Hodder by his next friend Elaine Georgina Hodder v Town of Port Hedland

[2011] WADC 145

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   HODDER by his next friend ELAINE GEORGINA HODDER -v- TOWN OF PORT HEDLAND [2011] WADC 145

CORAM:   O'NEAL DCJ

HEARD:   14-18 & 21-25 MARCH 2011

DELIVERED          :   16 SEPTEMBER 2011

FILE NO/S:   CIV 1316 of 2008

BETWEEN:   REECE WILLIAM HODDER by his next friend ELAINE GEORGINA HODDER

Plaintiff

AND

TOWN OF PORT HEDLAND
First Defendant

THE YOUNG MAN'S CHRISTIAN ASSOCIATION OF PERTH
Second Defendant

Catchwords:

Negligence - Personal injury - Obviousness of risk - Contributory negligence - Agreement to indemnify

Legislation:

Civil Liability Act 2002 s 5F, s 5I, s 5K, s 5O
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Occupiers' Liability Act 1985 s4, s5

Result:

Judgment for plaintiff as against the first defendant
Plaintiff's damages reduced by 10% for contributory negligence

Representation:

Counsel:

Plaintiff:     Dr A S Morrison (RFD) QC with Mr G Droppert

First Defendant             :     Mr S Walsh QC

Second Defendant         :     Mr D R Clyne

Solicitors:

Plaintiff:     Donna Percy & Co

First Defendant             :     DLA Phillips Fox

Second Defendant         :     SRB Legal

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

Andar Transports Pty Ltd v Brambles Limited [2004] HCA 28; (2004) 217 CLR 424

Angel v Hawkesbury City Council [2008] NSWCA 130

Council of the City of Greater Taree v Wells [2010] NSWCA 147

Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500

Department of Housing and Works v Smith [No 2] [2010] WASCA 25

Doubleday & Urquhart v Kelly [2005] NSWCA 151

Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209

Insurance Commissioner v Joyce (1948) 77 CLR 39

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166; (2000) 176 ALR 137

Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552

Letang v Ottawa Electric Railway Company [1926] AC 725

McHale v Watson [1966] HCA 13; (1966) 115 CLR 199

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Russell v Rail Infrastructure Corporation [2007] NSWSC 402

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

Taheer v Australian Associated Motor Insurers Ltd [2010] NSWCA 191

Trustees of the Roman Catholic Church for the Diocese of Canberra and Gouldburn (as St Anthony's Primary School) v Hadba (by her next friend) [2005] HCA 31

Vairy v Wyong Shire Council [2005] HCA 62

Waverley Council v Ferreira [2005] NSWCA 418

Wheat v E Lacon & Co Ltd [1966] AC 552

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1. O'NEAL DCJ:  The plaintiff, Reece Hodder, is now 28 years old.  He was born with cerebral palsy and an intellectual disability.  Since birth he has been profoundly deaf, virtually unable to speak, and practically blind.  On 15 January 2006, as a result of an accident in a swimming pool owned by the first defendant and managed by the second defendant, he was also rendered quadriplegic.  The plaintiff struck his head on the bottom of the pool and fractured his cervical spine at level C5.  He suffered that injury when he dived from one of eight starting or diving blocks permanently placed at the shallow end of the swimming pool.

2. In this action he sues by his next friend, his mother, for damages for personal injury allegedly caused by the negligence of the defendants.  Subject to the outcome of this trial and leave of the court, the parties have agreed the amount of damages.  These are my reasons for decision on the issue of liability.

Background

The pools

1. The first defendant owns various recreational facilities within its civic boundaries.  Those facilities include two public swimming facilities or aquatic centres.  One, the Gratwick Memorial Olympic Swimming Pool (Gratwick) was constructed in 1969 in Port Hedland.  The other facility is the South Hedland Aquatic Centre (SHAC) in South Hedland.  

2. The SHAC was constructed in 1979.  It has a pool suitable for competition swimming and water polo, a learners' pool and a toddlers' or baby pool.  Other structures that make up the centre include a kiosk/office, a change room building, a plant/storage building, an equipment building and a manager's house.

3. The main pool of the SHAC has a masonry plinth around it that raises the pool edge 21 or 31 cm above the water, depending on its depth.  The surrounds of the main pools at both Gratwick and the SHAC, when constructed, included eight masonry diving blocks at each end of the length of the pool.  They were constructed to allow for diving starts for competitive swimmers.  The diving blocks at the SHAC were then 66 cm high, on top of the edge of the plinth.  The surface of each diving block was then 87 or 97 cm above the surface of water.  As I will explain, there was a degree of ambiguity in the evidence before me as to the precise depth of water at the shallow end. 

4. The council minutes of first defendant for a meeting on 26 April 2000 (exhibit 2.2.0) show that the first defendant's two aquatic centres operated at a loss.  The first defendant recognised that that was true of many other public recreation facilities and parks, where full cost recovery 'does not, and cannot, apply'. 

5. In April of 2000, the two aquatic centres had been allowed to deteriorate to a degree.  There had been no significant capital works programs to maintain or upgrade them.  The first defendant was then operating both facilities itself and from the evidence it would seem that it had done so for some time, perhaps from the time of the construction of the pools. 

6. The first defendant's Manager of Recreation Services was concerned that the operations of the aquatic centres needed revision and more modern management practices.  Mr Clarke, the Manager of Recreation Services, observed that each centre '… represents the style and type of service that was provided at their time of construction.  There is now an urgent need for upgrading of various items, so as to rectify their deterioration, improve public safety, provide modern and attractive facilities, and increase operational efficiency': exhibit 2.2.0. 

7. A document of the first defendant created at that time and entitled 'Aquatic Centres Capital Items', relating to 'projects proposed for the next five years', lists a number of items for both Gratwick and SHAC (exhibits 1.1 and 1.2).  The last item listed for each pool is 'Diving Blocks Replace – replace fixed blocks with removable blocks.  Aid safety, i.e. jumping into shallow end of pool'.  Another item with respect to the Gratwick Pool relates to a 'diving tower modification'.  With respect to this item the minute notes 'diving boards are the most attractive feature for older children.  Existing tower showing signs of concrete cancer and requires refurbishment or replacement'. 

8. The layout of the SHAC and its various pools is illustrated in a variety of plans and photographs that were tendered into evidence before me.  Some dimensions were also provided by oral evidence.  The main pool, the one that is 'suitable for competition swimming and water polo' is a 50 m long pool. At its shallow end the pool is about 21 m wide.  Along its length, the water depth ranges from either 1.1 m or 1.2 m to 3.8 m at the deep end.  The discrepancy of 0.1 m at the shallow end arises because of an element of uncertainty as to what the 'as constructed' depth of the pool was.  So far as the evidence at trial disclosed, no one connected with this case went and measured the depth of the water or the actual distance between the top of the plinth and the surface of the water.  For reasons which will become clear, I find that the depth is 1.1 m.  It follows that the height of the diving blocks above the water was about 0.97 m above the water surface. 

9. Markings at the shallow end of the pool suggest that the depth is 1.2 m.  However, the engineer's drawings tendered into evidence as exhibit 7.3.1 show the depth at the shallow end as 1.1 m, reaching 1.2 m approximately 20 m towards the deeper end of the pool.  Material provided to the first defendant's expert witness Mr Michael Griffiths is to the same effect: exhibit 22.3 at pages 5 and 6.  A capital works plan prepared by the second defendant in 2005 urged the correction of the depth markings from 1.2 m to 1.1 m to show the actual depth: exhibit 3.1.6. 

10. The pool depth at its mid‑point is about 1.55 m.  At the deep end the pool is wider than at the shallow end, so that the pool has a 'P' shape when viewed from above.  This extra width at the deep end accommodates a section of water of 3.5 m depth for diving from boards placed at that end of the pool.

11. There are two other pools at the SHAC.  Both are much smaller than the main pool.  The toddlers' pool is 0.2 m deep.  The learners' pool is 0.7 m deep. 

12. The general layout of the SHAC was shown in a plan that was part of exhibit 15.  Where the public enter through the main entrance of the SHAC there is a large 'ablution block' (the change rooms) off to the right.  There is a kiosk to the left where admission can be purchased.  The facility office is contained in the same structure.  The main entrance is at that point a passageway between the ablution block and the kiosk.  Passing through the main entrance there is a small barbecue area immediately to the left of the kiosk.  The two smaller pools are also off to the left beyond the BBQ area.  Continuing through the main entrance leads directly to the shallow end of the main pool.  The side of the pool closest to the entrance and change rooms is described by the staff as the 'near side' of the main pool.  On the opposite side of the main pool the ground is raised and covered with grass.  That side is described by the staff as the 'far side'.  In January 2006 there was a shade cloth structure down the length of that far side of the pool with some smaller shade structures just further up the slight hill.

13. As a number of the photographs tendered in evidence show, two lanes along the length of the main pool at the far side were usually marked off with rows of floats when the pool was open to the public.  They were reserved for those who wished to swim laps. 

14. From 1979 until about March 2006 there were fixed masonry starting blocks at both the shallow end and the deep end of the pool.  The maximum height for starting blocks set by FINA and its affiliates Swimming Australia and Swimming Western Australia has been 0.75 m above water level since at least 1996.  Until 2000, the minimum water depth required by the various competitive swimming bodies where starting blocks were used was 1.2 m.  After 2000, the minimum required depth where starting blocks were used was stipulated as 1.35 m for competitive swimming.

Standards and Rules for diving blocks

1. The Gratwick and SHAC facilities had been built just as the interest in the application of science to sport began to accelerate in the last few decades of the last century.  There is no reason to think that, as built, there was anything about the two centres that offended any rule that then applied to their design.  I use the word 'rule' advisedly, because the evidence before me at trial was that even now there are no regulations having the force of law in Western Australia or Australian Standards that apply to the design features of public swimming pools relevant to the issues in this action.

2. Fédération Internationale De Natation (FINA) is the international body that governs competitive swimming, diving and other water sports.  The Australian affiliate of FINA is Swimming Australia.  Those organisations, quite obviously for the purpose of coordinating national and international competition, set certain standards for the facilities used in competitions.  Logically, anyone training for competitive events would want to train under the same conditions they were going to compete. 

3. The Royal Life Saving Society Australia (RLSSA) is a voluntary organisation that promotes safe participation in water related activities.  In particular the RLSSA provides education programs for water safety, swimming, and lifeguards.  It develops resources and guidance material for those involved in water related activities.  It also promotes public understanding of water safety and lifesaving through publicity, educational resources and various events.  In particular, the RLSSA has for some time produced 'Guidelines for Safe Pool Operation' (GSPO).  According to the RLSSA (exhibit 6.17) and on the evidence at trial those guidelines are recognised nationally as the minimum standard for safety‑related issues for the aquatic industry.  The guidelines relate to issues of both Facility Design (FD) and Supervision (SU). 

