Lightfoot v Rockingham Wild Encounters Pty Ltd
[2018] WASCA 205
•23 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LIGHTFOOT -v- ROCKINGHAM WILD ENCOUNTERS PTY LTD [2018] WASCA 205
CORAM: BUSS P
MURPHY JA
BEECH JA
HEARD: 15 AUGUST 2018
DELIVERED : 23 NOVEMBER 2018
FILE NO/S: CACV 64 of 2017
BETWEEN: LOUISE CAROL LIGHTFOOT
Appellant
AND
ROCKINGHAM WILD ENCOUNTERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
Citation: LIGHTFOOT -v- ROCKINGHAM WILD ENCOUNTERS PTY LTD [2017] WADC 62
File Number : CIV 454 of 2015
Catchwords:
Torts - Negligence - Plaintiff injured while on dolphin watching tour - Whether navigation through passage in reef rather than via a deeper channel was negligent - Whether there was a foreseeable and not insignificant risk of injury to passengers if boat travelled through reef passage
Legislation:
Civil Liability Act 2002 (WA), s 5B
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Dr A S Morrison QC & Mr N F Morrissey |
| Respondent | : | Mr D R Clyne |
Solicitors:
| Appellant | : | CLP Legal Pty Ltd |
| Respondent | : | SRB Legal |
Case(s) referred to in decision(s):
Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
CGU Insurance Limited v Coote [2018] WASCA 117
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
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
Hunter and New England Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Shaw v Thomas [2010] NSWCA 169
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
JUDGMENT OF THE COURT:
Introduction
The appellant (Ms Lightfoot) appeals against the decision of the primary judge[1] dismissing her claim in negligence for damages against the respondent, Rockingham Wild Encounter Pty Ltd (RWE), for a back injury she suffered while on a dolphin watching tour operated by RWE.
[1] Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62 (primary reasons).
Ms Lightfoot challenges the primary judge's finding that RWE did not breach its duty to Ms Lightfoot. For the reasons that follow, we would dismiss the appeal.
Uncontested background facts
On 23 September 2012, Ms Lightfoot participated in a dolphin watching tour run by RWE (the tour).[2] Prior to the tour's commencement, Ms Lightfoot signed a waiver of liability in relation to it.[3]
[2] Primary reasons [1].
[3] Primary reasons [1].
As part of the tour, Ms Lightfoot, and other passengers, were transferred from the mainland to Penguin Island by a small ferry.[4] Once at Penguin Island, the passengers, including Ms Lightfoot, boarded another vessel named 100% Wild (the boat). Before boarding, the skipper of the boat, Mr Ian Bryant (the skipper), gave the passengers a short briefing on the jetty.[5] The skipper was an experienced master.[6]
[4] Primary reasons [2].
[5] Primary reasons [2].
[6] Primary reasons [1].
On the boat, Ms Lightfoot sat on seats at the bow (front) of the boat.[7] The boat departed and cruised around some islands in Shoalwater Bay before searching for dolphins in Cockburn Sound. The boat went into Cockburn Sound via a passage through a gap in a reef situated between John Point and John Ledge (the Reef Passage).[8] Ms Lightfoot's subsequent accident occurred in the Reef Passage.[9]
[7] Primary reasons [3].
[8] Primary reasons [3]. See also primary reasons [114] - [115].
[9] See [29] below.
On the boat's return voyage out of Cockburn Sound, the skipper navigated the boat in a westerly direction through the Reef Passage, rather than further north through a deeper and wider marked channel, known as South Channel.[10] While navigating the Reef Passage, the boat encountered some waves and then a larger wave which caused Ms Lightfoot to rise out of her seat and come down hard on it, striking her back against the seat's edge.[11] The judge found that the damaging wave was problematic not because of its size, but because of its steepness.[12]
[10] Primary reasons [4], [125].
[11] Primary reasons [4], [115]. See also primary reasons [126].
[12] Primary reasons [131].
As a result of the impact, Ms Lightfoot received a serious spinal injury, which required her to be transferred to hospital. She underwent surgery two days later, from which she had recovered by the time of the trial. However, she was left with disabilities and restrictions and faced further surgery.[13]
[13] Primary reasons [4].
Ms Lightfoot's claim
Ms Lightfoot commenced the primary proceedings in the District Court, seeking damages for personal injury caused by RWE's negligence. Ms Lightfoot claimed that RWE owed a duty 'to take reasonable care to ensure that [she] was not exposed to the risk of injury in the process of [her] attending the dolphin watch tour on the [boat]'.[14]
[14] Amended statement of claim [3].
There were extensive particulars of RWE's alleged breach. However, at trial, Ms Lightfoot relied solely on a single particular of breach, as follows:[15]
[RWE], its servants or agents were negligent in that it:
10.15Navigated the boat into an area where it was foreseeable that the boat could encounter large swell/waves which would endanger the safety of passengers seated near the front of the boat including [Ms Lightfoot].
In essence, Ms Lightfoot's case was that, in navigating into and through the Reef Passage rather than proceeding via South Channel, the skipper, and thus RWE, was negligent.
