Nagle v Rottnest Island Authority

[1991] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PS of 1991

B e t w e e n -

PAUL MAURICE NAGLE

Applicant

and

ROTTNEST ISLAND AUTHORITY

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

GAUDRON J

Nagle 1 24/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 1991, AT 3.21 PM

Copyright in the High Court of Australia

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

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

applicant. (instructed by Gibson & Gibson)

MR R.E. COCK:  If it please the Court, I appear with my

learned friend, MR K.M. PETTIT, for the respondent.

(instructed by the State Crown Solicitor)

MASON CJ: Yes, Mr Williams.

MR WILLIAMS: 

Your Honours, the applicant brings this case

for sp~cial leave to appeal in the first instance
on the basis that the administration of justice in
the particular case requires a grant of special
leave.

At the trial the appellant, in its case

against the board, relied principally on the board

having a duty of care which required it to do two

things: one was to remove the dangerous submerged

rocks, and the other - and it was an alternative -

was to warn the public of the danger of the

submerged rocks.

The trial judge held in relation to the

submission of a duty to remove the rocks that there
was no duty because the jurisdiction of the board

terminated at low water mark, and the rocks were

substantially almost totally beyond that point, and

in any event it had not been pleaded that the board

owed a duty to cause the rocks to be removed as

distinct from remove them.

In relation to the alleged duty to warn,

His Honour found a duty to warn, but held against

the applicant on the basis that he knew there were rocks in the vicinity and a warning would not have

affected his conduct, and therefore a breach of the

duty to warn was not causative of his injuries.

In the Full Court, the applicant effectively

succeeded on both points on which he failed before

the learned trial judge. Mr Justice Wallace would

have allowed an addition to the pleading on the

basis that the issue of causation of removal of the

rocks was effectively dealt with at the trial; and

Mr Justice Rowland, had it been relevant to his

consideration, would have done the same. There was

a majority for that point. As to the question of

the jurisdiction of the board to remove the rocks
not extending such that it could have removed them

because they were beyond low water mark, it did not

really arise on the basis that the board could

cause the rocks to be removed.

Nagle	24/10/91
TOOHEY J:	Mr Williams, I am not entirely clear what you mean when you say that on appeal the applicant was
successful on both points directing attention only
to the alleged duty to remove rocks. Do you mean
successful in so far as the Full Court would have allowed that matter to be argued, or do you go
further than that?
MR WILLIAMS:	I am sorry, Your Honour, I should break them

into two parts. He was successful in the appeal in

that Mr Justice Wallace and Mr Justice Rowland

would have allowed an amendment to the pleading to

allow the question of the causation to be put.

TOOHEY J: But only to that extent?

MR WILLIAMS:  Yes.

TOOHEY J: Yes, I understand.

MR WILLIAMS:  Then Mr Justice Wallace would have allowed

that the duty extended beyond that, and

Mr Justice Rowland did not see that as being an

issue on his view of the facts.

In relation to the warning, all three judges

clearly regarded the decision of

Mr Justice Nicholson on causation as wrong and said

so. In the case of Mr Justice Wallace it was

intrinsic to his decision. In the case of

Mr Justice Kennedy and Mr Justice Wallace it was

added as, in effect, an obiter comment. So

certainly on the warning, if that had been the

issue, he would have succeeded.

What happened was that Mr Justice Kennedy and

Mr Justice Rowland held against the applicant on a

ground in which they had succeeded before

Mr Justice Nicholson at the trial. They both, and

I have to say this, in effect, or appeared to hold

that the injury was not reasonably foreseeable.

They did this in a most unusual way.

Mr Justice Kennedy, in the application book at

page 87, said:

"Where a duty of care exists under the

common law of negligence, it requires the

taking of reasonable care to avoid a

reasonably foreseeable and real risk of

injury. That being so, a relevant duty of

care will have existed in a particular case

only if there was reasonable foreseeability of

a real risk that injury of the kind sustained

would be sustained by a member or members of a

class which included the particular

plaintiff".

Nagle 3 24/10/91

His Honour is there raising plainly the question of

reasonable foreseeability of the injury, citing

from Justice Deane in Stevens v Brodribb.

If we could formulate the question that was

applicable in the facts of the case the question,

in our submission, was along these lines: was it

foreseeable as a real risk that a person using the

basin for swimming and related activities might

suffer physical injury by reason of the submerged

rocks in the vicinity of the platform unless the

board took reasonable care to prevent the injury?