4. In 1996 by FD6 ­ 1 the RLSSA recommended that 'starting blocks should not be permanently located at the shallow end of a swimming pool where water is 1200 mm deep or less and should be removed for recreational swimming': exhibit 6.4. The 2002 version of the GSPO provides this definition for starting blocks at FD 1.24, 'Starting Blocks, also referred to as starting platforms or diving blocks (not preferred) are raised platforms at the edge of a swimming pool, located in line with the mid point of each swimming lane, for the purpose of competitive swimming water entry …'. By s 5.2 and consistently with FINA guidelines, the tops of such blocks are to be no more than 750mm above the water surface.

5. The RLSSA may prefer that these blocks not be called 'diving blocks' but that was the term that was adopted by the parties during the trial and it is the term that I will use in these reasons.

Planned improvements, appointment of a manager and advice

1. At their 26 April 2000 meeting, the council of the first defendant approved a staff recommendation to adopt a business plan for the two aquatic centres. This incorporated a proposed capital works program with expenditure to total $898,000 over a five year period. That program is described in part at [9] above.

2. At a meeting on 27 September 2000, the first defendant's council approved an application for funding to the Community Sporting and Recreation Facility Fund (CSRFF) administered by the Ministry of Sport and Recreation.  As a priority, the first defendant sought a grant of funding to refurbish the aquatic centres: exhibit 2.2.2. 

3. The original grant application sought funding of $300,000 over two years to make up part of the total of $898,900 in works required to upgrade the two centres.  The council's minute of 28 February 2001 (exhibit 2.2.3) records their decision to approve acceptance of an offer of funding in the amount of $168,487, for the budget year 2001/2002 and council's agreement to provide the necessary support funding of $336,974 to otherwise make up the funding for an approved amended list of works totalling $505,000.  Council also resolved to put the Ministry of Sport and Recreation on notice that the first defendant intended to apply in future for funding for any outstanding works not covered by the then current grant. 

4. Following the original planning of the revisions to the two aquatic facilities the first defendant received revised estimates of costs and had further discussions with funding bodies.  Because it did not receive the grant that it had requested to carry out all of the work, in April 2002 the first defendant decided to proceed with the work at Gratwick and to do some but not all of the work at the SHAC: exhibit 2.2.5. 

5. In early 2003 the first defendant then engaged the second defendant to undertake an operational audit of its two aquatic centres.  The results of the operational audit were provided by the second defendant to the first defendant in a document dated February 2003: exhibit 3.1.3.

6. The audit made a number of recommendations covering a range of matters such as finance and accounting, marketing, promotion and risk management.  With respect to both centres, under the heading 'safety issues', the second defendant recommended that pool supervision be undertaken by a 'minimum of two lifeguards on duty at all times when a pool is open, with one lifeguard on the pool deck supervising the pool at all times' in accordance with RLSSA guidelines.  That was a matter that the second defendant advised required 'urgent attention'.

7. With respect to the SHAC, the second defendant recommended as a matter of 'immediate action' that several matters be attended to.  One of those matters falls under the heading 'shallow end diving blocks'.  The second defendant advised the first defendant:

   The depth of 1.2 metres at the shallow end of the 50 metre pool does not meet RSLSSA guidelines for diving blocks.  The standard is 1.4 metres which suggests that these blocks should be removed so that inexperienced swimmers do not dive off these blocks and injure themselves.  It is understood that the local swimming club requires access to diving blocks for competition swimming so the solution would be to remove the current diving blocks and provide temporary removable blocks for competition only.  This ensures only advanced and experienced swimmers are allowed to dive from the blocks at the shallow end. 

8. The poor financial performance of the centres seems to become more glaring following the second defendant's audit.  The first defendant's staff advised it that 'the industry median for costs recovery is 56% (i.e. revenue is this percentage of cost).  This compares with SHAC at 32% and Gratwick Memorial Pool at 29%.  The subsidy per visit as an industry medium [sic] is $1.89 while council contributes $6.98 per visit at the SHAC and $7.47 at Gratwick pool': exhibit 2.2.11.

9. The council minutes for the first defendant show that by May 2003 there was an increasing and perhaps understandable desire to have the two aquatic centres managed by an outside service provider.  There was then an existing association with the second defendant.  The second defendant had for some time operated an indoor recreational centre for the first defendant and had at this time completed its review of the two aquatic centres. 

10. The first defendant's staff recommended that a tender process be undertaken to appoint a professional recreation management group for the two aquatic centres for a period of three years.  At the meeting in May 2003, council accepted that advice: exhibit 2.2.11. 

11. In July 2003, the first defendant asked for tenders for the management of the two aquatic centres: exhibit 3.2.1.  The tender criteria show that the first defendant's concerns were predominantly financial. 

12. Documents tendered at trial show that by November 2003 the YMCA was filing reports as the manager of the SHAC: exhibit 7.1.  On 27 February 2004 a formal management agreement was signed between the first and second defendants for that purpose: exhibit 3.2.6.  By its terms the management agreement appointed the second defendant:

    Subject to this agreement (and in particular to the expenditure limits contained in the Agreed Budgets),

    (to) do all acts and things necessary for the proper and efficient management, operation, promotion, maintenance and administration of each of the Centres and to a standard of repair, order and condition which is not less than the standard which existed at the commencement of the Term and a standard which is consistent with the Manager's obligations under cl 5.5.

13. The agreement required the second defendant to 'actively promote the centres, in accordance with the relevant Agreed Budget, through a range of functions involving the residents and the public':  cl 3.5.  The second defendant was also required, among other things, to:

    1.Comply with and observe all reasonable directions of the first defendant with respect to the management, maintenance and operation of the Centres: cl 3.7.

    2.Not refuse or neglect to comply with any reasonable instruction from the first defendant: cl 3.16(a).  

    3.Cause its senior employees who are responsible for the provision of the Services to attend meetings of any management committee appointed by the first defendant: cl 3.2.4.

    4.Work to a budget, with key performance indicators provided to measure its performance and use its best endeavours to achieve budgeted income: cl 5.5.

    5.Receive all receipts for the two aquatic centres but hold the money in a separate bank account established for that purpose, in trust for the first defendant, for use in accordance with the terms of the agreement: cl 3.1(a). 

1. The second defendant was required to meet the ordinary expenses of the aquatic centres from the revenue generated but it was not permitted to incur any additional unbudgeted expense in an amount greater than $1,000 without the permission of the first defendant.

2. In October 2003 following the second defendant's audit of the SHAC, the first defendant sought funding from the CSRFF for funding to upgrade its two aquatic centres 'to a standard that would comply with basic public and industry standards'.  As part of the funding application (exhibit 4.2) the first defendant was required to provide a variety of details including an answer to the question 'what provision have you made for young families, seniors, and individuals with a disability'.  In answer to this the first defendant advised:

   As previously mentioned the SHAC is 20 years old. When originally constructed, the SHAC was designed according to existing needs and health and safety regulations. The Disability Discrimination Act now requires that access to Local Government Association recreational facilities have disabled access. Proposed upgrades and modifications as outlined in this project will allow for disabled access. The Town of Port Hedland (ToPH) has also committed to providing services to people with disabilities through the employment of a Disability Project Officer who will work closely with SHAC management to incorporate appropriate events and activities and the ongoing programming of the pool.

3. In the application for funding the first defendant was asked to describe the impact that the project was likely to have on other facilities and services and the needs that would be catered for.  Part of the answer to this was to advise that:

   The newly appointed Town of Port Hedland disability coordinator will be able to work closely with the YMCA to develop and implement social and therapeutic programs with people with disabilities.  Proposed upgrades will provide access for the disabled to both the pool, toilets and kiosk area.

4. The first defendant was required to provide an 'itemised cost for each component of your project'.  The list provided had 16 components with a total cost of $1,496,500 of which, it advised, 'the Town of Port Hedland will commit $1,000,000 towards the upgrades in addition to the $500,000 requested in this grant application'.

5. The first item in this list of components is 'removal of current diving blocks in the shallow end to be replaced by temporary removable blocks for competition swimming only' at an estimated cost of $40,000.  As will be seen, this wildly over estimated the actual cost of removing the fixed blocks and replacing them with removable ones.  The fifth item on the list is 'erection of shade over the shallow end of the main pool' at an estimated cost of $250,000.  This was also a substantial over estimate.

6. In January 2004, the first defendant's Director of Community Services responded to a request from the Department of Sport and Recreation with some further advice with respect to the town's application for funding for improvements to the SHAC.  The Director, Mr Jackson, provided a list of 16 items, listed in order of priority and importance, to which funding would be applied.  The first item is 'shade over 50 metre pool'.  The second is 'diving block removal and replacement': exhibit 4.5. 

7. In May 2004 a further audit of the facilities of the SHAC was conducted, this time by the RLSSA.  It produced a document that was provided to the first defendant in July 2004.  The document is entitled 'Swimming Pool Safety Assessment & Safety Improvement Plan': exhibit 6.17.  The various items canvassed within the assessment were awarded a score from 0 to 5.  Scores of 0, 1 or 2 indicate non‑compliance against either a regulatory requirement, or Australian Standard, or industry standard.  Scores of 3, 4, or 5 indicate compliance.  Recommendations by way of a 'Safety Improvement Plan' are made for those items attracting scores of 2 or less.

8. Within the 'Safety Improvement Plan' provided by the RLSSA several items are designated as a 'high' level of risk, meaning 'Moderate to high likelihood.  Major injury or loss of life'. 

9. Three items attract scores of 0 in the first section of the report that deals with issues of 'facility design'.  They are:

   4.18Is there sufficient signage identifying deep water, shallow water particular at pool entry points?

   4.19In water under 1.8 metres in depth is 'do not dive' signage displayed?

   …

   4.54Are staring [sic] blocks when installed over water less than 2.0 metres in depth, isolated when not in use?

10. In the commentary contained in the body of the report the RLSSA said this about the lack of signage identifying deep and shallow water:

    Aquatic environments are inherently dangerous and risk is rarely eliminated rather it is controlled.  To effectively communicate risks and control behaviour it is recommended that Australian Standard sign [sic] notifying swimmers of shallow and deep water be positioned in relevant areas to where these hazards exist. 

11. With respect to the placement of 'do not dive' signs in water of less than 1.8 m there is this comment:

    Recreational swimmers are those who are not involved in a structured program that is delivered by an individual with a qualification or experience appropriate to the activity.

    It is recommended that recreational swimmers only be given the opportunity to undertake diving activities under the following conditions:

    •If from the pool edge the depth of water should be 1.8 metres and for a forward clearance of 5 metres.

