Price v Southern Cross Television (TNT9) Pty Ltd - [2014] TASSC 70

[2014] TASSC 70

COURT: SUPREME COURT OF TASMANIA

CITATION: Price v Southern Cross Television (TNT9) Pty Ltd [2014] TASSC 70

PARTIES:  PRICE, Cassandra Anne
  v
  SOUTHERN CROSS TELEVISION (TNT9) PTY LTD
  DAVIS, Michael Christopher

FILE NO: 777/2010
DELIVERED ON: 22 December 2014

HEARING DATES: 3–6, 9–11, 17 December 2013;
28 January, 7 February 2014
Written submissions – 6, 7 March 2014

JUDGMENT OF: Porter J

CATCHWORDS:

Contracts – General contractual principles – Agreements not intended to create legal relations – Domestic social and other arrangements – Plaintiff agreed to act as 'extra' in filming for tourism television program – Arrangement made with tour operator featured in program – Arrangement not contractual.

Ermogenous v Greek Orthodox Community (2002) 209 CLR 95; Darmanin v Cowan [2010] NSWSC 1118, applied.

Aust Dig Contracts [17]

Contracts – Particular parties – Principal and agent – Creation of relationship of agency – Implication of agency from particular circumstances – Independent contractor – Television presenter acting under his contract with television program maker – Employee of maker and contractor working together to make the program – Whether contractor acting as agent so as to make principal directly liable for his actions.
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, considered.

Aust Dig Contracts [162]

Torts – Negligence – Duty of care – Other particular cases – Plaintiff agreed to act as 'extra' in filming for tourism television program – Arrangement made with tour operator featured in program – Arrangement not a contractual agreement – Plaintiff injured jumping from a cliff into the water below – Whether required or obligated to participate in activity – Whether program maker and tour operator owed a duty of care – Whether duty of care in any event – Injury by impact with water – Obvious risk.
Civil Liability Act 2002 (Tas), ss 15, 17.
Doubleday v Kelly [2005] NSWCA 151; Fallas v Mourlas (2006) 65 NSWLR 418, followed.

Aust Dig Torts [33]

Torts – Negligence – Miscellaneous defences – Other defences – Voluntary assumption of risk – Plaintiff injured when jumping off a cliff into the water below - Injury by impact with water.
Civil Liability Act 2002 (Tas), ss 15, 16.
Dodge v Snell [2011] TASSC 19, followed.
Aust Dig Torts [75]
Torts – Negligence – Miscellaneous defences – Other defences – Dangerous recreational activity – Plaintiff injured when jumping off a cliff into the water below.
Civil Liability Act 2002 (Tas), ss 19, 20.

Falvo v Australian Oztag Sports Association [2006] NSWCA 17; Fallas v Mourlas (2006) 65 NSWLR 418; Dodge v Snell [2011] TASSC 19, followed.
Aust Dig Torts [75]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC and S Taglieri
             First Defendant:  P L Jackson
             Second Defendant:  C J Gunson
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             First Defendant:  M & K dobson mitchell allport
             Second Defendant:  Page Seager

Judgment Number: [2014] TASSC 70
Number of paragraphs: 237

Serial No 70/2014
File No 777/2010

CASSANDRA ANNE PRICE v SOUTHERN CROSS TELEVISION
(TNT9) PTY LTD and MICHAEL CHRISTOPHER DAVIS

REASONS FOR JUDGMENT PORTER J

22 December 2014

Introduction

On 18 September 2007, Cassandra Price, the plaintiff, was with a group of people who were involved in filming for a television series, Discover Tasmania. Late in the afternoon, the group was in a boat at the northern end of Maria Island. Four members of the group swam ashore from the boat and climbed to the top of a cliff which was above a cave at water level. They intended to jump some 13 metres from the cliff top into the water below. Three of the four, including the plaintiff, jumped feet first into the water. The plaintiff injured her back when her body hit the surface of the water. She sustained a compression fracture of the T9 vertebra, and more minor fractures of the T4 and T10 vertebrae.
In that year, the plaintiff was enrolled at the University of Tasmania. She was 29 years old at the time of the incident. The first defendant, Southern Cross Television (TNT9) Pty Ltd (Southern Cross) had been engaged by the government agency, Tourism Tasmania, to produce and televise the series. On 18 September, filming had been done around Maria Island including at an underwater site, and more was due the next day. Ken Saville was the producer of the program and a member of the group on the boat. He was an employee of Southern Cross. Also on the boat was the presenter of the program for the Maria Island segment (and a regular presenter of the program), Edward (Ed) Halmagyi, who had a contract with Southern Cross to do the series. Mr Halmagyi is perhaps better known as 'Fast Ed', the chef who regularly appears in the television program 'Better Homes and Gardens'.
The second defendant, Michael Davis, was the proprietor of the business known as Island Ocean Charters which offered chartered diving tours to Maria Island. For these tours, Mr Davis used the Liquid Fever, a 7.85 metre boat with twin outboards and full cabin. Southern Cross had arranged with Mr Davis to use his boat for the purpose of the filming, and for him to be involved in the presentation of some parts of the segment. Mr Davis, in turn, had arranged with the plaintiff and her friend, Samantha Poulson, to act as 'extras' for the filming. Mr Davis was the skipper of the boat on the day.
The people other than the plaintiff who went to the top of the cliff were Mr Halmagyi, Mr Davis and Ms Poulson. Mr Halmagyi was the person who, in the end, did not jump. His reason for not doing so is the subject of some dispute, and is an issue which I will examine.
The plaintiff has sued both Southern Cross and Mr Davis for damages in negligence, for breach of contract, and for false imprisonment. The trial started as one of both liability and damages, but as a result of developments which do not need explanation, agreement was reached on the sixth day that I only determine liability at this stage.
The plaintiff's relationships with both Southern Cross and Mr Davis need to be explored, as do the events on the day leading up to the jump and the facts of what happened immediately beforehand. There is a significant difference between the version advanced by the plaintiff and her witnesses and that of the defendants' witnesses about the events leading up to and including the jump. Parts of the group's climb to the top of the cliff, most of the events at the top of the cliff, and the initial part of the jump by the three people were filmed. The reason for that is in dispute, but the existence of the footage is helpful in determining some of the issues.

Further background

The written agreement between Southern Cross and Tourism Tasmania is in evidence but it contains nothing of any real relevance. The written agreement between Southern Cross and Mr Halmagyi is also in evidence. The only thing of immediate relevance is that it sets out the requirements for him in his role as co-host of the program. (There was another presenter who was not involved in these events.) It was a requirement that Mr Halmagyi participate in adventure and action segments as required. "This could include swimming, diving, skiing, bike riding, bushwalking, sailing, abseiling, camping etc." He was also to "contribute to the segment's concepts and design", with "the programme [to be] based around [his] personality, hobbies and areas of expertise".
The arrangements between Southern Cross and Mr Davis were concluded by exchange of emails in July and August 2007. The final Southern Cross correspondent was Anthony Bagnette. Mr Davis agreed with Mr Bagnette to be involved in the making of the program. Southern Cross made it clear that the program was to expose Tasmania and tourism destinations and activities; it was not to promote businesses as such. Mr Davis agreed to be part of a segment on Maria Island which involved a scenic cruise in relation to the island itself, a visit to a seal colony at the Ile des Phoques, and a dive on the wreck of the Troy D. That vessel had been sunk off the west coast of Maria Island to serve as a dive site.
Later, at the request of Mr Saville, Mr Davis agreed to find 'extras' for the filming on 18 September. The purpose of the presence of extras was simply so that other people could be seen included in the activities shown in the footage. Mr Davis then arranged for the plaintiff and Ms Poulson to act as extras. Although the precise terms of what was said and order of things are a little unclear, the nature of this arrangement and its making do not appear to be controversial, at least to any significant extent. I will come back to these arrangements.
It is common ground that on the morning of 18 September 2007 before going out on the boat, both the plaintiff and Ms Poulson signed a document headed "Tourism Tasmania – Permission To Use Talent in Footage". This was done at Mr Saville's request. These were pro forma documents. In the exhibit copy signed by the plaintiff, she is described as "the Talent", with "the Client" being Tourism Tasmania. The product is described as "Discover Tasmania Television Series". "Footage to be used" is shown as that series so described.
By the document, the plaintiff granted permission to Tourism Tasmania and any licensees or assignees "to use footage and any adaptations thereof without limitations such that the footage may be used in an unrestricted manner in Australia and internationally and for no payment". The plaintiff also agreed that she would "not acquire any interest in the copyright of the moving images or holiday footage". Southern Cross is not mentioned in the document.

The pleadings

After closing submissions, the plaintiff applied to make further amendments to the amended statement of claim. After hearing argument, I ruled that some of the amendments would be allowed, essentially in order to bring the pleadings in line with the way in which the case had been conducted. A further amended statement of claim dated 7 February 2014 was filed. (With leave, the defendants filed further written submissions in response to the amendments.)

A contractual duty of care

The pleadings allege that an agreement was concluded between both defendants and the plaintiff to the effect that she would participate in diving and other activities at no fee. This was on condition that, in exchange, she would permit herself to be filmed undertaking dive and other activities for the television program, and allow the television program to be produced and shown without requiring payment for those activities. It is alleged that the terms of the agreement are to be partly implied, and that insofar as that is the case, the terms are implied by law and in fact.
As against both defendants, it is further alleged as follows:
"9 It was implied in fact that, the Defendants, including their agents and/or employees would:
(a)Take reasonable care to ensure the safety of the Plaintiff during the activities she engaged in; and
(b)Would not expose the Plaintiff to reasonably foreseeable risks of injury during the tour, activities performed and filming."
As against Southern Cross, the plaintiff alleges that by virtue of s 74 of the Trade Practices Act 1974 (Cth), "the agreement contained an implied warranty that the services to be provided by [Southern Cross] would be rendered with due care and skill". That section provided that in every contract for the supply by a corporation in the course of a business of services to a consumer, there is an implied warranty that the service will be rendered with due care and skill. The plaintiff has not pleaded what services were being supplied to her, but argues in written submissions that they were "the filming throughout the tour and the subsequent publication of the plaintiff's image whilst doing the activities chosen by the first defendant", to which was added in oral argument, the provision through Mr Davis of the tour and the dive.
The amended statement of claim does not contain an express allegation that there was a breach of this implied warranty. The warranty under s 74 is no different from the term to be implied in a contract for services, and it is coextensive in content and concurrent in operation with any duty to take reasonable care in general law: Renehan v Leeuwin(No 3) (2006) 17 NTLR 83 at 100–101 [82]. Of course, the first thing the plaintiff needs to establish in this context is that there was a contract between her and Southern Cross.
Next, the plaintiff alleges that Mr Halmagyi was represented by Southern Cross as having its authority to "direct, instruct and advise her as to the activities she undertook during the tour" and that he, in fact, was actively involved in doing so. There is an express allegation that Mr Halmagyi was acting as the agent of Southern Cross during the tour, and the plaintiff's case is one of agency in the true sense, so that his acts are those of Southern Cross.