[15] Primary reasons [7]; ts 32 ‑ 33; ts 344 ‑ 345; amended statement of claim [10.15].
At trial, Ms Lightfoot's case relied heavily on the expert evidence of Mr Madden. The thrust of Ms Lightfoot's case was that it was negligent for the skipper to navigate the boat through a reef area in which swell was breaking.[16] That was the substance and effect of Mr Madden's evidence. In response to a question as to the gist of his evidence, Mr Madden said as follows:[17]
If I can avoid going to any area that bears … a [breaking] swell on I wouldn't go near it. I'd be going to channel at all times.
[16] ts 25.
[17] ts 161. Other parts of Mr Madden's evidence reflecting his consistent theme that heading into breaking waves was not a safe option appear at ts 164, 182, 185.
RWE relied on s 5I and s 5J of the Civil Liability Act 2002 (WA) (the CLA). Subject to those matters, RWE did not seriously dispute that it had a duty to take reasonable precautions in the navigation and control of the boat so as to guard against foreseeable risk of harm to passengers.[18]
[18] Primary reasons [93].
There was no dispute as to causation.[19] It was also not in dispute that RWE was vicariously liable for any negligence on the part of the skipper.[20]
[19] Primary reasons [105] ‑ [106].
[20] Primary reasons [93].
Thus, the issues at trial concerned whether RWE breached its duty of care; whether a risk warning was given, so that s 5I of the CLA operated to mean there was no duty of care; whether any liability was effectively waived pursuant to s 5J of the CLA; and the question of damages.[21] The appeal is concerned solely with the first of these issues: did RWE breach its duty of care?[22]
[21] Primary reasons [89].
[22] RWE filed a cross‑appeal in relation to the third issue, but abandoned the cross‑appeal at the hearing: appeal ts 42, 45.
The primary judge's decision
Evidence
The primary judge commenced with a lengthy summary of the evidence given by each witness, spanning more than 70 paragraphs.[23] With the following two exceptions, the judge reserved the making of controversial findings until the later part of her reasons:[24]
(1) The judge observed:
Mr Bryant impressed me as a straightforward man, more accustomed to being at the helm of a vessel than in a witness box. He was somewhat reactive under cross-examination, understandably in circumstances where clearly he perceived that his expertise and reputation as a skipper was in question, and not all the questions were formulated with precision or clarity. I found him to be honest, and he defended what he did. I am satisfied that he did not intend or apprehend on that day that he was taking any form of risk in relation to the navigation of the vessel or the safety of his passengers.
(2) The judge accepted that Ms Ermichina, the deckhand on the boat, had a clear recollection of the events leading to Ms Lightfoot's injury and that she saw nothing untoward before the accident.[25]
Otherwise, this section of the judge's reasons merely recites evidence given by witnesses, without making any attempt to resolve competing evidence or any express findings as to whether that evidence was accepted or rejected.
[23] Primary reasons [15] ‑ [88].
[24] Primary reasons [76].
[25] Primary reasons [88].
Ms Lightfoot's submissions on appeal often relied on a mischaracterisation of parts of this section of the judge's reasons as findings of fact.
By way of example, Ms Lightfoot points to [22] of the judge's reasons.[26] There, her Honour summarised Ms Lightfoot's evidence that, before the accident, the boat encountered 'smack downs', where the boat went over a wave and the front of the boat rose up then crashed down, making a noise. Contrary to Ms Lightfoot's submissions on appeal, the judge did not accept this evidence. So much is clear from the findings her Honour made subsequently, to which we refer later in these reasons.[27]
[26] Appeal ts 13.
[27] See [27] below.
Also, Ms Lightfoot's submissions made frequent mention of the judge's reference[28] to the deckhand's evidence that the swell was getting bigger over the course of the day.[29] But the judge found to the contrary, accepting the skipper's evidence that the swell dropped over the course of the day.[30]
Legal principles
[28] Primary reasons [83].
[29] Appellant's submissions [9]; appellant's reply submissions [5]; appeal ts 10, 19.
[30] See [24] below.
Her Honour set out some general principles relevant to whether a duty of care has been breached.[31] There is no challenge to her Honour's statement of the principles.
Factual findings
[31] Primary reasons [101] ‑ [104].
It is important to identify the factual findings made by the primary judge, given that the grounds of appeal do not make any complaint as to the judge's fact finding and contend that, on the facts as found by the judge, a finding of negligence should have been made. In what is set out below, we collect the judge's findings on each relevant topic.
Previous incidents
The judge found that there had been previous incidents, recorded in the ship's log, which had involved injury to passengers while Mr Bryant was skipper of the boat.[32] The judge found that the severity of the injuries varied, but that in each case the type of incident resulting in injury was a 'bumpy ride'.[33] In relation to these incidents, there was no suggestion that the passengers were thrown from their seat or that a steep wave appeared suddenly.[34] The judge did not make an express finding as to whether any previous incident had occurred within the Reef Passage. The judge found:[35]
The incidents occurred in much the same location, according to the descriptions given. Even without that evidence, the occurrence of varying waves, with the potential to break in the vicinity of a reef, or in shallow water, was foreseeable, in my view, and is, in fact, an ordinary feature of coastal navigation.