    •If 360 mm (starting platform) above the water surface the depth of the water should be 2.0 metres and for a forward clearance of 5 metres. 

    In all other situations diving activities should be prohibited unless part of structured and supervised programs …

12. With respect to item 4.54, the matter of 'starting blocks installed over water less than 2.0 m in depth', these comments and possible actions are provided:

    Recreational swimmer abilities are also largely unknown to management and lifeguards and therefore their activity must be controlled or guided, especially when diving is involved.

    Starting blocks located over water less than 2.0 metres should be removed outside of use time or isolated using barriers or signage to prevent recreational use. 

    This recommendation applies where the water becomes shallower than 2.0 m and within 5.0 metres of the pool wall. 

    Ideally, barriers should be designed to prevent climbing of the block and the barrier. 

    Blocks, whether permanently installed or removable, should comply with GSPO guidelines. 

    It was noted at the time of inspection that the dive blocks at both ends of the main pool need to be isolated when not in use.  Strategies for controlling this potential hazard need to be incorporated into supervision policies. 

13. The ambivalence of this suggestion, a recommendation to remove the blocks leaving open 'isolation' as an alternative, has its source in the GSPO.  I will refer to those guidelines in detail later as well as the evidence about the reason for that ambivalence. 

14. In June 2004 the first defendant's council was dealing with issues of budget preparation for the coming year.  Despite increases in rates and fees it still anticipated that there would be a budget deficit.  The budget included $7.5 million worth of capital works proposed for 2004/05 although it appears that the $1.5 million upgrade of the SHAC had been deferred to 2005/06.  Funding in the amount of $83,333 had in the meantime been approved by CSRFF.  The minutes of the meeting include this staff comment:

    Capital expenditure of $250,000 to provide shade sails for the South Hedland Aquatic Centre has not been included in the draft schedules.  A request to the State government to defer a CSRFF grant of $83,000 already approved for this project will accordingly need to be made.

15. In October 2004 however the first defendant made a further application to the 'Pilbara Fund' for funding for several capital projects relating to some of the town's amenities, including an upgrade of the SHAC.  According to the documentation submitted with the application, an upgrade costing some $325,000 was being planned.  This related to three items – a 500 sqm shade sail presumably over the main pool at a cost now estimated at $149,500, improvements to the change rooms, at a cost of $135,000, and improvements to the manager's office totalling some $8,000.  No mention was made of the diving blocks, the removal of which had previously been a priority. 

16. On 6 December 2004 the Minister responsible for the administration of the 'Pilbara Fund' advised the first defendant that funding of $162,750 was approved for the project upgrade of the SHAC: exhibit 5.1.3.  As a subsequent letter from the chief executive officer of the Pilbara Development Commission shows (exhibit 5.1.4) the funds were approved to assist with the upgrade of the SHAC with the funding to be provided 'in the current financial year'.  The first defendant invoiced the Pilbara Development Commission a total of $179,025 for that amount and GST.  The funding was provided.

17. The second defendant prepared a 'Maintenance/Capital Works Plan' for the period 1 July 2005 to 30 June 2006: exhibit 3.1.6.  The plan included an allowance for the removal of the diving blocks at the shallow end of the SHAC at an approximate cost of $1,000.  There is also an item allowing for 'depth marking'.  The description here is 'incorrect, marked as 1.2 metres, actually 1.1.  Required remarking'.  That of course reflects the depth shown in the original engineering drawings.  The item with respect to the dive blocks is shown as a 'medium term' matter to be dealt within the next three to nine months.  The depth marking is shown as 'short term' to be dealt within the next one to three months. 

18. The executive summary of the document refers to five 'main maintenance projects for 2005/2006 at SHAC'.  Only one of the five warranted comment, '… removal of the shallow end diving blocks as they do not come close to meeting the current guidelines'.  An expanded description of this project appears at the end of the document.  The description provided is 'the removal of the shallow end diving blocks is required as they do not come close to meeting the current RLLSA [sic] guidelines for diving blocks die [sic] to the depth of the shallow end'.  The desired outcome from the project is described as 'make the shallow end of the pool safer by reducing the risk of injury from diving'.  The 'time frame' for this project is 'before 1 September 2005'.  That of course would have allowed it to be done prior to the pool reopening in summer.  The budgeted amount is '$8,000 plus GST'.  That amount I infer included an allowance for replacement with demountable blocks. 

19. Rebecca Pianta was the only witness who gave evidence for the first defendant.  She was at the time of trial the Manager for Recreation and Youth Services for the first defendant, a position that she has held since 2007.  She was first employed by the first defendant in February 2005 in the position of a Sports and Recreation Officer.  At that time she used her maiden name Rebecca (or 'Bec') Coxall.  Her function then was to be the conduit between the community and the town council for everything relating to physical activities and to encourage participation in healthy activities.

20. Initially Ms Pianta reported to the Manager of Community Services, John Cornelder, but health issues in 2005 caused him to be absent for extended periods.  As a result, Ms Pianta assumed a number of his responsibilities.  In 2005 and 2006 the Manager of Community Services reported to the Director of Community Services who was then a person named Kerry Sargent.  The Director of Community Services in turn reported to the Chief Executive Officer who at least in 2005 and 2006 was a person named Chris Adams. 

21. When Ms Pianta took up her employment with the first defendant, the upgrade of Gratwick had been completed and a considerable amount of money had been spent on its facilities.  She learned that there were some outstanding grants available to be applied to improvements to the aquatic centres.  She said, and I accept, that one of her jobs was to determine 'why we were allocated that sum of money' and to determine whether the grants should be relinquished or maintained. 

22. Ms Pianta gave evidence that she was responsible for the completion of a further application for funding to CSRFF.  That application was made on 24 September 2005: exhibit 4.17.  It included an application for funding for a shade structure and for the removal of the permanent diving blocks from the shallow end of the pool and their replacement with removable blocks at the SHAC.  This particular application for funding was described as an 'out of round application'.  That is, it was not made within the normal time period for such applications.  The first defendant asked that if the application were successful that it be so notified prior to the standard notification period so that the project could commence 'prior to the onset of summer'.  Both aquatic centres closed for several months in the winter when repairs and maintenance could be done without any inconvenience to the public.  It does not appear that CSRFF agreed to process the application 'out of round'.  The grant was awarded however and the first defendant was notified in a letter dated 11 January 2006.  The project went ahead.  The diving blocks were removed from the shallow end of the pool in March or April 2006, after the plaintiff's accident.

23. Ms Pianta's responsibility with respect to the preparation of the 2005 application for funding was not made entirely clear.  Her position at the time was a relatively junior one.  As the application itself shows, her superior Mr Cornelder was the person designated as the contact person and, as might be expected, the Chief Executive Officer signed the application.  Given some of her evidence which I will refer to later, it was not clear to what extent she worked under direction or exercised her own judgment in completing the application for funding.  However, to assist her to prepare the 2005 CSRFF grant application, Ms Pianta looked at the previous application for funding made in September 2003 (exhibit 4.2) which was actually signed on 13 October 2003.  In the course of preparing the 2005 CSRFF grant application, Ms Pianta became aware of the RLSSA survey and the YMCA audit.  The RLSSA GSPO, as well as the YMCA audit and the YMCA document entitled 'Maintenance/Capital Works Plan 1 July 2005 – 30 June 2006' (cf exhibit 3.16) are among the 12 attachments to the 2005 grant application. 

24. The extract from the GSPO that was attached is part of those created in November 2002.  The extract deals solely with the question of the use of starting blocks, or as they were called during the trial, diving blocks.  The particular guidelines that are referred to stipulate that in water depths between 1000 mm and 1200 mm, competitive dive starts (a water entry from the side of the pool or from a starting block for the purpose of starting a race) 'may be permitted from a maximum height above water of 400 mm'.  Otherwise, 'starts are to be commenced from in the water'.  Guideline 5.3.3 provides that 'in water depths 1200 mm or greater competitive dive starts may be permitted from a maximum height of 750 mm'.  The blocks at the shallow end of the SHAC were of course nearly a metre above water of about 1.1 m depth. 

25. Guideline 5.3.5 says 'starting blocks should only be available for use by those persons deemed as competent of executing a safe forward dive entry'.  Guideline 5.5 says 'in pools where non-complementary activities are being conducted, starting blocks should be isolated from use and not used for competition or instruction'.  Among the references used to support these particular guidelines is an article entitled 'Safe Diving Practices: Competitive Applications' by Keith McElroy, Jenny Blitvich and others. 

26. I have previously referred to the contents of the YMCA audit and the 2005 YMCA 'Maintenance/Capital Works Plan' that was attached by the first defendant to the 2005 CSRFF grant application.  I will not repeat the unequivocal recommendations made by the second defendant for the removal of the shallow end diving blocks and the reasons for that.

27. Attachment 2 to the 2005 CSRFF grant application is a 'Draft Code of Practice' for the design, construction, operation, management and maintenance of aquatic facilities.  This appears to be a document created by a directorate of the Department of Health for Western Australia.  It is dated February 2004, but shown as 'updated to 30 June 2005'.  It includes the following:

    2.14Starting Platforms

    Starting platforms shall be designed and constructed in accordance with clauses 5.1 and 5.2 of guideline FD 1.24 – design of starting blocks of the pool safety Guidelines.  For the purposes of this section of the Code, provisions in the Guidelines incorporating the word 'should' shall be construed as mandatory requirements. 

    …

    7.9Minimum entry age

    Aquatic facilities shall ensure that children under 10 years of age are not permitted to enter the facility unless under the supervision of a person 16 years or older in accordance with Guideline SU 1.11 – parental supervision of the pool safety Guidelines.  For the purposes of this clause, provisions incorporating the word 'should' shall be construed as mandatory requirements. 

    7.10Supervision requirements

    Group One facilities shall ensure the minimum ratio of supervision shall be one lifeguard for up to 100 patrons in accordance with section 4.4, Ratios contained within Guideline SU 1.01 – Bathers Supervision of the pool safety Guidelines. 

28. At s 8 of the Draft Code of Practice, this information is provided with respect to diving:

    Diving is an inherently dangerous activity, which can produce serious injuries if not performed under safe conditions. 

    Forces sufficient to crush the cervical spine are generated at a water impact speed of only 1.22 metres per second.  Studies have shown that people diving from a 1 metre board can reach water entry velocities of 6.1 to 6.71 metres per second. 

    …

    Inexperienced people, using unsafe diving techniques, have also been associated with a significant number of injuries.  Management and supervision plays a crucial role in preventing diving injuries. 

29. Each of the provisions that I have referred to from the 2004 Draft Code of Practice were also included in a 2003 version of the document.  Just as the 2004 Draft Code was attached to the 2005 CSRFF grant application, the 2003 version was attachment 1 to the 2003 CSRFF grant application by the first defendant. 