TOOHEY J:  Do you have to read into that question as

formulated "and who was aware of the presence of

rocks"? Am I making myself clear or not?

MR WILLIAMS:  In our respectful submission, the question to

be asked does not include that at this stage.	If
one formulates it in Wyong v Shirt terms, the

question might be narrowed somewhat to these lines:

is it fanciful or far-fetched to contemplate that a

person using the basin might suffer physical injury

by reason of running, jumping, diving or being
pushed on to the submerged rocks in the vicinity of

the platform? If formulated in that way the

answer, in our submission, is obviously that it was

a readily foreseeable injury. The trial judge had

no difficulty in finding it, although he narrowed

the question even more than I have done in that

form. He confined it simply to a person diving.

What Mr Justice Kennedy said then, at the

bottom of page 87 is that:

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 -

which is a slightly different formulation, but very
close to what I suggested.	He referred to the

evidence, and then at page 90 about line 18, he

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.

Now, I stop to highlight there the words "entitled

to" assume, because that language is not language

Nagle 4 24/10/91

relevant to reasonable foresight of the risk of

injury. Over the page at page 91 he said

something similar:

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".	He accepted

that he had been able to see clearly into the

water before he turned to go in. He only

dived in "when the water seemed clear". If,

as he claimed, the water looked clear to him,

it was by reason of a failure on his part

adequately to look for rocks of whose general

presence he was aware, with the result that he

struck a rock practically immediately.

His Honour, in that passage and the passage from

the preceding page which I have read, in our

submission, has not focused on reasonable

foreseeability at all. He said that that was what

he was doing, but what he has looked at are factors

which go to causation. He has said that the board

was entitled to assume that anybody would take care

not to dive on to rocks. And if one looks at what

he said about the factual situation from the point

of view of reasonable foreseeability, he has, in effect, described the rocks as being an "obvious

danger", his language in line 20 on page 90 -

the obvious danger of diving into rocks which

were quite close to the surface.

TOOHEY J: And is that not a relevant consideration in

relation to foreseeability?

MR WILLIAMS:  Yes, it is. We would not shirk from that, but

what the question that is asked in Wyong v Shirt

terms says is: is it reasonably foreseeable that

someone might be injured? What he has said is

that the risk of someone being injured is so great

that you treat it as not reasonably foreseeable,

which seems to be a contradiction of the

proposition that one looks for a reasonably

foreseeable - - -

TOOHEY J:  I am not sure that that does the passage justice.

Is it that the risk is so great, or that the

presence of the danger is so obvious?

Nagle	24/10/91
MR WILLIAMS:	He is saying that the presence of the danger

is so obvious that the defendant did not have any

responsibility. He is not asking, "Is it

reasonably foreseeable that someone might be

injured?" He is saying it is so obvious that if

someone dived they would be injured, but they were

entitled to assume that nobody would, in fact, do

that.	Now, that is not asking the right question,
in our submission.	If the right question is asked,

in our submission it is very simple for the
applicant to leap the reasonable foreseeability

hurdle as the trial judge allowed and move on to

the proximity point. And when one comes to

proximity and the existence and the scope of any

duty, what Mr Justice Kennedy is referring to there

would then be highly relevant. The question would

be, "What is the scope of the duty?" If one uses

the language of Justice McHugh in the recent

decision of March v Stramare, the question would
be, "Is this injury within the reasonable scope of

the injury that is contemplated by the duty?"

Mr Justice Kennedy has dealt with that without ever

having gone through the stages of defining the

duty. He has simply seen it as a reasonable

foreseeability point, which it is not, in our

submission.

Mr Justice Rowland is, with respect, even more

confusing in the way he has dealt with the

question. He has also purported to decide on the

basis of reasonable foreseeability, but he has

expressly said he has difficulty in

compartmentalizing the concept of reasonable

foreseeability and that of proximity, and he runs

them together. But the language he uses also is

redolent of thinking on causation and it has

nothing to do with foresight.

At page 101 in the application book,

Mr Justice Rowland says at line 29:

The learned trial judge, in his reasons,

seems to have compartmentalised 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.

Then at page 104, after citing authorities,

particularly those from this Court, His Honour says

at line 23:

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

Nagle 6 24/10/91

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.