Critical allegations of fact

During the trial, par 17 of the statement of claim read as follows:
"During the tour, the Plaintiff was directed and instructed by Mr Halmagyi to climb to the top of a cliff on Maria Island and jump to the water below, a distance of some 12.6 – 14.2 metres … for the purpose of filming for the television program." [My emphasis.]
After the trial, the allegation was amended so that the word "asked" replaced the words "directed and instructed". In par 18, it is alleged that the jump was to be filmed by Southern Cross agents or employees from Mr Davis' boat.

A general duty of care

The plaintiff's allegation of the existence of a duty of care on the part of Southern Cross is based on 16 separate factual assertions. Rather than attempt to summarise them, I will set out the particulars in full:
"18B The First Defendant owed the Plaintiff a duty to take reasonable care to prevent her suffering foreseeable harm by undertaking the jump by reason of the following:
(a)the Plaintiff was assisting the First Defendant produce the television program;
(b)Saville was in charge of the activities that were undertaken during the day;
(c)Saville had advised the Plaintiff shortly prior to the commencement of the tour that the day would be fluid;
(d)Saville agreed to Halmagyi's request to return to the jump site or permitted the boat to return so the jump could be undertaken rather than requesting the boat return to Triabunna;
(e)Halmagyi advised the Plaintiff that the water was deep enough at the jump site for the jump;
(f)Saville and Halmagyi told the plaintiff 'that it would be awesome footage of you girls jumping off that cliff';
(g)in the plaintiff's presence Halmagyi and Saville discussed whether there would be enough time to film the jump and agreed that there would be enough time;
(h)in the plaintiff's presence Saville and Tim Maloney (cameraman engaged to film the tour) ('Maloney'), agreed there would be enough tape or film to record the jump;
(k)Halmagyi reassured the Plaintiff that she could safely get ashore from the boat through the swell;
(1)Saville or Maloney assisted the Plaintiff to get off the boat;
(m)Halmagyi assisted the Plaintiff to get ashore;
(n)Halmagyi advising [sic] the Plaintiff whilst on the cliff that she couldn't get hurt;
(o)Halmagyi encouraged and persuaded the Plaintiff to jump;
(p)Mark Newman (a videographer engaged to film the dive) from the boat advised those on the cliff including the Plaintiff that the jump was safe without dissent from Saville;
(q)people in the boat pressured those on the cliff to hurry up and jump without dissent from Saville;
(t)the jump created a hazard with a high risk of significant injury if not done properly."
The case against Mr Davis in terms of the existence of a duty is based on 13 factual assertions, which are as follows:
"18CThe Second Defendant owed the Plaintiff a duty to take reasonable care to prevent her suffering foreseeable harm by undertaking the jump by reason of the following:
(b)[sic]the Plaintiff was assisting him promote his charter business;
(c)he agreed to Halmagyi's request to undertake the jump rather than returning to Triabunna;
(d)he knew on the way to the jump site in the afternoon that the Plaintiff had agreed to Halmagyi's request to undertake the jump and advised her to wear her wetsuit and booties;
(e)he assessed the depth of the water at the base of the jump;
(f)he assisted the Plaintiff to get ashore at the jump site;
(g)he showed the Plaintiff to the jump spot;
(h)he reassuring [sic] the Plaintiff about the height of the jump on the way up the track to the jump spot by telling her not to worry and that the jump site dips down quite a lot and asking her to come and have a look after the Plaintiff expressed her concern about the height of the jump about two thirds of the way up the track;
(i)he advised the Plaintiff how to jump;
(j)he advised the Plaintiff that the jump was safe;
(k)he counted up [sic] the jump;
(1)he encouraged and persuading [sic] the Plaintiff to jump;
(u)he advised the Plaintiff that he had done the jump many times before.
(x)the jump created a hazard with a high risk of significant injury if not done properly."
There is a further separate allegation that both Mr Saville and Mr Davis "knew the jump involved a risk of significant injury by contact with the water surface by reason of both having been present approximately 3 weeks before when the jump had been performed by Mr Brock who suffered a knee injury".
That is followed by allegations that:
·     the plaintiff "was reluctant and fearful of swimming from the boat to the rocks but was assured that she would be fine by Halmagyi, and was assisted by Saville asking for the dive boat to be backed closer to the cliff";
·     the plaintiff climbed to the top of the cliff, "and once there, was not agreeable to jumping and expressed fear and opposition to jumping";
·     agents of Southern Cross, particularly, Mr Halmagyi, and Mr Davis "pressured, encouraged and coerced" the plaintiff to make the jump;
·     after statements by Mr Halmagyi, Mr Davis and persons in the dive boat, the plaintiff felt pressured to make the jump and did so.
Although the introductory words to pars 18B and 18C are a little ambiguous, the plaintiff does not seek to allege any duty of care to prevent reasonably foreseeable harm in the context of a voluntary jump by the plaintiff; that is, a duty to prevent her from doing what she chose to do, or a duty to advise or instruct as to how she should do it.

The alleged breaches

As to the breach of the alleged duties, the plaintiff says that her injuries were caused as a consequence of negligence and/or breach of agreement by Southern Cross and/or Mr Davis, particularised in the following way:
"26…
Particulars of Negligence and/or Breach of Agreement
(a)   The Plaintiff was required to jump from a height which was not safe;
(b)   Failed to ensure that a safety analysis had been conducted prior to the jump;
(c)   Failed to ensure that the Plaintiff was properly instructed as to the correct way to jump;
(d)   Allowed and permitted the Plaintiff to jump when it was not safe for her to do so in the circumstances;
(e)   Coerced, harassed, pressured, persuaded or otherwise encouraged the Plaintiff to engage in activity that was likely to cause her injury;
(f)    … [F]ailed to warn the Plaintiff of the risk of personal injury associated with the activities they required her to undertake, particularly the jump;
(g)   Required or permitted the Plaintiff to undertake a specialist stunt activity when she was not trained, qualified or suited to do so."

The case in false imprisonment

The plaintiff alleges that the conduct and statements made by agents or employees of Southern Cross and by Mr Davis constituted false imprisonment of the plaintiff, which in turn resulted in personal injury. The conduct said to "amount" to false imprisonment is that the defendants coerced, harassed, pressured, persuaded or otherwise encouraged the plaintiff to jump from the cliff. The plaintiff alleges that the conduct had a coercive quality, the particulars of which are as follows:
"27(b) All of the individuals putting pressure on the Plaintiff were comparatively:
(i)physically larger and heavier;
(ii)physically stronger;
(iii)older;
(iv)male;
(v)more worldy [sic] and confident;
(vi)in control of her means of returning to Triabunna;
(vii)in the case of the Second Defendant, the more experienced diver;
(viii)in the case of the Second Defendant, more experienced with the terrain, topography and local conditions.
(c) The Plaintiff was, at the time of the conduct:
(i)a young, petite young [sic] woman, unaccustomed to being filmed or the nature of television production and unaccustomed to focused and intense male company;
(ii)cold, wet and tired;
(iii)concerned about getting home, it was already past the time that they had expected to finish;
(iv)exhausted from the day's activities and being around Halmagyi and the Second Defendant all day;
(v)in awe of Halmagyi and the Second Defendant and wanting to please them;
(vi)wanting to do what she could to bring the day to conclusion."

The plaintiff alleges that by virtue of those matters, the defendants were in a position of superior force and authority to the plaintiff, and that once at the top of the cliff there were no reasonable means of egress open to her.

The defences

Each defendant denies the existence of any duty of care, and the breach of any duty. They each plead further that the jump involved risks of harm which were obvious risks, ones of which the plaintiff knew or ought to have known, and ones of which the plaintiff was warned or made aware. Each denies the allegations of false imprisonment. Each pleads that the plaintiff's injuries were wholly caused, or contributed to, by her own negligence. Each says that the plaintiff jumped from the cliff when she knew, or a reasonable person in her position would have known, that to do so involved a risk of injuries of that kind. Both plead that the plaintiff ignored warnings.
Southern Cross pleads that the plaintiff ignored warnings about the dangers associated with the jump given by Mr Saville on two separate occasions, and "expressions of concern" by Mr Halmagyi as to the circumstances in which the jump was to be done. Mr Davis pleads that the plaintiff ignored warnings and direction from him not to participate in the jump.
Each defendant pleads further that the risk of injury from the jump was an obvious risk within the meaning of s 15 of the Civil Liability Act 2002, and hence, by virtue of s 16, a risk of which the plaintiff is taken to have been aware. As to this, each pleads that, in any event, the plaintiff had been variously directed not to jump, or warned or cautioned about the risks of jumping. The defendants plead that in the circumstances, the plaintiff voluntarily accepted the risk associated with jumping from the cliff.
Further, each defendant pleads that jumping from the cliff was an activity engaged in by the plaintiff for enjoyment, relaxation or leisure, and was therefore a recreational activity within the meaning of s 19 of the Act. It involved a significant risk of physical harm, and was therefore "a dangerous recreational activity" within the meaning of s 19. Each defendant pleads that, accordingly, by virtue of s 20 of the Act, they are not liable for any breach of duty for harm suffered by the plaintiff because it was as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by her.