There is an issue on appeal as to the meaning and effect of the finding that the incidents 'occurred in much the same location'.
[32] Primary reasons [108] ‑ [109].
[33] Primary reasons [109].
[34] Primary reasons [141(8)].
[35] Primary reasons [109].
Later in the reasons, the judge made findings as to the differences between the previous incidents and the incident involving Ms Lightfoot. We set out those findings at [37] below.
The geography and the conditions on the day
A reduced size copy of the chart of the relevant area tendered at trial[36] is annexed to these reasons. The chart shows the coast and coastal waters in the area, including the southern part of Garden Island, the lower half of Cockburn Sound, Cape Peron, Rockingham, Shoalwater Bay and Safety Bay. The tour began at Penguin Island and headed north, travelling the length of Shoalwater Bay and continuing past Cape Peron. The Reef Passage is situated between John Point and John Ledge, to the north of John Point and south of John Ledge. South Channel is situated further north, being north of John Ledge.
[36] Exhibit 15.
The judge found that the Reef Passage is 100 to 150 m wide, depending on conditions.[37] The judge evidently accepted the skipper's evidence that it was about 100 m wide on the day in question, which her Honour later found was not confined or narrow for a vessel the size of the boat.[38] It was shallow in parts.[39] The water in South Channel was significantly deeper than in the Reef Passage and it was much wider.[40]
[37] Primary reasons [125].
[38] Primary reasons [125], [141].
[39] Primary reasons [125].
[40] Primary reasons [125].
The forecast swell on the day of the accident was 2 to 3 m. However, the judge evidently accepted the skipper's evidence that, by the afternoon when the accident occurred, the swell had dropped to 1.5 ‑ 2 m.[41] The conditions were not flat calm, and there were visible waves breaking on some parts of the reef.[42]
The knowledge and experience of the skipper
[41] Primary reasons [123], [125], [130], [141](3).
[42] Primary reasons [129].
The judge's findings as to the knowledge and experience of the skipper, included the following:
(1)The skipper was, generally speaking, well‑qualified and experienced for his job as skipper.[43]
(2)The skipper had frequently taken the route he took on the day in question, including through the Reef Passage, and was very familiar with the area and conditions.[44]
(3)He had previously taken the Reef Passage three times that day, as this was the return leg of the tour and he had done the same trip earlier that day.[45]
(4)The skipper knew that the water through the Reef Passage was, in parts, shallow.[46]
(5)The skipper knew the extent of the swell forecast.[47]
(6)The skipper had never experienced, in the area of the Reef Passage, a wave of the kind which caused the accident (described at [28] below).[48]
Matters that were reasonably foreseeable
[43] Primary reasons [111].
[44] Primary reasons [119], [141](1).
[45] Primary reasons [130], [141](2).
[46] Primary reasons [129].
[47] Primary reasons [129].
[48] Primary reasons [141](9).
The primary judge found that a number of matters were reasonably foreseeable to a person in the position of the skipper, including the following:
(1)The risk to passengers if they are thrown around by choppy seas is obvious and would never be far from a skipper's mind.[49] It was foreseeable that a passenger might suffer potentially serious injury if thrown about at the front of the boat.[50]
(2)Swell of the order that has been forecast, which skippers must always have in mind.[51]
(3)The occurrence of varying waves, with the potential to break in the vicinity of a reef or in shallow water, is an ordinary feature of coastal navigation and is reasonably foreseeable.[52]
(4)Waves can form variously and not all waves will be the same.[53]
(5)Breaking waves and, more significantly, steeper waves, can result from a swell travelling into a shallower area, such as approaching a shelving beach or travelling over raised rocks.[54]
(6)Once it entered the Reef Passage, the boat would have to cross directly such swell as was coming into the bay through the Reef Passage.[55]
(7)There is necessarily less chance of encountering unusual conditions in a marked deep channel such as South Channel.[56]
The skipper's conduct and observations in the lead up to the incident
[49] Primary reasons [117].
[50] Primary reasons [122].
[51] Primary reasons [127].
[52] Primary reasons [109].
[53] Primary reasons [130].
[54] Primary reasons [125], [131].
[55] Primary reasons [126].
[56] Primary reasons [125].
As he approached the reef, the skipper kept a good lookout.[57] He saw two swells of about 1 m, and negotiated those swells without incident.[58] Up to the point that the wave that caused the accident 'rose up' under the boat, the skipper saw nothing untoward.[59] Also, the deckhand saw nothing untoward or unusual as the boat approached the reef.[60] The skipper did not take the boat into breaking waves.[61] As Mr Madden's evidence was founded on the erroneous assumption that this had occurred, the judge said it was of little assistance.[62] This conclusion is not challenged on appeal.