In our submission, that is not	consistent with the
authorities he has referred to	as an approach.
What he did then, at page 106,	was effectively to
agree with Mr Justice Kennedy.	At line 6 he says:

I should state that I have read the reasons to

be delivered by Kennedy J, in which he states

his reasons for refusing the appellant's

application to reopen the appeal and adduce

further evidence.

I am sorry, that is on another point.

At page 107 at line 9 he returns to the question of foreseeability. He says:

It is, of course, readily foreseeable

that anyone who was minded to dive into the

water from the reef edge on the eastern side
of the pool ran the risk of either hitting his

or her head on the bottom, depending upon the

depth of water, or on the large rocks which,

except for one or two gaps, continued just

below the surface of the water along that side

of the pool.

He refers to evidence that there had been no

previous accident of that nature.

That, of course, is not always the test; but,

in my view, it draws attention to the

likelihood or otherwise of the possibility of
damage actually occurring and being reasonably

foreseeable.

One may well believe, therefore, that the
chance of this happening was very small.	One

might say that the chance of someone diving

into the ocean at any place along the western

seaboard of this State, in the afternoon,

where there are known to be large rocks in the

vicinity, is also very small, with or without

a glitter effect. People usually do not, and

are not expected to, act in this way.	It is a
common enough experience that one can be

momentarily unsighted, or even misled, by a

glitter effect; but that does not mean that

one can foresee that a person is likely to

dive into a known rocky area.

In my view, a proper consideration of the

evidence would lead to the conclusion that the

Nagle 24/10/91

respondent does not owe a duty of care to the class of persons of whom the appellant is one to either warn them of the obvious danger of

diving from a ledge into the water at the
basin or to remove the rocks in that area of
the basin. In regard to the latter, the risk

of injury by diving into water of varying

depth will exist with or without the rocks.

Again, His Honour, in our submission, has not focused on reasonable foreseeability as he set out

to do. He has merged reasonable foreseeability and

proximity, and has ended up dealing, in effect,

with neither. What he has dealt with is causation.

MASON CJ: But it really is carrying responsibility of

authorities a very long way, is it not, to suggest

that they owe a duty of care and a standard of care

in this respect in relation to natural areas of

coastline around Australia? A distinction has to

be drawn surely between municipal baths and pools

kept for use by members of the public where there

turns out to be a risk of injury to a user because

he hits his head or part of his body on a rock, and

these natural areas of coastline where everyone

surely is conversant with the dangers that attend

swimming in them.

MR WILLIAMS:  I accept that, Your Honour. The question is:

where does it go in this case? We are not

concerned with an ordinary piece of natural

coastline. We are concerned with something that

really is a swimming pool. If one suggested that

in municipal baths there was placed 22 centimetres

below the water and for a height of about half a

metre, a large impenetrable rock, one would suggest that the public authority who conducted those baths

would have some considerable responsibility to

anybody who was swimming there. The basin, and

the name itself suggests an open area untrammelled by obstructions, is a natural swimming pool with a

ledge around it which, at low water mark, is

25 centimetres above the water, and at high water

mark is a bit under a metre below it. It is a

natural diving ledge and the photographs in the

document book demonstrate that it is used as a
swimming pool, and is actually used for diving.

One of the photographs was taken at a time when

someone was actually diving into the pool.

It was advertised with the board and continues

to be advertised by its successor as being a place

suitable for families and children, and it is

resorted to by a large proportion of the

approximately 200,000 people who visit Rottnest

Island every year. That was all dealt with in the

evidence. The evidence also established that those

Nagle 24/10/91

rocks are sometimes covered with sand, sometimes

covered with weed. The evidence established that

from the eastern ledge where the appellant dived,

there is at a particular time of the year in a

particular direction, likely to be a blocking of

view by the sun.

If I could just highlight to Your Honours the

particular rock in question. If one looks at

exhibit 3, the unmarked version - - -

MASON CJ: This is in the yellow book, is it?

MR WILLIAMS:  Yes, Your Honour. The unmarked version in the

document book, entitled "Sketch of Survey" - we are

concerned with the section that runs north and

south, marked "Wave platform". The finding of the

trial judge was that the accident took place in the

vicinity of rock 3. Rock 3 is the third one inside

the basin - - -

MASON CJ: The outer circumference of which is etched to the

right of the number 3?