30. The 2005 CSRFF funding application shows that at the time of making the application the first defendant had $40,000 'cash at bank' for the project that it wished to undertake.  In addition it had confirmed grant money available from another government agency in the amount of $162,750 and grant money from BHP, also confirmed, in the amount of $40,000.  That is, prior to making this application for funding the first defendant had available to it $242,750 for work at the SHAC.

31. It is not possible to say exactly what it cost in 2006 to remove the blocks from the shallow end because that cost was contained in the cost of a greater amount of work.  The actual cost however of removing the permanent blocks at the deep end in 2010 was less than $4,000: exhibit 21.  The cost in 2006 of purchasing removable blocks to replace the permanent blocks was less than $9,000: exhibit 7.4.14. 

32. Ms Pianta was unable to say why, despite the availability of funding and the previous concerns that had been raised with respect to the diving blocks, there was a seeming lack of urgency attached to removing and replacing the blocks. 

Appointment of a manager by the YMCA

1. In September 2005 the second defendant employed Christopher Retallack to be the manager for the SHAC.  Mr Retallack has held a number of positions in what is described as the 'leisure and aquatic industry'.  In 1985 he began as a pool attendant in Albany.  He subsequently became a pool attendant and life guard at an aquatic centre in the City of Wanneroo.  He held a position at the City of Stirling as the duty manager for an aquatic centre from 1989 to 1994.  In 1994 he progressed to the position of assistant manager at the Bayswater Aquatic Centre.  In 1995 he became the aquatic centre manager in the Shire of Moora.  He held that position until 2002 when he took a position working with the RLSSA at a remote Aboriginal community.  It was from that position that he obtained the job of centre manager of the SHAC.

1. He is qualified as a lifeguard and has completed a course of study with respect to pool operations.  He took up his position at the SHAC the end of September or the beginning of October 2005, just as the 2005 CSRFF grant application was being filed.  He had been the centre manager for just three and a half months and was on duty the day of the plaintiff's accident.  Mr Retallack was the only witness called on behalf of the second defendant.  When I come to describe the accident I will refer to Mr Retallack's evidence and the findings that I make in respect of it. 

The plaintiff

1. The plaintiff was born in January 1983.  He was born 14 weeks prematurely and weighed just 710 g or slightly over 1 1/2 pounds at birth.  Because of a host of serious health problems associated with his very premature birth he spent the first 22 months of his life in hospitals.  At four months old, because of the weakness of the cartilage in his throat, his windpipe collapsed and he was required to have a tracheotomy.  He lived with the tracheotomy for about the first seven years of his life.  The trachea was finally permanently repaired in August 2005.  Despite the tracheotomy, on several occasions he stopped breathing and required resuscitation.  In his early years he suffered from epilepsy. 

2. When he was about 2 years old he spent three months in a coma following an epileptic fit.

3. In January 2006 although he was nearly 23 years old the plaintiff was by his mother's measurement just 5 foot 2 inches tall. 

4. The plaintiff was also diagnosed with cerebral palsy.  Cerebral palsy is a disorder caused by an injury to a child's developing brain usually before or at birth.  The injury can cause a number of problems affecting the person's movements.  In the plaintiff's case, medical records show that he had a 'spastic diplegia'.  That is, he had a paralysis of muscles on both sides of his body.  The evidence before me suggests that it affected his leg muscles.  There is no known cure for the condition.  A number of the plaintiff's other health problems are often associated with cerebral palsy.

5. At age six he was described by the guidance coordinator for his school district in a psychological report dated 6 July 1989 as 'almost uncontrollable'.  It was said that he 'indulges in head banging whenever thwarted or ignored'.

6. In December 1991 a physician from the Princess Margaret Hospital provided some information to a doctor employed by the Aboriginal Medical Service.  The letter refers to a variety of physical disorders as well as the plaintiff's 'intellectual handicap and behaviour disorder'.  As Dr McDonald, from Princess Margaret Hospital, said:

   He is frequently unmanageable on the ward and is, likewise often admitted to the hospital for respite care when he gets too much of a handful for his mother.

7. The plaintiff has been diagnosed with a mild to moderate intellectual disability.  It is particularly difficult to test his intelligence both because of his physical handicaps and also because of his Aboriginal cultural background.  Standardised intelligence tests commonly have a cultural bias.  However, when he was almost 13 years old he was assessed as having the adaptive functioning of a child of 4 years 9 months.  The range of variation in the testing that applied meant that the best determination that could be made was an effective age of somewhere between 2 years, and 6 years 6 months.  At that time he was also said to have a borderline range of intellectual maturity, 73, on a standard scale that rates 'normal' as 100.  His reading age was said to be 7 years 9 months and his spelling age 6 years 2 months.  At the time of this assessment when he should have been in Year 7 or 8, his coping skills and adaptive functioning at school were assessed as around that of a Year 1 to Year 2 level.

8. Given the physical difficulties he has had to cope with it is hardly surprising that he has also manifested psychological and emotional difficulties.  Ms Lorna Dick, the psychologist who examined him when he was 13 said that he evidenced emotional disturbance through stress, frustration and emotional deprivation.  She recounted how although he was cooperative in testing, he constantly left his seat to check that 'the bell had not gone'.  His performance was 'both slow yet impulsive.  He used his voice only to say "no" and periodically banged his fist on the table'.

9. Other documents tendered in the trial with respect to hospital admissions in 2004 satisfy me that he continued to suffer significant emotional and psychological problems at that time and at the time of his accident.

10. The plaintiff's eyesight is so bad that without correction by glasses he is legally blind beyond 1 to 2 m.  I am satisfied that that was the state of his eyesight in January 2006.  With glasses, the plaintiff's eyesight could be corrected to a standard of 6:12 or, as it used to be known, 20:40.  Without glasses his vision is blurred beyond 10 cm.  With glasses on he would have been able to see a warning sign such as a 'no diving' sign at a distance of between 3 and 5 m.

11. The difficulty however was that, apparently as a result of his emotional and intellectual difficulties, he refused to wear glasses.  He would take them off and break them.  His parents resorted to putting splints on his arms so that he could not bend his arms to break his glasses.  Even after he became an adult he was unwilling to wear his glasses. 

12. Stephen Leslie, an optometrist who specialises in the care of children with visually related learning difficulties, gave evidence.  He said, and I accept, that people with vision as limited as the plaintiff learn to 'interpret blur' over time.  That is, they typically see and interpret blurred shapes and movement with their limited vision.  However, the plaintiff could not be expected to pick up any detail beyond a distance of 3 to 5 m without the correction of glasses. 

13. The plaintiff is so deaf that someone can stand in a room behind him and clap loudly without it attracting his attention.  His vocabulary is apparently limited to a few words.

14. Despite all of these problems, as a result of what must have been a monumental effort on his mother's part even with the assistance of institutions like the Mosman Park Deaf School, the plaintiff was able to attend school, to learn how to 'sign', to learn how to read at least simple words and sentences and to write simple words and sentences.  He could look at a television, sitting right up at the screen if he was without glasses, and play some basic level computer games. 

15. According to his mother, his immediate and extended family included him in many of their activities, although his ability to participate was extremely limited.  For example, he could play with a football with his brother.  They would be very gentle with him and would not kick the ball hard.  They would throw it to him, he would drop it, they would pick it up and give it to him, and he would try and kick the ball back to them.  As far as activities in the water were concerned he would be taken to swimming pools or swimming holes or the river.  Because of his tracheotomy he would walk into the water up to his chest.  He would wade or sit in the water up to his chest but he could not swim.  When taken to the sea he would sit at the edge of the water and play in the sand.  He would not go into the sea except to get his feet wet because, as his mother said, he was terrified of the sea. 

16. The problem with the plaintiff's trachea was not finally repaired and the tracheotomy permanently closed until August 2005.  Until that was achieved, for significant periods of his life, the plaintiff was unable to breathe normally through his mouth and nose and could not immerse his upper body in the water without submerging the tracheotomy. 

17. Prior to January 2006 the plaintiff from time to time had some simple part‑time unpaid jobs such as mustering, loading bales of hay, changing tyres and helping out in the shearing shed.  Those descriptions must be understood in the context that he was closely supervised at all times.

18. Indeed, the plaintiff's mother, whose evidence I accept, said that she would not allow the plaintiff out of the house alone.  When he did go out, he was accompanied either by her, one of his younger siblings, some other relative or a professional carer.  She supervised the management of his money.  He looked after his own personal grooming although that meant that he typically had gash marks from shaving.  He would help with chores in the house, monitored by other family members.  He would 'read' books written for teenagers and magazines and parts of the newspaper that interested him, for example looking at pictures and saying to his mother 'little cars' or 'big cars'. 

19. In cross-examination Mrs Hodder agreed that when she was with him, the plaintiff 'appeared to behave appropriately in terms of dangers'.  That was she said '… because I always made it very clear to him because I was able to sign to him'. 

20. Brenda Lee Hodder is the plaintiff's cousin.  Ms Hodder gave evidence for the plaintiff.  She was one of the relatives who would help care for the plaintiff when he was in Hedland.  Her mother was the sister of the plaintiff's father.  She spent a reasonable amount of time with the plaintiff.  She described the plaintiff as 'child-like'.  Like his mother, she would not allow the plaintiff out of the house on his own.  As she said 'it would be like sending a little child out'.  Like his mother, she said that the plaintiff would sometimes understand things and sometimes would not.  When she communicated with him, she would write it down on a piece of paper in big letters and he would respond in the same way.

21. The plaintiff did not give evidence.  Quite apart from the extraordinary difficulties that he would have in communicating in any event, according to evidence given by his mother that I accept, the plaintiff's state of mind is such that he has no recollection of the accident and does not understand why it is that he is now unable to use his legs and arms.  I draw no inference from the failure of the plaintiff to give evidence. 

The accident

1. In January 2006, the plaintiff went to South Hedland, visiting relatives.

2. He had come to Hedland about the second week in January with his brother, Tyrell.  They stayed with various relatives during their visit.  One of the purposes of the visit it would seem was to provide the plaintiff's mother with some respite from his care.  Even prior to his accident, the plaintiff required a great deal of care and attention. 

3. On the morning of 15 January 2006 the plaintiff was dropped off at the home of his cousin Brenda Hodder.  Ms Hodder however worked full time as a taxi driver.  She had worked the shift the night before and had only finished her work in the early hours of the morning of 15 January.  Ms Hodder had just a couple of hours sleep after her shift finished that morning.  She was hoping to be able to do some shopping that day and return home for a rest.  At some point that morning she spoke to her stepdaughter, Nicole Brockman.  Nicole Brockman told Brenda Hodder that a group of people were going to the SHAC that day. 