The cause of the incident
[57] Primary reasons [122].
[58] Primary reasons [120], [131], [141].
[59] Primary reasons [120], [122], [131], [141].
[60] Primary reasons [121].
[61] Primary reasons [127], [128].
[62] Primary reasons [127].
The judge found that the wave which caused the accident was, more likely than not, the result of the swell encountering shallow water at the relevant point of the reef.[63] The damaging wave was problematic, not because of its size, but because of its steepness. It was the steepness over the back of the wave that caused the bow of the boat to fall sharply, resulting in Ms Lightfoot's injury.[64]
The location of the boat when the incident occurred
[63] Primary reasons [126].
[64] Primary reasons [131].
The judge did not make any specific findings as to where, relative to the Reef Passage, the incident occurred. Her Honour observed that the precise location at which the damaging wave was encountered was not material if one accepted, as her Honour did, that the wave was more likely than not the result of the swell, at that point in the reef, encountering shallower water.[65] As RWE accepted on appeal,[66] it is implicit in this observation that her Honour considered that the incident occurred within the Reef Passage. It is also implicit that the incident occurred in a shallower, as opposed to a deeper, part of the Reef Passage. The judge accepted that the water in this area was shallow in parts.[67]
[65] Primary reasons [126].
[66] Appeal ts 33.
[67] Primary decision [125].
As we have said, her Honour did not make any finding as to the depth of the water at the point where the incident occurred. The only evidence on this point was the skipper's evidence that the water was about 4.5 m deep.[68] The judge referred to that evidence in her outline of the evidence.[69] However, as we have explained above, that reference does not amount to a finding by her Honour. Further, this evidence of the skipper as to depth was combined with evidence, not accepted by the judge,[70] that the accident occurred when the boat was outside the Reef Passage.[71]
Reasoning and conclusion on the breach question
[68] ts 227, 261.
[69] Primary reasons [68].
[70] As outlined in [29] above, the judge found that the incident occurred within the Reef Passage.
[71] ts 227.
The judge found that nothing in the prior incidents to which she had referred, or in the earlier crossings that had occurred that day, pointed to the problem of the unusually steep wave that caused the accident.[72]
[72] Primary reasons [131], see also [141](8), set out at [37] below.
The judge accepted the skipper's evidence that going through the Reef Passage took advantage of the shelter of the reef and lessened the time for which passengers would be subjected to the additional swell and wind outside the reef, thus avoiding a slightly longer, bumpier and more uncomfortable return ride.[73]
[73] Primary reasons [118], [124], [138].
The judge referred to the need to avoid hindsight bias in the evaluation of whether there was a foreseeable risk.[74]
[74] Primary reasons [132] ‑ [135].
The judge posed the question as whether the skipper should have foreseen the risk of Ms Lightfoot being thrown about and injured, have assessed it as not insignificant, sufficiently probable to occur and determined that it was reasonable to take precautions against that risk by navigating through the South Channel rather than through the Reef Passage.[75] Soon thereafter, the judge articulated the question of 'whether there was a risk of such significance that it would be unreasonable not to take [South C]hannel'.[76] Her Honour observed that the skipper was well placed to assess whether there was a not insignificant risk of a passenger at the front of the boat being thrown about with such force on encountering a wave that she would suffer serious injury.[77]
[75] Primary reasons [137].
[76] Primary reasons [138].
[77] Primary reasons [137].
Her Honour identified that the risk was of serious physical injury, not minor bruising or an uncomfortable ride.[78]
[78] Primary reasons [137].
Her Honour observed that there was no doubt that it was not onerous to take South Channel and that doing so did not pose any difficulty to navigation or inconvenience.[79] Taking South Channel would have added only about five minutes to the journey.[80] That additional time, in itself, was of no significance.[81]
[79] Primary reasons [139], [124].
[80] Primary reasons [118].
[81] Primary reasons [129].
Her Honour expressed her conclusions on breach in the following terms:[82]
[82] Primary reasons [140] ‑ [142]. We note that the record of the incident of 9 May 2011 referred to in par 8(a), after the words 'slight drop over swell', continued, 'apparently has a prolapse disk [sic] in back. Called ambulance for her. Gave Advil (2) to calm her pain'. In other words, the passenger had a pre‑existing back injury. See GAB 19.
Without the knowledge of what did occur and the accident, the degree of probability of the risk of a sudden steep wave arising in those waters, as they then appeared to Mr Bryant, was remote. I conclude that Mr Bryant acted on that basis, obviously without having the advantage of analysing the provisions of s 5B, but his actions indicate he did not consider he was taking any risk with his passengers' safety or indeed their comfort. Therefore, without the benefit of hindsight it was not unreasonable for him to navigate through this channel.