MR WILLIAMS:  Yes. Its high point is at low water mark

.08 of a metre, or 8 centimetres above the water,

and immediately below that, facing the wave

platform .58 of a metre. Now, the evidence

establishes at the time of the accident that there

was a .3 of a metre tide in at the time which means

that there would have been 5 centimetres of water

over the wave platform. The high point in the

middle of rock 3 would have been 22 centimetres

under water. There would have been .88 of a metre

between the wave platform and the rock, and there

would have been .68 of a metre of water behind the

rock. Now, we are talking about estimates -

MASON CJ: Is there a photograph that shows the wave

platform?

MR WILLIAMS: There are several photographs, Your Honour.

The first one in exhibit 14, photograph E, in the

middle of the picture you can see the wave platform
and you can see the part of the wave platform that

is broken but is still generally above the water.

The person who is about point 3 of the length and

point 5 of the depth in the photograph, the broad

shouldered person with his back to the camera, is

standing, in effect, behind rock 3 on the side

opposite the platform. That was taken in

February 1988. There is another photograph in

exhibit 14, photograph F, which shows the same area

but with a greater quantity of water over the

platform. There is, in fact, a person floating

headed roughly in the direction of rock 3.

Nagle 9 24/10/91

In exhibit 6, photograph E, it is taken at a

different time. It is taken in 1985, and on this

occasion it can be seen with a great deal more weed

inside the basin, and in fact, there is some weed

over the line of rock 3 which can be seen just to

the left of the people who are standing on the wave

platform. There is a similar view in photograph H,

which is taken with a different lens, a 50

millimetre as against a 28 millimetre lens at the

same time in 1985. The rough shape of rock 3 can

be seen opposite the right-hand piece of rock that

is still attached to the wave platform and has

broken the surface. In the photograph below that,

one can see that there is on the left-hand side

someone actually diving into the basin.

In photograph J there is a view of the wave

platform looking out along it following the
direction the applicant would have taken when he
walked. In fact, the person who is out on the

platform is just to the right of approximately

where rock 3 is opposite.

Those photographs from O on, that is, from

Oto Y, were all taken with a polarizing filter, so

that the water and what is in the water is rather

more visible than with the naked eye. Perhaps the

closest photograph of relevance is photograph v.

This is taken facing across the pool, approximately

in the vicinity of rock 3, and one can see there is

partial cloud cover on that day. The effect is not

altogether clear. That photograph is taken from a

semi-crouched position with the camera pointed

approximately 30 degrees downwards. It is perhaps
the position a person would be in in the course of

diving rather than preparatory to diving, and I

remind the Court again it is taken with a

polarizing filter.

Within the book there is also an exhibit 3 which is marked, a short version of it, which shows

the distances in one metre segments from the wave
platform in the direction of rock 3.	It indicates

that the steep eastern face of rock 3 which is half

a metre high is exactly opposite the wave platform.

A person diving, who is a competent diver,

according to the evidence, would dive with their

hands entering the water approximately two metres

from where their feet left. That puts the entry

about one metre from the middle, and the evidence

was that the maximum momentum continues from the

point of entry until the person has gone a distance
of some six metres.

Looked at in the light of this being a swimming pool, in our submission, it is readily

apparent that an injury for someone jumping,

Nagle 10 24/10/91

diving, being pushed or fooling around in the
vicinity of that platform and heading in the

direction of the rock, would occur. It is, as the

two members of the majority said, an obvious risk

or an obvious danger.

Now, if one satisfies that test one then goes

to the proximity test which Mr Justice Nicholson

analysed with great care and came to a conclusion

favourable to the applicant. What the majority

have not done is to consider the case of the

applicant on an assumption that there was a duty.

They have negated the duty.

TOOHEY J:	I am just having difficulty with the way in which you are formulating the foreseeability test,
Mr Williams. You formulate it in a way that
suggests that it is foreseeable that something
might happen, for the purposes of your argument, no
matter how obvious the danger might be. You say,
in effect, we will discard that for the moment,
just look at foreseeability and then move on later
to the obviousness of the danger. But can you
isolate the two in that way? Say, for instance,

~there had been a rock in the presence of rock 3 but

well out of the water, both at high tide and low

tide. Would you say it is reasonably foreseeable

that someone diving from the eastern platform of

the basin in that position might damage themselves

on the rock? What have you said once you have said

that?

MR WILLIAMS:  You simply cannot put a limit on the class of

persons for whom there might be a possible duty.

We are looking at a facility that the inexperienced

and the unfamiliar are encouraged to visit, and

they are encouraged to treat as a swimming pool.