4. The group that was going to the pool consisted of Nicole Brockman and her partner Mark Narrier, Kelly Brockman (who was Nicole's sister and Brenda Hodder's stepdaughter), Vincent Ryder, Rebecca Brockman (another sister of Nicole and stepdaughter of Brenda Hodder) and five children.  Two of the children were Nicole Brockman's.  They were aged 1 and 4.  Nicole Brockman also took three of her other sister's children to the pool that day.  They were aged 7, 6 and 4. 

5. Nicole Brockman, Mark Narrier and Kelly Brockman all lived in Hedland.  Mr Narrier had been to the SHAC many times but the last time had been about a year prior to January 2006.  Nicole Brockman went to the SHAC fairly regularly, as often as several times a week when the weather was hot.  Kelly Brockman had also visited the SHAC before, including several times in the previous year.

6. The group drove together in two vehicles to the SHAC.  They went to the kiosk at the entry to the SHAC to pay their admission.  They paid in two groups.  The first group consisted of Mr Ryder, Rebecca Brockman, Kelly Brockman and the plaintiff.  The second group was made up of Nicole Brockman, Mr Narrier and the five children.  When they approached the kiosk it was manned by Christopher Retallack, the centre manager. 

7. There were three other qualified lifeguards working at the SHAC that day.  One of them, Kimberley Cooper, was called as a witness by the plaintiff.  She said that just before the arrival of the plaintiff's group she had been on duty on the main pool at a place about half way up the length of the pool and on the near side of the pool.  The evidence was that that was a station that the lifeguards would often take up as a central place from which to watch the main pool.  Just before the group of people that included the plaintiff approached the kiosk Ms Cooper went to the office/kiosk to fill up her drink bottle.  To the best of her recollection there was no one in the main pool when she went to the office.  From her position in the office, she could see the adjacent area of the kiosk where Mr Retallack was sitting doing paperwork and serving people who came to the window. 

8. Ms Cooper gave evidence about what happened when she was in the kiosk and Christopher Retallack was serving the plaintiff and his party.

9. She noticed that there was a group of between 8 and 12 Aboriginal people, including four or five children.  Even though Ms Cooper was not at the counter, her attention was drawn to the plaintiff.  She said that he stood out from the rest of the group.  He was making strange noises.  She observed the scar in his throat from the tracheotomy.  She thought that he was 'acting strange' because while he looked to be 'about 18 years old', he was 'sort of behaving like an eight year old'.  As Ms Cooper said in cross‑examination, she could tell by looking at him that he was somehow disabled.  He was close to the window and making a 'strange sort of squealy almost grunty noises … and sort of – kind of bobbing up and down like that, like he was just really excited to be there'.  Ms Cooper's description of the behaviour of the plaintiff at the kiosk is very similar to that given in evidence by other members of the plaintiff's party. 

10. Mr Retallack took the money from the people in the plaintiff's group.  Ms Cooper did not hear anything that he said to them. 

11. Ms Cooper said that since he had become the manager of the pool, Mr Retallack had taken a much sterner attitude towards safety issues than the previous manager.  With respect to the diving blocks, Ms Cooper said in her evidence '… everyone was worried about those blocks being there, so he was always pounding into us, "don't let kids even get on the blocks", like – yeah.  So I think he would even tell people like that were new to town, on the way through not to use the blocks like at the shallow end'.  Ms Cooper said that she had on other occasions heard Mr Retallack warn entrants about the diving blocks although 'regulars' were not told, 'because they came all the time and they knew the rules, so we didn't have to tell them on the way through'.  Ms Cooper said that such warnings about diving were given prior to the plaintiff's accident.  I am unable to accept that evidence.  It is the only part of Ms Cooper's evidence that I do not accept.

12. Ms Cooper was cross-examined at some length by senior counsel for the first defendant in respect of a written statement that she had given on 17 March 2008.  Rather than simply cross-examining Ms Cooper with respect to any relevant inconsistencies, counsel's purpose was to have Ms Cooper confirm the contents of the previous statement so that the statement could be tendered 'as truth of the statements made, from this witness' point of view, that are made in this statement at a time when it was closer to the incident occurring'.  For the most part Ms Cooper did confirm the accuracy and truth of the earlier statement.  There were some portions of it particularly in respect to signage and one or two other details where she qualified the statement's contents or explained differences between that and her evidence before me.  Counsel for the first defendant tendered the statement and it became exhibit 15.  Ms Cooper's statement concludes with these two paragraphs:

    81.After the accident occurred on 15 January 2006, the YMCA staff became over-diligent in warning patrons about diving and jumping from the blocks.  They were not to use the blocks upon pool entry. 

    82.Prior to the accident involving Reece Hodder there was no verbal notification given to patrons when they first entered the centre not to use the blocks.

13. I have no doubt that prior to the plaintiff's accident recreational swimmers were told to get off the blocks if they tried to use them.  Nor do I doubt that following the plaintiff's accident and prior to the removal of the shallow end diving blocks people were warned when entering the pool not to use those blocks.  Ms Cooper's evidence about oral warnings prior to the plaintiff's accident is however contradicted by her earlier statement.  I conclude that her evidence about oral warnings prior to the accident is mistaken, and for that reason I do not accept it.

14. Mr Retallack gave evidence for the second defendant of his observations of the group that came to the counter that included the plaintiff.  In the course of his evidence he said, 'basically there's two groups of them and they were just in front of me, there's probably no more than a dozen – a dozen people, a few kids and a few adults and I actually noticed that one of the gentlemen there, I just assumed that he had a physical disability.  And I asked that group and I don't know who I spoke to in that group, but I asked them to provide a – a duty of care to – to Reece and - to maintain closeness to him when he goes into the water, so to provide a duty of care'.  Mr Retallack said that one of the ladies in the group responded, ' …"It's OK.  Reece can swim".  And I said – I sort of worked – I sort of assumed that – you know, that he needed a duty of care at the time'.  Mr Retallack was then asked this question and gave this answer:

    What was it about him that made you believe he needed - - - - ?  He had a – I think from what I can remember, a distinctive walk.  So I assumed that he might have had a physical disability, but I wasn't aware of a mental disability. 

15. He was then asked if he said anything else to the group as they were going through to the pool.  He gave this evidence:

    All I've said is basically just what I've just reiterated there, is that, 'please provide a duty of care' and also to – that the blocks at the shallow end of the main pool, 'please do not dive off the blocks at the shallow end of the main pool because we don't allow people to dive off those blocks during recreational diving.  They can be used for competitions and under the guidance of a qualified coach or swim teacher'. 

16. Kelly and Nicole Brockman and Mark Narrier were called to give evidence for the plaintiff. 

17. Nicole Brockman and Mark Narrier are related to the plaintiff but they were not particularly close to him.  Brenda Hodder would occasionally take the plaintiff to the house of Nicole Brockman and Mark Narrier.  When he was dropped off there he would take part, as best he could in the activities of the other people at the house.  Nicole Brockman said he was, 'like a 9 year old child'.

18. Like Nicole, Kelly Brockman was not particularly close to the plaintiff.  Kelly Brockman had seen the plaintiff from time to time.  She had been to a nearby river with him once before where she had observed the plaintiff not swimming but sitting in the water playing.

19. Nicole Brockman thought that her sister Rebecca and Vincent Ryder knew the plaintiff best.  Mr Ryder is a relative of the plaintiff's stepfather.  Vincent Ryder and Rebecca Brockman were summonsed by the plaintiff to give evidence at the trial.  They did not answer the summons.

1. Each of Nicole and Kelly Brockman and Mark Narrier were aware that the plaintiff had various disabilities but none of them seemed to be fully aware of the true extent of his difficulties.  There was an assumption on the part of Nicole and Kelly Brockman and Mark Narrier that someone else would keep an eye on the plaintiff.  It seems that Nicole Brockman thought that that someone would be her sister Rebecca or Vincent Ryder.

2. None of Nicole or Kelly Brockman or Mr Narrier recalled any such conversation at the kiosk as Mr Retallack described.

3. When she paid their admission, Nicole Brockman was provided with 'tags' for the children.  These tags were part of a program called 'Watch Around the Water' that was in place at the SHAC.  While I will refer to that program later in these reasons, its basic purpose was to ensure that children under 10 years old were supervised by a responsible person and that children aged five and under were closely supervised.  The group then entered the aquatic centre and went to the left of the kiosk to the BBQ area next to the toddlers' and learners' pools.  Kelly and Nicole Brockman began 'tagging' the children.  Kelly and Nicole Brockman walked with the children over to the two small pools and Mark Narrier followed.

4. According to Mr Retallack, after the group paid their admission, 'they progressed to the BBQ area.  And obviously my lifeguards go through, you know, pretty sort of strict rotations and it was about 15 minutes later when Kimmy, who was doing a rotation with Emma, coming off the change room side into the office and I was doing my paperwork and Kimmy had noticed Reece dive off the block'.  He said that Ms Cooper said to him 'Chris, we've got an emergency'. 

5. Mr Retallack's reference to 'Emma' is evidence which would suggest, if it were accepted, that Ms Cooper ('Kimmy') had been relieved from supervision of the pool by another qualified lifeguard, Emma Wittosch. 

6. Ms Cooper described what she saw and did.  While she was on rotation at the main pool at her position on the near side about halfway up, she had been watching another one of the lifeguards, Eoin Doyle, who was working on the far side of the pool.  Mr Doyle was replacing some shade cloths on the shade structure on the grassy slope on the far side of the pool.  The other lifeguard, Emma Wittosch, was, Ms Cooper said, 'over at – pretty near on the far side of the kids pool'.  Ms Cooper marked the locations of each of the lifeguards on a plan of the area of the SHAC that became exhibit 9A.  Ms Cooper said that she came to the office, not because she had been relieved by anyone, but to fill her water bottle.  She was in the office when the plaintiff and his group came to purchase admission.  Ms Cooper then watched from the office as the plaintiff's group began unpacking their things in the BBQ area.  She said within a few seconds 'Reece ran off to the main pool.  That's when I noticed that he was – like, had a strange limp or cerebral palsy.  He went straight over to the shallow end of the main pool, walked – initially he walked down a couple of steps'. 

7. The area where the plaintiff first entered the pool is shown in a photograph that became exhibit 7.5.4.7.  There is a handrail at a point marked (incorrectly, based on other evidence I have referred to) on the plinth surrounding the pool, '1.20 m'.  There are five or six steps down into the pool at that point.  Photographs which became exhibits 22.3, 22.6 and 22.7 show the area of the main entrance, the BBQ area which is to the right of the main entrance on the photograph, the handrail by the stairs and diving block number 7. 

