James Dederer, dived off the Forster/Tuncurry bridge and was rendered a paraplegic. Mr Dederer was fourteen years and six months old at the time.

The general area is a busy tourist destination attracting families and children. For many years young people, particularly in the summer months, frequently jumped and (less often) dived off the bridge into the estuary below. Mr Dederer had spent holidays in the area since he was a very small boy. He had frequently observed children and adults jump and dive off the bridge.

The Forster/Tuncurry bridge had two flat central horizontal railings beneath a flat top railing. Mr Dederer was able to use the two central railings to step on to the flat top railing. At first, Mr Dederer planned to jump off the bridge but at the last moment, on impulse, he decided to dive. He used the flat top railing as a platform for diving off the bridge.

Mr Dederer dived off the bridge at a point that was about nine meters from the surface of the water. He dived into approximately two meters of water, struck his head on a sandbar, and was rendered paraplegic.

There were pictograph signs on or at the approaches to the bridge prohibiting diving and signs in words prohibiting climbing on the bridge. Prior to diving, Mr Dederer saw and understood these signs but ignored them.

There was evidence that the Roads and Traffic Authority (“the RTA”) had been aware of people frequently jumping off the bridge and in 1990 had conferred with police to attempt to prevent this. However, attempts to enforce the prohibition against jumping proved futile. The response of the RTA and the Great Lakes Shire Council (“the Council”) was to replace existing pictorial signs with the “No Diving” pictographs in 1995, but these had virtually no effect. The Council, but not the RTA, admitted that it knew that the practice of people jumping off the bridge was continuing.

Mr Dederer brought a claim against the RTA and the Council for damages for personal injury.

The Civil Liability Act 2001 (NSW) did not apply to Mr Dederer’s action against the RTA as that action was brought before the Act commenced. The Council, however, was not joined as a defendant until after the commencement of the Act.

The trial judge, Dunford J, upheld Mr Dederer’s claim and decided that both the RTA and the Council were negligent. He further held that Mr Dederer had been guilty of contributory negligence and apportioned Mr Dederer’s share of responsibility for his own injury at 25 per cent. As between the RTA and the Council, his Honour found that the RTA was 80 per cent responsible for Mr Dederer’s damages and the Council was 20 per cent responsible. The parties had agreed on the quantum of damages.

The RTA and the Council appealed against the findings of negligence and apportionment made by the trial judge.

The liability of the Council

Held per Ipp JA (Handley and Tobias JJA agreeing):

i. There are several provisions in the Roads Act 1993 (NSW) which indicate that a main road is part of a public road for the purposes of the Act. The Forster/Tuncurry bridge forms part of a public road and therefore the Council at the relevant time was the Road Authority in respect of it. In addition, the Council exercised a substantial degree of de facto control over the bridge and assumed responsibility for certain aspects of it. Therefore, the Council owed the class of persons into which Mr Dederer fell a general duty of care.

ii. The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Whether this risk was obvious (within s 5F of the Civil Liability Act), to a person in the position of Mr Dederer, has to be answered objectively and by reference to a notional reasonable fourteen and a half year old person with the knowledge of the area and conditions possessed by Mr Dederer at the time.

Fallas v Mourlas (2006) Aust Torts Reports 81-835

iii. Even without a pictograph sign prohibiting diving, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries. Therefore, the risk that materialised for Mr Dederer was an obvious risk of the dangerous recreational activity he was engaged in. The appeal by the Council succeeds.

The liability of the RTA

Held per Ipp JA (Tobias JA agreeing):

i. The RTA, standing in the shoes of its predecessor, is to be regarded as having designed and constructed the bridge and as having created whatever danger it constituted.

ii. The RTA exercised a significant degree of control over the bridge, and performed acts that tended to attract a duty of care to it. It did not challenge the elements of Dunford J’s findings, which led him to conclude that it owed a general duty of care to users of the bridge, and made concessions as to the existence of other factors important to the existence of a duty of care. Therefore, Dunford J correctly held that the RTA owed a general duty of care to the users of the bridge.

Sutherland Shire Council v Heyman (1985) 157 CLR 424, Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540, [RTA v Palmer (2003) Aust Torts Reports 81-693 distinguished]

iii. It was common knowledge for many years that the bridge was being used extremely often (and by children) particularly in the warmer months of the year as a jumping and diving platform.

iv. The RTA carried out inspections, stabilisation, dredging, sounding and general maintenance work on the bridge, virtually from the time it was constructed. Dunford J concluded that based on this evidence the RTA “must have known of the continuing practice” of jumping and diving off the bridge. The RTA called no other witness, apart from Mr Alexander whose role in the RTA was limited to financial and budgetary matters, to refute this finding.

v. The existence of no diving signs on the bridge, and the replacement in 1995 of these signs with pictograph no diving signs, leads to the inference that the RTA must have known that there had been a problem with jumping and diving off the bridge. The particular sign chosen by the RTA, the pictograph prohibiting diving, strongly supports the inference that the RTA was aware that young people were diving off the bridge.

vi. As part of the RTA’s duty of care, it should have ascertained – over a period of almost 40 years during which it was in control of the bridge it had created – whether it was being used in an unsafe way. On that basis, the RTA ought to have known of the practice of jumping and diving. Dunford J correctly held that the RTA knew of the practice.

McPherson’s Ltd v Eaton & Ors (2005) Aust Torts Reports 81-825

vii. The RTA knew from the time the bridge was built that the depth of the water under the bridge varied continually. After 1993, this knowledge would have been very detailed, being based on three monthly soundings. 

viii. Thus, the RTA knew or ought to have known that persons, including children, were jumping and diving from the bridge (which was about nine to ten metres above the surface of the water) into depths that varied but were not more than two to three meters. The serious risk of devastating injury must have been obvious to the RTA.

ix. The pictograph signs prohibiting diving (which were the only measure taken by the RTA) were not serving the purpose for which they had been erected. It was common knowledge that the practice of jumping and diving off the bridge was continuing unabated. In these circumstances, the RTA knew that the signs were ineffective.

x. As part of a general duty of care owed by the RTA to users of the bridge, it should – in any event – have ascertained whether the pictograph signs were proving effective. On that basis, the RTA ought to have known that the pictograph signs were ineffective.

Brodie v Singleton Shire Council (2001) 206 CLR 512, McPherson’s v Eaton & Ors (2005) Aust Torts Reports 81-825

xi. The obvious risks involved in jumping and diving off the bridge were not a deterrent. Many of the visitors to the bridge were children and young people. In these circumstances, the RTA could not assume that these persons would take reasonable care for their own safety.

Edson v Roads and Traffic Authority (2006) Aust Torts Reports 81-839

xii. The RTA is to be regarded as responsible for the construction of the bridge with railings configured in such a way that made it very easy for young persons to jump or dive off. Thus, the bridge constituted an allurement to young people to jump and dive off it. In these circumstances, the standard of care that the RTA had to exercise was higher than that required from an authority that controls land where natural features constitute a danger to the public.

Brodie v Singleton Shire Council (2001) 206 CLR 512, Webb v South Australia (1982) 56 ALJR 912, Ainger v Coffs Harbour City Council [2005] NSWCA 424

xiii. The fact that there had been no previous injuries sustained by people jumping or diving off the bridge made it less likely that persons would refrain from participating in these activities. That, in turn, made it even more important that the RTA should guard against the risk that persons would jump or dive into water that was dangerously shallow.

Berrigan Shire Council v Ballerini [2005] VSCA 159

xiv. A breach of duty on the part of a statutory authority may arise even when the authority erects signs prohibiting the activities that cause the injuries that are the subject of the plaintiff’s claim. A sign, no matter how appropriate, is not an automatic, absolute and permanent panacea.

Wilkins v Council of the City of Broken Hill [2005] NSWCA 468

xv. Dunford J, after taking a view, held that the situation at the bridge was “an accident waiting to happen”. This finding negates any inference that jumping and diving could reasonably have been regarded as safe.

xvi. The no diving pictograph impliedly warned against danger. Nevertheless, in the particular circumstances, a reasonable response to the risk of injury would not have been a sign containing a mere prohibition for unspecified reasons. The pictograph sign erected by the RTA did not comply with the Australian Standard Design and Application of Water Safety Signs. The alternative word message sign proposed by Dunford J, containing similar words to “Danger, Shifting Sands, Variable Depth”, was a response to and a consequence of the evidence and submissions before him. His Honour’s finding in respect of the word message sign did not constitute a breach of natural justice.

xvii. A sign that prohibited diving and expressly explained and emphasised the nature of the danger would have been more effective than the sign the RTA erected or the sign proposed by Dunford J. The erection of such a sign would have been an inexpensive and reasonable step for the RTA to take and should have been taken.

xviii. The existing flat top handrail did not comply with the geometric requirements laid down by the 1992 Austroad Bridge Design Code. It is not unreasonable to expect the RTA, over at least three years of knowledge on its part that the pictographs were having no effect, to find the relatively insignificant amount of money required to modify the flat top handrail. A triangular handrail would have made diving more difficult and may have dissuaded Mr Dederer from diving.

xix. The attraction of the bridge as a place to jump or dive would have been substantially reduced had the horizontal railings been replaced by vertical pool-type railings in accordance with the Bridge Building Code. Therefore, subject to the availability of resources and the question of priorities, Dunford J was correct in finding that the installation of pool-type fencing was a reasonable response to the risk.

xx. The fact that the local community did not publicly express any concerns about people jumping and diving off the bridge is a relevant factor. However, in the light of the frequency of the practice of jumping and diving off the bridge, the youth of those involved, and the obviousness of the risk of severe injuries, it is by no means conclusive. Further, the failure of members of the public to mention the issue when responding to the RTA’s call for comment is readily explicable when regard is had to the circumstances under which that call was made.

xxi. It is axiomatic that our system of government requires a free and independent judiciary; it is equally a truism that one of the reasons for the existence of a free and independent judiciary is the need for the rule of law to be maintained as a bastion between the executive and the people. The maintenance of the rule of law, at times, may require the judiciary to adjudicate upon policy decisions by the executive. This applies in cases of negligence just as it does in cases of public law. Otherwise, it would seriously diminish the proper role of the judiciary as the third arm of the government. 

xxii. Evidence respecting funding constraints and competing priorities is admissible. It is no answer to a claim in tort that the wrongful acts or omissions of a public authority are the product of a policy decision taken by the executive. Local authorities are in no preferred position. The formulation of the duty of care includes the consideration of competing or conflicting responsibilities of the authority. Thus, if there are to be limits respecting the justiciability of funding priorities, those limits must be found by reference to criteria of reasonableness. The political nature of “setting priorities in the allocation of public funds between competing claims on scarce resources” is simply a factor that bears on reasonableness, albeit that – depending on the circumstances – it may be a compelling factor.