In our submission, they come - and this is a

finding made by the trial judge - in effect, on a

general reliance of it being a safe place. Now, no

doubt there are obvious risks involved with that,

and to dive on to a rock is one thing; but there

are rocks and there are rocks. This rock in

particular has a steep face within a diving

distance of the edge of the platform. It is under

the water and can be under the water as much as a

metre. If that were in a swimming pool, a

municipal baths type swimming pool, it would

represent a danger that would cause a public

outcry.

TOOHEY J:  But are you not at the same time saying it was

reasonably foreseeable because it was not obvious?

I am sorry, I put that very clumsily, but it was

reasonably foreseeable that someone might dive into

the basin in that position because the rock was not

obvious.

Nagle 11 24/10/91

MR WILLIAMS:  If one examines the reasoning of

Mr Justice Kennedy and Mr Justice Rowland, they

have said there were rocks there; that was known. Now, it is one thing to say there were rocks there

and the rocks are dangerous. It is another thing

to say there is a rock there which has a steep face

facing a platform suitable otherwise for diving,

which is under the water, which is sometimes

covered with sand, which, dependent upon the

surface of the water, may be affected by refraction

dependent upon the position of the sun, the

visibility of which may be affected by reflection.

Now, all of those things - - -

GAUDRON J: Or not having your glasses on, which you never

do when you go swimming.

MR WILLIAMS: Exactly, yes. Many people are in that boat.

There are children and there are people who are not

familiar with playing in a pool like that.

TOOHEY J:  I understand that if you build the notion of

obviousness or non-obviousness into the question of

foreseeability, but you are inviting us, as it

were, to put that question to one side and you

formulate foreseeability in terms more general,

namely, it was foreseeable that someone might dive

into the basin from the eastern platform.	I am
just trying to understand the way in which foreseeability is being put.

MR WILLIAMS:  The formulation I offered was: was it

foreseeable as a real risk that a person using the basin for swimming might suffer physical injury by reason of the submerged rocks in the vicinity of

the platform unless the board took reasonable care
to prevent injury? And then to narrow it: is it

far-fetched to contemplate that a person using the

basin might suffer injury by activities from the

platform in the vicinity of that particular rock?

TOOHEY J: Yes, I understand that, thank you.
MASON CJ:	I think you have made your points, have you not,

Mr Williams?

MR WILLIAMS: Yes, Your Honour. Could I just say that if

there is a special leave point arising out of that,
the question might be formulated along the lines

of: does something cease to be reasonably

foreseeable because it is so obvious that a normal

mortal would not ignore it?

MASON CJ: Yes, well you are then beginning to trespass, you

would say, beyond the boundary line of duty of care

into aspects of contributary negligence.

Nagle 12 24/10/91

MR WILLIAMS:	Or causation in relation to the duty.
MASON CJ: Yes.

MR WILLIAMS: There is a second aspect to the appeal which

His Honour Mr Justice Nicholson in the course of his judgment dealt with issues that are of significance in this Court. They were not dealt

with at all by the Full Court because of the

approach they took.

The first issue which His Honour specifically raised in his judgment - and he did it by reference

to the judgment of Mr Justice McHugh as he was at

the time, a member of the Court of Appeal of New

South Wales, in Parramatta v Lutz - the

question - - -

MASON CJ: This is this reliance point?

MR WILLIAMS:  Yes. Now, the issue that arises, and it is

apparent from the written submissions that the
respondent has provided us as to its case on our
present application, is that that continues to be a
contention between the parties. The question that

might arise is: is general reliance the only basis

upon which a public authority will be called upon

to exercise a positive duty in the terms identified

by Your Honour the Chief Justice in Sutherland?

In relation to the removal of the rocks as

distinct from a duty to warn in relation to their

presence -

MASON CJ: There is not much in that, is there - direct

removal of the rocks?

MR WILLIAMS:  Yes.

MASON CJ: It is beyond the jurisdiction of the Authority,

is it not?

MR WILLIAMS:  What Your Honour is accepting is what

Mr Justice Nicholson found, and if one looks at the

scheme, the jurisdiction of the Authority covered

the wave platform because it was above low water

mark, and it covered the top point of rock 3

because that was eight centimetres above low water

mark. The jurisdiction did not extend to the

remainder of the rock. That is the point we are

talking about in relation to the jurisdiction. In

our submission, it raises a very neat but perhaps

tiny point in relation to the duty of a public

authority which has a territorial limit on its

powers.

