McFarlane v The State of Western Australia - [2004] WADC 245

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McFARLANE & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2004] WADC 245

CORAM: NISBET DCJ

HEARD: 2-6, 9-12, 16-20, 23-26, 30-31 AUGUST, 1-3, 6-10, 14-17, 20-22, [23], & 27-29 SEPTEMBER 2004

DELIVERED : 7 DECEMBER 2004

FILE NO/S: CIV 3522 of 1997

BETWEEN: ANNE PATRICIA McFARLANE
First Plaintiff
HELEN ELIZABETH THOMPSON
Second Plaintiff
GRANTLEY OTTO
Third Plaintiff
LESLEY JANE BREMNER
Fourth Plaintiff
ANTHONY JOHN MORGAN
Fifth Plaintiff
MARILYN JOY STANDEN
Sixth Plaintiff
CORRINA IDDON
Seventh Plaintiff
TERRY SOTIRIADIS
Eighth Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
SHIRE OF AUGUSTA-MARGARET RIVER
Second Defendant
EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
Third Defendant
MINISTER FOR EDUCATION
Fourth Defendant

Catchwords:

Tort – Negligence – Fatal Accidents Act – Occupiers' liability - Gracetown cliff collapse - Statutory Authorities - Liability of - Local Government Authority - Liability of - Foreseeability - Causation - Breach of statutory duty - Occupiers' Liability Act - Separate cause of action from negligence? - Occupational Safety and Health Act - Breach of statutory duty

Legislation:

Interpretation Act 1984

Land Act 1933
Occupational Safety and Health Act 1984

Occupiers' Liability Act 1985

Result:

Claims dismissed

Representation:

Counsel:

First Plaintiff                :     Mr R I Viner AO, QC & Mr J C Hammond
Second Plaintiff            :     Mr R I Viner AO, QC & Mr J C Hammond
Third Plaintiff               :     Mr R I Viner AO, QC & Mr J C Hammond
Fourth Plaintiff             :     Mr R I Viner AO, QC & Mr J C Hammond
Fifth Plaintiff                :     Mr R I Viner AO, QC & Mr J C Hammond
Sixth Plaintiff               :     Mr R I Viner AO, QC & Mr J C Hammond
Seventh Plaintiff           :     Mr R I Viner AO, QC & Mr J C Hammond
Eighth Plaintiff             :     Mr R I Viner AO, QC & Mr J C Hammond
First Defendant             :     Ms C J Thatcher & Mr J F O'Sullivan
Second Defendant         :     Mr K J Martin QC & Mr P Mendelow
Third Defendant           :     Ms C J Thatcher & Mr J F O'Sullivan
Fourth Defendant          :     Ms C J Thatcher & Mr J F O'Sullivan

Solicitors:

First Plaintiff                :     Hammond Worthington
Second Plaintiff            :     Hammond Worthington
Third Plaintiff               :     Hammond Worthington
Fourth Plaintiff             :     Hammond Worthington
Fifth Plaintiff                :     Hammond Worthington
Sixth Plaintiff               :     Hammond Worthington
Seventh Plaintiff           :     Hammond Worthington
Eighth Plaintiff             :     Hammond Worthington
First Defendant             :     State Solicitor
Second Defendant         :     Phillips Fox
Third Defendant           :     State Solicitor
Fourth Defendant          :     State Solicitor

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

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385
Brown v Nelson (1970) 69 LGR 20
CMEWU v Williamson (1988) 68 WAIG 1015
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gugiatti v Servite College Council Inc (2004) A Tort Rep 81‑724
Jones v Bartlett (2000) 205 CLR 166
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Pyrenees Shire Council v Day & Anor (1998) 192 CLR 330
Re Porter; Transport Workers Union of Australia (1989) 34 IR 179
Richards v Victoria [1969] VR 136
Schiller v Mulgrave Shire Council (1972) 129 CLR 116
Secretary to the Department of National Resources and Energy v Harper (2000) 1 VR 133
Sheen v Fields (1984) 51 ALR 345
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Southern Group Ltd v Smith, unreported; FCt SCt of WA; Library No 970284; 5 June 1997
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sydney City Council v Reid (1994) 34 NSWLR 506
Transport Workers Union v Readymix Group (WA) (1981) 61 WAIG 1705
Ward v Hertfordshire County Council [1970] 1 WLR 356
West Australian Carpenters & Joiners Bricklayers & Stoneworkers Union v Izzo (1984) 64 WAIG 411
Western Australia v Dale (1996) 15 WAR 464
Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40

Case(s) also cited:

AMACA Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v State of New South Wales (2004) a Tort Rep 81749
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Ballerini v Berrigan Shire Council & Anor [2004] VSC 321
BMG Resources Ltd v Pine Rivers Shire Council (1989) 2 QD R 1
Brodie v Singleton Shire Council (2001) 206 CLR 512
City of Rockingham v Curley (2000) 112 LGERA 123
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518
Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139
Durant v Greiner (1998) 1 NSWLR 119
Ellis v Commissioner of Main Roads (1991) 74 LGRA 96
Hackshaw v Shaw (1984) 155 CLR 614
Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334
J L Holdings Pty Ltd v State of Queensland, unreported Fed Ct of Aust; BC9800680; 6 March 1998
Jaensch v Coffey (1984) 155 CLR 549
Locke & Ors v Shire of Coorow, unreported; SCt of WA; Library No 940541; 4 October 1994
McMullin v ICI Australia Operations Pty Ltd & Ors (1992) 72 FCR 1
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
New South Wales v Lepore (2003) 195 ALR 412
Northern Territory of Australia v Shoesmith & Ors (1996) 5 NTLR 155
Prospect County Council (T/as Prospect Electricity) v Blue Mountains City Council (1992) 28 NSWLR 301
Randel v Brisbane City Council (No 2) [1990] 2 QD R 440
Roe v Ministry of Health [1954] 2 QB 66
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116
Secretary to the Department of Natural Resources v Harper (2000) 1 VR 133
Shire of Burrum v Richardson (1939) 62 CLR 214
Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 182
Voli v Inglewood Shire (1963) 110 CLR 74
Western Australia v Ward (2002) 213 CLR 1
Western Australia v Ward (2002) 76 ALJR 1098
Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139
Wheat v E Lacon & Co Ltd [1966] AC 552
Wik Peoples v State of Queensland (1996) 187 CLR 1
Williams v Attorney General (NSW) (1913) 16 CLR 404
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2003) 205 ALR 522
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) A Tort Rep 81-754

NISBET DCJ:

Background

On 27 September 1996 a number of adults and children were standing underneath a cliff at Huzza's Beach in Cowaramup Bay watching the progress of an interschool surfing competition. It was mid‑afternoon. It was rainy and windy and the people there were taking shelter when, without warning, the cliff above them collapsed. Nine people died. Men, women and children. Their survivors bring this action alleging that the defendants could have averted this disaster if they had taken the care they ought to have taken. Among those survivors are some who were present on the day of the tragedy and who either miraculously escaped harm or, in one case, even more miraculously, was rescued from it.