Brodie v Singleton Shire Council (2001) 206 CLR 512

xxiii. The perception of the response by the authority calls for a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority.

Wyong Shire Council v Shirt (1980) 146 CLR 40

xxiv. In a case where the availability of resources and conflicting priorities defence is raised, there is an evidentiary onus on the defendant to prove specifically why these matters reasonably justify its conduct in not taking particular measures for which the plaintiff contends.

Brodie v Singleton Shire Council (2001) 206 CLR 512, Waverley Council v Ferreira (2005) Aust Torts Reports 81-818, New South Wales v Bujdoso (2005) 80 ALJR 236 at 245 to 246, [49].

xxv. After weighing the magnitude of the risk and the degree of probability that it would occur, the expense, difficulty and inconvenience to the RTA in taking the steps identified by his Honour, and the other competing responsibilities and commitments of the RTA, Dunford J correctly held that the RTA breached its duty of care.

xxvi. The fact that Mr Dederer dived, and did not jump, is not a material factor relating to the breach by the RTA of its duty of care. There can be no doubt that diving is more dangerous than jumping. But if a facility, for nearly 40 years, is a major attraction for children to jump from a high point into water, it follows that the facility will be a major attraction for some to dive.

xxvii. The issue of causation is a hypothetical question, which requires the Court to determine what Mr Dederer would (objectively) have done if there had been adequate performance by the RTA of its duty. The onus rests upon Mr Dederer to prove that, on the balance of probabilities, the performance of the duty would have resulted in the avoidance of the injury.

xxviii. The question of causation has to be considered by having regard to the combined effect of a different sign indicating the nature of the danger, the modified flat top, and the removal of the horizontal railing and replacement by pool type fencing. Had all these steps been taken Mr Dederer would probably not have dived off the bridge. In determining this issue, much depends on an assessment of a plaintiff’s character and personality – this was essentially a matter for the trial judge.

Rosenberg v Percival (2001) 205 CLR 434

Held per Tobias JA agreeing:

i. Dunford J’s finding that the situation at the bridge was an “accident waiting to happen” was not influenced by hindsight but merely confirmatory of what his Honour rightly regarded as reasonably foreseeable given the evidentiary findings, which he had made.

ii. It would be entirely inappropriate for the RTA to be able to disregard the danger created by its statutory predecessor upon the basis that although it was aware of the danger so created, it could nevertheless ignore it because it did not create it in the first place.

iii. Based on the evidence, it was not reasonable for the RTA to adopt a “do nothing” approach with respect to the foreseeable risk that the bridge posed. Nor did the evidence justify a conclusion that it was reasonable for the RTA to neither recognise nor respond to the danger because it had focussed its attention in terms of resource allocation on other aspects of its responsibilities as a road authority.

iv. There is no reason to believe that the combination of remedial steps, such as the installation of an appropriate sign and pool-type fencing, would not have been a deterrent to young people who engaged in the practice of jumping and/or diving from the bridge with the result that the extent of the practice, at the very least, would have been significantly reduced. In those circumstances, Mr Dederer’s observation with respect to others jumping and diving from the bridge would not have provided him with the reassurance that it was safe to do so as he apparently assumed at the time of his accident.

Held per Handley JA (dissenting):

i. The fact that the RTA’s predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to the liability of the RTA for an accident which occurred in 1998. If the bridge had been private property the contractor and the original owner who had since sold the bridge would not be responsible for an accident many years after the sale. In such a case the responsibility, if any, must be that of the current owner or occupier based on its acts or omissions.

ii. Dunford J’s finding that the RTA was aware of a continuing practice of diving from the bridge was contrary to the evidence.

iii. The absence of any recorded injury over the 39 years before Mr Dederer’s accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe. Diving was much more dangerous and those who dived before Mr Dederer must have dived into deeper water or when the tide was higher, or at a safer angle, or from the ledge rather than the top railing or when some combination of these factors was present.

iv. Mr Dederer had no assurance of safety when he dived from the top railing about nine meters above the water into water that was only approximately two meters deep. There was a serious risk of injury because for all Mr Dederer knew the water below could be too shallow. The only safe dive from such a height is a dive into water known to be sufficiently deep. 

Vairy v Wyong Shire Council (2005) 80 ALJR 1

v. Dunford J’s finding that the situation at the bridge was “an accident waiting to happen” was a finding influenced by hindsight. The Court must endeavour to apply a test of reasonable foresight as at a time before the accident had occurred.

Vairy v Wyong Shire Council (2005) 80 ALJR 1, Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43

vi. The foresight of concerned members of the public and an independent body such as the Council, supported by a history of no serious accident from jumping or diving for over 39 years, provides the best evidence of what reasonable foresight required. This evidence should be given greater weight than an impression formed on a view after a tragic diving accident.

Willis v The Commonwealth (1946) 73 CLR 105

vii. None of the suggested alternatives to the “No Diving” signs would have told Mr Dederer anything he did not already know, a triangular section on the handrail would not have discouraged him from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge. Therefore, Mr Dederer failed to establish that any breach of duty by the RTA was a cause of his injuries and the appeal by the RTA should succeed on this ground.

viii. It is always possible after the event, with the wisdom of hindsight, to identify some further step or steps that could have been taken by the defendant to avoid or reduce the risk of injury. However, the High Court has held that the enquiry must always be prospective. The RTA has State wide responsibilities for roads and road traffic in general. The focus in this case on the diving accident involving one person on one day on one bridge is inherently retrospective.

ix. In any event, the Shirt calculus would have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose.

Contributory negligence

Held per Ipp JA (Handley and Tobias JJA agreeing):

i. Against Mr Dederer’s share in his responsibility for the damage he sustained, must be weighed the RTA’s share of responsibility. Mr Dederer’s age at the time is also a relevant consideration. A reasonable fourteen and a half year old boy should have appreciated that it was highly dangerous to dive as he did. Therefore, Mr Dederer’s share in responsibility for the damage he sustained must be regarded as equal to that of the RTA.

ORDERS

1. The appeal by the Council is upheld with costs.

2. The orders made by Dunford J against the Council are set aside and substituted by a judgment in favour of the Council with costs.

3. Mr Dederer is granted a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled.

4. The appeal by the RTA is partially upheld.

5. The orders of Dunford J in regard to the apportionment of damages is set aside and substituted with an apportionment of 50 per cent.

6. Otherwise, the appeal by the RTA is dismissed.

7. No order is made as regards the costs of the appeal by the RTA.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40257/05
CA 40294/05
SC 20122/02

HANDLEY JA
IPP JA
TOBIAS JA

Thursday 5 October 2006

GREAT LAKES SHIRE COUNCIL v DEDERER & ANOR
ROADS AND TRAFFIC AUTHORITY OF NSW v DEDERER & ANOR

Judgment

1. HANDLEY JA:  In these appeals I have had the considerable benefit of reading the reasons for judgment of Ipp JA in draft.  I gratefully adopt his summary of the principal facts and the history of the proceedings.  I agree with his Honour’s reasons for concluding that the Civil Liability Act 2002 relieved the Council of legal responsibility for Mr Dederer’s injuries, and that his contributory negligence should be assessed at 50% rather than 25% as found by the trial Judge. Unfortunately I am not able to agree with his Honour’s conclusion that the Roads and Traffic Authority (RTA) were legally responsible for Mr Dederer’s injuries. My reasons will best be understood if read after those of Ipp JA.

2. The Forster/Tuncurry Bridge forms part of Main Road 111 and was built by the Department of Main Roads in 1959. On 16 September 1959 the Governor, pursuant to s 25 of the Main Roads Act (blue 3/509), with the consent of the two councils then concerned (blue 3/514-5), directed the Commissioner for Main Roads to carry out the work of maintenance of the bridge.  The RTA became the universal successor of the Department and the Commissioner pursuant to the Transport Administration Act 1988 Sch 7 Pt 5.

3. This direction or arrangement became binding on the RTA pursuant to cl 24(e) and (g) of Pt 5 of Sch 7 of the 1998 Act, and continues to have effect pursuant to ss 62 and 63 of the Roads Act 1993 (the Act). The Council is the roads authority for Main Road 111, including the bridge, pursuant to s 7(4) of the Act. However since the RTA is responsible for the maintenance of the bridge the functions of the roads authority are to be exercised, to that extent, by the RTA: s 63(2). Under s 64 the RTA could exercise other functions of the roads authority with respect to the bridge but it does not appear to have exercised this power prior to the plaintiff’s accident on 31 December 1998.

4. Section 71 authorises a roads authority to carry out road work on any public road for which it is the roads authority. Carry out road work is defined in the Dictionary as including “any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work”, and road work is defined as including any building or structure, including a bridge, constructed or installed for the purpose of facilitating the use of the road as a road.

5. The bridge is a fixture built substantially over a tidal estuary which is presumably vested in the Crown, but it would appear that it is vested in the Council in fee simple pursuant to s 145(3) of the Act. The result is that the functions of a roads authority under the Act are shared between the Council and the RTA, but the functions of the latter were limited to the maintenance and repair of the bridge, and by necessary implication any work on it of a capital nature.

6. The RTA was responsible, as successor, for the original construction of the bridge, but it then complied with contemporary standards, and it was not suggested that the constructing authority was negligent at that stage in failing to take reasonable care for the safety of teenagers using it as a means of access to the water below.

7. The evidence, and the Judge’s findings, establish that the bridge has for many years been “an allurement” to teenagers as a platform for jumping or diving into the water below.  At one time an allurement would increase the duty of an occupier to children from that due to a trespasser to that due to a licensee: Munnings v The Hydro-Electric Commission (1971) 125 CLR 1; Southern Portland Cement Ltd v Cooper [1974] AC 623.

8. These distinctions ceased to be relevant after Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, but an allurement created or adopted by an occupier remains relevant in fixing the standard of care owed to an entrant. Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 is a recent example where the frequent use of the company’s land, to its knowledge, by cyclists and pedestrians attracted by the shortcut it provided, was held to be relevant when determining questions of duty and breach.