The issues

A fundamental question is whether the defendants owed the plaintiff any relevant duty of care. There is a dispute as to whether there was a concluded agreement between the plaintiff and Southern Cross and/or Mr Davis so as to give rise to a consideration of the existence of an implied term of a duty of care. As to a general law duty of care, it is pleaded against both defendants as one which existed in relation to the plaintiff' "undertaking the jump". As to Southern Cross, although the debate was in terms of whether a duty of care was owed in relation to the plaintiff jumping from the cliff, the issue might more accurately be described as one as to the nature and extent of a duty of care: Cole v South Tweed Heads Rugby Club (2004) 217 CLR 469 per Gleeson CJ at 472 [1]. It may be accepted that the relationship between Southern Cross and the plaintiff was such that, in broad terms, it owed to her a duty to take reasonable care in relation to foreseeable risks of injury in connection with its activities in which she was involved.
It may be also accepted that Mr Davis, as the skipper of the boat, owed to the plaintiff a duty of care in relation to the condition and management of the boat, but the issue is whether he owed any duty of care concerning the jump.[1] As conducted and argued, the basic issue as to both defendants is whether a duty existed to avoid foreseeable harm by not requiring, or pressuring or encouraging, the plaintiff' to jump from the cliff. A warning of the risk is also included in the suggested scope of the duty. In these reasons I will, as the parties have done, simply refer to the issue as the existence of a duty of care.
[1] In closing submissions, the plaintiff attempted to argue that Mr Davis' duty as master of the vessel extended to the activity of jumping off the cliff as, in the circumstances of the case, it was incidental to the operation of the boat. Laoulach v Ibrahim [2011] NSWCA 402 was cited in support of this. Although counsel for Mr Davis was able to argue the matter, I pointed out that the extent of the duty so arising was not pleaded. This was sought to be remedied in the application to amend after the trial had ended. I refused that part of the application on the basis that the amendment was futile and that the second defendant may well have taken a somewhat different approach during the trial.
Essential questions of fact which need to be resolved as to that issue are how and in what circumstances did the plaintiff come to jump from the cliff. As against Southern Cross, it can be seen that one of the matters said to give rise to the duty was the fact that the plaintiff was encouraged and persuaded to jump by Mr Halmagyi. There is an issue about Southern Cross' liability for Mr Halmagyi's actions. There are later pleaded allegations that Mr Halmagyi pressured, encouraged and coerced the plaintiff to jump. The plaintiff pleads that one of the ways in which Southern Cross breached its duty of care was that the plaintiff "was required to jump from a height which was not safe" [my emphasis]. A similar situation exists in relation to the case against Mr Davis.
The plaintiff's case is primarily and explicitly put on the basis that the jump from the cliff was to be filmed, and was in fact filmed, for the purposes of the program. This affects the case against Southern Cross more than Mr Davis. The defendants' case is that the jump was something agreed to by the participants after filming for the program had finished for the day. They say the plaintiff agreed to the suggestion of the jump, and voluntarily did the jump, although some reassurance and support was given. Southern Cross says that although the jump was filmed, it was not filmed for the purposes of the program, nor was it filmed in a way which would make the footage suitable for use in the program. The footage was taken essentially as a keepsake for those involved. On that basis, it is said that there was only a coincidental connection between the jump and the activities filmed for production purposes.
The plaintiff has not pleaded that Southern Cross, or Mr Davis, had any duty or was obliged to guard against misunderstanding, and to ensure that she understood what was being done for the purposes of the program's production, and what was not.[2] The case at trial was not one of misunderstanding. On her case as principally conducted, the plaintiff seeks to establish that she was expressly or impliedly required to jump as part of the formal program filming. The existence of an implied request would have to be objectively assessed.
[2] During closing submissions, I raised with senior counsel for the plaintiff the consequences of a finding that the jump was not intended to be part of the program, but that the plaintiff mistakenly thought that it was. In the subsequent application to amend the statement of claim, the plaintiff sought to include as bases for the duty of care of Southern Cross in negligence, allegations that the plaintiff believed that the filming was for the television program and felt that she was obliged to jump, and that Southern Cross failed to advise her that the filming was not for the television program, and that she was not obliged to jump. I disallowed those amendments; the first on the basis that the plaintiff's subjective state of mind was irrelevant as to whether there was a duty of care, particularly in the absence of any pleading of actual or constructive knowledge by Southern Cross of the plaintiff's state of mind; the second on the basis that the pleading presupposed an obligation to give that advice which was not otherwise pleaded, and in the context of the way in which the trial had been conducted, was likely to cause embarrassment to the defendants.
As I understand it however, the plaintiff does maintain an alternative position.[3] It is that both defendants owed to her a duty of care based on the fact that to one extent or another both were "in control" of the day's activities, and that in that context, they took the plaintiff to the jump site knowing of her intention to jump, when, as a fact, it had not been made clear that the jump was not to be filmed as part of the program, and when they had knowledge of a recent injury to Mr Brock doing the same thing. Within the scope of that suggested duty is a need to warn of the risks involved, and to ensure that the plaintiff jumped in the safest manner.
[3] This was the immediate response by senior counsel for the plaintiff to the observations I made in the course of argument, and which are referred to in footnote 2.
Making findings of fact as to these matters involves a consideration of conversations which took place during the course of the day about making the jump. Principally, those conversations happened in the morning when the jump site was first visited, in the afternoon after the dive on the Troy D had concluded, on the boat at the base of the cliff before the participants had left the boat, between the four persons at the top of the cliff, and between that group and the group on the boat immediately before the jump.
As I have mentioned, the plaintiff, Ms Poulson, Mr Halmagyi and Mr Davis made up the group who went to the top of the cliff. The group which remained on the boat consisted of Mr Saville, Timothy Maloney – the cameraman, Brett Cocking – the sound recordist, Mark Newman – a specialist underwater cameraman, and Giles Barrington who was Mr Davis' deckhand. Everybody gave evidence apart from Mr Barrington. Regrettably, because of the extent of the variations in the witnesses' accounts, I will have to examine the evidence in some detail. Before doing so, it is convenient if I deal at this stage with the alleged agreements and a contractual duty of care.

An agreement and a contractual duty of care?

I have already outlined the essential features of the arrangements between the parties as shown in some documents and as I otherwise find them to be. Further details are as follows. The only documented dealings are in the email exchange between Southern Cross and Mr Davis, but the reference is of no great consequence. The only reference to Mr Davis arranging extras is in an email from him to Mr Saville dated 13 September 2007. After dealing with some other issues, Mr Davis said, "Still working on getting some extras for the dive."
The background to the choice of the plaintiff and Ms Poulson is that the plaintiff and Mr Davis had met before in the course of his business. On 2 September 2007, the plaintiff and Ms Poulson, along with Ms Poulson's father, had dived on the wreck of the Troy D using Mr Davis as the tour operator for the dive. Apparently, the plaintiff and Ms Poulson had talked at some length with Mr Davis about their diving experiences and ambitions.
The plaintiff said that she telephoned Mr Davis as a result of a message she had received from someone she knew from university, and who was friend of Mr Davis' deckhand. Mr Davis asked if the plaintiff and Ms Poulson would be interested in acting as extras on his boat for some filming around Maria Island in exchange for some free dives. They were to "make the dive look full", and generally to "stand around and have a good time". According to the plaintiff, the possibility of her doing paid work for Mr Davis at some stage in the future "came up in the conversation". She said that this had been discussed on the boat on 2 September. Again referring back to that earlier conversation, she also reminded Mr Davis that Ms Poulson needed more dives to qualify for her instructor's ticket. According to the plaintiff, Mr Davis said that he was willing to oblige with those additional dives.
The plaintiff contacted Ms Poulson and obtained her agreement. According to Ms Poulson, she was told only that a friend of the plaintiff's wanted to film them diving on the Troy D. It is not clear when in this process, but the plaintiff said that Mr Davis told her that they were to bring their diving gear with them on the day, to organise their own equipment; they "would just be – being filmed as extras for the promotion of the business".
The extent of Mr Davis' evidence about arranging for the plaintiff and Ms Poulson to be extras was limited. He said that he could not specifically remember the terms of the conversation with the plaintiff. He said that he remembered "talking to Southern Cross about whether there was an opportunity to get some extras for the filming". Recalling the dive by the plaintiff and Ms Poulson a few weeks earlier, he asked "whether [the plaintiff and Ms Poulson] were available and then if they were, whether they might be interested to help me". He said that they agreed to do so.
In cross-examination, Mr Davis said that he had made the arrangements for the extras on behalf of Southern Cross to assist it in making the show. He agreed that whilst he was not being paid for his involvement he was getting free publicity, and that the women were assisting him in getting that free publicity. He also agreed that at the same time, arranging for the extras assisted Southern Cross to produce the show.
The plaintiff said that when they arrived at Triabunna on the morning of 18 September, and before signing the Permission to Use Talent document, Mr Saville introduced himself as the producer, and explained that Mr Halmagyi was to be the host. According to the plaintiff, Mr Saville said that they would be going on the boat and that they "had to be perceived as … guests having a good time". Mr Saville explained that they would do some scenic shots of Maria Island, see the seals at Seal Island [sic], have a cheese platter at Maria Island before lunch, after which they would do the dive. In cross-examination, the plaintiff said that she had had no contact with anybody from Southern Cross before that morning, and confirmed that her understanding that Mr Davis' reference to the promotion of the business was to his own business, and that she was there to help with that process.
In his evidence, Mr Saville agreed that he had not had any dealings with the plaintiff before the particular day, and that Mr Davis had arranged for her to be there. This came about after he had told Mr Davis that he needed extra people for the story, "just to be seen on the boat". He asked Mr Davis if he had any people in mind. Mr Davis told him that he did and that he, Mr Davis, organised the women to be there. He agreed that Mr Davis was acting on his behalf when finding the extras.
When speaking with the women in the morning at Triabunna, Mr Saville said that he told them of the trip to the seal colony and the dive, that "the day would probably be be a bit fluid", and that they should do as they would if as if they were actually on a tour boat.
Turning to the submissions, the plaintiff asserts that there was a tripartite contract between Southern Cross, Mr Davis and her. It is submitted that the arrangement between Southern Cross and Tourism Tasmania, and the arrangement between Southern Cross and Mr Davis were "commercial agreements", with the arrangement with the plaintiff taking on that character, and thus attracting the presumption of an intention to create legal relations.
It is the essence of a contract that there is a voluntary assumption of a legally enforceable duty. To be such, there must be identifiable parties to the arrangement, the terms of the arrangement must be certain and, in the absence of a deed, there must generally be real consideration for the agreement. However, the circumstances may show that the parties did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. As to these propositions see South Australia v The Commonwealth (1962) 108 CLR 130 per Windeyer J at 154 and Ermogenous v Greek Orthodox Communityof SA Inc (2002) 209 CLR 95 per Gaudron, McHugh, Hayne and Callinan JJ at 105 [24].
In Ermogenous, their Honours went on to discuss the ascertainment of intention and the use of rules and presumptions. At 105-106 [25]–[26], their Honours said (omitting references):
"Because the search for the 'intention to create contractual relations' requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
In this context of intention to create legal relations there is frequent reference to 'presumptions'. … For our part, we doubt the utility of using the language of presumptions … At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition."
In the enquiry as to the issue of intention to create contractual relations, regard must also be had to the consideration for the promises in question and the certainty with which the parties have expressed their agreement: Thomas v Hollier (1984) 53 ALR 39; Darmanin v Cowan [2010] NSWSC 1118. Further, as pointed out by Ward J in Darmanin at [218], the weight of the consideration in the form of a detriment or disadvantage to the plaintiff may compensate for a lack of clarity in the arrangements, where the substance of the promise can be ascertained, but that as the substance of the agreement becomes difficult to identify with certainty, then the more likely it is the arrangement will fail for want of an intention to create legal relations.
I also need to say something at this stage about agency, but it is an issue to which I will return. There is authority for the proposition that the term "agency" connotes an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties: International Harvester Co Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; Scott v Davis (2000) 204 CLR 333 per Gummow J at 408 [227].
As explained by Professor Dal Pont in Law of Agency, 2^nd ed, at 5 [1.2], a broader conception includes the ability of the putative agent to create or affect legal rights and duties as between the putative principal and third parties, whilst a broader characterisation of an agent is that of a person who has authority to act on behalf of a principal, either generally or in respect of a particular act or matter: Erikson v Carr (1945) 46 SR(NSW) 9, per Jordan CJ at 12.
In Tonto Home Loans Pty Ltd v Tavares [2011] NSWCA 389, Allsop P (with whom Bathurst CJ and Campbell JA agreed) in examining the nature of agency, referred to the discussion by Finn J in South Sydney District Rugby League Football Club v News Limited (2000) 177 ALR 611 at 645-647 [131]-[137], and the definitions of "agency" in the Restatement, Third, Agency and from Bowstead and Reynolds on Agency, 19^th ed at [1-001]. At [177], Allsop P said:
"Agency is a consensual relationship (generally, if not always) bearing a fiduciary character, in which by its terms A acts on behalf of (and in the interests of) P and with a necessary degree of control requisite for the purpose of the role. Central is the conception of identity or representation of the principle: … It is sufficient to recognise that the essential characteristic is that one party (A) acts on the other's (P's) behalf, and that this will generally be in circumstances of a requirement or duty not to act otherwise that in the interests of P in the performance of the consensual arrangements."
See also Provident Capital Ltd v Papa (2013) 84 NSWLR 231 per MacFarlan JA (Allsop P and Sackville AJA agreeing) at 256 [97].