8. Ms Cooper said the plaintiff ran to the left side of the railing.  Facing the pool, the plaintiff took several steps down into it until the water reached his thighs.  He then turned and climbed back up the steps and ran from that point around the corner, past block number 8 and pulled himself up onto block number 7 until he was standing on it.  As soon as he stood up, he dived into the water, if his action can be properly described as a dive. 

9. Ms Cooper has tried to describe the plaintiff's posture as he left the block.  As best as can be known, he pushed himself off slightly and with his hands loosely or awkwardly at his sides, and jumped head first into the pool at an angle of about 45 degrees.  Ms Cooper said that before diving the plaintiff was 'maybe bent a little like, you know, in the legs … so he wasn't very streamlined, like so his head a little bit forward … he wasn't in a traditional diving position, but that was what I assumed he was doing.  If – if he was doing a flip – I don't know.  I'm not sure what he was trying to do, but it looked like he was diving'. 

10. The time from when the plaintiff came back up the stairs out of the pool until he jumped from the block was a matter of something in the order of five seconds.  As Ms Cooper said, she barely had time to gasp.  She said:

    I seen him climbing onto the block but it was all really quick.  I didn't think that he would have – I thought maybe he would have jumped.  Had I known he was going to dive, maybe I could have – I don't know.  I don't think I could have done anything.  But it was all just really fast. 

11. From the plans and photographs of the SHAC that were tendered into evidence the distance from the handrail at the stairs to block number 7 appears to be in the order of 6 to 8 m. 

12. As soon as Ms Cooper saw the plaintiff dive into the pool she ran out of the office and yelled 'spinal' to Mr Retallack who was using the computer.  She ran straight to the swimming pool and jumped into the water.  She said that she tried to do a 'spinal rollover' but wasn't able to do it very effectively because the plaintiff's body was very stiff.  She said that the next person in the pool was Eoin Doyle who had been on the hill.  The third person in the pool was Mr Retallack who came with the spinal board.  She also said that there was another person who was in the pool who was one of the men from 'Reece's group'.  That man was not Mark Narrier and I infer that it was Vincent Ryder. 

13. When the plaintiff was pulled from the pool it was observed that he was bleeding from what appeared to be a cut towards the top of his head.  While his exact posture and movements once he hit the water can only be guessed at, the fracture that he suffered to his C5 vertebrae was undoubtedly caused when the top of his head struck the pool bottom. 

14. No criticism has been made of the manner in which the plaintiff was rescued from the pool after his dive.  On all of the evidence, the rescue was carried out with great skill and efficiency. 

15. Mr Retallack prepared several reports with respect to the accident.  Copies of those reports became exhibit 7.2.1, 7.2.2 and 7.2.4.  While there are some differences between these reports, they are broadly similar.  I will refer to exhibit 7.2.4 which was a copy of the report provided to the first defendant together with a facsimile letter from the YMCA dated 20 January 2006.  Mr Retallack provided this description of some of the events leading up to and following the plaintiff's rescue from the pool:

    When two indigenous families paid admission into the swimming pool, a disabled gentleman was noticed within the group.  The importance of supervision was explained to them and due to the man's disability that he would have to be supervised constantly. 

    At the time of the incident, Eoin Doyle (pool lifeguard) was supervising the main pool between the 1.2 m and the 1.5 m mark at the far side of the main pool.  Kimmy Cooper (pool lifeguard) was going through a pool rotation and was in the office.  Emma Wittosch (pool lifeguard) was also doing a pool rotation walking towards the change rooms. 

    Chris Retallack (centre manager) and Kimmy Cooper were watching the pool in the office when at 4 pm we noticed the disabled gentleman dive off block seven in the shallow end of the lap pool: he appeared to be in trouble and did not resurface …

    After the ambulance left the premises I again reiterated to the two families the importance of water safety.  Our policy that diving is not permitted in a depth less than 1.8 m was also revisited.  They were also reminded that due to the gentleman's disability that he needed to be closely supervised in the water.  All three lifeguards were present when I addressed the families after the incident, the family were quite attentive to what I had to say, and suggested that the casualty would not normally dive off blocks and that he just got excited. 

16. The only lifeguard to give evidence apart from Mr Retallack was Kim Cooper.  She was not asked about any such conversation with 'the families after the incident'.  Nor was it put to Kelly or Nicole Brockman or Mark Narrier that they had been 'addressed' in that way.

17. In his report, Mr Retallack provided the following suggestions for 'follow up and/or action for prevention of recurrence':

    The signage is in accordance with the regulations however I believe additional signage is required around the main pool and that we review on that basis.

    Dive blocks are permanently mounted at the shallow end of the main pool.  Our pool rules already ban diving from them unless in a structured coaching program.  In the interests of further improving the safety, I recommend they be removed and replaced with removable blocks. 

18. Mr Retallack gave evidence at trial that a set of rules was posted in a place where they could be read by visitors to the pool.  The rules he said included a prohibition on diving from the blocks.  Mr Retallack's cross‑examination revealed that there must be considerable doubt as to when such rules were created and posted.  There is no doubt that subsequent to the accident a set of rules was posted.  I am however unable to find that prior to the plaintiff's accident there were such rules posted or posted in a place where they would readily come to the attention of swimmers.

19. In a facsimile letter from Mr Darren Beltman of the YMCA to Ms Pianta (exhibit 7.2.4), after referring to Mr Retallack's report, Mr Beltman said:

    In the past the YMCA has recommended to [the first defendant] that the diving blocks should be removed and replaced if necessary with removable blocks for the prevention of this type of incident.

    The YMCA strongly enforces a no diving rule in shallow water at all aquatic centres (with the exception of structured coaching programs).  Even with the rule being enforced there will still be occasions when children or irresponsible adults misbehave and dive into shallow water.  The blocks mounted at the shallow end on SHAC increase the risk of serious injury by increasing the dive height of these people.

    In the short term, we will erect additional signage to complement the current signage.  This will be ordered next week and should be erected in the next fortnight. 

20. An accident of this kind would be literally the worst nightmare of any manager of a facility like the SHAC.  Mr Retallack was in a particularly difficult position, having moved to Hedland just a few months prior to the accident to take on the responsibility of the SHAC.  I accept Ms Cooper's evidence that, generally, Mr Retallack was concerned to address issues of safety and increase the effectiveness of supervision of the SHAC.  I am unable to accept Mr Retallack's evidence with respect to what he observed about the plaintiff (or, more precisely, what he says he did not observe) or what he said to, or was told by members of the plaintiff's group prior to the accident.  I will refer to just a few of the matters that lead me to this conclusion. 

21. First, it was apparent that the reports filed by Mr Retallack after the accident sought to represent falsely that he had been closely watching the plaintiff.  In the report Mr Retallack claimed that he and Ms Cooper were watching the pool from the office and that both saw the plaintiff dive off the block.  The truth, as he admitted in evidence, was that Mr Retallack was absorbed in paperwork.  The first he knew of the accident was when Ms Cooper alerted him. 

22. In cross‑examination Mr Retallack admitted that on more than one occasion he asserted in the reports that he made, that he had been watching and had seen the plaintiff dive, when he had known that was false. 

23. No other witness who was present when the plaintiff's party arrived at the kiosk recalled hearing Mr Retallack's advice about the necessity of providing a 'duty of care' to the plaintiff.

24. I have referred to Mr Retallack's account in his report of his address to the 'families after the incident'.  No other witness who, according to the report, should have been there to hear this 'reminder' and the families' supposed response to it was called to give evidence.  I infer that their evidence would not have assisted. 

25. I accept Ms Cooper's evidence that Eoin Doyle was occupied with replacing shade cloths, not supervising the main pool at the time of the plaintiff's accident.  Ms Cooper's evidence that she was left her position on duty at the main pool to get a drink of water is, in the context of the plaintiff's accident, an admission against interest.  Her candour is a stark contrast to Mr Retallack's evidence and his equivocation as to who was responsible for supervising the main pool at the time of the plaintiff's accident. 

26. Mr Retallack asserted in his evidence-in-chief that there was a no diving sign on a pole on the near side of the pool close to the change room and approximately in the area where the plaintiff was injured.  He then conceded during his cross‑examination that there was no relevant signage warning 'no diving'.  His evidence on the matter of signs was variable to a high degree.

27. Finally, Ms Cooper gave evidence as to a conversation that she had had with Mr Retallack one week prior to the trial.  I accept Ms Cooper's evidence as honest and, except for the matter of oral warnings prior to the plaintiff's accident that I have referred to above, reliable with respect to the central matters in issue in this trial. 

28. Ms Cooper no longer works for the second defendant.  At the time of the trial she was employed by the first defendant.  She was running a program for the first defendant that took her to the SHAC.  She bumped into Mr Retallack there and they began chatting about the trial and when each might have to attend to give evidence.  The conversation led to them discussing their memories of the events surrounding the accident.  There were some obvious differences.  This included what the lifeguard Eoin Doyle was doing just prior to the accident.  Ms Cooper's recollection was that Mr Doyle was dealing with the shade cloth as opposed to supervising the pool.  Ms Cooper recalled that there was hardly anyone in the main pool while Mr Retallack said that he remembered there were 40 to 50 people.  Ms Cooper said that Mr Retallack told her that she 'needed to check [her] story' because that is what he remembered. 

29. With respect to a sign either forbidding diving or warning of shallow water, Ms Cooper said that because she had been asked by a number of people about signs, she pointed to a particular 'no diving' sign and asked Mr Retallack 'how long has this sign been here?'.  Mr Retallack said to her 'it's been there forever'.  As a consequence of that, Ms Cooper provided a further statement to one of the parties saying that in fact the sign was definitely there at the time of the accident.  As Ms Cooper said in evidence however 'but then looking at the photos, that didn't – it couldn't have made – it didn't make sense because that sign couldn't have been there, because that pole wasn't even there.  So I don't know.  I was just – just really confused'.  Ms Cooper was asked whether in the course of the conversation Mr Retallack said anything about why she should check her statement.  She said that his words were 'so that our stories would match'. 

30. Mr Retallack denied that there was a conversation in those terms although he admitted that he had had a discussion with Ms Cooper shortly before the trial. 

31. Finally, and for the sake of completeness, in contrast to Ms Cooper, Mr Retallack's demeanour while giving evidence did not inspire confidence.  An assessment of this kind is obviously highly subjective and requires caution before being applied to the assessment of credibility.  In this case a reading of the transcript would also show the extent of equivocation and contradiction on a number of matters that Mr Retallack was asked about.  That difficulty was acknowledged by counsel for the second defendant: ts 615.

The pleadings

Substituted statement of claim

1. The statement of claim alleges that:

   1.Both defendants were occupiers of the SHAC within the meaning of the Occupiers' Liability Act 1985 (the OLA). 