9. The fact that the RTA’s predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to the liability of the RTA for an accident which occurred in 1998.  If the bridge had been private property the contractor and the original owner who had since sold the bridge would not be responsible for an accident many years after the sale.  In such a case the responsibility, if any, must be that of the current owner or occupier based on its own acts or omissions.

10. The bridge was open to traffic in 1959 and the accident suffered by the plaintiff on 31 December 1998 was the first of its kind since it opened. 

11. The plaintiff had jumped off the bridge twice the day before without mishap, but was grievously injured when he dived the following day.  The Court may be permitted to know as a matter of commonsense and common knowledge that jumping into water is very much safer than diving because entry is feet first and a larger area of the body’s surface is exposed to the resistance of the water. 

12. There was evidence in the plaintiff’s case that teenagers dived from the bridge but the documentary evidence produced from the possession of the RTA and the Council only referred to persons jumping from it.  On 28 January 1993 a Council Committee expressed concern at the practice of young persons jumping from the bridge (blue 1/218) and on 10 February 1993 the Council sent a fax to the Works Engineer of the RTA (blue 1/219) stating:

    “Re Forster Tuncurry Bridge

    Problem currently being experienced with youths jumping into navigable channels from the higher parts of bridge.  Danger to boating.  Needs at least signs, please advise.”

13. This fax led to the installation of No Diving signs on the bridge in 1995 (blue 4/1031M).  In 1998 the RTA conducted a traffic survey on the bridge during the Easter holiday on 11 and 12 April.  The information obtained was documented in a report by Mr Alexander, the Planning and Analysis Manager of the RTA for the Hunter Region on 30 July 1998.  He recorded that the officers conducting the survey observed (blue 1/143, 4/931) “groups of young people … jumping from the bridge”.  Mr Alexander said in his oral evidence that it was well known before then that “kids jumped from the bridge” (black 2/415, 418, 419) but he did not know about diving and had not seen anyone jump off the bridge himself (black 2/419).  He was based at Port Macquarie.

14. The Council admitted on the pleadings that it knew before 31 December 1998 that children and young people habitually dived off the bridge (red 3, 8), but the RTA made no such admission (red 1, 13). 

15. The Council called Mr Keegan who had been employed for 23 years before the accident.  He was not aware of any injury from jumping or diving off the bridge before that suffered by the plaintiff, and said he would have known if one had been reported during that period (black 2/312, 331-2).  He knew that children jumped from the bridge but was not aware of any diving (2/360). 

16. Mr Previtt was the Council’s Senior Regulatory Control Officer who had held that position since 1988 and had two officers under him.  In 1990 he attempted on three occasions, when in uniform, to stop youths jumping off the bridge (2/492-4), but his efforts were ignored, and on one occasion provoked abuse.  He had seen uniformed police on five or six occasions attempt to prevent youths jumping from the bridge without success, and had also seen uniformed officers in the police boat attempt this, also without success.  The youths continued to jump although the police were present either on the bridge or in the police boat (2/495-6). 

17. Attempts by the Council to enforce the prohibition on climbing on the bridge were abandoned in 1990 (2/496-7).  Mr Previtt had never seen anyone dive from the bridge (2/504).  The Council received complaints about the practice of jumping from the bridge (2/505) but he believed it was impossible for the Council to stop it (2/506). 

18. The Judge found that Mr Keegan had been aware for years that young persons jumped and dived off the bridge and this was common knowledge (para [34]), but the finding about Mr Keegan’s knowledge of diving was not supported by the evidence (blue 1/218).  Mr Keegan said that the practice of jumping from the bridge was well known (black 2/312).  There was some confusion about whether a practice of diving was also well known (2/334, 336, 338) but this was cleared up by his later evidence (2/360).  Mr Keegan did not say that a practice of diving from the bridge was well known.

19. The Judge correctly recorded that Mr Pevitt had not seen anyone dive from the bridge (para [41]) but overlooked this when he said later (para [82]) that Mr Pevitt had “on the spot” knowledge of the use of the bridge for jumping and diving.  The Judge found that the RTA “must have known of the continuing practice” (of jumping and diving) “as Mr Alexander virtually conceded” (para [57]) and it had direct knowledge of this after April 1998 (para [57]).  However Mr Alexander’s concession was limited to jumping from the bridge (black 2/415) and the knowledge obtained by the RTA in April 1998 was also of jumping from the bridge: para [13] above.  The Judge correctly recorded (para [71]) that the knowledge acquired by the RTA in 1993 was limited to jumping.

20. The Judge’s finding that the RTA was aware of a continuing practice of diving from the bridge was contrary to the evidence. 

21. The absence of any recorded injury over the 39 years before the plaintiff’s accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe.  Diving was much more dangerous and those who dived before the plaintiff must have dived into deeper water or when the tide was higher, or at a safer angle, or from the ledge rather than the top railing or when some combination of these factors was present.

22. The RTA had maintenance work done on the bridge but this was generally done by the Council on its behalf and at its expense.  It also inspected the piers at frequent intervals to monitor their safety, and it took soundings in the channels.  It did not have an office or depot anywhere near the bridge, and the visits of its staff were intermittent, for other purposes, and not necessarily during the peak holiday periods.

23. As Ipp JA records (para [83]) the plaintiff dived from the top railing about 9 metres above the water into water which was only approximately 2 metres deep.  His dive was almost straight down (black 1/45).  He had not jumped in first or attempted a dive from the ledge which was about 1.2 metres lower.  He jumped twice the day before about 11am when the tide was slowly going out (black 1/41).  His first jump was from the ledge and his second from the top railing (black 2/209, 224, blue 1/118, 4/745).  He did not touch bottom and could not stand (1/39).

24. When he dived the following day about noon (1/105) the tide was going out really fast (1/45).  The tidal variation on that day was 1.4 metres (4/7783).  The plaintiff was 182cm tall, for all practical purposes 6 feet (black 1/116), just a little shorter than the 2 metres of water into which he dived. 

25. He was an experienced diver and had dived off a 10 metre tower at a swimming pool.  There is more than enough depth of water in such a swimming pool, far far more than the 2 metres below the bridge when he dived.  A normal dive from that height at a swimming pool would be perfectly safe.  He had no assurance of safety when he dived from the bridge.  There was a risk of serious injury because for all the plaintiff knew the water below could be too shallow: Vairy v Wyong Shire Council (2005) 80 ALJR 1 para [133] (Hayne J). The only safe dive from such a height is a dive into water which is known to be sufficiently deep.

26. The Judge had the benefit of a view, and this Court has not.  He said that the situation disclosed at the bridge was “an accident waiting to happen”.  This was a finding influenced by hindsight but, as the High Court has made clear, the Court must endeavour to apply a test of reasonable foresight as at a time before the accident has occurred: Vairy para [49] (McHugh J), paras [60]-[61], [79] (Gummow J), paras [105], [124], [126]-[127], [129], [160] (Hayne J); Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 para [50] (Hayne J). If this was an accident waiting to happen it had been waiting for a very long time.

27. In the years before the accident the community, the Council and the RTA had considered the risks created by the bridge and identified the risk to pedestrians on the walkway due to the absence of a safety barrier next to the roadway.  The need to protect pedestrians from this risk was pressed on the RTA by the Council. 

28. An internal RTA memo of 23 May 1994 (blue 4/825) recorded discussions with the Council about complaints received by letter relating to the safety of pedestrians on the bridge because “there is no rail between the footway and the traffic lanes”.  An internal memo of the following day (blue 1/240, 4/824) reviewed the options for improving pedestrian safety by erecting a protective barrier.  Another memo of 1 August 1994 (blue 4/826) initiated an internal review of the options for addressing “concerns regarding pedestrians and cyclists using the narrow footway” on the bridge. 

29. In January 1995 Gutteridge Haskins & Davey submitted a strategic report to the RTA (blue 4/859) on the upgrade of the pedestrian/cyclist facilities on the bridge which referred (861, 862) to the potential danger to pedestrians and cyclists and proposed the construction of a traffic separating barrier (870) and the upgrading of the external handrail.  In February 1995 the firm submitted a concept report on the preferred option (blue 3/538, 4/834) which included provision of a traffic separating barrier and an upgraded hand rail under the 1992 Standards (3/547, 4/846).  The latter was estimated to cost $108,072 (554, 853). 

30. On 21 December 1995 the Council replied to a member of the public who had written to express his concerns over the safety of pedestrians and cyclists on the bridge (blue 1/225).  On 28 August 1997 (blue 3/559) the Mayor wrote to the RTA referring to previous correspondence of 22 May 1996 and 8 May 1997 concerning the provision of a protective handrail on the pedestrian walkway.  He noted that no reply had been received and on behalf of the Council and the community he sought an urgent response.  He wrote:

    “The provision of a protective handrail is now both necessary and urgent … The safety aspects of the walk are … being raised more frequently than ever before and Council is most anxious to ensure the safety of all users.”

1. A follow up letter of 13 January 1998 (3/561) referred to discussions with the RTA on 7 October 1997 and a further letter of 24 October.  The letter continued:

   “We are now nearing the end of another peak tourist season where traffic and pedestrian volumes were close to saturation on the bridge.  Fortunately no major incidents have occurred as a result of the unsafe conditions.  However, as indicated previously, it is only a matter of time before a pedestrian is severely injured.  Accordingly it is requested that the RTA issue a formal response to Council as soon as possible to indicate what action the Authority will be taking to improve pedestrian safety on the bridge.”

2. On 15 January 1998 a Mr Coleman wrote to the Council (blue 1/228) referring to an incident at 7.45 am on 3 January when an east bound car crossed onto the wrong side of the road and then onto the footway narrowly missing pedestrians.  On 22 May Mr Alexander wrote to the Council (blue 1/230) referring to a meeting at Forster on 23 March and the traffic survey conducted by RTA staff over Easter.  He noted that concept designs for low cost strategies for addressing safety issues on the bridge had been placed on public exhibition for two weeks commencing 18 May.  The Council responded on 24 June (blue 1/234) favouring the installation of a handrail adjacent to the traffic for improving pedestrian safety.  Although the focus of the public exhibition was on pedestrian safety none of the submissions from the public raised any question concerning the practice of jumping or diving off the bridge, nor did the Council raise such a concern.

3. On 30 July Mr Alexander prepared a report on the options for improving pedestrian safety (blue 5/929) which recorded that this was being done in response to a request from the Council.  He summarised the results of the traffic survey, and noted that groups of young people had been observed jumping from the bridge during the traffic survey, and that cyclists, young people on skateboards, and joggers had been observed moving from the walkway onto the roadway and back again to get around pedestrians (931).  He recommended further investigation of the bridge widening options.  An internal memo of 19 October 1998 (5/991) sought a detailed review of the options.  Nothing further of relevance occurred before the plaintiff’s accident.

