Nagle v Rottnest Island Authority

[1992] HCATrans 299

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 1991

B e t w e e n -

PAUL MAURICE NAGLE

Appellant

and

ROTTNEST ISLAND AUTHORITY

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 13 OCTOBER 1992. AT 3.30 · PM

Copyright in the High Court of Australia

Nagle(2) 1 13/10/92

MR D.R. WILLIAMS, QC:  May it please the Court, I appear

with my learned friend, MR M.E. HERRON, for the

appellant. (instructed by Gibson & Gibson)

MR K.H. PARKER, OCf Solicitor-General for Western Australia:

If it please the Court, I appear with my learned friend, MR R.E. COCK, for the respondent.

(instructed by the Crown Solicitor for Western

Australia)

MASON CJ: Yes, Mr Williams.

MR WILLIAMS: Copies of the outline of submissions have been

handed up. Before I address the Court, perhaps I

could deal with two or three small housekeeping

matters. In the reproduction of the appeal books

it seems that a page has been left out.	What is
page 490 is an attachment to a report of

Mr Wallace. Could I respectfully suggest that the

page I have just handed up be incorporated and
numbered 490 and that which is in volume three and

marked 490 be marked with 490A.

Another small matter, Your Honours, in

volume three, page 449, there are two photographs

comprising part of exhibit 14. The photograph at

the top is marked photograph A. That may, in fact,

be what has been treated throughout as
photograph B. In other words, they have been

transposed on the page or the arrangement in the

original exhibit was different.

Could I take Your Honours on a very brief tour of Rottnest Island.

MASON CJ: It is not going to take long, is it?

MR WILLIAMS:  No. Around-the-island tour would take about

an hour and a half, Your Honour; I would expect to

be about two minutes. Exhibit 12, at page 455 in

volume three, is a reduced plan of the island. The

Basin with which we are concerned can be seen just

to the west of the north-eastern most point of the

island; that is in the top right-hand corner.

First there is Duck Rock, then Monday Rock and The

Basin is immediately to the left of that.

The main settlement in the island is in

Thomson's Bay. It is in the northern half of

Thomson's Bay. It stretches, broadly, from

Mushroom Rock down past the main jetty which is

that promontory, past two smaller jetties down to a

point between that smaller jetty and the promontory

about two-thirds of the way around to Natural

Jetty. It can be seen that there are two tracks or

two paths or roads as they actually are between the

Nagle(2) 2 13/10/92

settlement and The Basin forking and then joining
together.

Reference is made in the evidence to work done by the Rottnest Island Board in relation to

navigation channels in four bays: the first bay is

Longreach Bay, which is immediately adjacent to The

Basin on the western side; the second is Geordie

Bay, which is immediately around the point and the

reef; then the third is Stark Bay, which is right

down near the narrow neck, so called, of the island

on the northern side; and then the fourth one is

Marjorie Bay, which is beyond Narrow Neck,

approaching the west end. The ferries come into

the main jetty in Thomson's Bay in the main.

Moving from there to The Basin, exhibit 2 is at 447 in the same volume. Can I hand up, in case

Your Honours have difficulty with the plan, the

original size of exhibit 2. This is what is called

a locality plan. The wave platform or ledge which

is a limestone formation can be seen in the line

which starts at the top towards the right and

follows obliquely across and then comes down and

around forming roughly a U shape with the rocks on

the right and proceeding out to the middle of the

right again. Inside that is the water. In the top right there is an opening which is out to a channel

which runs further along immediately to the north

to the sea.