Professor Dal Pont at 93 [4.7] says there are at least two essential elements of an agency relationship; the consent of both principal and agent, and the authority given to the agent by the principal to act on the principal's behalf. A third element found in some formulations is the principal's control over the agent's actions.
Consent can be express or implied. Parties can be held to have consented to a relationship of principal and agent even though they do not recognise it as such, or disclaim its existence: Garnac Grain Co v HMF Faure and Fairclough Ltd [1968] AC 1130 at 1137; South Sydney District Rugby League Football Club v News Limited (above) at 645–646 [133]–[135]; Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67 at [123]-[124]. The provision of the necessary consents and authorities can be implied from the parties' conduct: Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150.
It follows that it is the substance rather than the form which is important, and that caution needs to be adopted in the use of the words "agent" and "agency". In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens' Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, Dixon J at 50 observed that some of the difficulties the subject of agency arise from the many senses in which the word is employed. His Honour adopted the statements of Lord Herschell in Kennedy v De Trafford [1897] AC 180 at 188 to the effect that the word "agent" is commonly and constantly abused, and that a person may be spoken of as an agent, and in the popular sense of the word may properly be said to be an agent, although when an attempt is made to suggest that the person is an agent in circumstances so as to create the legal obligations attaching to agency, the use of the word is simply misleading. Dixon J said:
"Unfortunately, too, the expressions 'for', 'on behalf of', 'for the benefit of' and even 'authorize' are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation."
These comments were referred to by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 168 [17]. At 168 [16] their Honours said:
"What is revealed is that like 'agent', the word 'representative' and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the 'representative' of A does not reveal, without definition of what is meant, what was the relationship between the parties."
In this case, the plaintiff agreed to go to the east coast for the day and be involved in the filming, in exchange for the enjoyment to be derived from the tour and the dive on the Troy D without charge. Additionally, she had been offered the possibility of employment with Mr Davis. Mr Davis is said to have obtained the benefit of the women's presence to assist him in getting publicity for his business, but there is no evidence to suggest that his involvement in the Discover Tasmania episode was dependent on their presence.
The agreement between Southern Cross and Mr Davis seems to have been concluded by email exchange on 12 July 2011, in the course of which Mr Davis agreed to "lock in" both segments (the cruise and the dive), with Mr Bagnette immediately advising Mr Davis that "Ken will be in touch". "Ken" had previously been identified in the exchange as the "field producer", Mr Saville. Mr Saville is shown as a recipient of the email exchanges. The plaintiff suggested, relying on Mr Saville's evidence, that the plaintiff and Ms Poulson were engaged by Mr Davis "for him, and therefore Southern Cross TV, as extras for the day".
There is no evidence of an express authority, or evidence suggesting an implied authority, from Southern Cross to Mr Davis to enter into any contractual arrangements on its behalf. The plaintiff did not know Southern Cross' involvement until she arrived at Triabunna on the morning of 18 September 2007. It was only Mr Davis who could fulfil the promises made to the plaintiff.
Viewed objectively, I am not able to see anything in the whole of the circumstances which persuades me that there was an intention to create legal relations as between the plaintiff and Mr Davis. It is highly unlikely that the arrangement can be viewed as one in which either had any remedy against the other for a failure to carry out the respective parts of the bargain. I am not satisfied that the arrangement can be described as anything more than one of a social nature, even though there is an air of commerciality about it. An example of such an arrangement held to be unenforceable is one by which a person agrees to transport another and, in return, to receive a contribution towards fuel costs: see Coward v Motor Insurers' Bureau [1963] 1 QB 259 and Buckpitt v Oates [1968] 1 All ER 1145.
As to Southern Cross, the plaintiff has not persuaded me that there was any agreement between her and the company. If I am wrong about that, I would take the same view about the intention as to the availability of a remedy as I do of that between the plaintiff and Mr Davis. Accordingly, I have the same view about a concluded contract between the plaintiff and Southern Cross.

The plaintiff's involvement in the jump

There are two separate but interrelated questions. The first is why the plaintiff jumped. The second is whether the jump was intended to be part of the program, or at least being filmed with that in mind. As I have indicated, the plaintiff's case was that she was effectively required to do the jump because it was being filmed for the purposes of the program.

The making of the program

The evidence of Mr Saville and Mr Halmagyi satisfies me of the following things about the way in which the program was planned and how its production was approached on the day. Scripts were produced for the program, with the extent of scripting depending on whether it was Mr Halmagyi or the other presenter. Mr Saville said that because of Mr Halmagyi's personality, the script for him was more of a guide. While Mr Saville had to make sure Mr Halmagyi "stayed on the facts" and with what was needed to be said, Mr Halmagyi was able to use his own words. The procedure was that Mr Saville and the cameraman set out what they were going to do, and it was up to Mr Halmagyi as to the style of how he said things, although there are certain points which he is required to make, although in this instance, Mr Halmagyi adhered quite closely to the script
Two scripts were tendered in evidence through Mr Saville. One is a two-page script for "Discover – Maria Island Tour" and the other is a three-page script for "Discover – Troy D". These documents refer to certain "shots" and then provide a script for Mr Halmagyi and, in the case of the tour, Mr Davis. These scripts were for what was described as "pieces to camera". A piece to camera is when one person talks to the camera, or there are two people, one effectively interviewing the other. "Overlay vision" was described by Mr Maloney as general vision over which spoken words are recorded later. The vision is of interesting features. In relation to this program, that included the cliffs on the north coast of Maria Island and other coastline features. It was Mr Halmagyi's voice which was later recorded over the general vision.
A jump off the cliff is not mentioned in either script. However, the fact that the activity is not mentioned is not at all decisive of the point as to whether or not the jump is part of the program. Mr Saville agreed that he told the plaintiff that the day was to be "fluid". The Tour script provides for shots of the island with the boat going into a cave, with Mr Halmagyi saying, "The one thing Mick does do is take you inside these huge sea caves, incredible! And we're going in a long way!" A little later after provision for shots of the island's north coast, the scripted commentary mentions the view on approach to Maria Island being dominated by soaring granite cliffs. Immediately afterwards is a direction: "Ed at front of boat near the waterfall – or even in the water with wetsuit on!"
It is common ground that the "waterfall" segment was taken a bit further at Mr Halmagyi's instigation. In the finished product (Episode 5 of Discover Tasmania), after a piece to camera, Mr Halmagyi is next seen in a pair of board shorts jumping into the water from the boat and swimming towards the rocks to a point where he has described a waterfall. He is then seen climbing back on board the boat. The evidence suggests that he actually climbed up on the rocks and stood in or near the waterfall and drank water from it. Mr Saville accepted that all of this was only scripted in part.

The first mention of the jump

I will start with events in the morning at the time when the cliff, the site of the jump spot, was first visited by the group on Mr Davis' boat. At that time, Mr Newman was not on that vessel. In the morning, he was on a "support boat" which was operated by Mr Davis' father. That boat was used to enable film to be taken of Mr Davis' boat and the occupants from various distances. The cliff is not an isolated cliff, but part of a cliff wall on the north coast of the island at the eastern end of Fossil Bay. There was some confusion amongst the witnesses as to whether they first went to that area or had gone there after first going to the Ile des Phoques. On the whole of the evidence I am satisfied it was the latter, although nothing really turns on it. At the particular point of the cliff, there is a cave at the base. The cave is big enough to accommodate Mr Davis' boat. When the boat reached that point, Mr Davis took the boat in, and some filming was done.

The evidence for the plaintiff

According to the plaintiff, when they were on their way out of the cave, Mr Davis said to Mr Halmagyi, "You can jump off the top of that". Mr Halmagyi went into the wheelhouse where Mr Davis and Mr Saville were. The plaintiff heard a conversation, after which both Mr Halmgayi and Mr Saville came out. Mr Halmagyi said, "it would be awesome footage of you girls jumping off that cliff – like jumping off there". She said that Mr Saville agreed.
The plaintiff's evidence was that Mr Halmagyi was keen to do it at that time, but Mr Saville said that it would be better to come back after the dive because they would be then already wet, and in their wetsuits. She said that before leaving the area, Mr Halmagyi asked her and Ms Poulson whether they would jump off from there. "We said, 'yeah sure why not'." Later in her evidence, when speaking about events just before climbing up to the jump spot, the plaintiff said that she understood the filming was being done because it was for the "grand finale". "It was for the big end of the day. We were going to jump off the cliff like we were having fun and that it was going to end the show."
When cross-examined, the plaintiff denied that when the jump was first mentioned, Mr Saville had said that it was a mad thing to do, and that a friend of his had hurt his knee jumping in that same spot. Mr Saville did not mention that injury at any time during the day. She agreed that at that time she could see no reason not to do it, and at that particular time was keen to. When asked why she agreed to jump, she said that it was because "it was for the grand finale of the day". The plaintiff was pressed about any such mention, and was asked why she had agreed to the suggestion of the jump when first asked. She said, "Oh, 'cause it was going to be for filming".
When it was put that nobody had said anything to her at that first point about filming it, she said, "No, but that's what he was implying". It was again put that nobody said anything at that point about filming it, to which the plaintiff replied, "He just asked us if we would jump off there". She agreed that she had replied, "Why not". To further questions on this point, the plaintiff confirmed that she had not been told that she was going to have to jump, but asserted that Mr Saville "said later on that we would come back and film it after we had been diving". She also agreed that the words "grand finale" were not used at that first point in time, and that neither, at that point, was there any mention of filming the jump. I will return to these matters.
Ms Poulson's evidence was that whilst the boat was at the cliffs in the morning, Mr Davis pointed out a spot where people could jump off; that people had been known to jump off the cliff. She said that there was a conversation in which Mr Saville, Mr Halmagyi and Mr Davis, along with Mr Maloney "thought it would be a great idea to do the jump at the end of the day to get that shot as the conclusive shot for the show". She said she was not asked as to whether she would jump from the cliff. In cross-examination, Ms Poulson confirmed that there was a discussion between Mr Saville, Mr Halmagyi and Mr Maloney that the jump would be a great shot for the conclusion of the show, and that it would be great to get that shot.
Counsel for Southern Cross put to Ms Poulson that she had in fact been asked in the morning. She said she did not believe that she was asked anything, although it was possible. She went on to say that there had been a discussion about people having jumped from the cliff, and that they wanted to do that for the show, but that she could not remember any discussion as to who was going to do it. Ms Poulson said that Mr Saville did not say anything to her about a friend of his jumping from the cliff and hurting his knee.