4. Thus although there was considerable community concern it was focussed on the safety of pedestrians and cyclists using the walkway.  In 1990 the Council and the police abandoned attempts to stop teenagers jumping from the bridge.  Nothing further was done to stop or discourage this practice after No Diving signs were installed in 1995.  Following the commencement of the Local Government Act 1993 prohibitions imposed by signs erected by the Council in a public place had become an offence pursuant to s 632(1) but there were no prosecutions. There is no record in the evidence of any concern expressed after 1993 by the public, the Council, or the RTA about the practice of young people jumping or diving off the bridge.

5. Where the Court has to consider future possibilities and probabilities as at a relevant date and the situation has crystallised before the trial, the Court does not assess the earlier uncertainties, but acts on the later certainties.  As Dixon J said in Willis v The Commonwealth (1946) 73 CLR 105, 116 “where facts are available they are to be preferred to prophecies”. The same principle should apply where the Court has to assess the probabilities and possibilities of an accident occurring. The foresight of concerned members of the public and an independent body such as the Council, charged with the general care control and management of the bridge, about the risks to public safety on this bridge between 1990 and 1998, supported by a history of no serious accident from jumping or diving over 39 years, provides the best evidence of what reasonable foresight required. This evidence should be given greater weight than an impression formed on a view after a tragic diving accident.

6. What in these circumstances was the reasonable response called for by the so called Shirt calculus?  The No Diving signs did not stop the plaintiff diving from the bridge, but for all the Court knows they may have discouraged many others from doing so.  Moreover the RTA did not know that the No Diving signs had failed to stop all diving from the bridge.  The trial Judge held that the RTA should have installed better signs, that an external handrail with vertical bars should have replaced the wooden handrail with horizontal rails which was easily climbed, and that the use of the top rail as a diving platform should have been discouraged by adding an upward facing triangular section. 

7. The proposals for improved signs, and for the addition of a triangular section to the top rail do not raise questions of trouble or expense as Mr Keegan acknowledged (black 2/347).  This cannot be said of the proposal for a new external steel handrail which was estimated to cost $108,072 in February 1995 (blue 3/554).

8. The plaintiff’s safety expert, Mr Fogg, made 3 reports and gave oral evidence.  He assumed that there were no signs on the bridge prohibiting diving prior to the accident.  In his first report (blue 3/711) of 25 September 2002 he said that signs such as those installed in 1995 should have been used.  The “Diving Prohibited” sign he recommended showed a circle with a person diving into water at an angle of 45% with a diagonal bar across the diver.  Signs of this type on the bridge were seen by the plaintiff on the day he dived.  The other sign he recommended was a “Beware of shallow water when diving” sign which showed a diver hitting his head on the bottom.  He considered that either sign would have been appropriate but had a preference for the sign showing a diver hitting his head on the bottom (3/701, 711).

9. Mr Fogg also recommended the installation of barriers to prevent young people using the bridge as a diving or jumping platform (714).  This involved the installation of pool type fencing with vertical balustrading to deter people from climbing over (717-8) and a cantilevered barrier 2 metres wide outside the railing to deter persons from attempting to dive or jump from the ledge (717-8). 

10. The Judge held that shallow water signs of the type advocated by Mr Fogg would probably have been ignored (para [68]).  He also said that No Diving signs were not a warning against the danger of diving but, like Ipp JA, who referred to Nagle v Rottnest Island Authority (1993) 177 CLR 423, 432, I prefer the view of the High Court in that case that a No Diving sign was “perhaps the most effective form of notice warning of the danger of diving”. Ipp JA agrees with the Judge’s finding that a reasonable response was not a sign containing a prohibition for reasons unspecified but a sign containing words such as “Danger Shifting Sands, Variable Depth” (para [237]). However Ipp JA also finds (para [243]) that such a sign was not likely to inhibit the plaintiff from diving because it would have told him nothing he did not already know.

11. Ipp JA holds that the No Diving signs did not comply with the 1995 Standard (AAS 2416-1995), and that a sign which prohibited diving with the words “Shallow Water” would have been more effective (paras [244], [246]).  This involved a reversal of the Judge’s finding that a shallow water sign of the kind recommended by Mr Fogg would also have been ignored by the plaintiff (para [68]).

12. With respect I consider that the trial Judge’s inference based finding, which I accept, that a “Beware of shallow water when diving” sign of the type recommended by Mr Fogg would probably have been ignored just as the “Diving Prohibited” sign was ignored leaves no room for a finding that a diving prohibited sign with the words “shallow water” would have been effective.  The plaintiff knew, as the Judge recorded, para [18], that the sand moved with the current, that the depth of the channels was hard to judge and some parts were shallower than others. 

13. The Judge found that the plaintiff saw the sign, and knew that it meant that he should not dive, but he deliberately disregarded it.  He also knew that the depth of the water was variable, and that diving from heights could cause injury (para [92]).  Thus none of the suggested signs would have told the plaintiff anything he did not already know and the failure to erect them could not be a breach of any duty owed to the plaintiff, and if there was any breach it was not a cause of his injuries: Vairy (2005) 80 ALJR 1 para [7] (per Gleeson CJ and Kirby J), para [148] (per Hayne J), para [210] (per Callinan and Heydon JJ).

14. The plaintiff’s case is essentially that when he dived he was not aware of the full extent of the risk and that the No Diving signs did not give him that information.  However this does not establish a breach of duty.  The question was addressed by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [43] quoted by Gummow J in Vairy at [91]:

    “It was argued that the appellant was not aware of the precise nature, and full extent, of the risk.  But warnings of the kind here in question are not intended to address matters of precision.”

15. The Judge was not satisfied that a cantilevered barrier outside the railing would have been effective, and thought it may only have encouraged jumpers to attempt to jump over it with a risk of serious injury if they failed to clear it.  The plaintiff did not pursue this allegation in this Court. 

16. The other steps which the Judge held should have been taken were the installation of an external handrail with pool fencing and a triangular section on the top, or the addition of such a section to the existing handrail.  Ipp JA could not decide whether a triangular handrail would have dissuaded the plaintiff from diving (paras [258], [259]), but he holds that the attraction of the bridge as a place for jumping or diving would have been substantially reduced had the horizontal railings been replaced with pool fencing (para [261]). 

17. The presence of a triangular section fitted to the external handrail would make it uncomfortable and difficult, but not impossible, for someone to stand on the top railing and dive into the water (black 2/344).  It may have deterred the plaintiff from diving from the top railing but not from diving from the ledge which was only 1.2 metres lower.  He would still have dived from a height of some 8 metres into 2 metres of water.  There is no evidence and no basis for an inference that diving from the lower height would have made any difference.  The plaintiff failed to prove that such a railing would have stopped him from diving from the ledge or prevented or substantially diminished his injuries.

18. The installation of an external handrail of pool type fencing would have prevented the plaintiff and others from using the existing horizontal rails to climb up or over the handrail, but would not have stopped him getting over.  It had to be suitable for use by pedestrians for hand support and would have been no obstacle to an agile teenager.  Mr Keegan was shown a photograph of the handrail on the ANZAC Bridge (blue 1/22) and asked whether it would be exceedingly difficult to climb (black 2/374).  He said that it would be harder to climb than the existing railing on the Forster/Tuncurry Bridge, but this would still be possible.  His evidence continued (black 2/375):

    “Q.It’d be a lot harder wouldn’t it?

    A.Depending on the size of the person.  A young person, I think, would have difficulty getting over it.  An adult or a teenager, I think they’d be able to spring over that.”

19. The plaintiff was approximately 6 feet tall and the proposed pool type fencing would have been approximately 1.2 metres high.  There is every reason for accepting Mr Keegan’s evidence that such a fence would not have deterred a fit teenager such as the plaintiff who wished to jump or dive from the ledge.

20. The signs proposed would not have told the plaintiff anything he did not already know, a triangular section on the handrail would not have discouraged the plaintiff from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge.  I conclude therefore that the plaintiff failed to establish that any breach of duty by the RTA was a cause of his injuries and its appeal should succeed on this ground.

21. The appeal should also succeed on wider grounds.  In the cases since Zaluzna (1987) 162 CLR 479 that have come before the higher courts arising out of diving accidents on public land outside enclosed and controlled swimming pools, the plaintiff’s complaint has been that there was no or no sufficient warning of the danger of diving: Public Trustee v Sutherland SC (1992) 75 LGRA 278 (NSWCA); Nagle (1993) 177 CLR 423; Swain v Waverley Municipal Council (2005) 79 ALJR 565; Vairy (2005) 80 ALJR 1; Mulligan (2005) 80 ALJR 43 and Berrigan Shire Council v Ballerini [2005] VSCA 159 (special leave refused 16 December 2005). This does not involve the reversal of a credit-based finding. The plaintiff did not give direct evidence of his reaction to a triangular section on the top of the handrail or pool type fencing or both. A finding on causation in his favour requires the drawing of inferences.

22. It is always possible after the event, with the wisdom of hindsight, to identify some further step or steps that could have been taken by the defendant to avoid or reduce the risk of injury.  However, as the High Court has held, the enquiry must always be prospective. 

23. The cases arising from injuries caused by diving in areas open to the public have not raised the question posed in this case where No Diving signs in prominent positions were seen, understood, and ignored by the diver. 

24. Although the bridge was an allurement to teenagers the Council and the RTA, unlike the public authorities in Nagle, Berrigan and Mulligan, had not encouraged persons to use the bridge as a diving or jumping platform.  This was considered relevant in Vairy: paras [57], [82], [83], [92] (Gummow J), [139] (Hayne J), and Mulligan para [53] (Hayne J) and [66] (Callinan and Heydon JJ). 

25. The public, including unaccompanied teenagers, were entitled to use the walkway as of right, and short of closing it under the Act, which has not been suggested, neither the Council nor the RTA could stop them.  The fact that the public can enter public land as of right was also considered relevant in Vairy: para [5] (Gleeson CJ and Kirby J), [81] (Gummow J), [116] and [123] (Hayne J). 