That contains within it a rectangle. That

rectangle is exhibit 3. It is a reproduction in
the larger form of that. Exhibit 3 may be the more

useful document. Exhibit 3 is in the book at 448

but, of course, in a small form. This faces in the

same direction, to the north with the beach at the

bottom. The wave platform is shown and we are

concerned with the eastern side which is on the

evidence, rocks marked 1, 2, 3, 4, 5 and 6. right-hand side and with, in particular, in the The evidence showed that at 2 o'clock on

16 October 1987 the water level was 0.3 metres

above low-water mark. The markings that are shown

on exhibit 3 are plus or minus measurements; a plus
measurement is a measurement taken above low-water
mark and one which is a minus is below low-water

mark. Just to take an example: immediately to the

right of rock No 1, if my reading is correct, on

the platform between the words "wave" and

"platform" is a reading of +0.3. That means that

it is 30 centimetres above low-water mark and when

the water is at 0.3 above low-water mark that is

exactly level with the level of the sea.

Immediately below that, in the sand between the

rock and ledge, is -0.33; at low-water mark that is

Nagle(2) 13/10/92

33 centimetres below the water level. When the

water level is at 0.3 metres it is, in fact,

0.63 metres from the top of the surface of the

water to the bed of The Basin.

The feature for present purposes of this part

of The Basin is the structure of the rocks. logical point of entry which is the bottom of The

Basin. Rock 3 is further out. Rock 3 has some

features worth commenting on. The southern end,

that is closest to the beach, shows -0.7 is the low

point of the rock at that end. That means that it

would be a metre below water level at the relevant

time. At the other end it is -0.08, which means it

would be -0.38 at the relevant time and in the

middle it is +0.08, which means at the relevant

time it would be -0.22.

Immediately to the right it can be seen that

the height of the rock is much lower than that

centre or crest running along the middle of the top

half in a north/south direction. It is a 0.45

which means that at the relevant time it is 0.75

below water, and -0.58 which means it would be

-0.88, which indicates as the surveyor has shown on

the plan that the rock has a face which is

approximately half a metre high at that point.

Similar comments can be made in respect of

rocks 5 and 6. The surveyor has marked on the

right-hand side of rock 4 that there is a steep

face half a metre high. On rock 5, steep face,

0.65 metres high and on rock 6 a steep face

0.7 metres high. Those triangles on rocks 5 and 6

are intended to indicate the line in the ridge.

Could I take Your Honours then to some

photographs that show the nature of The Basin.

Your Honours will observe from the findings of the

trial judge that The Basin is not entirely a static

environment. During the winter storms come from

the north-west and they effectively excavate the

sand within it. Then, as the storms abate the
evidence was that around about October, which is

around about the time of the accident, in an

ordinary year the sand is returned by the sea.

At 423 in volume three are some photographs

that were taken in December 1985. The photograph E

on page 423 gives a fairly clear pictures of The

Basin taken from the rocks on the western side

above it. If one compares the survey diagram or

sketch in exhibit 3 with what is seen there, the

rocks that were broken can quite readily be seen

and it is plainly at relatively low tide but the

rocks numbered 1, 2, 3, 4, 5 and 6 are not clearly

Nagle(2) 4 13/10/92

delineated because to some extent they are covered

by sand, to some extent they are covered by weed.

That is a feature of the appearance of The Basin at any given time. December is significant because it

is after the sand has returned but perhaps before

The Basin has undergone the heavy use that it

receives during summer holidays.

Over the page, photograph G shows the land to

the south, that is behind The Basin. There can be

seen change rooms and a shelter. Then, not readily

visible but if one takes of the four pine trees,

that on the left, one can see a human figure about

to descend the steps that are set in the rock at

that point. They are just a bit to the east of the

right-hand or eastern margin of The Basin itself.

MASON CJ:	They are shown on photograph E.
MR WILLIAMS:	Yes.

MASON CJ: About two-thirds of the way up on the right.

MR WILLIAMS:  Yes. Going back then to photograph D, on 423,

this is a picture behind those four pine trees

generally looking east - perhaps slightly west of

east - and the Basin is not clearly visible because

it is obscured by the land above. There is a sign

there immediately between the two middle pine

trees. That was not there in 1977 but immediately

to the right of that is a small white

weather-beaten sign which was there in 1977. That

is the sign which referred at the relevant time to

an undertow.