Nagle 13 24/10/91

His Honour Mr Justice Nicholson also flagged a

question which, on the view he took of the
jurisdictional point, did not arise for

consideration, namely, whether the duty of a public

authority which arises out of occupation and

management of land is a non-delegable duty. Was

there a duty to ensure reasonable care was taken?

And that would remain as an issue if the next stage

of the proceedings had got to the consideration of

the Full Court.	They are our submissions,
Your Honour.

MASON CJ: Thank you, Mr Williams. Yes, Mr Cock.

MR COCK:  If Your Honours please. May I assume Your Honours

have been given a copy of our outline of

submissions that were filed recently.

If Your Honours please, it is our respectful

submission that the approach of the majority of the

Full Court was correct in law, and my friend has

not demonstrated any error in that regard. The

point that he tries to develop is, as I apprehend

it, that the majority of the court, by

concentrating on a narrow question when asking

whether there is a foreseeable risk of injury to
bathers, somehow misconceives or is led into error

in asking the question that is necessary to

formulate a duty of care.

It is our respectful submission that the only

question that could possibly be asked in discerning

whether there was reasonable foreseeability of risk

to bathers in the basin is whether a person would

dive into a rock, because that is the only possible

suggestion of any reasonable risk of any injury.

It is our respectful submission that the majority

of the court approached that question correctly and

my friend has not demonstrated in their approach

that there is any error of law, and indeed, in my respectful submission, when one goes to the facts

which is, of course, not necessary at this stage, there is no error in that regard either.

It is our respectful submission that the

approach adopted by Their Honours Justices Kennedy

and Rowland - if I could take Your Honours very

briefly to Mr Justice Kennedy's judgment at

page 88, my friend has read to Your Honours the

previous passage at page 87 from about lines 9
through to the bottom of that page, and at

pages 88, 89 on to 90, His Honour

Mr Justice Kennedy analyses the various

considerations that swayed the learned trial judge

to come to the opinion that it was a reasonably

foreseeable risk of injury. His Honour the learned

trial judge whose decision was seemingly accepted

Nagle 14 24/10/91

by Justice Wallace in dissent in the Full

Court - the learned trial judge's judgment is, I

think, at page 27 - and in my respectful

submission, Your Honours should contrast what is,

with respect, a much more simplistic approach by

the trial judge to the much more careful and

analytical approach to the question of reasonable
foreseeability by Justice Kennedy and also by

Justice Rowland.

In my respectful submission, what criticism my

friend makes of the framing of the test by

Justices Kennedy and Rowland is, in fact, not

justified when one appreciates the only possible risk would be a risk of persons diving, and that

risk itself is not reasonably foreseeable. And

self-evidently, in my respectful submission, the

photographs to which my friend has taken

Your Honours demonstrates that this is not a swimming pool, as my friend asserted it was; and

self-evidently, if it was, the position would be

entirely different. But it is no answer for my

friend to suggest it is tantamount to a swimming

pool when Your Honour the Chief Justice suggested

that a distinction needs to be drawn between the

natural coastline of the State and the local

authority baths.

MASON CJ: But it seems to be a defined swimming area and

the Authority seems to have provided the kind of

facilities that you would expect in relation to a

defined swimming area which is naturally resorted

to by people in large numbers. If you look at this

photograph G, for example, a shed seems to have
been provided, and what appear to be toilet blocks

at the back of the beach.

MR COCK: That is accepted without question, Your Honour.

Certainly it is a swimming area, but it is a

swimming area of a piece of coastline which

photographs E, F and H, in my respectful
submission, amply demonstrate.	No one, in my

respectful submission, in particular the applicant,

was under any illusion as to that. Indeed,

Justice Kennedy refers to the applicant's evidence in relation to his knowledge in that regard. If

indeed it was suggested by the applicant that he

was led to believe this was a swimming pool it
would be entirely different, in my respectful

submission. There was no suggestion of that, and indeed, the applicant was under no illusion as to

that.

TOOHEY J:  In what sense are you using the words "swimming

pool"? Obviously it was not a swimming pool in the
sense that you have a swimming pool in your

backyard.

Nagle 15 24/10/91

MR COCK: That was the sense as I understood my learned

friend was referring to it as, because he then

cited an example of a rock in - again he used the words "swimming pool", but the picture that I had in my mind was of some sort of regular shaped and

water filled container.