26. Just as in Vairy where attempts by Council lifesavers to stop diving off the rock platform were unsuccessful and provoked abuse from intending divers: paras [41]-[42] (McHugh J), [83] (Gummow J), [194], [226] (Callinan and Heydon JJ), earlier efforts in this case by uniformed Council officers and police to stop youths jumping or diving off the bridge were also conspicuously unsuccessful (paras [18]-[19] herein).

27. Participation in recreational activity, and particularly where it involves inherent risks, is voluntary.  Such activity is of a different character from that undertaken in the work place, on the roads, in the market place and in other areas where people must venture: Vairy para [217] (Callinan and Heydon JJ).  In the same case Gummow J quoted (para [80]) a statement from the joint judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [141] that the use of roads is a “basic right and necessity”.

28. The RTA knew that the No Diving signs had not stopped the practice of jumping off the bridge, but teenagers may reasonably have understood from the signs that this was not prohibited.  It was not aware that youths were diving from the bridge and it is somewhat unreal to consider what its duty would have been if it was.  Ipp JA refers to Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 where the failure by Council staff at an enclosed swimming pool to enforce a prohibition on diving was held to be a breach of its duty of care to a teenager. In my judgment that case did not establish any principle relevant to the duty of care owed by a public authority to persons using an unpatrolled bridge open to the public as a diving platform contrary to No Diving signs on the bridge.

29. The RTA has State wide responsibilities for roads and road traffic in general, and for the State’s freeways in particular.  The focus in this case on the diving accident involving one person on one day on one bridge is inherently retrospective.  This was not perceived as a risk before it happened. 

30. In Thompson v Woolworths (Q’land) Pty Ltd (2005) 79 ALJR 904 Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ said (para [36]):

    “The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response.  In the case of some risks reasonableness may require no response … This is not a case about warnings.  Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care.  The whole idea of warnings is that those who receive them will act carefully.  There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.”

31. Even if this principle did not itself exclude a finding of breach of duty in this case, the so called Shirt calculus would have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose.  Mr Fogg, the plaintiff’s expert recognised that this could be the case.  He said (black 1/245):

    “… if we look at the bridge as a whole there may be less a priority as opposed to the pedestrian vehicular interface.”

32. In Vairy the majority considered that the reasonable response of a public authority required it to consider other risks which might require action to be taken in the interests of public safety.  Hayne J said (paras [159]-[161]):

    “There are many dangers associated with bathing in the sea … The form of danger with which this case is concerned - the danger of diving into water that is too shallow - is only one of the risks that attend this form of recreation.  And the Council had to consider many forms of recreation conducted in many different areas of which the Council had the care, control and management …

    Only by looking back at what actually happened in this case would it be right to confine the attention of a reasonable council to the foreseeable risks of swimming in the sea.  When judged from the proper standpoint - looking forward at all forms of risk associated with all forms of recreation on or from land of which the Council had the care, control and management - what would the response of a reasonable council have been to the foreseeable risk of a diving injury like the appellant suffered? 

    It was not reasonable to expect the Council to warn of this particular danger.  The Council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discovered by someone contemplating diving or plunging into the water at this point.”

33. The RTA’s proper focus would have been on the risks faced by motorists and pedestrians and not just those faced by persons engaging in recreation.  When the Court considers how the RTA should have responded to this and all other perceived risks within the Hunter region for which Mr Alexander was responsible, it becomes clear that the foreseeable risk of a diving accident from this bridge with a 39 year accident free history had no reasonable claim on its further attention or resources. 

34. The matter becomes even clearer when one considers the State wide responsibilities of the RTA and the many other claims on its attention and resources.  The Court cannot be unaware of the extent of these responsibilities as many of them reach this Court.  In Edson v Roads & Traffic Authority (2006) Aust Torts Reports 81-839 the RTA was on notice of a dangerous practice at its freeway which separated two satellite suburbs of Campbelltown. Because of the lack of a pedestrian overpass it was estimated that some 25,000 pedestrians a year crossed the freeway which had a speed limit of 110kph.

1. The practice gave rise to an increasing number of serious accidents and fatalities.  This Court concluded that the Authority owed pedestrian trespassers crossing the freeway a duty of care and found that it was liable to the appellant.  It would not be appropriate to make a direct comparison of the risks faced by pedestrians crossing the freeway near Campbelltown and that faced by teenagers diving from this bridge, but the case serves as a reminder of the need to put the present case, however tragic, into a much wider perspective.

2. I would therefore also allow the appeal by the RTA as well and dismiss the plaintiff’s action against it.  Since mine is a minority opinion it is not necessary to formulate precise orders.

3. IPP JA: 

   Mr Dederer’s claim, the orders made by the trial judge and the grounds of appeal

4. These reasons concern two appeals arising out of proceedings whereby the plaintiff, Philip James Dederer, sued the Roads and Traffic Authority (“the RTA”) and the Great Lakes Shire Council (“the Council”) for damages for personal injury.

5. On 31 December 1998, when Mr Dederer was aged fourteen years and six months, he dived off the Forster/Tuncurry bridge and was rendered partially paraplegic. Mr Dederer sued the RTA and the Council alleging that they had negligently caused his injuries.

1. Mr Dederer dived off the bridge by using the flat top railing on the northern side of the bridge as a platform.  There were two flat central horizontal railings beneath the top railing and he used one of these to step upwards on to the top railing.  There was a lamppost on the bridge which he used for additional support to climb on to the top railing.

1. There were pictograph signs on or at the approaches to the bridge prohibiting diving and signs in words prohibiting climbing on the bridge.  Prior to his dive, Mr Dederer saw and understood the signs.  He ignored them.

1. The trial judge, Dunford J, upheld Mr Dederer’s claim against both defendants. The judge found that Mr Dederer’s spinal injury was sustained when his head struck the estuary bed as he dived.  His Honour decided that both the RTA and the Council were negligent.  He held, further, that Mr Dederer had been guilty of contributory negligence and apportioned Mr Dederer’s share of responsibility for his own injury at 25 per cent.  As between the RTA and the Council, his Honour found that the RTA was 80 per cent responsible for Mr Dederer’s damages and the Council 20 per cent. The parties had agreed Mr Dederer’s damages and his Honour granted judgment in favour of Mr Dederer accordingly.

2. The RTA’s notice of appeal contains 17 grounds of appeal. These can be divided into the following general categories:

   (a)Dunford J erred in finding that the RTA owed Mr Dederer a duty of care.

   (b)The evidence did not support the finding made by his Honour that the RTA was aware of the “widespread” and “continuing” practice of people jumping or diving from the bridge.

   (c)Dunford J erred in finding that the RTA’s placement of signs on the bridge prohibiting diving and climbing was not a reasonable and sufficient response by it to any foreseeable risk.

(d)          The judge erred in finding that the RTA should have placed signs on the bridge displaying the words, “danger, shifting sands, variable depth”.

(e)          His Honour erred in finding that the RTA should have modified the flat top railing to make it more difficult for people to use it as a platform for diving.

(f)           His Honour erred in finding that the RTA should have replaced the existing railings with vertical swimming pool type fencing. 

(g)          His Honour erred in failing to have proper regard to the RTA’s resources, the other demands on it and the priorities for the disposal of its funds that it determined itself.

(h)His Honour erred in finding that the modifications to the signs and railings suggested by him would have prevented persons from jumping from the bridge.

(i)His Honour erred in finding that the RTA was as much as 80 per cent liable for Mr Dederer’s damages and the Council liable for as little as 20 per cent.

(j)His Honour erred in finding that Mr Dederer was guilty of only 25 per cent contributory negligence.

1. The Council’s notice of appeal contains 15 grounds.  These can be divided into the following general categories:

   (a)Dunford J should not have found that the Council owed Mr Dederer a duty of care; principally because his Honour wrongly found that it was the Road Authority for the bridge.

   (b)His Honour erred in finding that the Council should have provided a sign warning of variable depths and erred in failing to find that the pictograph was sufficient to discharge any duty of care which the Council may have owed Mr Dederer.

   (c)His Honour erred in finding that Pt 1A of the Civil Liability Act 2002 (NSW) did not have the effect of rendering the Council immune from liability to Mr Dederer.

(d)          His Honour erred in finding that Mr Dederer was guilty of contributory negligence only to the extent of 25 per cent.

The bridge and its surrounds

1. The bridge links the twin towns of Forster and Tuncurry.  It runs east – west with Forster on its eastern bank and Tuncurry on its western bank.  It spans the estuary at the mouth of the Wollamba River and is approximately one kilometre south west of where Wallis Lake meets the Pacific Ocean. 

2. Recreational parks are located on the sides of both the eastern and western approaches to the bridge.  The Tuncurry town centre is approximately 500 metres to the north west of the bridge and the Forster town centre is approximately 200 metres to the east.  There is a small marina immediately to the north of the bridge and a camping reserve is adjacent to the marina.

1. The general area is a busy tourist venue and its population swells markedly during the summer months.  The ocean and beaches nearby, the lake, the estuary and the camping sites attract families and children.  Some families come year after year.

1. There is a parking area on the Forster side of the bridge with an amenities block including toilets, a park area, bench seats and tables.  This parking area is an incentive to people to park near the bridge, have a picnic or a meal, and walk along the walkway of the bridge, enjoying the view.

1. The bridge is made of steel and concrete and is 632 metres long.  It carries a two-lane bitumen roadway and there is a concrete walkway for pedestrians on its northern side.  Each lane is 3.66 metres wide and the walkway is 1.525 metres wide. Three people could walk abreast on the walkway. The roadway is part of Main Road 111.  The roadway was described as “extremely” busy and the walkway as  “busy”.

1. The bridge rests on reinforced concrete piles and 47 piers (numbered 1 to 47 from the Tuncurry side). It passes over a large sandbar as it traverses the estuary.  The southern tip of the sandbar is about level with pier 41.

1. Boats, including big trawler boats, fishing boats, ski boats, and jet skis pass through fairly deep channels near the Forster and Tuncurry sides of the estuary. Clearance for vessels using the channels was provided for “by introducing a crest vertical curve [described by witnesses as “humps”] into the longitudinal grade line over each channel”. Thus, the level of the bridge rises (in the form of the humps) over the navigable channels and is lower over the sandbar.  The main channel for navigation on the Forster side is between piers 43 and 44.  Boats also use the passage between piers 44 and 45.  Mr Dederer dived between the latter piers.

2. The tidal flow in the area is strong. The action of the tide has a scouring and dispersing effect on sand from the sandbar and this causes the depths of the water in the estuary to change continually.  Mr Dederer dived at a point where the visible edge of the sandbar above the surface of the water was about ten metres to his left.  Mr Dederer’s father said that, although the general position of the sandbar remained constant, its length and width changed from week to week.