The evidence for Southern Cross

Mr Saville said that as the boat was backing out of the cave, Mr Davis suggested that it would be a great place to do a jump. He said that he thought that it was just a general comment to the people in the boat. Mr Halmagyi was pretty enthusiastic about it, and although he (Mr Saville) could not recall the exact words used, he said that the two girls had said something about it. He recalled all four of them being very enthusiastic about doing the jump.
His evidence was that he had expressed disagreement with it, that it was "silly" and that his friend had hurt his knee. He says he commented that they should not be stupid, that they all had other things to do, and that they should get going. There was some banter about him being a killjoy, after which he remembers saying, "Come on, we've got to get going, we've got too much to do for the rest of the day".
In cross-examination, he said that he could not remember the exact words he used, but he remembers the jump coming up in conversation, that everyone seemed to think it was a great idea, that he suggested that they did not have time, and mentioned the injury to his friend "Brocky". It was put to him that he did not tell the girls about "Brocky" getting hurt, but he said that it was a group discussions; "I definitely told it to everyone". He said that Mr Halmagyi and Mr Davis were in the wheelhouse and that the girls were only a short distance away, with everyone being involved in the conversation. He was "adamant" that the two women would have heard his warning about the jump. He agreed that, if for whatever reason they did not hear that warning, he did not give another one later at the jump site.
Mr Halmagyi said that he recalled the boat being taken into the cave and he did a piece to camera about that. To the best of his memory it was Mr Davis who remarked that it was a fun place to jump off because the water is deep. He was enthusiastic about doing it as it looked like something fun to do. He did not recall whether anyone else said that they would like to do it, but he did not recall any objections either. He said that he did not expect or anticipate that the jump would be done as part of the show. To the best of his understanding it could not be, as all of the storylines are developed ahead of time; that would be an entirely new story which would involve Southern Cross putting it to Tourism Tasmania for approval. The jump was "simply for our own entertainment". Mr Halmagyi explained that jumping off a cliff into deep water is something he regularly did at a place called "Jump Rock" at a beach near to where he lived. He denied referring at any time to the jump as the grand finale to the day.
Mr Halmagyi later clarified that he was in the wheelhouse with Mr Davis when he had the conversation with him about jumping from the cliff. He said that there may have been other people present but that he did not recall. It was absolutely clear in his mind that Mr Davis suggested that people did jump off the cliff, and that it was a lot of fun. To counsel for the plaintiff, Mr Halmagyi said that he did not recall whether or not Mr Saville was in the wheelhouse during the conversation with Mr Davis. He said that Mr Saville had mentioned that a friend of his had injured his knee during a jump; "Ken, in his inimitable way, said 'Don't be stupid'." Mr Halmagyi was not cross-examined about what he had said to the plaintiff about her doing the jump.
Mr Maloney said that he started out on the support boat and was backwards and forwards between the two boats in the morning. He said it was an unknown number of times, but that by the time they had left the Ile des Phoques, he was on Mr Davis' boat. Mr Maloney recalled going inside the cave on the boat. After that had been done somebody, he thought Mr Davis, said that "you can jump off the cliff above the cave". He said that he did not think much more of it. When asked whether there was any further discussion at that point about jumping he said:
"Well, certainly we said (a) there's no time and (b) it's not part of the story and I think Ken rounded out the kind of idea of doing that at that time by saying a friend of his previously had been injured, I think it was his knee, and that sort of stopped the conversation pretty quickly plus we had to move on."
To counsel for the plaintiff, Mr Maloney confirmed that he thought it was Mr Davis who started the discussion about the jump. He said that during the discussion someone asked Mr Davis whether he had done it a couple of weeks ago, and whether a particular person (who was not known to Mr Maloney), had hurt his knee. At that time Mr Maloney was in the area just outside the wheelhouse; he does not know where the plaintiff and Ms Poulson were. Mr Maloney denied that during the discussion Mr Saville had said that the jump would be filmed and that it could be used in the credits, and said that he did not hear any conversation along those lines.

Mr Davis' evidence

Mr Davis said that while just off the mouth of the sea cave, most likely after they had finished the filming in and out of the cave, he spoke to Mr Halmagyi in the cabin, as Mr Halmagyi was getting himself a cup of soup. Mr Halmagyi was expressing his enthusiasm about how impressive the caves were. Mr Davis said that the cave was of special interest because he and others had jumped off the cliff into the water. They discussed how often Mr Davis had done it. Mr Davis said that he suggested "explicitly to him only" that if they wanted to jump at the end of the day when the filming was over, then they perhaps could do that if he was interested. He said that Mr Halmagyi seemed interested but then left the cabin of the boat and sat at the back while he drove the boat further around the coast line. Mr Maloney seems to have been filming during this time.
To counsel for the plaintiff, Mr Davis said that Mr Saville was not in the cabin at the time of the conversation. He agreed that he had taken Mr Saville and some friends to the jump spot about three weeks earlier, and that a Mr Brock had hurt his knee when he jumped. Mr Davis assumed that this by landing awkwardly on the surface of the water but was not aware of the actual mechanism of injury. He also said that it was not apparent to him that Mr Brock was in any significant distress on the day. He found out later that the condition had "flared up". He said that he did not remember Mr Saville agreeing that the jump could be done later in the day; the only conversation he had about the jump that he recalled was with Mr Halmagyi in the wheelhouse. He did not have a conversation with anybody else on board the boat about jumping off the cliff until the end, when they had finished. He said that neither he nor Mr Halmagyi wanted to do the jump immediately.

Going back to the jump site in the afternoon

I will now move to events later in the day, after the dive on the Troy D had been completed and filmed for the purposes of the program. During the lunch break the group on the boat had been joined by Mr Newman. It was after the dive that the question of doing the jump was again raised.

The evidence for the plaintiff

The plaintiff said that as they started heading away from the dive site towards Triabunna, they had only travelled about five or ten minutes when Mr Halmagyi exclaimed that they had not done the jump yet. The plaintiff's evidence continued:
"Ed asked myself and Sam if we'd still participate in the jump and Sam and I had a discussion about doing the jump because it was already quite late in the day and Sam wanted to leave by about four o'clock to get to Hobart, but it was already after four, and despite the time Sam said, 'Oh yeah, it'll be fine', and then the – there was a discussion with Ed and Ken Saville again, like if there was enough time to go and film it and they said that there was enough time and then Ken Saville asked the cameraman if there was enough film to do the filming and they decided that there was enough film, so then we returned to the jump site."
The plaintiff said that everybody on board was positioned so that conversations could be heard quite clearly. Mr Halmagyi was excited about doing the jump. Mr Davis turned the boat and started in the direction of the cave. On the way back he told them to make sure they were wearing full wetsuits with booties as there were oysters and barnacles on the rocks "and then we also needed to wear shoes to climb up to the top of the cave 'cause it was quite rocky along the way". Her shoes had "big tread" on them. They arrived at the jump site at about 4.30pm.
To counsel for Southern Cross, the plaintiff seemed to agree that Mr Halmagyi had not mentioned a grand finale when he mentioned not having done the jump, but went on; "He didn't – he said that we haven't done the jump yet, but we discussed it during the day that it was for the grand finale, so that we all knew … , he didn't need to use those words again … ". [My emphasis] She agreed that "grand finale" would mean a big end to the day and that it fitted in with the high spirits everyone was in. The plaintiff was asked about a conversation with Ms Poulson, and said that they discussed the lateness of the hour between the two of them, but no one said that they did not want to go to Fossil Bay, they wanted to go back to Triabunna. She said there was a discussion with the camera crew about the lateness of the day, but she does not know what was said, apart from the fact that there seemed to be agreement that there was time in the day to do it. Neither she nor Ms Pulson expressed any reservations about going back and doing the jump.
The plaintiff was taken back to her assertion that she had specifically been told that the jump was the grand finale of the day. She denied that this was just her impression and said that those were the words that were used. She said that Mr Davis told her that they were to jump off the cliff like they were having fun. However, she went on to say, "The exact words from Ed was it was a grand finale, it was going to end the show, the big show, and we were to jump off like we were going to have fun to end the day". The following exchange occurred:
"You say Mr Halmagyi said 'We're going to jump off like we're having fun'…….Along those yeah.
The whole intention was to have fun, wasn't it, that's what it was for?......It was for filming purposes.
Who told you that?.........Ed.
Mr Halmagyi said to you 'This has to be filmed'………It was for filming purposes.
He said the words 'It is for filming purposes'?........It was for the grand finale for the end of the show.
Well now, Miss Price, what words did Mr Halmagyi use to tell you that this was something that had to be done for the purposes of the show? What words did he use?........What, I'm not quite understanding.
What did he say to you, what words did – came out of his mouth that conveyed to you that this was something that had to be done for the purposes of the show?.......It was for the grand finale to end the, for the big, you know, end of the day.
Did he use the words 'grand finale'?..........Yes.
I suggest he never did. Did he use the words 'big end of the day'?...........Yes.
I suggest that he never did. Do you reject that?........No, he did say that.
When did he say that?........Numerous times.
Numerous times………..Hm mm.
The first time it was ever mentioned earlier in the day?...........After we'd be come out of the cliff.
So it was – The first time it was mentioned at the beginning, at the earlier part of the day he said 'It's for the grand finale, the big end of the day'?........Yeah, for a big end of the day, definitely, or for the--- ". [Emphasis added.]
In response to specific questions, the plaintiff then seemed to resile from her earlier evidence, and stated that the jump had only been talked about at the site in the morning and again when it had been mentioned by Mr Halmagyi in the afternoon, but not in the meantime.
Ms Poulson said that after the dive finished they were going back to the Triabunna jetty. She said on the way back "Ed, Michael and Ken recalled that they were meant to be doing the cliff shot so we had to turn around and go back to the cliff". She said she was not asked whether she wanted to go back. She was asked by counsel for Southern Cross whether she had a discussion with the plaintiff about the lateness of the day and her (Ms Poulson's) concerns that she wanted to leave by about 4pm. She said that she recalled wanting to get home but did not remember that conversation. She said she was sure there was a discussion about wanting to get the "shot".
Mr Newman was called on behalf of the plaintiff. As I have noted, he came on board Mr Davis' boat at lunch time. He had filmed the dive on the Troy D and was sitting on the back of the boat when there was discussion about going to the north of Maria Island. He said that it was mainly Mr Davis and Mr Halmagyi who were involved. His evidence was that Mr Davis said that there was enough time left in the day to "film the sea cave, do the sunset, and investigate this jump off the cliff". Mr Halmagyi agreed, as did Mr Saville "because Ken was in control of the situation". Mr Newman said that Mr Maloney also wanted to go so that he could film the sunset which was "the other plan … He wanted to go to the north of Maria to film the sunset and to film a little bit more in another sea cave with Ed."
He said that when they arrived at the site, the boat actually went into the sea cave. Further shots of the sea cave were taken with Mr Halmagyi sitting on the transom of the boat. "So it basically traversed across and underneath the cliff face to get into the sea cave …" He said it was obvious to him that the jump was going to be filmed. Nobody had told him "that the the sunset or the cave shot at the north of Maria Island late in the afternoon, or the cliff … jump was [sic] not part of the series", adding that Mr Maloney was using the same camera as he had during the afternoon.
Mr Newman was cross-examined by counsel for Southern Cross on a written statement prepared by an insurance assessor but not signed by him. It is not in evidence. He said that he could not recall making the statement that, when the question of the jump was raised, Mr Halmagyi and both the plaintiff and Ms Poulson said that they were interested in making the jump.
It was put to him that his statement to the assessors contained an assertion that he was "certainly aware that what was about to occur was not part of the filming for the Discover Tasmania episode on this day". He agreed that those words appeared in his statement but said they "… may well have been implanted in my mind at the time; I've had a lot of time to reflect on that statement and as I said, I haven't signed [it]. And watching the video and reflecting on what happened on that day and the events, I will retract that statement." He went on to say that he may have been confused and agreed with the statement at the time, but would now retract it.