On page 425, photographs Hand I are pictures

of The Basin, one taken again from the west and the
other taken from the rocks to the south-west.

Perhaps worth noting is that at the bottom of

photograph H there is a male figure who appears to

be carrying flippers and mask and in photograph I	that figure seems to have donned the flippers and
be diving into the pool.

Photograph J is a photograph which is taken

from the south looking virtually directly north

along the eastern margin of the platform and takes

in sand and weed cover in the vicinity of rocks 1,

2 and 3 and rocks 4, 5 and 6 are not clearly

visible at all although the broken rocks between

those rocks and the platform can be seen. That is

also close to low-water mark. That is taken

8 paces to the west of the steps.

The evidence in relation to these photographs can be traced in the evidence of

Mr Anthony Elliott. There were two Elliotts, this

Nagle(2) 13/10/92

is Anthony Elliott. I will not take Your Honours

to it but he had a written proof of evidence which

became exhibit 9 and appears at page 435 and he

gave oral evidence as well. I just mention it.

BRENNAN J: Is it right to think that the tide at

photographs J to Mis approximately at the level of

0.3 metres above low-water mark?

MR WILLIAMS:  I do not think there is any evidence to verify

that. One could deduce that from the fact that

looking at photograph J the point on exhibit 3

which is shown to be 0.3 metres above low-water

mark appears to be very marginally out of the water

but I do not think I can suggest there is any

evidence to that effect.

BRENNAN J:  I do not know whether it matters very much but

looking at the people in the water in photograph N,

they seem to be not all that far from rock 3 in

pretty shallow water.

MR WILLIAMS:  It varies. The person walking to the west

with the arms out seems to be in shallower water

than the person immediately to the right or the

east who has water up to waist level. If one

examines the depths shown on exhibit 3, in the

middle of The Basin, one can see that there are, in

fact, significant differences. There is, for

example, a difference of 25 centimetres, which

might not sound much but it is if you are walking

across the bed, within what looks about a metre

difference.

The evidence of Dr Penrose and Mr Sullivan was

that the bed would be moving and static and the
differences that are shown in exhibit 3 would be
typical of the state of The Basin at any given

time, although it is moving.

By way of further explanation of the

photographs: Your Honours will see from the

evidence that they are taken with lens of different

dimensions and the reasons for that are explained

in the evidence of Mr Elliott. The photographs

from Oto Y are all taken with a 28 millimetre lens

and with a polarizing filter fitted which filters

out some of the sunlight. So that photographs Oto

Y would not be what one looked at without the

benefit of, for example, Polaroid sunglasses. It

would be brighter and more glittery without that.

At the end of Mr Elliott's proof of evidence,

at page 445, he has produced two little diagrams

that show the positions from which he took the

photographs. Perhaps the photograph which is

closest to where the trial judge found Nagle dived

Nagle(2) 6 13/10/92

is photograph V, which is shown at 445 as being

approximately opposite rock 3 and looking in a

direction which is probably consistent with the

direction of the sun on the day.	The direction of
the sun is shown on exhibit 3.

In exhibit B, bearing in mind it has a

polarizing filter, one can see the reason some of

the witnesses used terms that are not altogether

clear as to what the impression was they had as to

the clarity of the water and the whitish appearance

and the flaky appearance, some different adjectives

that were used.

Photograph Vis taken on a more cloudy day

than the relevant day appears to be earlier in the

day when the sun would be more overhead. At
2 o'clock the sun would be approximately 55 degrees

in the sky and it was approximately 55 degrees west

of north at the time.

Could I turn then to exhibit 14 which is also in volume three. These are photographs taken in

February 1988, which is a time after the holiday season and at a time when any weed in the middle of

The Basin would have been subjected to more

treatment by people using it.	The tide seems to be
at a higher level than shown in exhibit 6.	The

photograph which is marked A takes in most of the

relevant part of The Basin but if one looks at

where rocks 1, 2 and 3 are it can be seen that they

seem to be covered in sand and only shadows of

either weed or rock can be seen at that time. It

is similar with rock 4, although probably less so

with rocks 5 and 6.