Pleadings

Unlike many cases, this case was very much fought out on the pleadings and accordingly a brief examination of them is required. The first plaintiff brings her action on behalf of herself as the widow of Peter Vernon McFarlane who died in the cliff collapse. He was at Huzza's Beach because his son was competing in the surfing competition. She also brings the action on behalf of her children Aaron born 6 March 1984 and Sarah born 25 July 1986.
The second plaintiff brings her action as the widow of Lindsay Neil Thompson who died in the cliff collapse. Mr Thompson was at Huzza's Beach because he was one of the organisers of the interschool surfing competition being held there. She also brings the action on behalf of her children Skye, born 25 May 1984, Paul, born 16 September 1979, Adam, born 28 December 1974 and Neil, born 24 November 1970.
The third plaintiff brings his claim as the widower of Lyndell Kaye Otto who died in the cliff collapse. She was at Huzza's Beach as a parent of one of the children competing namely Justin. The third plaintiff also brings his action on behalf of his children Bettina, born 6 August 1982, Justin born 9 July 1984 and Sara, born 17 August 1986. Sara was a spectator. She miraculously survived the cliff collapse. She was buried under the fallen debris for 90 minutes but, protected by an air pocket, she survived to be dug out by her rescuers.
The fourth plaintiff brings her action as the widow of Ian Gordon Bremner who died in the cliff collapse. He was at Huzza's Beach because he was the acting principal of the Cowaramup Primary School the students of which were competing in the interschool surfing competition being held there on the day of the cliff collapse. She also brings her action on behalf of her children Keighley, born 21 May 1977, James, born 17 July 1979, Simon, born 21 July 1981 and Elizabeth, born 26 July 1983. Simon came within a second or two of being buried alive with the others. He was running down to the beach to ask his father if he could have a friend stay over at his house that night when, coming down the goat track leading to Huzza's Beach and alongside the tree that he would have passed to join the others under the cliff, the cliff collapsed in front of him.
The fifth plaintiff brings the action on behalf of himself and his wife the parents of Rebecca Louise Morgan, born 19 March 1984. Rebecca died in the cliff collapse. She was at Huzza's Beach as a Year 7 student at the Margaret River Primary School involved in the interschool competition being held there that day.
The sixth plaintiff brings her action on her own behalf as the mother of Rachel Lea Waller deceased who was born on 27 March 1984. Rachel died in the cliff collapse. Rachel was a Year 7 student at the Margaret River Primary School and was attending the surfing competition as a competitor.
The seventh plaintiff brings her claim on behalf of herself and her husband as parents of Gina Maree Iddon, born 6 October 1984. Gina aged almost 12 was killed in the cliff collapse. Gina was a Year 7 student at the Margaret River Primary School and was attending the interschool surfing competition as a spectator. She had intended to compete but was unwell on the day and the seventh plaintiff gave her permission to attend as a spectator.
The eighth plaintiff brings his claim on behalf of himself as the former husband of Madeline Wall and as the father of Nathan John Steven Sotiriadis both of whom died in the cliff collapse. He also brings his claim on behalf of his two other sons born of his former wife Madeline namely, Daniel Sotiriadis, born 16 February 1985 and Luke Sotiriadis, born 25 July 1988. Madeline Wall and her son Nathan Sotiriadis were both on Huzza's Beach on the day of the cliff collapse ( I assume) as spectators because Nathan ordinarily lived with his father and did not attend either the Margaret River or Cowaramup Primary Schools.
Whilst the eighth plaintiff pleads in par 35(d) of the statement of claim that he also brings his claim on behalf of Dana Wall, born 3 November 1935, the mother of his late former wife, there is no pleading of dependency.
The plaintiffs plead (par 14) that the first, second and third defendants were at all material times occupiers of the land where the cliff was located within the meaning of the Occupiers' Liability Act1985 and otherwise, and, further or alternatively each had or shared in the control of the land where the cliff was located and/or had exercised responsibility for the works and activities carried out on that land. The plaintiffs then plead that this occupation control and/or responsibility arose by reason of the following:
"(a)the land and its immediate environs was unoccupied Crown land and, further, was at all material times subject to the control of the First Defendant;
(b)the land and its immediate environs, notwithstanding that it was unoccupied Crown land as aforesaid, had been vested in the Second Defendant under the provisions of Section 33 of the Land Act 1933 in February 1981 for the purpose of recreation;
(c)at all material times, the Second Defendant had the possession and control of the land, subject to the over‑riding control of the First Defendant. The Second Defendant from time to time exercised control over the land by allowing car parks, roads and footpaths which gave access to the land and adjacent beach area and in providing and servicing toilet facilities and rubbish receptacles for the use of persons going onto the land and using the adjacent beach;
(d)the land and its immediate environs was also subject to the control of the Third Defendant who, jointly with the First and/or Second Defendant, had the possession and control of the land and other adjacent land to the extent of determining what improvements, maintenance, excavations or clearing could be conducted thereon;
(e)in or about July 1984 the Second Defendant and the Third Defendant carried out a joint development project for the new alignment of a track between Huzza's Beach and South Point at Cowaramup Bay, Gracetown for which the First Defendant provided the funds. Those employed on this project were employed jointly by the Second and Third Defendants. Part of a cliff overhang at the south eastern end of Huzza's Beach and South Point was removed by explosives following advice from the Department of Minerals and Energy of the First Defendant given to the Third Defendant at the request of the Third Defendant during the course of this project.
(f)the Second and Third Defendants are each agencies or instrumentalities of the First Defendant and, to the extent, if any, to which ownership, possession, occupation or control of the subject land and its environs is divided between the First, the Second, or the Third Defendants, or any of them, or to the extent that one or more of those defendants has the possession, occupation or control of the land to the exclusion of any one or both of the others, the ownership, possession, occupation or control is held and exercised for an on behalf of the First Defendant.