The evidence for Southern Cross

Mr Saville said that they had started to head back towards Triabunna and the topic of the jump came back up. He said he was not sure who had raised it but over his protests they, being the four people who ultimately went to the top of the cliff, said they wanted to do it and insisted. He said that he was pretty annoyed about it but said to them, "OK, do what you like". He was asked whether he wanted to join in, but he thought it was a silly idea and did not want to do it. "We had things to do and I'm not going to physically stop them from doing it. If they wanted to do it, go for their life." He did not think there was any discussion about filming the jump before they arrived back at the cliff, although he thinks Mr Maloney might have said something along the lines of that, if they were going back, they could film the sunset. Mr Saville responded that there was no time for that, but said in evidence that he thought once they arrived at the jump site, it was decided that they might as well film it.
Once they had arrived there, there agreement to film the sunset. He did not think that at the time they started to head towards the site there was any discussion as to whether there was sufficient tape to film the jump. He thinks that Mr Maloney might have thought up the idea of filming the sunset if they were going back to the cliff. He said that they did not have time, but thinks that it was decided once they had arrived there, that as they were there, they might as well film it. He suggested he may have raised with Mr Maloney whether there was enough tape, but he thinks Mr Maloney said something about filming the jump when they were actually at the site. He did not say, or hear anyone say, to the plaintiff that it was to be part of the show, and he detected no pressure on the women; "They were all willing".
To counsel for the plaintiff, Mr Saville agreed that he could have simply overruled everyone, and gone back to Triabunna. He denied that part of the reason for going back was to film the sunset. It was put to him that it followed there was to be some filming for the show at the site, namely the sunset. Mr Saville replied:
"If we decided to go back there and I said, 'No, I just want to head back.' I suggested to them I didn't want to go back but I was overruled. In that case what am I supposed to do? Physically restrain them?"
He was questioned further about the filming:
"As it turned out when the boat was turning around and going back to Maria Island there were two reasons: Mr Maloney to film the sunset, and the jump. Agree?......No, he suggested that we could film the sunset, I said, 'No,' and they went back to film the jump.
So you're saying you said to Mr Maloney, 'No, we're not going to film the sunset'?......No, I said, 'We haven't got time.' I said, 'Come on, let's get this over and done with and go home.' He suggested that, 'Well, if we're going back there then why don't we film the' – I said, 'No.'
So you deny that there was any intention for Mr Maloney to film the sunset?......I definitely deny that.
I want to suggest to you that the people who are keen … were Ed and Mr Davis……And the girls.
…
You agreed to return to Fossil Bay, didn't you?......I was submitted into wanting to go. [sic]
Come on, Mr Saville, you were in charge?......No, I didn't want to go.
If you had said, 'No, I don't want to go and it's not going to happen,' that would have been the end of the day?......Yes, it would have been but I was overruled by majority.
It wasn't a majority rule during the day, Mr Saville, you were in charge ?......Well, technically the day had ended for us.
You didn't make that clear to anyone, did you?......We were heading home.
You didn't say to anyone, 'Look, Southern Cross are no longer involved in this'?......Well, that's not what you do in real life, is it?"
Mr Saville agreed that after they had arrived at the jump site, he said to Mr Halmagyi that if the jump was any good it could be used in the show credits, but said that he had done so jokingly.[4] He explained "show credits" as meaning the program segment where the credits are shown and there is a backdrop of different scenes. He explained that Mr Halmagyi, as well as Mr Maloney, would have known that he was joking, but accepted that most likely it would not be an understanding shared by all on the boat. He denied that the jump was the grand finale of the day, and said that he did not hear Mr Halmagyi say that.
[4] The plaintiff did not give evidence about this. The proposition in cross-examination seems to have come from an incident report completed by Mr Saville on 19 September 2007, and which he provided to his employer.
Mr Halmagyi said that after the dive, somebody, he could not recall who, mentioned that they had not gone back to the cliff and jumped. He did not recall raising it. He was asked about the plaintiff's reaction to participating in the jump, and said that to his recollection "we were all enthusiastic about going off and doing it". When asked about Ms Poulson, he said that he did not recall anybody having any hesitation. He said that on the way there he did not have an understanding as to who was actually going to do the jump; he knew he wanted to. "I didn't think it was material. I mean, we'd finished work for the day and I was going off and do something fun. If others wanted to, great, if they didn't want to, also great."
Mr Halmagyi said that at no stage from the time when the jump was first mentioned onwards, did he get any sense that either of the girls did not want to jump. He was asked about filming the jump. He said the idea was just to create a personal memento. Mr Maloney agreed to shoot it, as using the small camera would have been like trying to film it with an iPhone; there would be no detail. It was purely for their own record; he wanted something to show his children so that he could show them what "dad did". He was pressed in cross-examination as to whether he raised the jump by saying something like "hang on, we haven't done the jump yet". He maintained that he could not recall doing so, but agreed "absolutely" that he thought it was a good idea.
Mr Maloney said that after the dive, he filmed the participants having a cup of tea with Mr Halmagyi talking. They established that nothing more needed to be done, so he and Mr Cocking started to pack the gear away. He said that the boxes for the equipment took up most of the wheelhouse. During this process he heard a conversation about the jump. He said that "it was almost like a high-five moment". Above the "atmosphere" in the back of the boat, someone said that they had not yet done the jump. Other people joined in. Mr Saville was asked whether it could be done. He did not think Mr Saville was very happy about it as it was the end of a long day and they were packing up. "We were pretty reluctant to start getting things out once we've started to pack because we say that's done".
He let Mr Saville deal with the issue. He said Mr Saville reminded the group of what had been said earlier in the day about a man being hurt at the jump. He said that in the end Mr Saville seemed to be resigned to the fact that there was a wish to do it by "the group of four". Mr Saville asked him whether they had time. Mr Maloney replied, "Well if you've got time I've got time and I'll stop packing up because it could be good to film it for the group to have a memento of it, almost like a home movie."
Mr Maloney was asked whether Mr Saville had said anything about filming it for the purposes of the show. He answered:
"No. In fact, I was emphatic to him. I said, 'I'll get the camera out but no part of this is going to make it to air,' because it's – you know, it's not what we do, it's not in our brief, wasn't in the brief the night before. To me it sounded unsafe and, you know, you look up at that cliff from earlier in the day and your mind is saying it looked unsafe. We don't – in all our other filming, you know, if we film a car coming round the corner and it touches the white line we reshoot it because we could imply that it's okay to drive on the white lines and be unsafe. We don't do – you know, it does not make the show."
The issue was resolved on the basis they would go to the jump site and take a "partial video record of it" as a memento which was done for a lot of stories. He packed the monitor and all of the non-essential equipment, apart from the camera with the battery and what was left on that day's tape. He was asked about whether he mentioned wanting to film the sunset. He said that at the end of every day if there was a chance to film the sunset they would take it. On this occasion, in the course of the discussion about what was going to be done, he said that he expressed a preference to go back to Triabunna, "and get a sunset". To counsel for Mr Davis, Mr Maloney said that when this conversation took place, the boat was still moored at the Troy D site. It was quiet and the engines were off and you could hear the water slapping against the boat.
To counsel for the plaintiff, Mr Maloney asserted that all conversations could be heard on the boat at the time. He was quite clear that he had used the expression "home movies". When the group of four asked to extend the journey so as to jump off the cliff, "Ken said his piece, and I said my piece and I also said it under sufferance 'I will go along and I might shoot it for you for home movies' and you could not miss that." When asked whether he had specifically used the term "home movies", he said that he could not recall, but that the essence of it was that the filming was not part of the story but was for the participants to have a record. He said that the situation was clear to everybody on the boat. "I was making the point that I was doing it under sufferance almost to say I am making my journey up there palatable by doing something for you." He agreed however that Mr Saville asked him whether there was enough film to do the jump, and that he agreed there was enough.
Mr Maloney said that when he was packing up the equipment there would have been about five metres between where he was taking it from to the wheelhouse where it was being stowed. He said that he was focused on making sure the equipment was being put away although the process was fairly casual, and he accepted that he could not hear everything which was said on the boat at that time. He denied saying that when the decision had been made to return to the jump site he said that he could put it on tape or DVD and that he might be able to use the footage later. He said that the footage was nothing that could ever have been used in the show.
Mr Cocking said that they had finished the story, they were on the way back but were first going to jump off the cliff into the water. He does not recall who discussed this. He does not recall it being mentioned earlier. He remembered Mr Saville saying that he knew someone who had hurt themselves jumping off a cliff, rather than the particular cliff, about two months earlier. He said that he was not told that the jump was being filmed for inclusion in the program, and did not hear anyone say why it was being recorded.

Mr Davis' evidence

Mr Davis said that when they were at the mooring at the Troy D, they were all packing gear away. He raised "the idea that we would go and do [the jump]". He said he was referring to himself and Mr Halmagyi. He asked the passengers if they had any objection. He does not remember any discussion about filming the jump, and could not recall whether that had been proposed before he jumped into the water. In cross-examination Mr Davis said that the women had asked about doing the jump, and that he had told them not to do it. This had not been put to the plaintiff in her cross-examination, nor to any of the other witnesses.[5]

In cross-examination the plaintiff was taken to the pleadings as to this issue and asked about what had happened. The relevant exchange is as follows:
"The allegation goes on 'and that Mr Halmagyi had Southern Cross's authority to direct, instruct and advise you as to the activities you undertook'……….Yes.
Nobody ever told you that either, did they?........Well he gave us directions of where to stand and where not to stand, what to do, what positions.
Nobody ever told you Mr Halmagyi had Southern Cross's authority to give you directions and instruction, did they?........Well I didn't know.
Nobody ever told you that, did they?.........I guess not, no.
No. Nobody ever said to you 'you must follow Mr Halmagyi's directions today', did they?.......That was implied because they were working as a team and they were telling us and we were doing what they told us to do.
All sorts of people told you what to do during the day, didn't they, the camera man, the sound recordist, Mr Saville……..The camera man when we had to re-do a shot, Mr Saville, Ed, and just Michael at one point when we went into the water.
But nobody told you at any stage that you had to follow Mr Halmagyi's directions, did they?..........No."
I accept that the whole of evidence shows that Mr Halmagyi, to one degree or another, involved himself in how the various segments were put together and filmed, and that he made suggestions to the plaintiff about how, when and where to position herself. I accept that it would have appeared to the plaintiff and to a casual observer that Mr Halmagyi was integrally involved in the production process. As a fact, he was involved in that process and was so by virtue of his agreement with Southern Cross. The question is whether I am satisfied Mr Halmagyi was doing anything more than what was required or expected of him by way of his contribution to the program under his contract, and simply acting independently in that sense. The actual relationships between the parties is important, rather than descriptive labels which might be attached to a role or to particular conduct: Sweeney v Boylan (above) at 167 [13].
What Mr Halmagyi was doing was for the benefit of Southern Cross as well as for his own benefit. Southern Cross had a contractual obligation to Tourism Tasmania to produce the program. Mr Saville, as a Southern Cross employee, was closely involved with Mr Halmagyi in filming and recording program segments. They were working together at the same place and time. Mr Saville was able to, and did, exercise control over what Mr Halmagyi did, and how he did it, although he was allowed some latitude. Mr Halmagyi was allowed to dictate how some things were done by him as well as by the extras. There was a significant degree of contemporaneous co-operation and interaction.
In that scenario, I think the better view may be that Mr Halmagyi was not so much conducting his own business, but was doing things for Southern Cross as part of its business. I would hold, if it were necessary, that the actions of Mr Halmagyi in directing the movements of others for the purposes of making the program, were within the scope of his authority as an agent of Southern Cross. Of course, I have found that the business of Southern Cross was not being conducted at the relevant times. There was no actual authority for Mr Halmagyi to act on behalf of Southern Cross in relation to the jump, and no such authority apparent on reasonable grounds: Gorman v H W Hodgetts & Co [1932] SASR 394 at 404.