Photograph C, over the page, shows the end of

photograph A that was not revealed and it can be seen that in the vicinity of rocks 1 and 2 there

seems to be either a shape of weed or rock.

seems to be a whole lot more sandy than it was when But it

Mr Elliott took the photographs in 1985.

Photograph F, at 453, has what appears to be a

snorkeller almost precisely in the position where

rock 3, which seems to be the villain of the piece,

is shown on exhibit 3. Someone is snorkeling above

it.

Your Honours, in the evidence that is referred to by the trial judge in his account, attempts were made to pinpoint where the dive took place and from

where Nagle was rescued. It was done by asking the

witnesses to pinpoint on a photograph. There were

three photographs used in the main:

photograph 14B, 14F and another, exhibit 13. For

reasons as to which I can offer no comment,

Nagle(2) 7 13/10/92

exhibit 13 is not available; it was, I think, not

available also in the proceedings before the

Full Court of the Supreme Court. I just do not

know where it is and nobody seems to have an

explanation as to where it is. It was a brochure

which showed a view of The Basin and it was used

for the same purposes as photographs 14 and 15.	An
approximate view of the area depicted can be

obtained from an aide-memoire that was produced for

the purposes of assisting His Honour. There were

three aides-memoire produced in which the points

marked by the witnesses were shown.	Can I just
hand up copies of those;	I do not propose to refer
to them.

Your Honours, I stand corrected. It was

before the Full Court;	I still have no explanation
for why it is not here.	My learned friends have

provided a copy of what it looked like. Perhaps we

can now reproduce the exhibit.	We apologize for
that.	We will see if we can get copies produced.

, Can I take Your Honours to the judgments from which the appeal is brought. In order to

understand what is in issue, I think it is

necessary to deal also with the judgment of the

trial judge. His Honour dealt with the issues in

what, with respect, might be described as an

orthodox method, having regard to the rewriting of

the principles of negligence which commenced with
the judgment of Your Honour Justice Deane in

Jaensch v Coffey. We have no quarrel with the

method His Honour has adopted in that respect.

At page 584, His Honour stated the tested foreseeability in terms that we do not seek to

challenge and concluded at line 33:

In my opinion, while it may have reasonably

been considered foolhardy or unlikely for him to do so, it was nevertheless a risk	foreseeable in accordance with the tests just
stated.

His Honour then went on to consider the notion of

proximity and on the following page, about line 35,

he referred to Sutherland Shire Council v Heyman,

and the consideration of the judgment in that case

in Parramatta City Council v Lutz, and he

effectively adopted in the latter part of his

judgment what had been done by His Honour Justice

McHugh in the Court of Appeal in New South Wales.
His Honour Justice Nicholson said that:

In that judgment he expressed the opinion that the Court of Appeal should adopt as a general rule of the common law the concept of general

Nagle(2) 13/10/92

reliance to which Justice Mason referred to in

his judgment in Heyman.

Now, he then proceeded to consider the concept of

proximity and the evidence and how it should be

dealt with, and then concluded at page 603,

line 30:

In my view it is the case that in all the relevant circumstances I have reviewed the

plaintiff was in a relationship of proximity

to the Board.

Then over the page, he says:

It follows from the nature of the factors

from which proximity arises that the plaintiff

could reasonably rely upon the Board, in the performance of its acts and conduct inducing and encouraging him to use the Basin, to not

do so in a manner which would bring him into

risk of injury. In my view that must mean

that the Board owed to the plaintiff a duty to

give him adequate warning that diving from the

eastern ledge of the Basin was dangerous due

to the presence of rocks.

Then he concluded in the last sentence that:

No such notice having been given, breach is

established.