   2.Both defendants invited or permitted members of the public to use the SHAC for recreational purposes. 

   3.Because of their respective positions as the owner and manager of the SHAC, the fact that members of the public were invited to the SHAC for recreation, their status as occupiers of the SHAC within the meaning of the OLA, the first and second defendant each owed the plaintiff as one of the class of persons who purchased entrance to the SHAC a duty to take reasonable care to see that invitees would not suffer harm. 

2. While the first defendant denies that it was an occupier of the SHAC within the meaning of the OLA and denies that 'it had a statutory duty or duty of care as pleaded or at all', both defendants effectively accepted that an occupier of the SHAC would owe a general duty to people who came to use its facilities, to take reasonable care to prevent injury to such persons. 

3. Having alleged that the first defendant and the second defendant were under a duty to take reasonable care to see that a person such as the plaintiff would not suffer injury or damage by reason of dangers at the SHAC pursuant to s 5(1) of the OLA, the statement of claim goes on to assert six matters alleged to be included within the scope of the defendants' duty of care. These relevantly include duties to:

   •'take all reasonable precautions for the safety of the plaintiff while engaged in recreation at the [SHAC]'; and

   •'to provide and maintain a safe system and safe premises for persons suffering physical and/or intellectual disabilities whom the first and/or the second defendant knew or should have known might use the [SHAC] and whom the first or second defendant permitted on the [SHAC]': statement of claim par 9. 

4. The plaintiff also pleads that by virtue of the first defendant's Disability Service Plan, committing the first defendant to ensure that its facilities were open and available to people with disabilities including intellectual, cognitive, neurological, sensory or physical impairment or combinations of those impairments, the first and second defendants knew or ought to have known that people with the kinds of disabilities suffered by the plaintiff might visit the SHAC.  With respect to the second defendant, the plaintiff alleges that the second defendant had actual knowledge of the plaintiff's disabilities, by virtue of the fact that the second defendant's employees observed the plaintiff and noticed his disabilities prior to his entry into to the SHAC. 

5. The statement of claim at par 10 alleges that the first defendant breached its duty of care in that it:

   (a)failed to warn or adequately warn the plaintiff of the dangers of diving from the diving block and/or diving into shallow water;

   (b)failed to remove the diving block;

   …

   (e)failed to fence off or isolate the diving blocks and/or adequately supervise them;

   (f)failed to restrict visitors to the [SHAC] untrained in the safe use of the diving block from using the diving block;

   (g)left the diving block in place thereby inviting the plaintiff to dive in an area where the water was shallow;

   (h)caused or permitted the plaintiff to use the diving block to dive when it knew or ought to have known that it was unsafe for such use and dangerous to use without special training or supervision.

1. The second defendant also seeks an order that the first defendant pay the second defendant's costs of the action as well as the contribution proceedings.  The second defendant also asks for an order allowing its costs to be taxed without regards to the limits of the Legal Practitioners (Supreme Court) Contentious Business Determinations 2008 and 2010 for:

   (a)  getting up;
   (b)  counsel fee on brief; first day of trial and preparation; and
   (c)  the counsel fee on the second and subsequent days of trial. 

2. The first defendant accepts that it should pay the plaintiff's costs of the action, 'save to the extent that those costs related solely to the plaintiff's claim against the second defendant, to be taxed if not agreed'.  With respect to the second defendant's costs, the first defendant submits that the order should be that 'the plaintiff pay the second defendant's costs of the action, save to the extent that those costs related solely to the first defendant's claim against the second defendant, to be taxed if not agreed'.

3. The first defendant accepts that the plaintiff should be able to tax its costs of getting up without regard to the usual limits.  The first defendant also accepts that there should be orders for a certificate for the transcript, the costs of counsel's opinion as to the compromise on quantum, and a reasonable allowance for the costs of Professor Blitvich and Mr McElroy.  Otherwise the first defendant opposes the orders sought by the plaintiff.

Calderbank offer

1. On 11 November 2010 the plaintiff's solicitors wrote to the defendant's solicitors.  After referring to the style of cause of the plaintiff's action the letter began:  'Please note the content of this letter is in accordance with the principles in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333'. The letter then went on to make three alternative settlement proposals to the defendants.

2. The first offer related to agreement about quantum while allowing for a trial of liability.  It is not relevant to the question of costs.

3. The second alternative put forward an offer of agreement about liability while leaving issues of quantum of damages for trial.  On the basis of the defendants accepting joint and several liability for negligence the plaintiff offered to apportion negligence by accepting contribution of 50% on the plaintiff's part.

4. The third alternative proposed that:

   (a)there be judgment for the plaintiff against the defendants in the sum of $2.8 million and that liability be the subject of a specific order of the court apportioning liability on a 50% contributory negligence basis against the defendants;

   (b)the defendants do pay the plaintiffs costs of the action including all reserve costs, there be liberty for the plaintiff to apply with respect to any special costs orders.

5. The plaintiff's offers were left open for 21 days from the date of the letter.  The plaintiff's position is that in all of the circumstances the first defendant's rejection of the plaintiff's offers was unreasonable and accordingly the plaintiff should have indemnity costs from the date of the offer.

6. Given the result at trial and the judgment that has now been entered it is obvious that the plaintiff has achieved a substantially better result than the offers made to the defendants on 10 November 2010.

Offers to settle and indemnity costs

1. Prior to 1 March 2007 the former O 24 r 10(4) created a presumptive entitlement to indemnity costs. A plaintiff who made an offer in accordance with the provisions of O 24A and obtained a more favourable result at trial was entitled to indemnity costs from the date of the defendants' rejection of the settlement offer. That is no longer the case.

2. The less formal method of settlement offer known as a Calderbank letter remained in vogue despite the availability of O 24A r 10 both in its form prior to the March 2007 amendment and since. The relevant principles governing an award of indemnity costs where a Calderbank offer is relied on were conveniently set out in the reasons for decision of Buss JA in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [16] – [32]. The authorities supporting those principles are comprehensively described in his Honour's reasons. I will summarise the results of his Honour's review of the authorities:

   1.A Calderbank offer will not justify an award of indemnity costs unless rejection of the offer was unreasonable.

   2.All of the relevant facts and circumstances are to be considered in determining whether a party's rejection of a Calderbank offer was unreasonable.

   3.The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable.

   4.The decision as to whether conduct is 'reasonable' or 'unreasonable' always involves matters of judgment and impression.

   5.While it is not possible to enumerate all circumstances that must be taken into account in deciding whether the rejection of a Calderbank offer was unreasonable, ordinarily regard should be had to at least the following:

   (a)the stage of the proceeding at which the offer was received;

   (b)the time allowed to the offeree to consider the offer;

   (c)the extent of the compromise offered;

   (d)the offeree's prospects of success, assessed as at the date of the offer;

   (e)the clarity with which the terms of the offer were expressed; and

   (f)whether the offer foreshadowed an application for … indemnity costs in the event of the offeree's rejecting it.

   6.The party who makes a Calderbankoffer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favour.

   7.The standard to be applied in awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis, absent some blameworthy conduct on its part.  A test of unreasonableness should not be upheld on other than clear grounds.

   8.There is no presumption of an entitlement to an award of indemnity costs as a consequence of the rejection of a Calderbank offer.  The unreasonableness of the rejection of the offer is not determined by a presumption.  Rather, it depends on the circumstances of the particular case.

The nature, circumstances and terms of the plaintiff's offer

1. Five of the six circumstances ordinarily taken into account in assessing the reasonableness of a defendant's conduct in rejecting a Calderbank offer arise from the nature, circumstances and terms of the offer itself.

2. Here the offer was made some four and a half years after the plaintiff's accident and four months prior to the trial.  It was made at a time when there had been opportunity for the issues between the parties to have been well defined and for the parties to have considered their positions.  The defendants were allowed 21 days to consider the plaintiff's offer.  The extent of the compromise that was offered was substantial.  The terms of the offer were expressed with clarity and the offer plainly foreshadowed an application for indemnity costs in the event of the offerees' rejection of it.  All of these factors weigh in favour of the plaintiff and against the first defendant.  Absent the parties identifying any other factor of significance what remains to be determined is the central reason for the first defendant's rejection of the offer, that is, its perception of its ultimate chance of success.

3. In Ford Motor Company of Australia Ltd v Lo Presti Buss JA referred to these observations of Byrne J in Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No 13) [2007] VSC 516 in relation to the meaning of 'unreasonable' in the context of the rejection of a Calderbank offer:

   A decision to accept or not an offer of this kind will ordinarily be based upon the offeree's perception of its ultimate chances of success, that is, it involves a prediction as to the likely outcome of the trial.  At the time the debate about costs occurs the trial will normally be over; the event will have demonstrated that the prediction which underlay the decision was not fulfilled, that it was erroneous or even imprudent (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 228, per Sheppard J). … In the same way that the failure to achieve a more advantageous result will not automatically put the offeree at risk, so too it is not sufficient for it to avoid the consequence of its erroneous prediction that it says only that the outcome was uncertain. The outcome of almost all litigation is uncertain. The erroneous prediction may not, however, be an unreasonable one if the predictor was not, at the time, for good reason in possession of sufficient information to make an assessment or if the circumstances upon which it was based later changed. It must be acknowledged that it is part of the ordinary function of a lawyer to make predictions of this kind. The lawyer must make them at the outset and during the litigation in order to enable the client to make responsible and informed decisions to commence the litigation, to pursue it and to make the various decisions in the course of the proceeding's progress to trial and judgment. [13]

4. The evidence at trial disclosed that the first defendant had been aware of the risk of injury posed by the shallow end diving blocks since 2000.  The significance of the risk was subsequently drawn again to the first defendant's attention by the second defendant and the Royal Life Saving Society of Australia.  On two occasions prior to the accident the second defendant expressly and unequivocally advised the first defendant that the permanent fixed shallow end diving blocks should be removed from the SHAC.  In all of the circumstances described in my reasons for judgment those matters created a significant risk that the first defendant would be found in breach of a duty of care owed to the plaintiff.

5. Especially when judged with hindsight, the offer contained in the plaintiff's Calderbank letter was a reasonable one.  It does not follow automatically however that the rejection of that offer at the time was unreasonable.  In particular it does not follow automatically that, as the plaintiff submits, it was unreasonable for the first defendant to have declined to accept sole liability for the plaintiff’s damages if the second defendant was unwilling to accept any joint responsibility to meet the plaintiff’s terms. On the authorities, the relevant prospect of success is that of the offeree. Where the offeree is but one of two or more defendants the offeree's prospects will not necessarily be the inverse of the offeror plaintiff's.

6. First, hindsight is to be avoided in determining the objective unreasonableness or otherwise of the first defendant’s conduct.