My reasons for this conclusion are:
1.Mr Bryant was familiar with the area and used the passage regularly on these tours thus had direct experience of conditions there;
2.He had navigated this passage three times on that day before the accident, twice on the way into the bay from the ocean and once exiting. He had actual knowledge of the conditions on this day, as well as general experience; this in my view is of significance, although conditions can change; the only change was the afternoon sea breeze;
3.The forecast swell had moderated from the morning;
4.He kept a good lookout and saw nothing untoward, either prior to entering the passage or before the damaging wave arrived;
5.The passage was not confined or narrow for a vessel of 10 m ‑ 12 m. [Ms Lightfoot's expert] was of the opinion, based upon his information, that there was no room to manoeuvre in the passage. However he agreed in cross‑examination that a gap of 100 m was ample room;
6.There was no evidence of Mr Bryant being in a hurry to return to base or disregarding the comfort or safety of his passengers;
7.He responded quickly when he saw the problem – there was no inattention to his duties;
8.The earlier incidents differed from this accident. There was no suggestion of a steep wave appearing suddenly or passengers being thrown from their seats:
(a)9 May 2011, was 'heading out of Causeway Bay over swell not fast quite easily slight drop over swell'. Mr Bryant could not recall exactly where this happened. It is recorded that 'lady in the third front row injured her back' (exhibit 17 is the log book entry).
(b)26 November 2011, Mr Bryant was heading out west of John Point into the weather. It was recorded that the seas were 2 m and 'a gentleman in the third row from the front complained of a sore back'; and
9.Mr Bryant had never experienced a wave of this kind in this area.
Mr Bryant was not negligent in navigating [the boat] by that route in the prevailing conditions. To say otherwise would, to my mind, be to impose an absolute duty on a skipper to 'ensure' the safety of his passengers and to judge the situation with the benefit of hindsight.
Grounds of appeal
Ms Lightfoot advances two grounds of appeal, as follows:
(1)The primary judge erred on the facts found by her Honour in failing to find that the skipper knew or should have known of a significantly increased risk to passengers in taking the boat into the Reef Passage, which was a shallow channel, where the injury occurred.
(2)The primary judge erred in failing to find a breach of RWE's duty of care to Ms Lightfoot.
Appellant's submissions
Ms Lightfoot does not challenge any finding of fact made by the primary judge.[83] Nor does she complain that the judge ought to have made, but failed to make, any additional findings of fact. Rather, Ms Lightfoot submits that, on the facts found by the judge, the proper conclusion is that RWE was negligent.
[83] Appeal ts 6.
Ms Lightfoot submits that the judge's finding that the significant risk of injury to a passenger as a result of a wave while passing through the Reef Passage could not have been foreseen without hindsight is inconsistent with her findings that:
(1)the skipper was aware of previous back injuries in the same area;
(2)he had a practice of warning passengers about the potential on the foredeck for such injuries;
(3)he failed to warn on this particular occasion;
(4)the skipper knew the matters in [25](4) and (5) above; and
(5)the matters set out in [26] above were reasonably foreseeable to a person in the position of the skipper.[84]
[84] Appellant's submissions [33]; appellant's reply submissions [3] ‑ [6]; appeal ts 8 ‑ 28, 44 ‑ 45.
Ms Lightfoot further submits that it was unreasonable for the skipper to navigate the boat through the Reef Passage, instead of taking the obvious, immediately available, non-demanding and safer course through South Channel.[85] Ms Lightfoot submits that there was no difficulty of navigation or inconvenience in taking the longer route through South Channel, a further five minutes being of no significance.[86]
[85] Appellant's submissions [41].
[86] Appellant's submissions [39], [42]; appeal ts 14 - 15, 17 - 18.
The legal framework and the identification of the relevant risk
It was not in doubt that RWE owed a duty of care to take reasonable precautions in the navigation and control of the boat so as to guard against foreseeable risk of injury or harm to passengers.[87]
[87] Primary reasons [93].
The duty of care was formulated at a higher level of generality than the questions of foreseeability which arose at the breach stage. That is not unusual or inappropriate.[88]
[88] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [191] - [192]; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 [56]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [72]; Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [350].
Ms Lightfoot's claim was that RWE breached its duty of care by navigating the boat into an area, namely the Reef Passage, where it was foreseeable that the boat would encounter a large swell or wave which would endanger the safety of passengers seated near the front of the boat.[89]
[89] Amended statement of claim [10.15], primary reasons [7].
Section 5B of the CLA sets out preconditions for establishing a breach of duty.[90] The court could not find a breach of duty unless Ms Lightfoot established the matters in s 5B of the CLA:
[90] Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [81]; Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [717]; CGU Insurance Limited v Coote [2018] WASCA 117 [77].
5B. General principles
(1)A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
For the purposes of s 5B(1):
(1)the 'harm caused' was the injury to Ms Lightfoot;
(2)the 'risk of harm' was the risk that a passenger would be injured as a result of the boat encountering a large swell or wave while travelling through the Reef Passage; and
(3)the precaution which a reasonable person in RWE's position should allegedly have taken was to navigate via South Channel and to avoid the Reef Passage.