Now, His Honour then went on to consider the

question of causation. His conclusion on this

appears at page 610, line 40. Immediately before

that he said:

Even if there had been a sign warning of the

dangers of diving because of the presence of

rocks it is apparent such a warning would not

have added to the plaintiff's state of
knowledge.	The plaintiff was alert to the

danger of the rocks so,that a sign would not

have told him anything he did not already know

and to which he had not already directed his

attention.

And then:

Testing this by use of the "but for"

test, it follows I am unable to conclude that

the plaintiff's injury would not have occurred

"but for" the defendant's alleged failure to

warn.

Nagle(2) 13/10/92

He repeated that, referring to some evidence, and

then at the end of the first paragraph on page 611

said:

In my opinion, this is a case where
performance of the duty would not have averted

the harm.

BRENNAN J:  Were there any particulars, either pleaded or

argued for, as to what was the breach of the duty?

Putting it another way, what were the terms of the

warning that ought to have been given?

MR WILLIAMS: Particular (c), which is what His Honour

refers to on occasions in his judgment, is in

volume 1 at page 3:

The Defendant by its servants and agents was

negligent in that it:

(c) failed to give any or any adequate

warning that the ledge was unsafe for

diving wh8n it knew or ought to have known that the same formed a natural

platform which members of the public

would assume to be suitable for such

purpose -

And that was basically the allegation around which

this particular part of the case turned.

BRENNAN J: That is as far as it went, was it, to say that

there was no adequate warning, without saying what

an adequate warning would have been?

MR WILLIAMS:  Yes, there was evidence as to the

effectiveness of written and pictogram warnings,

but there was no further particularization of

that - in the pleadings, that is.

BRENNAN J:  Or in the course of argument or evidence?

MR WILLIAMS: Well, in the course of the evidence - perhaps

I could come to that in due course.

BRENNAN J: Yes, very well.

MR WILLIAMS: There is evidence that the Standards

Association of Australia pictograms have been shown elsewhere to be effective. There is also evidence

of what was done in relation to the ..... swimming
pool, where signs prohibit jumping from a diving

platform.

Now, it goes without saying, that before the

Full Court of the Supreme Court the appellant challenged His Honour's finding on causation,

Nagle(2) 10 13/10/92

having succeeded effectively on all the preceding

steps, and the appellant succeeded before the

Full Court of the Supreme Court in effect on that

point, but the majority of the members of the

Full Court took a different view, foreseeability,

and probably on proximity.

So if I could turn to those judgments briefly.

Mr Justice Wallace dissented and would have allowed

the appeal such that the appellant would have

succeeded. At page 629, from the passage in the

middle of the page where he refers to the opinion

of the learned judge, he effectively recites what

Mr Justice Nicholson had decided in relation to foreseeability. Then in relation to proximity over

the page, the passage cited contains those passages

to which I have already made reference on pages 603

and 604, dealing with the duty of care, the scope

of the duty and the breach of the duty. He did not

comment on them and obviously has approved the

terms in which His Honour the trial judge made his

findings.

He dealt with the question of causation at the

end of his judgment at the bottom of page 642:

That was the positioning of an

appropriate sign warning of the dangers of
diving because of the presence of rocks, would

not have added to the appellant's stage of

knowledge. That was because it is said the

appellant was alert to the danger of the

rocks, so that a sign would not have told him

anything he did not already know and to which

he had not already directed his

attention ..... Whilst the appellant was aware

of the existence of rocks in the area, he was

at pains to dive where he thought the water

was clear.	Had there been an appropriate sign
forbidding diving from the wave platform

because of the existence of rocks not readily

detectable, knowledge of the existence thereof

would have given way to knowledge of the

danger of diving because of that fact.

Clearly the existence of the rock which the appellant struck was not apparent.

Mr Justice Kennedy, in fairly explicit terms,

decided against the appellant on the grounds of

foreseeability or on the point of the issue of

foreseeability. He stated the test at page 670 in

terms with which we cannot take exception,

referring to a passage in the judgment in

Australian Safeway Stores Pty Ltd v Zaluzna.	And
then, at the bottom of page 670, he says:

Nagle(2) 11 13/10/92

I have reached the conclusion that, in the present case, there was, relevantly, no

reasonable foreseeability of a real risk that

injury of the kind sustained would be

sustained by persons swimming at the Basin.