(g)this occupation, control or sharing in the control of the land where the cliff was located and/or the exercise of responsibility for the works and activities carried out on that land gave rise to a relationship of proximity between each of the first, second and third defendants and members of the public who used or crossed the land to obtain access of the adjacent beach.
Particulars
(Particulars of the details of occupation, control of sharing in the control of the land and/or the exercise of responsibility of the works and activities carried out on that land by each of the first, second and third defendants are fully set out under paragraph 15 below.)"
The plaintiffs then go on to plead that the death of each deceased was caused by reason of the negligence and/or breach of duty on the part of the first, second and third defendants and then, confusingly, without there being any identification of the duty of care owed by the fourth defendant, it is then pleaded "… and/or by negligence on the part of the fourth defendant by its servants or agents." Particulars of the alleged negligence and breach of duty of care of each of the first, second and third defendants are then pleaded out and, additionally, in the same paragraph, particulars of negligence of the fourth defendant. Later in the statement of claim, in par 18, it is pleaded that the fourth defendant, (as employer of each of Mr Thompson and Mr Bremner) its servants and agents:
"(a)Failed to provide a working environment in which neither Lindsay Neil Thompson and [sic – nor] Ian Gordon Bremner was exposed to hazards in breach of s 19(b) and s 19(1)(a) of the Occupational Safety and Health Act 1984 (as amended) ("the Act");
(b)Failed, so far as was practicable, to provide the information, instruction, training and supervision necessary to enable each of Thompson and Bremner to conduct his duties at the inter‑primary school surfing competition in such a manner that he would not be exposed to hazards in breach of s 19(1)(b) of the Act;
(c)Failed to take any practicable measures to ensure that the inter‑primary school surfing competition was free from hazards in breach of s 22(1) of the Act."
(There are no particulars of why it is claimed Mr Thompson was an employee of the fourth defendant.)
There then follow particulars of breach of duty by the fourth defendant which state that in effect the fourth defendant was in breach of its duty of care to the second and fourth plaintiffs which duty was owed by reason of the provisions of the Occupational Safety and Health Act 1984, and the particulars of the breach are those pleaded par 15 as previously mentioned.
Hence it can be seen that all of the plaintiffs claim against each of the first, second, third and fourth defendants and, additionally, the second and fourth plaintiffs claim against the fourth defendant.
The same particulars "of negligence and breach of duty" are in effect pleaded against all defendants with some minor variations. In the case of the fourth defendant they are said to be (just) "particulars of negligence". The particulars as they stood at the commencement of the trial were, in summary form, as follows:
1.The defendants were aware that the public had frequent recourse to Huzza's Beach for swimming and associated recreation and that they sheltered or were likely to shelter under the overhanging cliff. This was because the first and second defendants knew that the land in the vicinity was vested in the second defendant for the purposes of public recreation; that it was notorious that members of the public had used Huzza's Beach for these and similar purposes for many years, and that roads and pathways available to the public gave unrestricted access to the beach and cliff area. Further it was said that the use of Huzza's Beach for the inter‑primary school surfing competition on 27 September 1996 had been organised or approved by the second and fourth defendants "who were each, respectively, agents or instrumentalities of the first defendant, and whose knowledge is to attributed to the first defendant;". [The basis upon which the second defendant was said to be an instrumentality of the first defendant was not pleaded];
2.The pattern of limestone cliffs above an ocean beach was known by the defendants to be a frequently occurring and characteristic feature of the littoral topography along the south west coast line of the State;
3.In about August 1984 the potential danger constituted by a limestone ledge over the beach at South Point in the Leeuwin‑Naturaliste National Park nearby Huzza's Beach was assessed by a mining engineer of the State's Department of Mines who assessed the overhang to be a potential hazard to the public, and recommended that it be removed by explosives, which was later done. This was not just nearby to, but similar to the cliff face at Huzza's Beach where the cliff collapsed;
4.The local Progress Association, the Gracetown Progress Association Incorporated was concerned at the state of the access ways and general amenity of the area near Huzza's Beach, and by correspondence with the third defendant in April 1995 and the second defendant in July 1995, requested that certain work be undertaken;
5.The cliff collapse area was comprised of limestone base rocks and layers of dune deposit of lime and sand cemented in place, known as an eolianite which is a geological feature typical of many similar coastal beaches and bays in the south west littoral of the State, which geology is said to be known to be unstable and prone to collapse, especially during or after periods of heavy rain;
6.Before 27 September 1996 the cliff at Huzza's Beach which collapsed showed signs of instability by reason of erosion, weathering and cracking, which if inspected by any experienced geologist or engineer should have revealed it to be potentially dangerous;
7.Prior to 27 September 1996 there had been a week or more of heavy rain in the area;
8.In November 1991 a private citizen, one Arthur Armstrong used explosives to dislodge a rock near the cliff at Huzza's Beach on the grounds that it was dangerous to the public. Mr Armstrong reiterated his concerns to the police;
9.In 1984 an employee of the third defendant, Robert Klok, became concerned about the cap rock overhang at South Point some 300 to 500 metres away from the cliff at Huzza's Beach, and it was his reported concerns over this matter which led to the removal of the overhang by the use of explosives previously referred to;
10.Over the years there have been sudden and unexpected collapses of limestone cliffs adjacent to beaches and coastal areas along the south west coastline of the State which was known to the first defendant and all of its agencies and instrumentalities responsible for the care and maintenance of the coastline.