When s 5B(1) is applied to the present case, RWE could not be found liable unless Ms Lightfoot established that:
(a)the risk that a passenger would be injured as a result of the boat encountering a large swell or wave while travelling through the Reef Passage was foreseeable;
(b)that risk was not insignificant; and
(c)in the circumstances, a reasonable person in the skipper's position would have navigated through South Channel and avoided the Reef Passage.
In this case, Ms Lightfoot pleaded that what was foreseeable was the risk of large swell or waves endangering the safety of passengers. There was no suggestion of any relevant risk of injury to passengers arising from anything other than the effect of large swell or waves on the boat.
Some of her Honour's reasons appear to be directed to whether it was foreseeable that a sudden steep wave might have resulted in an injury.[91] That was not the critical enquiry. It is unnecessary that the risk of the particular injury suffered by a plaintiff be foreseeable. Nor must the specific mechanism by which the injury is caused be foreseeable.[92] In this case, it was not necessary that an injury through a sudden steep wave was foreseeable; it was enough if injury through the effect of a large swell or wave on the boat was foreseeable, in whatever manner that might occur.
[91] See, for example, primary reasons [131], [140].
[92] Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 120.
In the circumstances of this case, the relevant risk (see [9] and [44] above) was of a passenger suffering an injury as a result of the boat encountering a large swell or wave during its navigation of the Reef Passage.
Consequently, it was, and is, necessary for Ms Lightfoot to establish that this risk (1) was foreseeable, (2) not insignificant and (3) that, in the circumstances, a reasonable person in the skipper's position would have taken the precaution of navigating the boat through South Channel and avoided the Reef Passage.
Although her Honour's analysis was not always expressed by reference to s 5B of the CLA, in substance, the judge identified the question as whether the skipper should have foreseen a not insignificant risk of a passenger being thrown about and injured, and determined to take precautions against that risk by navigating through the South Channel rather than through the Reef Passage.[93]
[93] Primary reasons [137].
Whether there was such a risk is to be assessed prospectively, as at the time when the skipper decided to navigate through the Reef Passage, and not with the benefit of hindsight.[94]
[94] Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [61] and cases cited in footnote 92 thereof.
Under the common law, a risk of injury which is not far‑fetched or fanciful, is real and therefore foreseeable. A risk of injury that is remote, in the sense that the probability of it occurring is extremely unlikely, may nevertheless constitute a foreseeable risk.[95] This test has been described as undemanding.[96]
[95] Wyong Shire Council v Shirt (48); Hunter and New England Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270 [30].
[96] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [54]; Vairy v Wyong Shire Council [213]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [44].
Section 5B of the CLA requires that the risk be 'not insignificant'. This imposes a more demanding standard than the common law test of foreseeability, albeit not by very much.[97]
[97] Marsh v Baxter [714], citing Shaw v Thomas [2010] NSWCA 169 [44]. See also Cox v Fellows [2013] NSWCA 206 [145].
Disposition
On appeal, Ms Lightfoot challenges the judge's conclusion that, on the facts that her Honour found, the skipper's decision to navigate through the Reef Passage was not negligent. Ms Lightfoot does not challenge any of the judge's findings of fact.[98]
[98] Appeal ts 6.
Whether, on a given set of facts, negligence on the part of the defendant is established must be determined by an appellate court for itself, without the appellate restraint or deference that applies to discretionary decisions and to some evaluative decisions.[99] In other words, the standard of appellate review is one of correctness. In deciding upon the correct conclusion, the appellate court gives weight to the primary judge's conclusion, but must reach, and give effect to, its own conclusion.
[99] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 ‑ 552; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [41] ‑ [44].
Ms Lightfoot submits that the primary judge erroneously focused on whether a risk was foreseen or foreseeable by the skipper, rather than whether the risk was foreseeable by a reasonable person in the position of the skipper.[100] There are aspects of the primary reasons that lend some support to that contention.[101] In any event, given that the task of this court is to decide the question of negligence for itself, it is not necessary to come to a firm conclusion in relation to this contention. Rather, we direct attention to a reasonable person in the position of the skipper in coming to our conclusions concerning whether there was a foreseeable and not insignificant risk.
[100] Appeal ts 25, 27, 45.
[101] See primary reasons [136], [140].
Ms Lightfoot submits that the risk of passengers sustaining injuries in swell in the Reef Passage was known to the skipper by the day of this accident because, as the primary judge found, the risk had already materialised twice on tours skippered by him.[102] Ms Lightfoot contends that the judge's finding at [109] that the previous incidents had occurred 'in much the same location' was a finding that the incidents had occurred in the Reef Passage.[103]
[102] Appellant's submissions [34].
[103] Appellant's reply submissions [6]; appeal ts 7 ‑ 8, 13.
We do not accept that the judge made any finding that the previous incidents had occurred while the boat was in the Reef Passage. The judge found that the previous incidents had occurred in 'much the same location'.[104] Nothing in the judge's specific findings, or in the judge's reasoning generally, suggests that her Honour was satisfied that the previous incidents had occurred within the Reef Passage. The evidence of the skipper was, as the primary judge recorded, that he did not know whether the first of the previous incidents had occurred in the Reef Passage or in South Channel.[105] As to the second incident, the judge found only that the boat 'was heading out west of John Point into the weather'.[106] That finding does not amount to, or necessarily imply, a finding that it occurred within the Reef Passage.