He dealt with a number of evidentiary matters. At

page 673 he then said:

In my opinion, the respondent was

entitled to expect that persons resorting to

the Basin would be aware of the obvious danger of diving into rocks which were quite close to the surface and close to the wave platform,

and that such persons would not attempt to

dive into the water until they were satisfied

that no rocks lay in their way.

Over the page he said, the first line:

The nature of the Basin was not, in my

opinion, such as to require the placement of

warning signs -

and then -

I would dismiss the appeal on the basis

that the risk of injury to swimmers was not a

reasonably foreseeable real risk. The

respondent was entitled to assume that any

person venturing to dive into the water would
look with some care for rocks, which the
appellant described as "very foreseeable".

This tragic accident occurred because the appellant failed to "look properly as far as

rocks go", or to look "for a safe place to go

in". He said he could see the bottom, and the

"water must have been clear".

DEANE J: What are those quotations from, Mr Williams?
MR WILLIAMS:	They are quotations from the appellant's

evidence.

Now, what we submit His Honour has done there

is to correctly state the test but to misapply it.

What he has done in the passages on page 673 where

at line 31, "the respondent was entitled to

expect", and a similar passage, page 674, about

line 12, "The respondent was entitled to assume",

is to introduce issues that are relevant either to

causation or to contributory negligence.

He has not directly considered proximity.

Except in one point, which I will take Your Honours to, he has not directly considered causation in

this context, and he has certainly not professed in

Nagle(2) 12 13/10/92

his reasons to be considering the question of
contributory negligence. It is not even, I think,

mentioned. But, in our submission, to say that the

tragic accident occurs because the appellant

"failed to look properly as far as rocks go"; it

looked "a safe place to go in", is not to ask the question, "Was it reasonably foreseeable he would

do that?". His Honour therefore has, in our

respectful submission, not got to the point where

he has properly considered the threshold issue of

foreseeability.

The question of causation he did consider. At

the bottom of page 674, he said in the third last

line:

if, contrary to my view, it was required of

the respondent that it should erect a warning

sign, it would seem reasonable that that sign

should warn of the dangers of diving at any

point along the relevant part of the wave

platform. It would then be difficult to

conclude, on the evidence, that the appellant

would have ignored such a warning.

That is favourable to the appellant on the point at

which the case foundered at trial.

Justice Rowland is, with respect, not easy to

understand. At page 653, His Honour referred to

the well known passage in the judgment of

Your Honour the Chief Justice in Wyong v Shirt at

page 48:

The considerations to which I have referred

indicate that a risk of injury which is remote

in the sense that it is extremely unlikely to

occur may nevertheless constitute a

foreseeable risk. A risk which is not

far-fetched or fanciful is real and therefore

foreseeable.

His Honour quoted also a further passage:

But, as we have seen, the existence of a

foreseeable risk of injury does not in itself

dispose of the question of breach of duty.

The magnitude of the risk and its degree of

probability remain to be considered with other

relevant factors.

It is worth perhaps mentioning, His Honour also

cited from the same judgment, at the top of

page 654, what are, in effect, the opening words of

Your Honour the Chief Justice's judgment in Wyong

v Shirt:

Nagle(2) 13 13/10/92

"Prima facie duty of care arises on the part

of a defendant to a plaintiff when there

exists between them a sufficient relationship

of proximity such that a reasonable man in the
defendant's position would foresee that

carelessness on his part may be likely to

cause damage to the plaintiff".

Now, the judgment in Wyong v Shirt was written in 1980, or I should say was delivered in 1980, I do

not know when it was written. At that time the Anns' test was still to the fore, and the words "prima facie" in that second citation are no doubt

based upon the two part test in the Anns' case.