1. Mr Dederer dived into the channel west of the main navigable channel on the Forster side.  The evidence as to the depth of the water in this channel at the time of his dive, and the height from the railing of the bridge to the surface of the water at that point, varied.  It was, however, accepted that Mr Dederer dived off the bridge at a point that was about nine metres from the surface of the water, and he dived into approximately two metres of water.

1. The tide on the day in question appears to have involved a variation in depth, from high tide to low tide, of about 1.4 metres.  The high water mark occurred at 7.53 am and low water at 2.08 pm.  The dive occurred close to noon on the day.  By the time that Mr Dederer dived, the tide had been going out for some four hours.

1. Mr Dederer’s dive was by no means an unusual phenomenon. For many years, almost from the time the bridge was constructed, young people – particularly over the summer months - frequently (often in groups) jumped and (less often) dived off the bridge into the estuary below.  Apparently, until Mr Dederer was rendered paraplegic, no person had sustained injuries in these activities.

1. Mr Dederer dived from the railings on the northern side of the bridge.  A ledge protruded northwards, outside the railings on the northern side and there was a 0.3 metre kerb (or “water pipe”) on the southern side.  The railings and ledge seem to have been the more popular diving platforms, although diving also occurred from the water pipe on the south.

2. The pictograph sign that Mr Dederer observed before diving was located on a telegraph pole between pier no 47 and the Forster end of the bridge. It depicted a person diving with a diagonal line through the person.  A sign in words, prohibiting fishing from and climbing on the bridge, stood at both entrances to the bridge. 

   The plaintiff’s background and knowledge of the area

3. Mr Dederer was about 182 centimetres tall and “a fairly solid person” at the time of the accident.  He was a good sportsman, played rugby league as front row forward and in 1998 was awarded Player of the Year for his school.  He participated in several other sports as well.  He had previously dived from a 10-metre tower at a swimming pool.

1. Mr Dederer and his family had spent holidays in the area since he was a very small boy.  They stayed at a caravan park north of the Tuncurry township over weekends and school holidays.  They regularly spent time swimming, water skiing and fishing in the estuary.

2. Mr Dederer became aware that, in the area of the bridge, the estuary was “very much given to tidal action”. Mr Dederer and his family frequently ran their boat onto the sandbar, jumped off the back of the boat and swam in the channel.  The depth of the water dropped suddenly at the edge of the sandbar and the water in the channel was “fairly deep”.  Mr Dederer’s feet did not touch the bottom in that area.  He knew that the tide shifted the sand around and resulted in a scouring of sand, particularly through the channel.  He said there would not be a “sudden shift of sand” in the middle of a channel.  But at times it was noticeable that “some sort of a shallowing up of the bottom” had occurred. At times when the water was clear one could see yellow patches in the channel.  These were long stretches of sand indicating shallower areas.

3. Whether the shallower areas within the channels could be seen depended on the tide and the day and, Mr Dederer said, “a number of factors”.  He accepted that the depth of the water in the channels was hard to judge “due to the flow of the water going under the bridge”.

4. Over the years, Mr Dederer frequently observed children and adults jump and dive off the bridge.  He assumed from these observations that the water “must be deep”.   Mr Dederer had been under the bridge from time to time in a boat.  He said that, from that vantage point, “the bridge looked fairly high but the water also looked very deep”.

The circumstances relating to Mr Dederer’s injury

1. On 30 December 1998, the day before the accident, Mr Dederer went with a friend, Grant Cunial, to Forster.  They walked onto the bridge and as they approached it Mr Dederer saw what he described as the “big sign” at the side of the bridge that read “Fishing and Climbing Prohibited”.  He had seen that sign and the identical sign at the Tuncurry end of the bridge previously. 

2. He advanced some distance along the bridge and jumped into the river twice, first from the ledge at the base of the bridge and the second time from the top of the handrail.  Both times his body was totally submerged and his feet did not touch the bottom. This was the first time he had jumped or dived from the bridge.  That day he saw other people (who he described as “a group of kids”) jumping and diving from the bridge.

3. On 31 December 1998, he and Grant Cunial drove to the parking area on the Forster side of the bridge. It was a hot day and they sat for five to ten minutes on one of the benches.  During these few minutes, they watched about to 10 to 15 people jumping off the bridge. 

1. They walked onto the bridge intending to have a swim.  Mr Dederer said that jumping from the bridge was an easy way to get into the water.  As they walked onto the bridge, Mr Dederer saw the pictograph sign attached to a lamppost. He said that the sign “just showed, just told me I shouldn’t dive.  It didn’t sort of put any danger to it”.

2. Mr Dederer climbed onto the rail without difficulty.  When he got to the top of the railing on the bridge he looked at the water for about two to three minutes or maybe longer.  He said:

   “You couldn’t make out the bottom, the water [was] a green murky colour, and it was a real dark green which told me it was deep”.

   He explained as follows why he thought it was safe for him to dive:

   “Just the look of it and on my knowledge of sort of that area with the boats passing by and people jumping and diving off that area and the colour in the water and sort of being in the middle of the channel I always thought it was deep”.

3. Initially, he intended to jump, but on impulse – as he stood on the top railing – he decided to dive.  He listened to determine whether any boats were approaching under the bridge and then dived with his arms outstretched.  He said:

   “At that time I was sort of a cocky 14 year old that had the attitude, well I wasn’t going to dive, I was jump [sic] but then once I got up there I for some reason changed my mind”.

4. He said he dived “almost straight, but at an angle”, similar to that at which he had seen other people dive.  He said:

   “I didn’t jump straight down but I didn’t sort of belly flop either, I sort of went in almost straight, but not dead straight”.

5. The next thing that Mr Dederer remembers is coming up from under the water and not being able to feel the lower part of his body.  Mr Cunial then jumped in to assist him. There was a very strong outgoing tide and Mr Dederer was worried that they might end up in the sea.  After about two hours they were both rescued.

   History of jumping and diving off the bridge

6. Mr Dederer’s father first went to the Forster/Tuncurry area in the late 1960’s or early 1970’s.  His parents took him there over the Christmas holidays and they stayed in the area for about four weeks at a time.  During these periods he constantly observed people either jumping or diving from the bridge on the Forster side.  He said that, while people were “jumping all the time”, he had seen some “diving on a few occasions”.  Most of the people jumping and diving were 12 to 16 year olds.

7. Later, Mr Dederer’s father took his own family to the region for holidays.  He had had a van at the caravan site up the Wollamba River for approximately 22 years.  He had driven over the bridge many times and said that, in the warmer times of the year, it was not unusual to see groups of four to six young people jumping off the bridge at a time.

8. Mr Dederer, from the age of about six or seven years, had seen people jump and dive off the bridge at the channel near the Forster shore.  He said that this occurred frequently.  The people who jumped and dived were of all ages, but most were young.  He said that one would see “a steady flow of people jumping and diving” and “you’d get one group every five, ten minutes”.  He said a group would comprise from three to about ten people.  The ages of the persons ranged from ten years to adults.

9. Mr Cunial had been going to the area for holidays since about 1992 and had seen persons (ranging from about 10 to 30 years old) jumping, diving, doing back flips, somersaults, “peg-legs” and bombs off the bridge at the channel near the Forster shore.

10. Mr Michael Keegan, who was called in the RTA’s case, was the Asset Manager of the Council’s roads, bridges and stormwater systems.  Prior to that he was Works Engineer in charge of construction and maintenance activity.  He had worked for the Council since 1975.  He was aware for years that young persons were in the habit of jumping off the bridge.  He said that it was common knowledge in the community and he had actually remonstrated with his own children for jumping from the bridge.

11. Mr Keegan testified that he was aware, 15 or 16 years before the trial in 2004 that there were signs on the bridge relating to “no diving”.  He said that he was aware of records indicating that the pictograph no diving signs installed in 1995 replaced signs that had previously been installed.  The trial was apparently conducted on the basis that in December 1995 the Council replaced existing pictorial no diving signs.  The Council had informed the RTA that signs were needed and the RTA knew that they were installed.

12. Mr John Previtt had been employed by the Council as a ranger since November 1988.  He had seen many people, over the years, jump off the bridge.  Some had done somersaults, but Mr Previtt said that he had never seen anyone dive.  He was asked whether jumping off the bridge was a “constant thing, particularly in holiday periods” and he replied, “most definitely, yes”.

13. Mr Alexander, was the Planning and Analysis Officer of the RTA Hunter region.  He had been employed by the RTA since 1998.  He said that, from the RTA records, he was aware of concerns expressed in February 1993 about persons jumping off the bridge.  RTA officers inspected the bridge in April 1998 and reported that people were still jumping off the bridge.  Mr Alexander said that it was general knowledge in his office that young people had been doing this for some time. 

    Attempts to prevent persons jumping and diving off the bridge

14. Mr Dederer had never noticed police officers or Council rangers talking to any of the very many people he had seen jumping or diving off the bridge.  Mr Dederer’s father had never seen a police officer patrolling the area or any rangers.  He had been in the area countless times since the late 1960’s or early 1970’s.

15. Mr Previtt, on three separate occasions in about 1990, when wearing his official Council uniform, spoke to persons who were climbing onto and appeared to be about to jump from the bridge. They were 16 years of age or younger. He drew their attention to the pictograph and told them not to jump.  They ignored him, however, and jumped all the same. He could not apprehend or catch them. On another occasion Mr Previtt tried to remonstrate with people who had jumped but “they just sat on the centre island, 20 yards away, and waved and laughed”.

16. In about 1990 Mr Previtt had a conference with the police officers.  The police agreed to attempt to prevent people jumping from the bridge.  Mr Previtt, thereafter, observed police on numerous occasions stop and speak to persons who appeared to be ready to jump off the bridge.  Those persons ignored the police and continued to jump. Mr Previtt said that he had seen police drive into the adjacent park and speak to people about jumping off the bridge.  He had also observed a police boat trying to round up some young persons who had jumped off the bridge.  People were still jumping off while the police boat was there.  This continued for about 30 minutes.  The police attempts were fruitless.  He said that he had seen police in boats about three times and police talking to youths near the bridge about five or six times. The behaviour of the people, however, did not change.