[104] Primary reasons [109].
[105] Primary reasons [72], [141](8)(a), ts 249, 253.
[106] Primary reasons [141](8)(b).
Had passengers previously been injured while the boat was within the Reef Passage, that would have been a significant factor in the evaluation of whether the relevant risk in this case was both foreseeable and not insignificant. However, for the reasons we have given, on the judge's reasons read as a whole, her Honour did not make such a finding. Ms Lightfoot's grounds of appeal and submissions do not contend, as an alternative proposition that her Honour erred in failing to find that there had been previous incidents involving navigation through the Reef Passage where passengers had been injured by swell or waves.
Given that the alleged negligence lay in the choice to navigate through the Reef Passage rather than South Channel, the occurrence of previous incidents of passengers suffering back injury while the boat was heading west into the waves (without any finding that this occurred in the Reef Passage) does not provide any support for a finding of negligence.
At most (and this point was not advanced by Ms Lightfoot), the reference to 'same location' in [109] of the primary reasons might arguably be read[107] as indicating that her Honour was prepared to accept that other incidents occurred in the vicinity of a reef or in shallow water. Even on that reading of her Honour's reasons, for the reasons in [75] below, the occurrence of previous incidents of passengers suffering back injury during 'bumpy rides', in the vicinity of a reef or in shallow water does not support a conclusion that the relevant risk was not insignificant.
[107] Read in the context of [109] of the primary reasons, and in the context of the primary reasons read as a whole.
Ms Lightfoot submits that the fact that she was sitting at the very front of the boat amplified the risk of injury to her, and she was not advised to move at any time.[108] In our view, this submission does not assist Ms Lightfoot. Although the particulars in the statement of claim included allegations of failure to warn Ms Lightfoot that she should move from the front of the boat, those allegations were not pursued at trial. As we have said, in opening, as well as in closing, counsel specifically limited Ms Lightfoot's case to one particular breach, namely that the skipper navigated the boat into an area where it was foreseeable that the boat could encounter large swell or waves which would endanger the safety of passengers seated near the front of the boat.[109] This was accepted by Ms Lightfoot on appeal.[110]
[108] Appellant's submissions [35].
[109] Primary reasons [7], ts 32 ‑ 33; ts 344 ‑ 345.
[110] Appeal ts 3.
Ms Lightfoot submits that the skipper had a practice of warning passengers about the potential on the foredeck for back injuries[111] and intended, but failed, to warn of the very risk which came to fruition.[112]
[111] Appellant's submissions [33].
[112] Appellant's submissions [40]; appeal ts 20 ‑ 23.
It is not clear that the judge made a specific finding as to the practice of the skipper of warning passengers about the potential for injury when seated at the front of the boat. However, the judge may have made such a finding by implication. RWE pleaded that it gave a warning in the following terms:[113]
[P]rior to commencing travel on the [boat] [Ms Lightfoot] was given instruction which stated inter alia that the front of the [boat] was more prone to being thrown around and that therefore there was a higher risk of being tossed from the seat of the [boat] … . [T]he front of the [boat] is more subject to vertical motion as it travels over waves and swell.
[113] Re‑amended defence [7](b), primary reasons [95].
The judge found that the warning given by the skipper 'came nowhere close to the pleaded warning', in that it did not refer to being thrown about in the seats at the bow. The judge found that the deckhand's evidence 'put the briefing in the standard terms that were always given'.[114] Her evidence was that the briefing was always in the same terms:[115]
It always contains how to get on board because it can be tricky from the jetty to the boat. Where to sit. So people that might be pregnant, that have problems with their backs, previous injuries or might be frail of [sic] just a bit scared of the ocean, they should sit at the back. Any brief on how to behave on board so stay seated and stand up only then [sic] the skipper says so. Any men over board procedures, that type of thing. It is always the same brief.
[114] Primary reasons [96].
[115] Primary reasons [77].
In any event, the skipper's practice in relation to warnings is of limited assistance to Ms Lightfoot's appeal. The warning relates to increased risks arising from sitting at the front of the boat. As we have said, it was no part of Ms Lightfoot's case at trial that RWE was negligent in failing to warn or inform Ms Lightfoot of the increased risks associated with sitting at the front of the boat. Ms Lightfoot's sole allegation of breach concerns the skipper's decision to navigate through the Reef Passage, rather than taking South Channel.
The judge found that, at the relevant time, the swell was 1.5 ‑ 2 m.[116] Although, on appeal, Ms Lightfoot asserted that such swell was larger or heavier than usual,[117] the judge made no finding to this effect. Given that Ms Lightfoot does not challenge the judge's fact finding, it is not necessary to enquire as to the evidence at trial in this respect. In any event, counsel did not point to any such evidence and we cannot find any. In particular, Mr Madden's evidence did not suggest that a swell of 1.5 to 2 m was heavier than usual.