At that time also the courts had not, in the

way that the High Court has done since then,

separated the question of proximity and

foreseeability, so that in relying upon those

passages perhaps His Honour Justice Rowland was not

mindful of the distinction that has been

subsequently drawn. That is a possible explanation

for what, in our respectful view, is simply

confusion in what His Honour has gone on to do.	He
said at page 653, line 38:

The learned trial Judge, in his reasons,

seems to have compartmentalized the ideas of

foreseeability of risk of injury and

proximity. In an occupier type case it is

difficult, in my view, to give separate

treatment to these two ideas when considering

whether a duty exists.

He said then at 656, line 30:

In my view, the first inquiry is to ask

whether there is this "necessary degree of

proximity of relationship" between the Board

and those who will use the basin, and that is

tied up with the more general question of

whether, in the context of considering whether

a duty is owed, there is a real risk of injury

to the visitor.

That, with respect, is not, in our submission, orthodoxy.

BRENNAN J: What is?

MR WILLIAMS:  For the purposes of this case, we would

submit, that what His Honour the trial judge did

was correct and consistent with the authorities.

Now, there are refinements and refinements that can

be made, but His Honour I think, with respect,

could not be criticized for having

compartmentalized the ideas in the way he did,

Nagle(2) 14 13/10/92

having relied upon the authorities which he cited

for that approach.

BRENNAN J:  Can you compare what the trial judge did with

what Justice Rowland is saying here and demonstrate

some disparity between them?

MR WILLIAMS:  It does. I did suggest that what His Honour

Mr Justice Rowland might be doing is taking an approach consistent with the Anns' approach, which

is really to look for a prima facie duty and then

cut it back in this prima facie duty based on

foreseeability taking into account proximity, but

then applying policy considerations to limit the

class of persons to whom the plaintiff would be

liable. But that really is not explicitly what he

has done and I am not really able to point to any

basis upon which the approach adopted by

Mr Justice Rowland could be justified.

DEANE J: But is not your argument that this is like selling

tickets to a swimming pool, where on the

authorities it is not a question of proximity, it

is a question of whether there is a breach of a

relevant duty of care? I mean, you do not parse

and analyse proximity down to saying, "Oh, you have

got to find this precisely to find injury", and so

on. It is a more general concept. Proximity gives

rise to the duty to avoid a real and significant

risk of injury. I am just suggesting this to you.

The question here is whether in a context where

there is plainly a duty of care of a general type

there was a breach of it.

MR WILLIAMS:  Yes.

DEANE J: Which leads you straight to foreseeability.

MR WILLIAMS: With respect, I do not think you can approach

it in that way. What we are concerned with was

whether there was a particular duty of care, and
whether there was a breach of that particular duty

of care and, with respect, I do not think it really

assists in the identification of the answer to

those two questions by starting with the point,

"Well, obviously, there is a broad duty of some

kind".

MASON CJ: What do you mean by particular duty of care?

MR WILLIAMS:  Was there a duty to take the steps that were

appropriate in this case to prevent the plaintiff

from suffering what was a real risk of injury?

MASON CJ:  But that really is not the way in which the law

is developed. The law is developed in terms of a

Nagle(2) 15 13/10/92

general duty and whether or not there has been a

breach of that general duty.

DEANE J:  I mean, if I invite you into my motor car to drive

down St George's Terrace, you do not define the

duty as one to look up William Street as I go past

to see whether something is coming down at an undue

speed. You define the duty as one to take

reasonable care to avoid and so on.

MR WILLIAMS: Yes, I accept that, and then to identify the

scope of the duty.

DEANE J:  You then apply that to the circumstances of the

case because you have to get from that duty an

obligation, the way your case has been put, to put

a sign up here warning.

MR WILLIAMS:	Yes.
MASON CJ:	Mr Williams, you might reflect on that overnight.

We will adjourn.

AT 4.29 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 14 OCTOBER 1992

Nagle(2) 16 13/10/92