It is then pleaded that despite the foregoing the defendants:
1.Failed to take any steps to inspect the topography of Huzza's Beach to determine the safety of the cliff face, or take any measures which would secure the safety of the public using the beach;
2.Failed to warn the public of the danger posed by the cliff overhang;
3.Failed to provide sufficient training or education to allow those responsible for Huzza's Beach to carry out periodical assessments of the cliffs, including assessments by experienced geologists or engineers to assess the risk posed by the instability of the cliffs;
4.Failed to respond to the knowledge gained from the collapse of other similar coastal cliffs or topography;
5.Failed to give any warning by the erection of signs or other notices of the danger that the cliff might suddenly collapse;
6.Failed to carry out any regular or periodic examination of the cliff, especially after periods of heavy rain;
7.Allowed, encouraged or facilitated access to the beach and the cliff face by the public without taking any steps to determine the safety of the area;
8.Failed to restrict or control public access to the cliff face;
9.Failed to remove the overhang by explosive or other measures when the cliff was in an unstable condition;
10.Failed to erect or otherwise circulate, publish or broadcast warnings of the increased danger of cliff collapse following periods of heavy rain.
As can be seen, many of these particulars of breach are repetitive.
In essence, the plaintiffs' case is that had they been warned of the potential danger constituted by the cliff overhang, the deceased would not have sheltered under it, either because as adults they would have appreciated the danger themselves, or alternatively as adults having the charge of children, they would not have allowed or encouraged the children to take shelter in disregard of public warning signs erected for their safety.
There is no plea identifying why the fourth defendant was said to owe a duty of care to those plaintiffs who were neither students nor teachers employed by the fourth defendant which again occasioned me some confusion. (It was never addressed.)
By their amended defence the first, third and fourth defendants deny all the material averments in the plaintiff's statement of claim, save for those relating to the formal establishment of the second, third and fourth defendants. They then go on to plead that the site of the cliff collapse is on A class reserve number 27618 which, by Order in Council published in the Government Gazette on 27 February 1981, was vested in and to be held by the second defendant in trust for the purpose of "recreation" pursuant to s 33 of the Land Act 1933. These defendants further plead that by reason of that vesting the second defendant had, at all material times, exclusive control and management of the accident site. There then follow pleas setting out the nature and degree of that control and management. They plead as follows:
"7A road leads from the Gracetown townsite in the direction of Huzza's Beach and terminates in a car park with toilet facilities and rubbish receptacles were built (sic) or installed by the second defendant and at all material times were maintained by the second defendant. The car park, toilet facilities and rubbish receptacles are situated wholly within reserve number 27618.
8Steps lead from the car park down to the beach at Cowaramup Bay. Huzza's Beach is approximately 120 metres south west of the foot of the steps. The steps were built by the second defendant, and at all material times were maintained by the second defendant. The steps and area of Cowaramup Bay through which access is gained to the accident site are wholly within reserve number 27618."
The first, third and fourth defendants then go on to deny each of the separate allegations contained in par 15 of the statement of claim, save that they admit that a limestone ledge at South Point in the national park was knocked down by explosives because of a concern of the National Parks Authority of Western Australia that that ledge might collapse "should a number of people stand on it". It was admitted that the ledge was removed but "with great difficulty" on 29 and 30 August 1984. There is a further admission that the Gracetown Progress Association wrote to the third defendant on 17 April 1995 advising of damage close to the steps at South Point, and to the steps at Huzza's Beach. Otherwise, as I have already stated, the first, third and fourth defendants deny each and every other allegation in the plaintiffs' statement of claim.
The second defendant by its re‑amended defence admits its formal establishment, denies that it approved the inter‑primary school surfing competition, and denied (in effect) that it was an occupier of the land within the meaning of the Occupiers' Liability Act 1985 or otherwise. The second defendant admitted that the site of the cliff collapse and its immediate environs was unoccupied Crown land vested in the second defendant pursuant to the provisions of s 33 of the Land Act 1933, since February 1981, and said that that same land was subject to the control of the first defendant. Next, in par 5.4 of its defence, the second defendant admitted that certain works were carried out jointly by it and the National Parks Authority as predecessor to the third defendant "(being an agency of the first defendant)". The second defendant then pleaded :
"The purpose of the beach rehabilitation work in the South Point area was to prevent erosion of sand dunes and the destruction of vegetation in the area. All work was carried out in accordance with recommendations of and/or after consultation with the Department of Conservation and Environment, the National Parks Authority and the Department of Agriculture. Following the granting of funds, work was undertaken during 1984 and 1985 or thereabouts."
In par 5.5 of its defence, the second defendant pleaded that at all material times it was the third defendant which in fact exercised effective control over the land where the cliff was located. There are six particulars supporting that plea and 11 sub‑particulars. Most, if not all of the sub‑particulars pleaded by the second defendant were in substantially the same terms as the particulars provided by the plaintiffs. Because the particulars support a notice of contribution given by the second defendant to the first and third defendants, it is as well to set them out:
"5.5.1The cliff area is located within approximately 10 metres of the Leeuwin Naturalist National Park ("the LNNP") comprising of reserve number 13404 vested in the third defendant and/or over which the third defendant exercised powers of management and control.
5.5.2The geographic environs of the cliff area extends into land vested both in the second defendant and the third defendant, and accordingly the geographical nature of the cliff area was and is such that it does not lend itself to any artificial boundary being drawn by way of division of the cliff area.
5.5.3The third defendant is a statutory entity established with responsibility for and expertise as to conservation and land management, and was the expert authority in relation to land forms such as the cliff and considerations of public safety in relation thereto and/or at all material times the third defendant has regarded itself as a leader in this field.
5.5.4The third defendant was at all material times invested with and/or had the financial resources to address issues of land conservation, land management and public safety in the State of Western Australia.
5.5.5Before the cliff collapse the third defendant and its predecessor, the National Parks Authority, assumed responsibility and control of the cliff area in that: (there then follow 11 sub‑particulars dealing with works undertaken by the third defendant in relation to the land and its environs, the third defendant's dealings with the Gracetown Progress Association and the WA Surf Riders Association, the rock blasting carried out by Arthur Armstrong, and permissions to conduct surfing competitions).
5.5.6Following the cliff collapse, the third defendant assumed responsibility in relation to the cliff area by immediately taking control of the cliff area, reserve and activities rendering the area secure and safe as possible to the general public. The third defendant did not resile from its assumption of full responsibility for the cliff area until after a formal boundary survey commissioned by the third defendant following the cliff collapse in about October 1996, the results of which delineated for the first time an unmarked boundary between the cliff area and the adjoining reserve number 13404 vested in the third defendant."
The second defendant then pleaded that if it owed the plaintiffs a duty of care, which it expressly denied, then the scope of the duty owed to the plaintiffs did not include the duties referred to in the statement of claim because any problem or defect in the cliff was latent so that the collapse of the cliff could not reasonably have been foreseen.
As already indicated the second defendant then made a claim for contribution against the first and third defendants, in essence, as the notice pleads, because at all material times the second defendant claims that the third defendant and not it, in fact assumed the effective control of and responsibility over the area of the cliff collapse.
The first and third defendants resist the second defendant's claim for contribution and defend it by reiterating (in effect) its plea in its defence to the plaintiff's statement of claim that the land was wholly within a reserve vested in the second defendant in respect of which the second defendant had exclusive possession and control.
As far as I am concerned the claims of the first, third and eighth plaintiffs against the fourth defendant could have been dismissed on the pleadings because it was never pleaded or argued or the subject of any evidence as to how the fourth defendant owed any of the deceased the subject of those claims any duty of care.
Hereinafter I shall refer to the first defendant as "the State", the second defendant as "the Shire", the third defendant as "CALM" and the fourth defendant as "the Minister".