TOOHEY J: But I rather thought that what was at issue here,

Mr Cock, was whether the respondent, in encouraging as it did people to resort to the basin for

swimming, was in some way - I will use the

expression "holding out" which is a rather clumsy

way of putting it - but holding out the pool as

being an area suitable for swimming.

MR COCK:  We say it was.

TOOHEY J: But not suitable for diving, you would say, would

you?

MR COCK: Well, it is self-evidently not suitable for diving

because of the presence of the rocks; that is

obvious. One would not reasonably assume any

person would dive into that pool. One can see from

the very photographs. My friend talks about the

use of some polarizing lenses to give greater clarity, I think, to the material beneath the water. But on the other set of photographs, and I

understand them to be exhibits 14, likewise the

presence of the rocks is equally apparent, and, in

my respectful submission - - -

MASON CJ: The problem is that the Authority cannot assume

that everyone is going to behave with due care for
their own safety. The Authority owes a duty to

people who happen to be contributorily negligent.

MR COCK: That is recognized, Your Honour, and that was not

an error made by the court below. The court below

made no such error, in my respectful submission.

On the facts before them the Full Court of this State, in my submission, framed the correct test	and with some of the material Your Honour has, and
more material, came to the conclusion that there
was no reasonably foreseeable risk of a person
That is a finding, in my respectful submission, on suffering injury through the use of this facility.
the facts and, of course, if Your Honours were to
grant leave that would be the question on the
grounds of appeal that my friend has foreshadowed
that would be raised for consideration. In my
respectful submission, my friend has not demonstrated the learned judges in the Full Court
have posed for themselves the wrong question; nor,
in my respectful submission, has he even
demonstrated that the question they have posed was
wrongly answered by them. In my respectful

Nagle 16 24/10/91

submission, if he cannot demonstrate at least

either of those, the matter should go no further.

Your Honours would be aware of the fact that

to reach Rottnest Island one goes by boat or by

air. The nature of the island - - -

MASON CJ: Yes, that is even aware to Justice Gaudron and

myself.

MR COCK:  But in the event, Your Honours, that is the

evidence. It is readily apparent to any person,

including the applicant, of the nature of the

island, and Your Honours would have noted that each

of the judgments seem to commence -
Mr Justice Kennedy, for instance, at page 81,

Your Honours, talking of it being -

a limestone island, the coastline of which is

characterised by alternating bays and

limestone headlands, the bays generally having

wide sandy beaches backed by sand dunes. The

coast is fringed by limestone reefs and by

several small islands. The basin, where the

accident occurred, was promoted as, and it
was, and no doubt still is, a popular swimming

venue with public facilities. It was also

publicised as having "crystal clear water", as

is apparently the fact. The Basin is a

shallow sandy basin, enclosed on three sides

by a wave platform which is approximately

0.25 metres above low water level. On the

eastern side a number of rocks of varying

sizes have apparently broken away from the

wave platform, probably as a result of

undercutting. Their presence is obvious to
persons looking towards the Basin as they walk

down towards the water. Subject to any

problem presented by "glitter" caused by the

reflection of the sun, it is apparent that

their presence is readily visible from the

wave platform alongside which they lie.

And given that background, in my respectful

submission, the majority of the court framing one

of the appropriate questions in relation to the question of whether a duty is owed, that is, is

there a reasonably foreseeable risk of injury to

persons using the facility, having come to the

conclusion there is not, in my respectful

submission, the case was correctly decided below.

It certainly is not a case that should go further. Interestingly, Your Honours, at page 88, in

the judgment of Mr Justice Kennedy, he speaks of

the fact that there was no -

Nagle 17 24/10/91

evidence called to establish that the presence

of the rocks from where the appellant dived

constituted a hidden danger to swimmers or

that for any reason they were not readily

visible, situated as they were only slightly

below the level of, and close to, the wave
platform on which a swimmer would be standing.

Importantly, it is obvious to all resorting to

it that the Basin is a natural pool,

surrounded by a wave platform and containing
on its eastern side a series of rocks which

now lie a relatively small distance below the

level of the platform and close to it. The

water in the Basin is clear. The only
possible limitation with respect to the

observation -

and His Honour speaks about reflection and the

consequence of refraction, and he then considers

the evidence below, in particular from Dr Penrose.