Did the defendants owe to the plaintiff a duty of care?

The question of whether either defendant owed a relevant duty of care to the plaintiff other than by way of a contract, is to be answered by an examination of the facts, as I have found them to be. The relationships between the plaintiff and Southern Cross, and between the plaintiff and Mr Davis, do not fall into those categories in which the existence of a duty of care is established and well recognised. To test whether a duty of care exists in such a situation, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the alleged tortfeasor, by reference to the salient features or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury: Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 per Allsop P (with whom Simpson J agreed) at 676 [102].
At 696 [103] Allsop P said that the salient features included the following:
"(a) the foreseeability of harm;
(b)the nature of the harm alleged;
(c)the degree and nature of control able to be exercised by the defendant to avoid harm;
(d)the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e)the degree of reliance by the plaintiff upon the defendant;
(f)any assumption of responsibility by the defendant;
(g)the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h)the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i)the nature of the activity undertaken by the defendant;
(j)the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k)knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l)any potential indeterminacy of liability;
(m)the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n)the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o)the existence of conflicting duties arising from other principles of law or statute;
(p)consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q)the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law."
Basten JA (with whom Simpson J also agreed on this point) said at 690 [172] that the multifactorial approach should not be treated as a shopping list, all the items of which must have application to a particular case. "Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court." His Honour added that it was necessary to distinguish between those considerations which were essentially factual, those which require value judgments, and those which may require the application of legal policy. Each party in this case referred to Allsop P's list and highlighted various factors said to support the point of view being advanced.
I will deal first with the position of Southern Cross. It is unnecessary to go through all of the matters said to give rise to a duty of care as pleaded in par 18B of the statement of claim as set out above. Almost exclusively, they relate to the nature and the degree of control over the plaintiff's activities in the background of a foreseeable risk of injury imposed by the jump. The remaining matter is that the jump created a hazard with a high risk of significant injury if not done properly. The duty alleged is simply one "to take reasonable care to prevent … foreseeable harm by undertaking the jump". Although judged from different time perspectives, the scope of the duty alleged may be suggested by those matters said to constitute the breach. In summary, those matters are: requiring the plaintiff to jump, coercing, harassing, pressuring, persuading or otherwise encouraging, or allowing and permitting her to do so, failing to assess the safety of the jump, and failing to warn her of the risk.
The effect of my findings is that there was no request or implied requirement, or obligation imposed, for the plaintiff to jump. There was no control over the plaintiff's activities or conduct at any relevant time by any Southern Cross employee or agent. In the absence of those features, the plaintiff must fail on the primary basis of her claim. The jump was not part of the arrangements between the plaintiff, Southern Cross and Mr Davis. It was something done by the individuals. That leaves assessment of the plaintiff's 'fall back' position; a duty of care on the residual aspects of the relationship and a knowledge of the risk.
As I noted at the outset, the plaintiff argues alternatively that a duty arises because Southern Cross was generally in control of the day's activities, that in that context both defendants took the plaintiff to the jump site when it had not been made expressly clear to her that the activity was not for the program, and when at least Mr Saville personally, and Mr Davis, had knowledge of the risk. It is a little difficult to see how this case theory fits in between the one primarily pursued, and the plaintiff's accepted position that she does not seek to allege any duty of care to prevent reasonably foreseeable harm in the context of a voluntary jump; that is, a duty to prevent her from doing what she chose to do, or a duty to advise or instruct as to how she should do it.
Ordinarily, the law does not impose a duty upon a person to take affirmative action to protect another from harm, nor to protect another from the risk of harm unless that person has created the risk: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, per McHugh J at 575-576 [81]; Stuart v Kirkland-Veenstra (2009) 237 CLR 215, per Crennan and Kiefel JJ at 258 [127]. It might also be said that the suggested duty conflicts with the plaintiff's autonomy. The conflict exits because there is no "supervening or no overriding reason" that the plaintiff was not autonomous. That would be otherwise were control exercised at the relevant time by Southern Cross over the plaintiff when she was vulnerable or had become vulnerable before any control was exercised: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 per Gummow, Heydon and Crennan JJ at 406 [38].
It is true that, but for the plaintiff's involvement in Southern Cross' activities during the day, she would not have had the occasion to consider the jump or the opportunity of doing it, but I am not able to see how that aspect contributes to the existence of a duty of care. That is a matter of co-incidence. Similarly, the mere taking of the plaintiff to the jump site when others were going to jump in any event, adds nothing.
As to the next aspect, that of not informing the plaintiff that the jump was not part of the program, I have found that the thrust of the conversation at the Troy D site and the observable features of the manner of filming reasonably showed that it was not. I also repeat my observation that the case was not conducted on the basis that the plaintiff wrongly believed that jumping was part of the program. That leaves the apparent nature of the risk, in respect of which the plaintiff relies on actual knowledge. Assuming Mr Saville's personal knowledge is that of Southern Cross, a point which seems to have been assumed but not argued and about which there may be some doubt,[8] I do not see how that alone could of itself , in the case of voluntary action by the plaintiff, give rise to a duty of care. Any such duty would be of limited scope, and I will deal separately with the question of a duty to warn of the risk.
[8] The evidence does not make it clear whether the knowledge of Mr Brock's injury was acquired inside or outside the scope of Mr Saville's employment. If the latter, it would seem that such knowledge could not be attributed to Southern Cross: Micarone v Perpetual Trustees Australia Ltd (1999) 75 SASR 1 per Debelle and Wicks JJ at 124 [638].
Much of what I have said applies equally to the case against Mr Davis. The duty alleged is the same. The matters said to give rise to the duty on his part are pleaded in par 18B which is set out above. In the main, they also relate to the nature and extent of his control of events, his assistance to the plaintiff, and his involvement in the jump. His control is said to relate to the operation of the boat in going to the jump site. My finding that the jump was not done for the purposes of the program means that the extent to which Mr Davis was formally involved in the making of the program in a general way, is of no consequence. In the absence of direct control over the plaintiff's activities in any relevant sense, the facts surrounding his personal involvement in the jump cannot, in my view, give rise to a duty of care on his part.
Mr Davis also knew of an injury from the activity although perhaps not the full details. Again, I do not see how how that alone could, in the case of voluntary action by the plaintiff, of itself give rise to a duty of care on his part. I will deal with any duty on his part to warn of the risk at the same time as I discuss the point in relation to Southern Cross.
On this point, section 17 of the Civil Liability Act 2002 (the Act) has relevance. It provides that a person does not owe a duty to another person to warn of an obvious risk to that other person. Section 15 of the Act deals with the meaning of "obvious risk", and provides as follows:
"15    Meaning of 'obvious risk'
(1)   For the purpose of this Division, an
obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)   Obvious risks include risks that are patent or a matter of common knowledge.
(3)   A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)   A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
(5)   A risk is not an obvious risk merely because a warning about the risk has been given."
The assessment of whether or not a risk is an obvious risk is to be made by reference to a reasonable person, but with the characteristics and in the particular circumstances of the person who suffered harm: Doubleday v Kelly [2005] NSWCA 151 per Bryson J (with whom Young CJ in Eq and Hunt AJA agreed) at [28]; Fallas v Mourlas (2006) 65 NSWLR 418, per Tobias JA at 434 [100]; Great Lakes Shire Council v Dederer [2006] NSWCA 101 per Ipp JA (with whom Handley and Tobias JJA agreed on this point) at [151]. See also State of Queensland v Kelly [2014] QCA 27 at [33].
Although the evidence does not reveal any experience of the plaintiff in jumping into water from heights, she had much experience of being on and in the water. Its forces were not something foreign to her. On her own evidence, the plaintiff perceived the risk of jumping even when assured that the water was deep enough and without obstructions. She has, in her own pleadings, asserted that the jump created a hazard with a high risk of significant injury if not done properly. The jump involved some propulsion forward to clear the cliff ledge. I hold that the risk of harm by impact with the water by jumping from the cliff was an obvious risk within the meaning of the Act. It was an obvious risk without being warned of it. That relieves the defendants of a duty to warn the plaintiff of the risk, and that is so, even with specific knowledge of an earlier injury to someone else.

Conclusions

For all of those reasons, I hold that on both the plaintiff's primary and alternative cases, neither defendant owed to the plaintiff a duty of care in the circumstances as I have found them to be. It follows that there is no need for me to consider whether either defendant breached any duty of care, and I see no benefit in fully addressing the question and simply making observations about it. The standard of care and questions of breach are to be determined in light of s 11 of the Act. I observe that the plaintiff has failed to satisfy me about the factual matters said to constitute breach of duty; namely, a requirement to jump, coercion, harassment or pressure in any relevant sense, and failing to advise on the best means of jumping. (The failure to warn has been dealt with in the duty discussion.) Equally, there is no need to deal with the pleas of contributory negligence.
I will, however, now make some observations about two substantive matters raised in the defences. I do so because the first would be an answer to the plaintiff's claim even if she has succeeded on her primary case for breach of a general duty, generally in deference to the arguments, and because it might be prudent to do so.

Voluntary assumption of risk – "an obvious risk"?