Evidence

Use of the area

Cowaramup Bay is a scenic attraction with a north westerly aspect to the Indian Ocean located just short of halfway between Cape Naturaliste and Cape Leeuwin in the south west corner of Western Australia. There is a sealed road into the bay called Cowaramup Bay Road which runs from Bussell Highway in the east across Caves Road and comes into Gracetown at or near North Point which, as its name suggests is the northern most part of the bay. The Gracetown townsite occupies a comparatively small and well defined area located almost centrally to the bay. The bay is surrounded by the Leeuwin‑Naturaliste National Park which runs in an almost continuous line from Cape Naturaliste in the north stopping a little before Cape Mentelle in the south before it resumes again south of Prevelly at or near Gnarabup Beach when it continues almost unbroken through to Cape Leeuwin.
There was a lot of evidence about the use to which Cowaramup Bay was put, none of it as far as I could tell, in any way controversial. The northern point of the bay is an internationally renowned surfing location. The southern point of the bay is a well known surfing location. At the southern end of the bay before the bay curves around to South Point there is another well known surfing spot called Huzzawooey. [There are various spellings of this name throughout the correspondence and other documentation associated with this action.] This surfing break is more commonly called Huzza's. This break is mainly utilized by novice and junior surfers, and older surfers whose age has tempered their enthusiasm for the bigger and more powerful waves at South Point and North Point. Before the cliff collapse there were a number of ways by which surfers could get access to Huzza's. As can be seen on exhibit 1, the aerial photograph of the bay, there is a large car park at the end of Salter Street, and from this car park a pathway and steps led down to the beach, close to the western extremity of that car park. Surfers could then walk along the beach and enter the water on the eastern side of the small rocky point there, or alternatively walk over or around the small rocky point and enter the water from what is known as Huzza's Cove, or Huzza's Beach. (Whether over or around, the route is not easy going. It is strewn with rocks.) During the course of the trial the small cove situated closest to the car park was commonly referred to as the first cove, and the next cove nearer the elbow of the bay in South Point was commonly referred to and called Huzza's Cove. There were other points of informal entry to both the first cove and the second cove, constituted by tracks forged by people wishing to gain access to the water from a pathway which ran from the end of the car park through and out along South Point to a set of steps located approximately a quarter to a third of the way along the point, which latter set of steps were commonly called the South Point steps. One of these informal tracks was called by most "the goat track" and this ran off the pathway that I have just described on the western edge of the small point separating the first cove from Huzza's Cove. It was down this track that Simon Bremner was walking when the cliff collapsed at his feet. Other parts of the bay were used for recreational swimming, the main recreational swimming beach being located closest to the townsite, and extending around the bay towards North Point. Other witnesses testified that the bay was a very popular fishing spot, and indeed, Huzza's Cove was called Herring Bay by some old timers, named for the once plentiful supply of herring there. Yet other witnesses described the bay as being used for wind surfing, and others described the walks, and another, Mr Robert McFarlane, described the South Point area as a well known fossil repository which attracted other interested walkers.
Surfing competitions were held at Huzza's Cove for junior surfers and long‑boarders. A major surfing competition had been held at North Point. There was however, considerable resistance by a number of interested parties to there being any surfing competition at South Point because of the fragile state of the environment there caused by wind erosion.
Turning from the general to the specific the area under the cliff collapse was used extensively by surfers and their parents and friends because its sandy shore provided an attractive place to sit. Its aspect gave it protection from the prevailing south westerly winds and the depth of the overhang (whatever it may have been) provided shelter from rain – the use to which it was being put on the day of the tragedy.
A large body of evidence suggests that all the defendants knew that this area was used in both the general and specific ways I have described.
The evidence of the knowledge of the State and CALM comes from a number of witnesses. Robert Gerard Klok started as a ranger with the National Parks Board in 1976. The National Parks Board later became the National Parks Authority and later again the National Parks Authority became part of the Department of Conservation and Land Management and whilst the executive director of the Department of Conservation and Land Management is established by the Conservation and Land Management Act 1984 as a body corporate with perpetual succession and a common seal, the Department of Conservation and Land Management is nevertheless a division of the executive of the government of the State of Western Australia and employees of the department are, generally speaking and with some exceptions, public servants. Knowledge of employees of departments of the executive arm of the government of the State will be held generally for the State and specifically where those officers are employed by CALM, for and on behalf of CALM: Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 123. Mr Klok was a surfer and on a number of occasions from 1981 onwards had visited Huzza's and, it can inferred, knew of the uses to which Huzza's Cove was put. Whilst he never went to Huzza's in the course of his employment with CALM, he was in charge of the Leeuwin‑Naturaliste National Park from Moses Rock in the north to Prevelly Park in the south and he was given the job of looking after one of the teams of workers employed as part of the wage pause project organised by the Shire for works to be done at the South Point car park and along the trail to South Point in 1984. He had sat under the overhang.
Roger Owen Banks commenced full time employment with CALM in 1977. He was party to the development of a joint surfing policy by CALM and the Shire. There was other evidence but this is sufficient to demonstrate that each of the State and CALM knew both the general and specific uses to which the area was put.
The evidence of the knowledge of the Shire comes from many sources. Dr Justine Boow is an anthropologist who lived in Gracetown between December 1984 and December 2001. She became a councillor of the Shire in May of 1995. She knew the area intimately and the uses to which it was put both generally and specifically. She herself was a body board surfer.
Peter Driscoll was the former town planner for the Shire between 1980 and 1987 having previously held the position of recreation officer with the Shire. He knew the uses to which the area was put because he endeavoured to put in place a plan for managing the use of the area.
Mark Christopher Rothery was employed as a shire ranger by the Shire from 1987 to 1989/1990. He lived in Gracetown and knew the area intimately. He had surfed at Huzza's on innumerable occasions. Many other witnesses likewise gave evidence of the knowledge of the uses to which the area was put both generally and specifically which knowledge could be attributed to the Shire but for the purpose of this part of my judgment it is only necessary to specifically refer to Dr Boow, Mr Driscoll and Mr Rothery: Schiller v Mulgrave Shire Council (supra). I should also mention that whilst it was specifically pleaded by the plaintiffs that the Shire not only knew that an inter‑primary school surfing competition was to be held at Huzza's Cove on 27 September 1996, it had approved it, neither of these contentions was proven in evidence. The evidence discloses that the Shire neither knew of, nor organised, nor approved this event.
The position of the fourth defendant is somewhat different. The only direct knowledge of the uses to which this area was put which can be attributed to the fourth defendant in the event that it is not an instrumentality of the State is the knowledge of Gary Stephen Gibbon and the late Mr Bremner. Mr Gibbon is a teacher at the Margaret River Primary School where he has taught for 15 years or so since 1990. He is a surfer who had used Huzza's on a number of occasions and knew the uses to which the area was put. It was Mr Gibbon who prepared the proposal for surfing to be taught as a sporting and recreational activity for children at Margaret River Primary School and which was to be run by the late Mr Lindsay Thompson. The Minister is however, an instrumentality of the State, and the State's knowledge is the Minister's knowledge.

Who was the occupier of Huzza's Cove?

The Occupiers' Liability Act 1985 defines "occupier of premises" to mean "a person occupying or having control of land or other premises;". The Acts binds the Crown. The Interpretation Act 1984 provides that the singular includes the plural and vice versa, and, by s 5, that "person" includes a public body, company, or association or body of persons, corporate or unincorporated. And by virtue of the Local Government Act 1995 a local government is a body corporate with perpetual succession and a common seal. Hence it can be seen that the State, the Shire and CALM have the legal capacity to be occupiers of land.