Then coming to the view on page 90:

The rock in question, rock three, was

described by Mr FR Rodda, a surveyor, as

"Dark colour". Rocks one and two, which the

appellant had observed, were described

respectively as "Darker colour" and "Pale
sandy colour - no growth". There was no

evidence that they had been any different at

the time of the accident. The top point of

those rocks was marginally below the level of

the top of rock three -

and he puts in his judgment the distances -

The appellant's evidence did not suggest that

he had any difficulty in seeing rocks one and

two on his way out to the position from which

he dived into the water, although his angle

towards the sun might have been expected to be

the same as he walked further out along the

platform. Any glitter effect, which in this

case was largely a matter of speculation,

could readily be avoided by changing slightly

the angle of view. Such a change would have

revealed, in this case, the continued presence

of rocks.

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.

Nagle 18 24/10/91

He then explains how the rocks did not, as an

undertow that may be present, present a hidden

danger, and it was not an artificial pool. In my

respectful submission, Your Honours, and I should

say that Justice Rowland takes a similar approach,

although he does not frame the question as

precisely as Justice Kennedy. He does frame it, in

my submission to the Court, with the authorities on

the list, and in my submission the majority of the

court was correct.

If one contrasts that, Your Honours, with the

approach my friend would support, that approach of

Justice Nicholson below, Justice Nicholson, in a

very short passage in his lengthy judgment at

page 7 of the application book, at line 19 - it is

important to recognize that this is the passage my

friend relies upon because it is the passage that

Justice Wallace in minority in the Full Court

adopted. If I might read, Your Honour, from

page 27, line 19:

What must be assessed is whether the risk that the plaintiff would dive as he did was

reasonably foreseeable in the circumstances.

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.

MASON CJ: What is wrong with that?

MR COCK:  As a statement of law it is correct, but as a

statement of fact, in my respectful submission, it

is wrong when one considers the justification for
that observation. The justification is:

The circumstances which made it foreseeable were the nature of the ledge as a platform;

the use of those premises by persons

inexperienced or unfamiliar with them; and

the effects of refraction or reflection which
could sufficiently affect their observation of
the presence of rocks so as to result in them

failing to appreciate the dangers of diving

from the ledge.

It is the justification for the learned trial

judge's finding that was so much under attack

before the Full Court, and which, as I think

Your Honours would no doubt well be aware now, is

the subject of much more extensive analysis by

Justices Kennedy and Rowland, who did not simply

accept that justification as stated but rather

analysed it, in particular analysed the effects of

refraction and reflection on the evidence, and came

Nagle 19 24/10/91

to a conclusion that His Honour was not justified

in holding that it may have reasonably been a risk

foreseeable in accordance with the tests.

In my submission, that is where this case will

be decided, on the question of whether or not

Justice Nicholson - and, of course, Justice Wallace

in the Full Court, I think, just adopted the

passage without analysis - whether they were

correct and Justices Kennedy and Rowland in, in my

submission, a much more analytical approach - - -

MASON CJ:	You have made that point several times.
MR COCK:	I have, and in my respectful submission it is the

point that my friend would wish to develop.	I have
no further submissions, Your Honours.

MASON CJ: Yes, Mr Williams.

MR WILLIAMS:  Your Honour, I rise on only one small point.

My learned friend referred to page 90 of the appeal

book and pointed out that the rock No 3 had been

described by Mr Rodda, a surveyor, as "dark

colour", suggesting it was readily visible, and

pointed out that His Honour had found that there

was no evidence that they had been any different at

the time of the accident.

I have already shown you the photographs which

show that from 1988, which is Mr Rodda's

photograph, to 1985, when the other photographs

were taken, it was different, and that the whole

case at trial was fought on the basis that at any

given time it might be sandy or covered in weed and

might be less or more visible. To hold that there

was no evidence of it being any different at the

time of the accident, I think, is really to make a

somewhat unfair point. There was no evidence as to

its exact state, except from a witness whose

evidence was only found after the Full Court heard	argument, whose evidence was that it was difficult	to see, but the Full Court rejected that on the
basis of it ·coming too late and would not affect the decision. In the light of that reasoning one
might question whether that was in fact a correct
decision.

MASON CJ:  Thank you, Mr Williams. The Court will take a

short adjournment in order to consider the course

that it

will take.

AT 4.21 PM SHORT ADJOURNMENT

Nagle 20 24/10/91

UPON RESUMING AT 4.24 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case, but there will be excluded from the

grant the alleged duty to remove the rocks or cause

the rocks to be removed.

AT 4.25 PM THE MATTER WAS ADJOURNED SINE DIE

Nagle 21 24/10/91