[116] Primary reasons [123], [125], [130], [141](3).
[117] Appeal ts 12, 25, 26.
Otherwise, Ms Lightfoot's case essentially relies on the findings that the skipper knew the matters in [25](4) and [25](5) and that the matters set out in [26] were reasonably foreseeable to a person in the position of the skipper. In our opinion, for the reasons below, those matters do not sustain a conclusion that, at the time the skipper decided to navigate through the Reef Passage, there was, to a reasonable person in the position of the skipper, a foreseeable and not insignificant risk that, if the boat were navigated through the Reef Passage, a passenger may have suffered an injury as a result of the boat encountering a large swell or wave.
Most of the matters referred to in [25](4), [25](5) and [26] are general notions that are not related to the particular geography of the area. None of them is directed to the prevailing conditions at the time leading up to the skipper's decision to navigate through the Reef Passage. The findings specific to the Reef Passage were that the skipper knew that the water through the Reef Passage was, in parts, shallow and that there was 'necessarily less chance of encountering unusual conditions' than in the South Channel, which was significantly deeper and much wider.[118]
[118] Primary reasons [125], [129].
Giving full weight to those findings, they do not sustain a conclusion that the risk of injury to Ms Lightfoot in taking the boat through the Reef Passage was both foreseeable and not insignificant. That is so for the reasons given below.
There was a judgment to be made by the skipper as to the route to be taken. In this context, a decision, whether to take a course involving 'less chance of encountering unusual conditions' over another route, involved a consideration of the degree of chance of encountering unusual conditions in the other route. Whether there was a foreseeable and not insignificant risk of injury to passengers as a result of the boat encountering a large swell or wave while travelling through the Reef Passage was to be evaluated by reference to the conditions and circumstances known to the skipper or which a reasonable person in the skipper's position ought to have known, at, and leading up to, the time of the decision to traverse the Reef Passage.
Ms Lightfoot points to the judge's findings that the conditions were not flat calm and there were visible waves breaking on parts of the reef.[119] However, the skipper had traversed the Reef Passage already three times that day without incident. The swell was dropping as the day went on.[120] The Reef Passage was more sheltered, with less wind and swell than areas outside the reef.[121] The skipper had navigated the Reef Passage routinely in most of the many previous tours he had done in the preceding 12 months. The judge did not find that any previous incident had occurred in the course of navigation of the Reef Passage. The skipper was keeping a proper lookout and observed nothing unusual or untoward.[122] The skipper did not take the boat into breaking waves.[123] On the facts found by the primary judge, there was nothing in the prevailing conditions on 23 September 2012 that suggested there was both a foreseeable and not insignificant risk that a large swell or wave might be encountered in the Reef Passage which could cause injury to a passenger.
[119] Appeal ts 19.
[120] Primary reasons [141](3).
[121] See [32] above.
[122] Primary reasons [120], [122], [131], [141](4).
[123] Primary reasons [127], [128].
Further, even if it were assumed that her Honour found that the 'bumpy rides' resulting in injury in the two previous incidents occurred in the vicinity of a reef or in shallow waters (see [63] above), it does not follow from that finding that the relevant risk has been shown to be not insignificant. As her Honour noted, the prospect of waves occurring and breaking in such areas was 'an ordinary feature of coastal navigation'.[124] One, or two, previous incidents of injury caused by 'bumpy rides', in areas where waves may appear and break as an ordinary everyday feature of coastal navigation, do not provide a sufficiently firm basis upon which to conclude that the risk of injury from traversing the Reef Passage on this occasion, in the conditions then prevailing, was, even if foreseeable, not insignificant.
[124] Primary reasons [109].
Ms Lightfoot's case on appeal makes no reference to Mr Madden's evidence. Given that the appeal relies solely on the facts as found by the primary judge, that is not surprising. It is also not surprising given the following.
Immediately after Mr Madden's evidence set out at [10] above, the following exchange ensued between the primary judge and Mr Madden:[125]
BRADDOCK DCJ: So is it the breaking of the swell that gives you the warning, Mr Madden?
MADDEN, P.V.: It makes it very difficult to navigate.
BRADDOCK DCJ: Yes?
MADDEN, P.V.: Where a swell - a formed swell is fine, but when it's broken it - it makes it even harder to navigate for any vessel.
[125] ts 161.
The opinion that 'a formed swell is fine' should be noticed. Mr Madden gave other evidence that going over a swell is 'fine'.[126] Nothing in Mr Madden's evidence advanced any reason why the skipper should not have taken the boat through the Reef Passage into swell that was not breaking. Mr Madden's evidence does not assist the case Ms Lightfoot advances on appeal.
[126] ts 163.
For the reasons we have given, in our opinion, Ms Lightfoot has not established that there was a foreseeable and not insignificant risk that, if the boat was navigated through the Reef Passage, the boat might encounter a large swell or wave which could cause injury to a passenger.
Conclusion
For these reasons, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH
23 NOVEMBER 2018
APPENDIX A
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