The evidence establishes with clarity that the area of the cliff collapse fell within Reserve 27618 which reserve is vested in the Shire. On the east this land immediately abuts the town site of Gracetown and to the west and south Reserves 13404 and 37456 respectively, both of which are part of the Leeuwin‑Naturaliste National Park. The evidence further establishes that before the cliff collapsed there was no surveyed boundary between Reserves 27618 and 13404, by which I mean there were no survey pegs in situ and no other boundary markers. What the evidence does disclose is that there were a mixed set of beliefs abroad in the community about whose land Huzza's Cove was. Some, like Dr Boow, a former councillor of the Shire knew that Huzza's was on shire land (although she testified before the coroner that she thought it was CALM's land). Others, like Mrs Bremner and Mr Armstrong thought that Huzza's Cove formed part of the National Park. And then there were people like Mr Peter Driscoll, the former shire planner who knew roughly the location of the boundary, but he was not concerned to step it out or delineate it because in his role as shire planner, he and his counterparts in the then National Parks Authority each recognised that the continuous nature of the coast line and its physical features and problems required a joint approach to the management of the area as a whole, and the co‑operation which existed between the officers at one level, and the shire and the National Parks Authority at another level meant simply that no‑one was concerned to establish a boundary, at least during Mr Driscoll's time with the council, which was between 1980 and 1987.
Given the foregoing general overview of this area of controversy, a number of separate issues present themselves for determination, they being the indicia pro and con of who exactly was the occupier of the land, or who exactly had control of the land, they being:
1.What were the man made physical features of the area?
1.1Where were they?
1.2Who built them?
1.3Who controlled or maintained them?
2.What does the documentary record reveal?
3.Did the first three defendants or any of them manifest themselves as having or not having occupation or control?
4.What was the public perception of who controlled the land?
The man made physical features of the locality, apart from the townsite of course, begin with the car park at the end of Salter Street which is generally known as the South Point car park. In earlier years, that is to say in the 1970's and early 1980's this was an unsealed area made probably (Mr Driscoll said) from compacted limestone or cap‑rock. In the car park is an ablution block, and from the end of the car park there is a set of steps which takes people down to the beach in the first cove, and a trail which leads roughly along the cliff edge through to the South Point steps, from which access to the beach can likewise be gained. At the time of the cliff collapse there were remnants of a cliff top fence, which was erected roughly from the end of the car park through to part the way towards the South Point steps, but not all the way. The exact distance of the fencing was very difficult to ascertain because, having been erected in the early 1980's as Mr Driscoll explained, and later, as other witnesses testified, it had fallen into disrepair, and was in effect completely useless as a fence by the time of the cliff collapse.
Finally, there were some signs both at the end of the car park at the commencement of the track, and, according to Mr Armstrong an old National Park sign 105 metres from the car park.
Mrs Bremner described a number of signs. She is the fourth plaintiff, a former primary school teacher who graduated in 1969. She and her late husband married in 1969 and bought their first house in Gracetown in July 1984, moving in in December of that year after the start of the school holidays. Mrs Bremner explained that both she and her late husband longed for country life. She has lived continuously at Gracetown and is now in her third house there. She knows the area intimately. Community minded and a walker, she was involved in community projects including a busy bee planting marram grass on South Point, with a view to curbing the extensive erosion there. She knew the local shire officers, councillors for the district, and the local CALM officers. Mrs Bremner identified four photographs of signs which came into evidence as exhibit 6 and five photographs of walk tracks which came into evidence as exhibit 7. Two of these photographs depicted signs reading "Please keep to walkway" and "Rehabilitation area – Please keep off" which were located such that Mrs Bremner thought that the area was within land controlled by CALM and because they were erected by CALM officers and were standard CALM type signs. These signs were routed wooden signs with white lettering but Mrs Bremner did say that the signs did not bear any CALM or National Parks symbols and she did not see specifically who had erected them.
Mr Rothery gave evidence that there were three or four signs along the walkway to South Point including one that was at the top of the goat track which read "Rehabilitation Area – Keep Off". He made a number of signs which were wood, routed with white lettering and the same as the National Parks or CALM signs. Further, he said that signs made by the Shire did not always have any identification on them that they were Shire signs. He recalled that in 1994 additional CALM signs were erected along the walkway out to South Point past the goat track.
Mr Armstrong recalled that there was a "National Park" sign on the walkway out to South Point.
Mr David Brash was the former planning officer of the Shire between 1990 and 1994. He had surfed at Huzza's. He said there was a sign on the fence of the car park at the commencement of the track leading out to South Point which read "Leeuwin‑Naturaliste National Park".
Finally, Mr Klok testified that at about the time he was in charge of a group of workers employed on the joint CALM/Shire rehabilitation project in 1984 there was a sign which read, "Fragile Area – Please Stay on the Walk Track" which as I understood his evidence related to the track out to South Point. He further testified that CALM had erected signs saying "Rehabilitation Area – Please Keep Off" along the walkway to South Point which signs were routed wood with a brown background and white lettering.
With regard to these man made features it is clear that the Shire took responsibility for maintaining the car park and the ablution block together with the steps leading down from the car park to the beach. The walkway from the end of the South Point car park through to South Point appears to have been maintained jointly by the Shire and CALM at least for part of the way, exactly how far is not clear to me on the evidence, and the boardwalk and the South Point steps down to the beach along South Point were at least one time built as part of a joint project between the Shire and CALM as part of funds obtained jointly under the wage pause programme but which were apparently administered by the Shire. The track which led from the town site reserve playing fields through Reserve 37456 and into Reserve 27618 and ultimately joining with the track that led into Reserve 13404 appears to have been maintained jointly at least as to parts thereof by CALM and the Shire.
After the collapse, the sign in exhibit 6 which reads "Leeuwin‑Naturaliste National Park" was erected by CALM in a location which identifies the boundary between the National Park reserve and the recreation reserve vested in the Shire.
Looking now at the documentary evidence, it presents every bit as confusing a picture as the oral testimony. Part of the papers forming exhibit 115 comprise the minutes of a meeting of the Leeuwin‑Naturaliste Ridge Advisory Committee held 29 March 1977 where the "complexities of the boundaries of this National Park" were noted. Exhibit 73 is a copy letter from the Shire to the Department of Lands and Surveys dated 10 June 1986. This letter was identified by the Shire's former planner, Mr Peter Driscoll, and whilst the letter specifically requests a survey to ascertain the boundary between the town site and Reserves 27618 and 7406 (the North Point area) the letter went on to indicate that there were other areas where the precise boundary needed to be established, namely in the area south of the town site. It would appear that this survey was never undertaken. There were then a number of documents which identified a need for a rationalisation of boundaries, it would seem primarily for a better identification of the Leeuwin‑Naturaliste National Park although there were subsidiary issues as well and in this group of documents (part of exhibit 115) are the Leeuwin‑Naturaliste National Park management plan dated 24 February 1989, the draft Gracetown town site strategy and the Gracetown Progress Association's response in exhibit 2D1; exhibit 65, being a copy of the minutes of the Surfing Committee meeting held 8 June 1995 attended by Roger Banks and Neil Taylor from CALM, wherein there was obviously some discussion about boundaries of land within CALM and Shire control and finally, exhibit 65, the minutes of meeting of the Shire Council held 14 December 1995 at which it was resolved that the council acting in concert with the Shire of Busselton in effect should press CALM for a review of the Leeuwin‑Naturaliste National Park boundaries.