1. The evidence also established that the RTA and Mr Alexander were fully aware that, firstly, “No Diving” pictograph signs had been erected on the elevated areas at each end of the bridge and that, at least so far as children jumping from the bridge was concerned, those signs were not being obeyed.  Mr Alexander’s evidence (at Black 2/410) was that within the Road Safety and Traffic Management Section of the RTA in which he was employed, there was an Operations Section which was responsible for all signage and that the officer who could “come and assist” the Court in relation to question of signage on bridges and roads was Mr Ken Saxby who specialised in that area.

2. Furthermore, there was a Mr Selway from the Asset Section who was also familiar with the issue of signs and Mr Alexander agreed (at Black 2/411) that those gentlemen would be far more conversant than himself with the issue of signs and whether they should or should not be erected . 

3. In fact, Mr Alexander agreed that he had received information from each of those gentlemen to the effect that there were groups of young people who were observed jumping from the bridge and that they had continued to do so notwithstanding the “No Diving” signs. 

4. Neither Mr Selway nor Mr Saxby were called by the RTA at the trial.  Even if Mr Alexander was not personally aware of children diving from the bridge, that is not to say that other officers of the RTA, including Mr Selway and Mr Saxby, were not.  Mr Alexander’s answer (which I have recorded in [327] above) hardly constitutes positive evidence from which the inference can be drawn that the RTA was unaware that children dived as well as jumped from the bridge.  Although he agreed that children jumping off the bridge was a well-known practice, Mr Alexander’s response to the question that it was also a well-known practice that children dived off the bridge, was simply “I don’t know about diving”.  As I have observed, that answer did not and could not constitute a positive assertion that the RTA and/or all its officers and employees were unaware of that fact.

5. Five material facts were established which militate against a finding of lack of knowledge of diving on the part of the RTA.  First, the RTA was well aware of the continuing practice of children jumping off the bridge.  Second, through Mr Alexander and other officers, it was aware that that practice was dangerous.  Third, the RTA was aware that “No Diving” pictograph signs had been erected.  Fourth, even if, as Handley JA observes at [36] of his judgment, the RTA was unaware that the “No Diving” signs had failed to prevent children continuing to dive from the bridge, it did know that they had not prevented children continuing to jump from it.  Fifth, it was aware that the bridge was not only alluring to teenagers (as Handley JA acknowledged in [54] of his judgment), but was also a significant and popular facility in the context of the summer tourist season in the Forster/Tuncurry area. 

6. In the foregoing circumstances, in my opinion it is difficult to accept that the RTA was completely ignorant of the fact that children dived from the bridge.  As Ipp JA pointedly observes in [199] of his judgment, why else would a sign be erected to the knowledge of the RTA in 1995 which prohibited diving from the bridge, unless diving was considered by it to be a problem?  At the very least, given its acknowledged responsibilities with respect to the bridge, including the carrying out of regular inspections of the bridge’s piers in the circumstances referred to by Ipp JA in paragraph [208] of his judgment, it ought to have been aware that children not only jumped from the bridge but also dived. 

7. As Ipp JA also observes at [199] of his judgment, the RTA’s knowledge of pictograph signs prohibiting diving, together with the other evidence to which I have referred, point strongly to the inference that the RTA’s officers were aware that children continued to dive, as well as jump, from the bridge in circumstances which, as a matter of common sense, it must have known to be dangerous.

8. If the RTA succeeded in establishing that it was unaware that children dived from the bridge (notwithstanding that it was aware that they jumped from the bridge, that it was dangerous to do so and that at the Council’s request, it had erected “No Diving” pictograph signs), the only conclusion that one would draw from such a finding is that the RTA was ignoring the obvious.  As a matter of plain common sense, it would have failed to appreciate that if children to its knowledge were jumping from the bridge and, in particular, from the top railing which provided easy access to the water for that purpose, the chances were that children would also dive from the bridge into water the depth of which was known by it to be variable in circumstances which were likely, sooner or later, to result in a tragic accident of the nature of that which befell the plaintiff.  I thus endorse the observations of Ipp JA in [308] of his judgment.

9. In the foregoing circumstances, I would agree with Ipp JA that the primary judge was correct in inferring that the RTA was aware of the practice of young people diving from the bridge in contravention of the prohibition of doing so contained in the very signs which it had caused to be erected.

10. The primary judge regarded the situation disclosed at the bridge as “an accident waiting to happen”, a finding suggested by Handley JA (at [26] of his judgment) to be informed by hindsight and, therefore, contrary to the test of reasonable foresight endorsed by the High Court in Vairy and Mulligan. However, given the knowledge of Mr Alexander and, therefore, the RTA that for children to jump from the bridge was dangerous and that diving from the bridge was a fortiori dangerous (an obvious fact acknowledged by Handley JA in [21] of his judgment), it is but a small step to conclude that, with the knowledge that children continued to dive from the bridge in circumstances where the water below (depending upon tidal influences) was of variable depth and at times quite shallow, it would be reasonably foreseeable that at low tide in particular, when the water was shallow on the one hand and the height between the railing and the surface of the water is some 9–10 metres on the other, sooner or later a child would dive in a manner resulting in serious injuries.  As I have indicated, I would regard such a conclusion as a matter of common sense.  In my view there is no logical answer to what Ipp JA has written in [212]–[214] of his judgment.

11. It seems to me that when in these circumstances the primary judge, with the benefit of a view, considered that the situation disclosed at the bridge was “an accident waiting to happen”, that finding was not one influenced by hindsight but merely confirmatory of what his Honour rightly regarded as reasonably foreseeable given the evidentiary findings which he had made. 

12. No doubt his Honour’s view of the bridge assisted his appreciation of the relationship between the top and middle horizontal railings and the water level below, neither of which had changed since the accident.  The fact that his observation that the situation disclosed by his view prompted his remark that this was “an accident waiting to happen” does not, with respect to the contrary view of Handley JA, necessarily lead to the conclusion that that finding was influenced by hindsight.  On the evidence and without the view, the same observation could legitimately be made.  The view merely confirmed it.

    Difference (c)

13. I accept that the focus of community concern between 1995 and 1998 was not upon the practice of children jumping or diving off the bridge but related to the issue of vehicle/pedestrian conflict upon the bridge.  No doubt this lack of concern with respect to the continuing practice of children jumping and diving from the bridge notwithstanding the signs prohibiting such activity was due to the fact that no serious accident had occurred over the previous 39 years. 

14. However, that fact does not, in my opinion, detract from the Council’s concern which was conveyed to the RTA and which resulted in the erection of the “No Diving” signs or as to the concern which ought, in my opinion, have registered with the RTA, given its responsibilities with respect to the bridge, that young children were using the structure for the purpose of jumping and diving into the water below in circumstances which were obviously dangerous. 

15. I therefore agree with Ipp JA (at [264] of his judgment) that the fact that the local community did not publicly express any concerns about young persons jumping and diving off the bridge, although a relevant factor, is in no way conclusive.  It was, as his Honour points out in [265] of his judgment, easily explicable.

16. Furthermore, it was common ground that both the Council and the RTA regarded the problem as one of law enforcement, which to their knowledge had failed.  Lack of expressed public concern with respect to the problem may have been due to the fact that the activity, although obviously dangerous (whether it was jumping or diving), had not resulted in any child being seriously injured.  In these circumstances, the RTA did not regard the problem as one which required its attention: see [330] above.  As Mr Alexander said (at Black 2/415V),

    “there wasn’t a lot we could do given that it was a well-known event and that Great Lakes Council would have been aware of it and the police would have been aware of it”.

    It was truly a “head in the sand” attitude.

    Difference (d)

17. There are two aspects with respect to this difference between their Honours.  First, with knowledge that neither the Council nor the police had been able to prevent young people jumping or diving off the bridge, did this known fact call for different measures to be adopted by the RTA to prevent the practice at least of jumping off the bridge, assuming that its knowledge went no further than that?

18. Second, given that there had been no reported accident arising from young people or children jumping or diving from the bridge and the then focus of the RTA with respect to the expenditure of its limited resources, a reasonable response to any foreseeability of the risk of injury from such an activity, given its low probability of occurrence due to the fact that there had been no injuries reported in the 39 year history of the bridge would not have extended to the expenditure of some $108,000 on a new external pool-style fence with vertical balustrades.

19. As to the first matter, at [35] of his judgment, Handley JA remarks in the context of the necessity to avoid hindsight and to concentrate on foresight, that the reasonable response called for by the so-called Shirt calculus on the part of the RTA should be considered in the context of not only the lack of public concern with respect to the relevant activity but also the history of no serious accident from jumping or diving from the bridge in its 39 year history.  That evidence, his Honour indicated, should be given greater weight than an impression formed after the tragic diving accident that befell the plaintiff. 

20. Furthermore, according to his Honour, as the RTA knew that the “No Diving” signs had not prevented the practice of children jumping off the bridge on the one hand but was unaware that they were diving from the bridge on the other.  Given community concern with respect to vehicular/pedestrian conflict on the bridge, the so-called Shirt calculus would only have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose rather than to those children and young persons who were using it unlawfully for an improper purpose. 

21. Thus, in his Honour’s judgment, given that the RTA has State-wide responsibilities for roads and road traffic in general and for the State’s freeways in particular, any focus in the present case on a diving accident involving one person on one day on one bridge was inherently retrospective and was not reasonably perceived by the RTA as a risk before it occurred. 

22. As I understand his Honour’s reasoning, in these circumstances there could be no breach of any duty of care owed by the RTA to persons using what was an unpatrolled bridge open to the public as a right who used it as a diving platform contrary to “No Diving” signs erected thereon.  This was particularly so because although the bridge was alluring to teenagers, the RTA had not encouraged persons to use it as a diving or jumping platform. 

23. I have already indicated my respectful disagreement with his Honour’s view that the fact that there had been no serious accident resulting from the practice, well-known to the RTA, of children jumping from the bridge did not give rise to a foreseeable risk of injury occurring, albeit with a low probability of occurrence.  Given the RTA’s knowledge that the bridge was being used as a platform for children to jump into the water below, at the very least it ought to have known that there was a foreseeable risk that at least some children would also dive from the bridge in circumstances which would in fact enhance the risk of injury if they dived into shallow water at low tide or when the tide was running out.

24. Although it is true that the RTA was required to focus on the risks caused by the vehicle/pedestrian conflicts on the bridge particularly in busy times during the summer holiday season and not just upon the risks faced by “persons engaging in recreation” by jumping and/or diving off the bridge, (see [63] of Handley JA’s judgment), it does not follow that it was reasonable for the RTA to ignore the well-known practice of children jumping from the bridge in defiance of “No Diving” signs erected by or on behalf of the RTA simply because there had been no diving accident from the bridge in its 39 year history.  In my opinion, the “do nothing” response, which is that favoured by Handley JA, was not a reasonable response in the circumstances.