7. Second, there is in fact no evidence before me that illuminates the factors at play in the first defendant’s decision to decline solely to accept the plaintiff's offer without contribution from the second defendant. Apart from the evidence at trial and the circumstances surrounding it that I am aware of because of my role as trial judge, I know nothing of the discussions or negotiations between the parties, apart from the fact of the offer.

8. Third, the apportionment of contributory negligence involves the exercise of discretion where reasonable people may disagree as to the relative importance of the parties respective contribution to the injuries suffered. 

9. Fourth, the plaintiff was advancing a claim of negligence against the second defendant with at least the same vigour as it pursued the first defendant.  Among other things the plaintiff asserted at trial that the second defendant's management of the SHAC and its actual knowledge, of the plaintiff's condition by its manager Mr Retallack, meant that the second defendant should be at least equally culpable for the plaintiff's injuries.  Given that the plaintiff anticipated success against the second defendant, it is difficult to see that it was unreasonable to anticipate that the second defendant could bear some liability for the plaintiff’s injuries.

10. Had the plaintiff's claim against the second defendant succeeded to any extent in making the second defendant liable for the plaintiff’s injuries, the terms of the management agreement referred to in my earlier reasons would have resulted in an outcome far more favourable to the first defendant than an entire responsibility for the plaintiff’s damages, regardless of the extent of the plaintiff's contribution.

11. Nor was it unreasonable in my view for the first defendant to believe that it was far more likely to achieve that result in a trial by the plaintiff against both defendants. The submission of the plaintiff was that it was open to the first defendant to settle with the plaintiff and then pursue the second defendant for contribution and indemnity. While that is indeed a theoretical possibility, the submission in my view ignores the forensic difficulties that the first defendant would be faced with in those circumstances compared with the advantage of 'piggy backing' on the efforts of the plaintiff and his legal advisers. There is no evidence before me that the first defendant would have any willing assistance from the plaintiff and his legal advisers had the first defendant elected to settle with the plaintiff by itself.

12. In all of the circumstances, I am unable to conclude that it was unreasonable of the first defendant to fail to accept the plaintiff's Calderbank offer. 

Sanderson & Bullock orders

1. Both the plaintiff and the second defendant seek an order that the first defendant pay the second defendant's costs of the action.  That is, they seek what is commonly known as a 'Sanderson' order.  The first defendant's position is that the plaintiff should bear the second defendant's costs of the action 'save to the extent that those costs related solely to the first defendant's claim against the second defendant …'.  Otherwise the first defendant's position was that it was indifferent as between a 'Sanderson' order or a 'Bullock' order if there was to be an order requiring the first defendant to meet the costs of the second defendant. 

2. The first defendant's submissions recognise that an unsuccessful defendant will be ordered to pay a successful defendant's costs where either the claim against two or more defendants are substantially connected or interdependent or the plaintiff acted reasonably in suing the successful defendant. 

3. The first defendant has referred me to the dicta of Gibbs CJ in Gould v Viggelas (1985) 157 CLR 215, 229:

   … the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant.  Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be born by the unsuccessful defendant, and if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or over caution.

4. In this case, the first defendant as owner of the SHAC had appointed the second defendant as the manager of that facility.  At the same time, the first defendant retained control and oversight. 

5. The first substantial allegation appears in the first defendant's defence at par 10.  After denying that it was under a duty to take care for the safety of entrants at the SHAC, the first defendant pleaded:

   If, which is denied, it had a statutory duty or duty of care as pleaded or at all:

   10.1the first defendant delegated that statutory duty and/or duty of care to the second defendant. 

   PARTICULARS

   (a)the first defendant refers to the written management agreement for the premises between the first defendant and the second defendant, dated 27 February 2004. 

6. At the trial, apart from the various arguments mounted to demonstrate that there was no liability to the plaintiff at all, the first defendant asserted that appropriate supervision and signage, matters within the control of the second defendant should have been an adequate response to the risk posed by the shallow end diving blocks. The first defendant’s case is summarised by this submission at [9.15] of its submissions at trial,

   It was YMCA's obligation to address the issues in the Audit as the responsible expert manager of the pool. There is no evidence whatsoever to suggest that the Town Council was advised that appropriate changes, if any had not been undertaken [sic]. Again, the evidence of Rebecca Pianta was unequivocal that no concerns in relation to ability to isolate in the context of signage and supervision had been expressed to her by either the area manager or the pool manager.

7. The full context of that quote is set out in my earlier reasons at [222].

8. In my view the first defendant's conduct in this litigation caused the plaintiff to at least persist in the claims against the second defendant.  Given the position adopted by the first defendant it would have been not merely unreasonable but foolhardy of the plaintiff to do otherwise.  The conduct of the first defendant in asserting that reasonable care by the second defendant would have discharged any duty owed by the occupiers of the SHAC ensured that the second defendant remained a defendant in this action: see Coastal Hire Pty Ltd v Ewers [2009] WASCA 36(S) [43]. That contention on the part of the first defendant was found to be without substance.

9. In the circumstances the first defendant should be responsible for the costs that the plaintiff would otherwise have to pay the second defendant.  It is in my view just that the first defendant should be responsible for the costs payable by the plaintiff to the second defendant.  In this case the parties agree that if the first defendant is to be ordered to pay the second defendant's costs then it is convenient that a Sanderson order should be made. 

Taxation of cost items without regard to scale

1. The first defendant agrees that the plaintiff should have an order that his costs of getting the matter up for trial be taxed without regard to the scale limit.  Otherwise, the first defendant opposes any uplift with respect to counsel fees.  The trial of this action ran for 10 days.  The length of the trial here was not directly related to any particular factual or legal complexity.  The factual issues here were not complex.  Nor were the legal issues.  The only slight exception to that was the proper construction to be given to provisions of the Civil Liability Act 2002 with respect to obvious risk and the test for contributory negligence.  With respect to those matters, there was in fact little assistance forthcoming from any party.

2. An order of the kind sought by the plaintiff and second defendant allowing costs to be taxed without regard to the scale limits does not impinge upon the exercise of discretion by the taxing officer.  An order of that kind still requires a taxing officer to determine whether or not the work done and charged for a particular item under the scale is necessarily or reasonably done but allows the taxing officer in his or her discretion to make allowance for charges beyond the scale limit. 

3. As I have observed, the first defendant accepts the appropriateness of raising the scale limit for the item of 'getting up'.  That it would appear to me is simply a sensible recognition of the volume of work involved in a trial of this length.  The determination of the Costs Committee necessarily assumes an average length of trial for the calculation of some of the items in the scale.  That of course can be seen in the allowance for preparation in item 20 for counsel fees.  In the 2010 determination the allowance of 3 1/2 days for preparation together with the first day of trial, closely reflects the average length of trial in this court (currently 3.2 days) and something rather more than the average length of a civil trial in the Supreme Court.

1. In most cases the allowance of 3 1/2 days will be appropriate. Where a reasonably conducted trial exceeds a week in length based on experience and observation the allowance of 3 1/2 days for counsel preparation would normally be inadequate.  I am satisfied that for that reason alone here the scale cost for counsel preparation is inadequate.

2. It is necessary however for me to consider not merely the adequacy of the allowances of particular items in the costs scale in the context of this litigation, but also whether the action is of unusual difficulty, complexity, or importance.  It could not be said in my view that the action was one of unusual difficulty or complexity.  The issues of liability that were canvassed at trial involved fairly conventional questions of duty and breach. 

3. The action was however of considerable importance both to the plaintiff and the second defendant.  So far as the plaintiff is concerned it is only necessary to say that the plaintiff's entire ability to be maintained with some degree of comfort and dignity following his catastrophic accident turned on the outcome of this action.  From the second defendant's perspective the allegations against it represented a threat to its reputation as well as a substantial financial loss under the terms of the management agreement were it to be found liable, even in part, for the plaintiff's injuries.

4. In the circumstances it is appropriate to allow the plaintiff and the second defendant to tax the costs of counsel and senior counsel in respect of the fee on brief without regard to the scale limit. No doubt the taxing officer will consider the extent to which economies were realised by virtue of the fact that the plaintiff was represented by senior and junior counsel with the examination of witnesses apportioned between them.

5. The same logic does not however apply in respect of the plaintiff's application with respect to the senior counsel fee on the second and subsequent days of trial, and the application of the second defendant with respect to counsel fees for the second and subsequent days.  From my observation there was no reason to think that the work involved during the course of the trial necessarily exceeded the ordinary hours required.  Nor is there any reason here to think that the Costs Committee's determination as an appropriate fee for counsel or senior counsel is inadequate. 

Proposed orders in contribution proceedings

1. The second defendant seeks an order that the first defendant pay the second defendant's costs of those proceedings. In opposing an order that it be required to pay the costs that the plaintiff would be obliged to pay the second defendant, the first defendant submits that the costs of the contribution proceedings be ‘quarantined’. For the sake of completeness I will deal with that issue.

2. The relationship contractual and otherwise between the first and second defendants was a factual issue relevant to the main issues at trial.  The precise nature of what was said to be the culpability or reasons for culpability of the second defendant were matters that were on the one hand relied upon by the first defendant to defeat the claim of the plaintiff and alternatively relied upon by the first defendant to shift or share culpability. 

3. No party has been able to identify any evidence of substance required by the contribution and indemnity proceedings that was not otherwise relevant to the main proceedings.  The issue of indemnity added only slightly to the length of the proceedings.  It involved at best a legal argument as to the meaning of the particular clause of the management agreement that was in evidence in any event.  There is no reason here in my view to 'quarantine' the costs of the contribution and indemnity proceedings.

Orders

1. For the reasons set out above I will make the following orders:

   1.The first defendant pay the plaintiff's costs of the action, including any reserve costs to be taxed if not agreed. 

   2.The first defendant pay the costs of counsel's opinion as to the compromise on quantum.

   3.The first defendant pay the second defendant's costs of the action and of the contribution proceedings including any reserved costs to be taxed if not agreed. 

   4.The plaintiff's costs against the first defendant be taxed without regards to the limits of the Legal Practitioners (Supreme Court) Contentious Business Determinations 2008 and 2010 with respect to the following items:

   (a)getting up;

   (b)senior counsel fee on brief; first day of trial and preparation;

   (c)counsel fee on brief; first day of trial and preparation. 

   5.There be a certificate for the transcript of the trial.

   6.The plaintiff have a reasonable allowance for the costs of Professor Jenny Blitvich and Mr Keith McElroy. 

   7.The second defendant's costs be taxed without regard to the limits of the Legal Practitioners (Supreme Court) Contentious Business Determinations 2008 and 2010 with respect to the following items:

   (a)getting up;

   (b)counsel fee on brief; first day of trial and preparation.