From formal acknowledgement of a perceived need to identify local government and national park boundaries with some precision there is then a body of documentary evidence which demonstrates some degree of confusion as to the position of the boundary between Reserve 27618 and Reserve 13404. Among this part of the documentary evidence the Gracetown Progress Association correspondence illustrates uncertainty on the part of that association. For example, included in exhibit 115 is a copy of a letter from the association to the National Parks Authority of 16 September 1985 asking that a "No Dogs" sign be placed at the beginning of the South Point car park leading out to the South Point. Exhibit 41 is a copy of a letter written by the association to CALM on 17 April 1995 relating to damage to the steps both at South Point and at Huzza's requesting that CALM attend to the matter and in January 1996 the Gracetown Progress Association records in its minutes of a meeting held that day that there was a problem "where jurisdictions start and stop".
Further documentary evidence shows that there were clearly times when the Shire regarded the land at Huzza's as forming part of the CALM estate, for example, exhibits 44, 51, 58 and 80.
The opposite side of this conundrum, namely the CALM perspective, likewise demonstrates that there were times when CALM was confused about its jurisdiction as evidenced by two letters comprising part of exhibit 2D27, being a copy letter from CALM to the WA Surf Riders Association of 16 February 1987 and an internal CALM memorandum dated 25 March 1987. Similarly exhibits 29 and 33 are evidence of this. After the cliff collapse the documentary evidence (as distinct from the oral testimony in this instance) likewise indicates some degree of confusion on the part of CALM as to whose land the cliff collapse area was. For example, Dr Shea, the then executive director of CALM provided a memorandum to his Minister which included the statement that: "CALM has not yet been able to determine whether the site of the cliff collapse is within the Leeuwin‑Naturaliste National Park or Shire Reserve". The next day the tone had changed somewhat in a memorandum from Dr Shea to the Minister also part of exhibit 2D27 which reads in part:
"Despite doubt as to which authority has responsibility for the land in question I believe that the State Government needs to take the lead role at this time."
Dealing with the third and fourth indicia together and apart from the documentary records, the oral testimony as to whether or not any of the first three defendants manifested themselves as having or not having occupation or control and the public perception of control likewise very much presented a confused picture. At least in part this was because it was unnecessary for the Shire and CALM to know the exact location of the boundary. It is not controversial that there was no boundary peg in situ as I have previously mentioned. More accurately it was not visible as the evidence of Mr Horsley, the surveyor, revealed, because it was buried under six or eight inches of sand. The reason why for the most part it was unnecessary for the Shire and CALM to know the exact location of the boundary was that there was a history of understandable co‑operation between the Shire and CALM in relation to matters that affected them both in respect of areas where land within their respective control abutted the other's lands. The history of co‑operation was noted by many witnesses (Rothery, Preston, Boow, Mason, Calneggia, Stannard, Driscoll, Klok and Banks). In Mr Driscoll's case, he said that when Shire employees worked on the track to South Point, they went to the dune blow‑out and National Parks took over from there. But the lapse of time and the lack of precision meant the hand over point could not be identified at trial (by me at least). Likewise Mr Rothery said he and Mr Klok had a similar understanding but in his case it was that the Shire maintained the land up to Huzza's Beach.
Mr Ken Preston, former shire clerk for 12 years, said that whilst the Shire was aware that its land abutted CALM land in many places throughout the Shire, there was a lack of awareness of precise boundaries. Mr Trigg was the shire engineer at the time of the collapse and had been since 1992. He said that when he first joined the Shire he performed an inspection of major sites in the Shire and at Gracetown and was told by the maintenance team that their work did not extend past the toilet block at the South Point car park and on regular visits he never went past that area. He thought the area of the cliff collapse was CALM's land. This is what Mr David Brash thought too. He was a planning officer employed by the Shire between 1986 and 1994 and afterwards consulted to the Shire. He had access to the cadastral plans for the Gracetown town site and in interpolating or estimating the boundary between the reserves he thought the boundary was about 20 to 30 metres west from the end of the car park. As previously noted he also recalled that there was a National Park sign at the commencement of the track that led out to South Point. Insofar as it was suggested by Mr Rothery in his evidence and put to Mr Brash that he had told Mr Rothery there was a boundary peg to the left or the westward side of the vee in Huzza's Cove, Mr Brash denied that he said that and said that he had never seen a peg and did not know that any peg ever existed. In this regard I accept Mr Brash's evidence and conclude that Mr Rothery was mistaken. Again, at the time of the cliff collapse he thought the land was within CALM jurisdiction. This was the view of Mr Len Calneggia also who was the assistant shire clerk at the time of the cliff collapse. He always thought that the whole of the South Point was CALM land which began about 20 metres from the edge of the car park. Jack Stannard was employed as a senior ranger by the Shire between 1990 and 2001 and he thought the Shire's jurisdiction ended at the South Point car park steps as did Noel Mason who was the acting CEO of the Shire at the time of the cliff collapse.
Mr Klok said that as far as he was aware there was no survey peg to delineate the boundary between CALM and Shire land and that there was nothing to indicate the boundary between the reserves either on the beach or at the top of the cliff. However, his understanding was that Huzza's Beach was part of the Gracetown town site reserve which was based upon his examination of a series of maps and he said that he knew within a few metres where the boundary was. Without in any way wishing to adversely reflect upon Mr Klok's credibility, having taken a view of the area, I find his evidence somewhat surprising. Mr Klok impressed me as being an honest and considerate witness, not at all defensive, but without any reference point at all to be able to say that he knew within a few metres where the boundary was surprises me greatly. Firstly, standing from the beach and looking up the cliff, in the absence of a very tall boundary marker peg I would frankly defy anybody to say where the boundary was to within a few metres prior to the survey undertaken at CALM's direction after the event. Proceeding out along the track from the end of the South Point car park there is no stand‑out geographical feature which would have enabled anybody to delineate the boundary in 1996. The best that could be done would be an estimation.
It is as well to mention at this juncture my impression of the diagrams comprising part of the draft Gracetown town site strategy, exhibit 2D1, at pp 2635 and 2647. That at 2635 is clearly not to scale and that at 2647 is incomplete and on a scale that is quite unhelpful and insofar as it is suggested that anyone who had access to and then looked at either of those plans with a view to trying to find out where the boundary was between the Reserves 27618 and 13404 could have picked it fairly closely is misconceived. In my opinion if anything each of these plans puts the boundary through the site of the cliff collapse or to its east and apart from which they are both inaccurate as a very simple comparison with exhibit 1 discloses. Hence even if those plans had been consulted they were apt to mislead.
Now I come to the area of controversy concerning some of CALM's actions after the tragedy. Certainly all of CALM's activities in the rescue attempts, the remedial works and the like are all understandable and commendable responses by an agency of the State responding to a disaster as best it could in the circumstances. There is one area of concern however, and that is the reason given by Mr Chandler in his letter to the Shire of 22 October 1976 why CALM assumed responsibility for so much of the remedial work. He wrote:
"At the time of the accident we could not determine who the land belonged to and who therefor was the lead agency so it was necessary for either [the Shire] or CALM to take it on. As we were unable to locate an appropriate authority in the Shire on Friday 27 September to discuss the question we decided to assume that responsibility." (Exhibit 115 – doc.674)
It was suggested to Mr Chandler by counsel for the Shire that this was "spin" because the evidence was clear that there had been good contact between CALM and the Shire. Mr Chandler looked distinctly uncomfortable with this line of questioning, so much so that in the end result I have concluded that it was "spin". In other words an after the event reconstruction to deflect or answer in advance suggestions that by acting as it did CALM was indicating either that it had some control of the land in question, or at least believed it did, and hence may have been liable in some way for the cliff collapse. The context in which his letter was sent must be recognised: CALM had commissioned a survey to ascertain the true boundary between the reserves, because it acknowledged that without the survey it could not be known with certainty upon whose land the tragedy occurred. (Chandler T3601.)
In my opinion the evidence reveals that the land was undoubtedly within the Shire's control by reason of the reserve having been vested in it. The Shire cannot avoid this finding by arguing that no‑one can have control of a cliff or that it never took control of this part of the reserve – it has control over the whole of the reserve vested in it: Schiller v Mulgrave Shire Council at 123 ‑ 125.