25. In [62] of his judgment, Handley JA cites a passage from the judgment of Hayne J in Vairy.  In that passage Hayne J had said:

    “It was not reasonable to expect the council to warn of this particular danger.  The council had done nothing to make the danger worse and had no knowledge of some feature of this particular that it was not readily discovered by someone contemplating diving or plunging into the water at this point.”

26. In my opinion that passage is not applicable to this present case.  First, Vairy was a case of an adult diving from a natural rock formation so that his Honour was justified in remarking that the council had done nothing to make the risk of diving from those rocks worse that what it was.  Second, in the present case we are dealing with young children who, to the knowledge of the RTA, were at the very least jumping from a height of 9-10 metres into what, at times, was very shallow water.  Third, the RTA had made the danger worse as its predecessors were responsible for the construction of the bridge and, in particular, the type of external railing which provided an easy platform to the RTA’s knowledge for children to utilise for the purpose of jumping into the waters below. 

27. In this last respect, I respectfully disagree with the view expressed by Handley JA in [9] of his judgment that the fact that the RTA’s statutory predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to its liability for an accident which occurred in 1998 unless it was based on its own acts or omissions.  His Honour’s comparison with the responsibility of an owner of private property with respect to a danger created by that owner’s predecessor in title is not, in my respectful opinion, apt. 

28. It would be entirely inappropriate, in my respectful opinion, for the RTA to be able to disregard the danger created by its statutory predecessor in creating a platform for jumping and diving into the waters below the bridge upon the basis that although it was aware of the danger so created, it could nevertheless ignore it because it did not create it in the first place.  To suggest otherwise would invite government to avoid liability in a case such as the present by the device of simply passing legislation which replaced the public authority who created a relevant danger by a new public authority whose responsibilities were no different from its predecessor.  As I have indicated, I do not regard the analogy with the successor in title of a private landowner as being appropriate in the circumstances of a case such as the present. 

29. In any event, although I accept, as Handley JA observes in [57] of his judgment, that pedestrians were lawfully entitled as of right and necessity to use the bridge and that participation in the recreational activity of using the handrail of the external fence as a jumping and diving platform was a voluntary activity notwithstanding its inherent risks, it does not follow from those factors that it was reasonable for the RTA to simply ignore what it clearly knew to be a dangerous activity in which children were partaking and who could be expected to be oblivious to the risks involved. 

30. I therefore turn to the second aspect under this heading which concerns Handley JA’s finding (at [63] of his judgment) that the foreseeable risk of a diving accident from this bridge with a 39 year accident-free history had no reasonable claim on the RTA’s further attention or resources.  I have already dealt with the first aspect of that proposition but it necessary to deal with the second.  To some extent the two overlap. 

31. The relevant principles are set out in [268] et seq of the judgment of Ipp JA which Handley JA does not seem to contest.  The fact that a public authority has limited resources and the necessity for it to prioritise its expenditure of those resources is a factor to be taken into account in the balancing exercise contemplated by the so-called Shirt calculus.  The difficulty in the present case, as Mr Alexander indicated in his evidence part of which I have extracted in [330] above, was that although there would be a general concern about safety in respect of the practice of children jumping from the bridge, if the RTA was required to be concerned with such a practice to the extent of having to fund a significant program of works in order to prevent the practice, then its level of concern would, apparently, diminish. 

32. On a number of occasions during the course of his evidence, Mr Alexander emphasised two things.  The first was that in the years leading up to the plaintiff’s accident, it was focussed upon the acknowledged concern of separating pedestrian and vehicular traffic on the bridge.  This was, therefore, a priority issue.  Second, even if children jumping from the bridge was regarded as giving rise to a safety issue, the fact that there had been no previous history of serious injuries occurring from what was otherwise acknowledged as a dangerous activity, would not have been considered as highly, in terms of the expenditure of resources, as an intersection where there had, for example, been ten casualties over a five year period.

33. The truth of the matter, however, as stated by Mr Alexander (at Black 2/438), was that children jumping off the bridge fell outside the framework of the RTA’s funding responsibilities.  If it was something that required attention, it would be necessary to look at it in the context of all other bridges, not only in the region but in New South Wales.  When asked (at Black 2/439–440)

    “If the continued practice of young people jumping of the Foster-Tuncurry Bridge was established to be unsafe, would the RTA do anything about it?”

    Mr Alexander responded in these terms:

    “…at this time we wouldn’t be able to do anything about it other than perhaps report it to an enforcement authority.  If the mood was right and there were opportunities to develop a program, that would be a policy issue at head office and they’d need to make funding available, they’d need to set very clear guideline, and we’d need to review the behaviour of kids at a large number of bridges throughout New South Wales.  But I can’t say even then that the RTA would pick up on a policy to fix bridges so that kids wouldn’t jump off them.”

1. It is clear from that response and from Mr Alexander’s evidence which immediately follows, that prior to the subject accident, the RTA’s funding priorities were set and that it had no policy with respect to dealing with the problem of children jumping and diving from its bridges into the water below.  If it was aware of a danger associated with the subject bridge, then head office would need to determine a policy not only with respect to that bridge, but with respect to all bridges in New South Wales where children might be tempted to use them as a jumping and diving platform.

2. I have already referred to the authorities examined by Ipp JA on this issue at [268] et seq of his judgment.  In my opinion, the critical point which emerges from his Honour’s review of the authorities is that the reluctance of courts to impose their views on the reasonableness of resource allocation decisions by public authorities assumes on the one hand, that the authority has recognised the relevant danger and, on the other, has made a considered policy decision based on a risk analysis as to whether or not to allocate resources to the elimination of the danger in light of its other responsibilities and priorities. 

3. The questions to be answered in the present case, therefore, are first, whether the RTA recognised the danger, as in my opinion it ought, of young people including children, jumping and diving from the bridge and, second, whether it had made a considered policy decision in light of its funding restrictions and other priorities to defer any reconstruction of the external fence which would eliminate the danger until it was in a position to carry out the work necessary to respond to the vehicle/pedestrian conflict issue which had been identified as a significant danger requiring remedial action.  Even if the first question is answered in the affirmative, it is clear that the second must be answered in the negative.

4. As Mr Alexander’s exchange (set out by Ipp JA at [284] of his judgment) makes clear, no decision had been made by the RTA that even recognised that there might be a danger to young people and children jumping and/or diving off its bridges including the subject bridge.  That simply was never on its radar.

5. In the foregoing circumstances, I would respectfully endorse the reasons of Ipp JA in [294]–[307] of his judgment.  Mr Alexander’s evidence referred to in those paragraphs did not, in my opinion, justify a conclusion that it was reasonable for the RTA to adopt a “do nothing” approach with respect to the foreseeable risk that the external horizontal handrails of its bridge provided a platform for children to jump and dive into the water below in circumstances which were obviously dangerous.  Nor did that evidence justify a conclusion that it was reasonable for the RTA to neither recognise nor respond to that danger because it had focussed its attention in terms of resource allocation on other aspects of its responsibilities as a roads authority.

   Difference (e)

6. The thrust of the difference between Ipp JA on the one hand and Handley JA on the other with respect to the issue of causation is that even if the RTA had installed an external handrail of a pool-style fencing design with vertical, rather than horizontal, members, the latter considered that in view of Mr Kegan’s evidence, although such a railing would be harder to climb, it would still be possible, particularly in the case of an agile teenager to climb over it.  As the plaintiff was approximately 1.8m tall and the proposed fence only 1.2m high, Handley JA has concluded (at [49]) that there was

   “every reason for accepting Mr Keegan’s evidence that such a fence would not have deterred a fit teenager such as the plaintiff who wished to jump or dive from the ledge.”

7. I would accept his Honour’s finding if confined to the case of a teenager who was determined, rather than one who merely wished, to dive from the bridge.  But even in the case of causation, we are dealing with probabilities and not certainties.  The question is whether in the circumstances of this case such a fence would have deterred this particular plaintiff from diving from the bridge on this particular occasion. 

8. The evidence did not establish that the plaintiff, prior to committing himself to diving from the top horizontal railing of the existing external fence, had determined to dive rather than jump or that he even wished to do so in a pre-determined way.  His clear evidence was that immediately before he dived, he intended to jump from the bridge but on impulse changed his mind and dived at the last moment. 

9. There was no suggestion that the plaintiff was of reckless or unthinking disposition.  It is true, as observed by Ipp JA in [312] of his judgment, it was apparent to him that diving from the bridge involved a risk of injury, particularly if the depth of water under the bridge was variable.  He had observed others jumping and diving, without incident, from the bridge which gave him some reassurance.  There was nothing to suggest that his character was such that he should be regarded as completely irresponsible notwithstanding that he knew that diving from the bridge was prohibited, although, as he said, the “No Diving” sign did not indicate to him that it was dangerous to do so.

10. The primary judge and Ipp JA concluded that a combination of an appropriate sign on the one hand and the installation of pool-style fencing on the other would have served as an entirely different deterrent to young people such as the plaintiff diving from the bridge.  There is no reason to believe that the combination of such remedial steps to the danger that otherwise existed would not have been a deterrent to young people who engaged in the practice of jumping and/or diving from the bridge with the result that the extent of that practice, at the very least, would have been significantly reduced.  In those circumstances, the plaintiff’s observation with respect to others jumping and diving from the bridge would not have provided him with the reassurance that it was safe to do so that he apparently assumed at the time of his accident.

11. As I have indicated, ultimately the test is an objective one to be determined on the balance of probabilities.  In the circumstances referred to, the primary judge held that it was probable that the plaintiff would not have dived as he did and, therefore, would not have sustained his injuries.  That was finding which, as Ipp JA observes, was clearly open to the primary judge on the evidence and one which is not vitiated by error which would justify the intervention of this Court.

    Conclusion

12. I have had the unenviable task of considering the judgments of my brethren, each of which contain powerful arguments in favour and against the RTA’s appeal being upheld.  I have attempted to isolate the differences between their Honours and to express my own views as to how those differences should be resolved.  At the end of the day, for the reasons I have given, I have resolved them in favour of the RTA’s appeal other than with respect to the apportionment of damages, being dismissed.  I therefore agree with the orders proposed by Ipp JA.

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LAST UPDATED:               05/10/2006