Each defendant would bear the onus of establishing that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk she ran, agreed to incur that risk: Dodge v Snell [2011] TASSC 19 at [206] and the cases cited. It is well established that the three elements of the defence which must be proved are that the plaintiff perceived the existence of the danger, that she fully appreciated it, and that she freely and voluntarily agreed to accept the risk: see for instance Carey v Lake Macquarie City Council [2007] NSWCA 4 at [76]; Dodge v Snell at [207].
Section 16 of the Act provides that if, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised, and the risk is an obvious risk, the plaintiff is taken to have been aware of the existence of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the existence of the risk. I have already held that the risk of injury by impact with the water was an obvious risk. I have already noted that the plaintiff was alert to that risk, and I am satisfied that the plaintiff was aware of the existence of the relevant risk and fully appreciated it. That obviates the need for the defendants to establish the first and second elements of the defence, but they must still establish, on the balance of probabilities, that the plaintiff freely and voluntarily agreed to accept the risk.
In Dodge v Snell, Wood J considered a defence as it related to the position of a jockey injured in an organised horse race run under the auspices of a relevant body. The plaintiff jockey was held to be in breach of a duty of care to other jockeys. At [228], her Honour noted that there was no direct evidence that the plaintiff voluntarily accepted the risk of the defendant's negligent conduct, but that the defendant relied on a necessary inference, drawing attention to the fact that voluntary assumption of risk will rarely be the subject of direct evidence. Her Honour noted the submission that the plaintiff voluntarily undertook all the risks that a horse race between horses ridden by professional jockeys, and that he was under no compulsion to ride in the particular, or any other, race other than the compulsion inherent in his free and voluntary choice to take up and continue in his occupation.
At [229] her Honour said:
"Whether or not the inference may be drawn depends on the facts of each case. It is useful to have regard to some cases where the courts have declined to draw an inference. It may be noted that in those cases the facts indicate a degree of compulsion or interference with the freedom of choice. It will be seen from these cases that the question that emerges in this regard is, did the plaintiff have a real and practical choice as to whether he exposed himself to that danger?" [My emphasis.]
Her Honour then considered a number of authorities: Bowater v Rowley Regis Corporation [1944] KB 476; Standfield v Uhr [1964] Qd R 66 and Carey v Lake Macquarie City Council (above). Her Honour held that although Mr Dodge was aware of the risk in a generalised sense, the risk that materialised was not a risk that he specifically adverted to when he chose to ride, and that his awareness of the risk was accompanied by a belief in his own skill and confidence to manage situations of risk. Furthermore, her Honour said, "there was in this case, in a real and practical sense, a lack of choice about the risk. There was nothing that the plaintiff could do to avoid or reduce the risk if he was to work as a successful jockey."

If I am wrong about the existence of a duty of care in either of the suggested scenarios, and if breach is accepted, the defendants would have to establish that the plaintiff in fact freely and voluntarily accepted the risk. Were it to be necessary, I would hold that the defendants have made out the defence. For the reasons which will shortly follow in relation to the claim for false imprisonment, I am satisfied that the plaintiff had a real and practical alternative to exposing herself to the danger, and on that basis must be taken to have voluntarily accepted the risk.

A dangerous recreational activity?

Section 20 of the Act provides that a person is not liable for a breach of duty for harm suffered by another person (the plaintiff) as the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Section 19 explains the meaning of various phrases used in s 20 as follows:
· "Dangerous recreational activity" means a recreational activity that involves a significant degree of risk of physical harm to a person.
· "Obvious risk" has the same meaning as given to it by s 15 (see above).
· "Recreational activity" includes any sport (whether or not the sport is an organised activity), and any pursuit or activity engaged in for enjoyment, relaxation or leisure.
The combined operation of the provisions is clumsy. In order for liability not to accrue by virtue of s 20, the harm suffered must be as a result of the materialisation of an obvious risk of a recreational activity that involves a significant degree of risk of physical harm. I have already discussed the meaning of "obvious" when applied to a risk. The risk needs to be one obvious to a reasonable person in the plaintiff's position. What amounts to a "significant risk of physical harm" is to be assessed by reference to the ordinary meaning of the term "dangerous recreational activity".
Whether a risk of physical harm is "significant" requires an objective assessment of the relevant activity which takes account of the probability of that harm coming to pass, and the seriousness of the harm which would or might then result. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm; a high probability of very minor injury may well not be a significant risk of harm. For these propositions see Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [28]-[30], Fallas v Mourlas (above) at [12]-[18], Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31], Jaber v Rockdale City Council [2008] NSWCA 98 at [46]-[47] and Streller v Albury City Council [2013] NSWCA 348 at [43]-[48].
Whether or not a particular activity is a recreational activity is determined on the facts of the particular case. An activity which is of a commercial or employment nature for one person, might be recreational for another; it might be recreational for that same person but done in different circumstances. To be a recreational activity it needs to be engaged in voluntarily: Dodge v Snell at [273]-[276]. As I found that the jump was not part of the activities intended to be depicted in the program, it would be very difficult to characterise the activity as anything other than recreational. There was no aspect of imposed obligation or compulsion. I have held the risk to be an obvious one.
As to whether the recreational activity is a dangerous one as involving a significant degree of risk of physical harm, I regard the risk of harm as relatively high in terms of the likelihood of occurrence, and at the same time more than trivial in terms of the extent of harm which might eventuate. I would regard the activity as one involving a significant degree of risk of physical harm. Were it to be necessary, I would hold that, by virtue of s 20 of the Act, the defendants would be absolved from liability for any breach of duty.

False imprisonment

The jump site – access and egress

Having seen the footage, there is no doubt that with a swell present, access from the water to the solid rock shore may well present difficulties. This could depend on the tide. The plaintiff and Ms Poulson had to be helped by Mr Davis on the rock, and from behind by Mr Halmagyi from the water. There is a straight but not very high climb from the point at which they left the water. In his evidence, Mr Davis was asked to describe in general terms the walk to the jump site. He said:
"The – the rock type that we were climbing from the water to the ledge that we would then traverse to the jump site, is limestone, it's a sedimentary rock, so it was very – they were very flat and open ledges, so it was a matter of just walking along a flat ledge, climbing maybe a metre, a metre and a half to another flat ledge, walking along to find a way up to the next ledge, so there were maybe three ledges to climb before we got to the main ledge that would ultimately lead us to the jump site."
Mr Davis described the "main ledge" as a single flat ledge "that walks the whole way to the top of the cave". He described the walk from the water to the jump site as "very easy". He said that a few days before he gave evidence he went to the site with a female member of his staff, Katrina, and two other people. He filmed Katrina walking from the water to the top of the cave. He did this in segments, first filming her as she approached and went away from him, and then relocating to repeat the process. Katrina's age was given as 51, and she appears to have been wearing ordinary rubber soled shoes. Mr Davis said that he did not see Katrina, nor the other two people, have any difficulties in getting from the water's edge to the jump site and back. The DVD footage was tendered. The footage of Katrina's walk occupies nearly 6 minutes, although for present purposes a fair estimate of the time it might take would be 10 minutes.
Katrina's starting point was not exactly the point from which the group set off in September 2007, but about 30 metres to the east which is closer to the cliff. The topography at that point is about the same. Mr Davis said that there would have been a marginally bigger swell on the earlier day. He could not recall what the tide height would have been at the time of the jump, but said there was only a metre difference between high and low tide at that point. Notwithstanding the difference in entry points, there was no difference in terms of getting up to the first ledge. Generally, the footage shows that although there are points along the way which are steep and require some careful ascent through rocks and vegetation, the way is often flat or gently inclined. I perceived no difficulty at all in Katrina's progress. Although descent can often pose greater risks than ascent, I see nothing to suggest that descent from the cliff top posed any real dangers.

The plaintiff's case

I have already set out much of what has been pleaded as to this issue. It will be recalled that the plaintiff says that the defendants coerced, harassed, pressured, persuaded and encouraged her to jump, that conduct having a coercive quality by virtue of the characteristics of the individuals concerned as compared to those of the plaintiff. The plaintiff says that the defendants were in a position of superior force and authority. Critically, the plaintiff alleges that once on top of the cliff there was no reasonable egress open to her.
It is pleaded that the route taken to get to the top of the cliff "would have been very difficult and dangerous to climb down, particularly whilst wearing a wetsuit and booties". It is also pleaded that the water around the rocks at the base of the cliff was surging, the swell being such that the plaintiff "having had trouble getting out of the water to get up onto the land, was very concerned that she would be unable to clear the rocks", and would have required assistance to make the descent and to clear the rocks in order to reboard the boat.
The pleading does not specifically allege an intention on the part of Southern Cross by its agents or employees, or Mr Davis, to imprison her. Neither the pleadings nor closing submissions address the issue of state of mind. The discussion in Balkin and Davis, Law of Torts, 5^th ed 2013, at 49 [3.25] shows that normally the tort is regarded as intentional in the sense that the defendant must intend to do an act "which is at least substantially certain to cause the confinement". As a matter of principle, negligence might be sufficient to satisfy the mental element of the tort, although the point has not been decided, and there is disagreement amongst academic writers. As will become clear, I do not need to address any deficiencies in the pleadings, nor decide the point.
The following is a summary of the relevant features of the tort of false imprisonment:
·     The conduct with which the law of false imprisonment is concerned must be of a coercive character and amount to a total restraint: McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at 260 [31].
·     The restraint need not be physical nor bear any similarity to what would normally be described as imprisonment: South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at 391 [282].
·     The essence of the action is the compelling of a person to stay at a particular place against his or her will. Where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint: McFadzean at 264 [41].
·     Where there has been no application of physical force there must be evidence of complete submission of the plaintiff to the control of the other party, supporting at least an inference that the plaintiff reasonably thought that there was no way of escape: South Australia v Lampard-Trevorrow at 395 [303]; Symes v Mahon [1922] SASR 447 at 453.
·     Whether there is total restraint is a question of fact. A means of escape means that the restraint is not total, but that means of escape must be one which does not involve the risk of personal injury or is otherwise unreasonable: Burton v Davies [1953] St R Qd 26 at 30; R v Macquarie (1875) 13 SCR(NSW) 264; McFadzean at 264 [42].
·     Whether a means of escape is reasonable or not, involves a subjective assessment and must take into account the plaintiff's characteristics: Young v Cooke [2013] NSWCA 79.
·     The plaintiff does not need to prove malice or improper motive: Ruddock v Taylor (2003) 58 NSWLR 269 at 272, [273]-[274]; Calabro v Western Australia (No 3) [2014] WASC 84 at [46].
The plaintiff's case is based on the proposition that by pressuring her to jump from the top of the cliff, the defendants had falsely imprisoned her at that spot. That is because the plaintiff says that going back down the way she had come up was not reasonably open. It is not entirely clear on the authorities that compelling a person to go in a given direction amounts to imprisonment. In Bird v Jones (1845) 7 QB 744, 115 ER 668, Patteson J suggested that it might, but the real point in this case was whether it was reasonable from the plaintiff's perspective to go back down and to get onto the boat.
The plaintiff must fail on this claim. My earlier findings tell against her. But the plaintiff must fail even were I to accept that the jump was for the program and the required degree of coercion. The plaintiff accepts that Mr Davis made an offer to her to take her back down, which offer she declined. I reject her assertion that she did not think they would be able to get past Mr Halmagyi as quite implausible, or least as a belief not reasonably held. Even ignoring the offer from Mr Davis, the plaintiff was wearing ordinary rubber soled shoes over her wetsuit booties, and having regard to what the evidence shows about the nature of the climb up and back, I am simply not satisfied that it was unreasonable for her to go back down on her own.
As to this, I repeat my earlier observations as to the work skills and experiences which the plaintiff had acquired. Getting from the shore into the water and onto the boat might have presented a challenge, but the plaintiff is an experienced swimmer and diver, and no doubt one or more of the people on board would have assisted her. Mr Newman was in fact quick to get into the water after the plaintiff had jumped and was in obvious difficulty. There were on the boat, no doubt, rope lines available to be thrown to her.

Outcome

For those reasons, there will be judgment for each defendant against the plaintiff.