Right up until the time of the tragedy there was not a skerrick of evidence adduced in the trial to suggest that the preparation for the course and the competition had not been well thought out and organised with consideration having been given to safety and the engagement of a suitably qualified instructor. There had been no untoward incidents – nothing to suggest that this activity would in any way be accompanied by risk. The only known risk was of some incident in the water and teachers were in the water with their pupils looking after them.
I have already observed that had Mr Bradstreet gone to Huzza's Beach he would have found the late Mr Bremner there. Mr Bremner and Mr Bradstreet were known to each other. Mr Bremner's reputation was as a careful and responsible man and, as Mrs Bremner testified, he was a conscientious teacher who would have had the safety of the children he was supervising as a paramount duty in his mind (T387).
As I have already found, this calamity could not reasonably have been foreseen. Indeed, in my opinion it was completely unforeseeable.
This then leaves the claims of the second and fourth plaintiffs against the Minister. I will deal with that of the second plaintiff first. In his closing submissions Mr Viner QC submitted that the late Mr Thompson was an employee of the Minister saying:
"He was engaged for remuneration. He was paid remuneration. He was engaged to provide coaching lessons to the children as part of the school lessons. He was under the direction of Mr Gibbon so far as the care and safety of the children in and out of the water (sic) he, no doubt like any other employee, is not directed as to the skill that is applied by them in performing their duties, that is, skill in teaching and surf‑boarding just the same as a geography teacher applies the skill for which they have been trained and are licensed but in terms of the capacity for Mr Bradstreet or Mr Gibbon to have directed Mr Thompson about the school lesson, where it was to take place, when it was to take place, how it was to take place and what was to be done at the location for the safety of the children in and out of the water Mr Thompson was under the control and direction of the school principal and Mr Gibbon.
In my respectful submission, that makes him an employee as much as Mr Bremner was on this particular occasion. Therefore the Occupational Safety and Health Act applies to Mr Thompson as much as it does to Mr Bremner."
The requirement of the Occupational Safety and Health Act 1984 by s 19(1) is that an employer shall, so far as practicable, provide and maintain a working environment in which his employees are not exposed to hazards and by s 19(1)(a), to provide and maintain workplaces such that, so far as is practicable, his employees are not exposed to hazards extends to contractors by virtue of the provisions of s 19(4) "in relation to matters over which [the principal – for which read 'employer'] has control or, but for an agreement between him and the contractor to the contrary, would have had control."
In my opinion the Minister clearly did not have control over the provision of surfing lessons such that Mr Thompson became an employee for the purposes of s 19(1) of the Occupation Safety and Health Act 1984. In other words this was not a case like Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 where the employer in effect maintained control over the system of work employed by subcontractors such that where the system was seen to have given rise to a foreseeable risk of injury the head contractor remained liable notwithstanding that there was no relationship of employer and employee. In that case a number of the justices looked at the indicia pro and con of determining whether a person was in truth an employee rather than a subcontractor or not. On the evidence before me the late Mr Thompson ran his own business as a surf coach and was an accredited surf coach who would coach those who sought his services. He decided when he would work, paid his own expenses, paid an assistant out of his income, provided all of his own equipment and additionally ran a surf shop. There is nothing in the evidence that suggested to me that the late Mr Thompson was an employee of the Minister within the meaning of such cases as Stevens and the wealth of other authority on the subject: Transport Workers Union v Readymix Group (WA) (1981) 61 WAIG 1705 (the owner driver's case); West Australian Carpenters & Joiners Bricklayers & Stoneworkers Union v Izzo (1984) 64 WAIG 411; CMEWU v Williamson (1988) 68 WAIG 1015; Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Re Porter; Transport Workers Union of Australia (1989) 34 IR 179 (another owner driver's case – this time taxi drivers); Southern Group Ltd v Smith, unreported; FCt SCt of WA; Library No 970284; 5 June 1997.
Because of my finding that the late Mr Thompson was not an employee but an independent subcontractor it follows that the Minister did not owe the late Mr Thompson the non‑delegable duty of care owed by employers to employees and accordingly, the second plaintiff's claim must be determined according to the ordinary principles of negligence. Again, because this is not a case about an unsafe system of work but an allegedly unsafe place where a contract for the provision of services was to be performed, a claim could only arise if it was shown that the Minister negligently exposed the late Mr Thompson to a foreseeable risk of injury. As I have already found this is not the case and the second plaintiff's claims under the Occupational Safety and Health Act 1984 and in negligence must be dismissed.
This then brings me to the claim by the fourth plaintiff under the Occupational Safety and Health Act 1984. Mr Bremner was an employee of the Minister and was, accordingly, owed those duties of care the law recognises as being owed by employers to employees. These duties are usually expressed as the duty to provide a safe place of work, a safe system of work, safe working plant and equipment and competent fellow employees. However, none of these duties was identified in the statement of claim, as I have already pointed out. Insofar as I am left to infer that the fourth plaintiff brings an action in negligence by reason of the Minister's breach of his duty to provide a safe place of work for the late Mr Bremner then, likewise, as is already noted, any claim arising out of the state of the premises namely Huzza's Beach, must fail. The claim under the Occupational Safety and Health Act 1984 alleges a breach of the statutory duties not to expose the late Mr Bremner to hazards presumably in the workplace pursuant to s 19(1)(a) because par 18(a) of the statement of claim alleges a failure to provide "a working environment" and s 19(1)(a) of the Act requires an employer to "provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards". And insofar as the alleged breach of s 19(1)(b) is concerned, the allegation is that there was a failure to provide information, instruction, training and supervision necessary to enable Mr Bremner to conduct his duties at the inter‑primary school surfing competition in such a manner that he would not be exposed to hazards. There is then the claim under s 22(1) of the Act which provides that:
"(1) A person who has, to any extent, control of —
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards."
Insofar as the claims under s 19 are concerned, the important words are "so far as is practicable". In the sense in which "provide" is generally understood, the Minister did not "provide" the working environment at Huzza's Beach nor did he provide Huzza's Beach as a workplace. "Practicable" is defined in the Act as follows:
" 'practicable' means reasonably practicable having regard, where the context permits, to
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b)the state of knowledge about —
(i)the injury or harm to health referred to in paragraph (a);
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);"
As I have already found, there was no known risk associated with the use of the beach in Huzza's Beach; there was no known hazard associated with the use of Huzza's Beach. Hence, in my opinion the Minister not only did not provide the working environment or the workplace but he had no knowledge of any hazard or risk such that he was in breach of his statutory duty in either of the respects claimed pursuant to s 19 of the Act.
As to the claim under s 22(1) of the Act in my opinion the Minister had no control of this workplace in any relevant sense. He had no power to fence it off or erect warning signs even if he had thought either or both were necessary. The most the Minister could have done would have been to have controlled the activities of Mr Bremner himself rather than his so‑called working environment at Huzza's Beach on that day by forbidding him to go there which would meant, of course, forbidding him to take any children in his control there as well, and no basis has been established on the evidence as to why the Minister should have even contemplated such a direction.
For these reasons the claims of the fourth plaintiff under the Occupational Safety and Health Act 1984 must likewise be dismissed. Accordingly, all the plaintiffs' claims against all defendants are hereby dismissed.

Contribution proceedings

Because I have found that all of the plaintiffs' claims must be dismissed, the only orders to be made in respect of the notice of contribution are that the second defendants' notice of contribution against the first and third defendants be likewise dismissed and, as to costs. Whilst I will hear the defendants as to costs in the contribution proceedings a provisional finding is required. As I have found that the State, the Shire and CALM shared control of the land in question and hence were all occupiers of it within the meaning of the Occupiers' Liability Act 1985 on the facts as I have found them to be, had the plaintiffs' claims or any of them succeeded I would have found that the first and third defendants were 50 per cent liable and the Shire 50 per cent liable. In those circumstances I would have likewise dismissed the claim for contribution but this too would inevitably have left an issue with costs because the State and CALM ran a case at all times that sole responsibility for this land lay with the Shire.