Roads & Traffic Authority of NSW v Dederer & Anor
[2007] HCATrans 233
•23 May 2007
[2007] HCATrans 233
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S122 of 2007
B e t w e e n -
ROADS AND TRAFFIC AUTHORITY OF NSW
Appellant
and
PHILIP JAMES DEDERER
First Respondent
GREAT LAKES SHIRE COUNCIL
Second Respondent
GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 23 MAY 2007, AT 10.26 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.C. CASSELDEN (instructed by Henry Davis York Lawyers)
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR D.T. KENNEDY, SC, and MR G.R. GRAHAM for the respondent. (instructed by Emery Partners)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I mention a matter. We seek leave to file a notice of contention out of time and to amend a notice of cross‑appeal if special leave be granted. Your Honours, we rely in that regard on a summons filed 15 May this year and an affidavit of Mr Ristevski in support. I understand the application is not opposed.
GLEESON CJ: Is that right, Mr Walker?
MR WALKER: Yes, your Honour.
GLEESON CJ: Yes. We will make those orders as you ask. Yes, Mr Walker.
MR WALKER: Your Honours, in our argument with exceptions that do not presently matter, we support the approach taken by Justice Handley in the Court of Appeal. In particular, as a focus for my address, we seek to identify as a fallacy in the reasoning against us the notion of a sign failing for the purposes of finding negligence in deploying only that sign as a warning by reference to the defiance thereafter of the sign by those who have seen and understood its content.
KIRBY J: There is a little uncertainty in my mind as to how long the “No Diving” sign was there and some of the evidence or submissions seem to suggest that the sign was put on the bridge in 1998, I think. Others suggest that there was a sign on the bridge going back to the 1980s.
MR WALKER: Your Honour is correct in your recollection concerning the suggestions of an earlier sign. I will come to evidence later, but in December 1995, for example, in official correspondence concerning the matter of the sign, the word “replace” is used in relation to it.
Your Honours, may I take you quickly to some pictures relevant to an appreciation of the facts. In volume 2 of the appeal book, first, at page 617 the bottom of the page is an overall picture of the bridge. Your Honours will see, I hope, over the darker blue portions the indication in the photograph of the slight humping or arching over channels which might be regarded as navigable. The blue‑biro marking as recorded in volume 1 of the appeal book at page 97 was placed on the photograph during the hearing to indicate the vicinity where he and his family had formerly in their visits to the locality pulled up their boat on the sandbank and dived off the stern of the boat into the deeper water.
GLEESON CJ: Forster is on the top end of that photograph?
MR WALKER: Yes, and Tuncurry on the bottom. Can I ask your Honours to turn over two pages to page 619. This, according to the evidence on pages 97 and 99 of volume 1 depicts, particularly the three blue crosses your Honours will see in the upper left quadrant, the approximate location of the plaintiff, at first some two years before the accident that befell him seeing jumping by others and seeing diving by others - “jumping”, volume 1, page 97, line 50; “diving”, volume 1, page 99, line 5.
KIRBY J: I do not quite understand that. Who took this photo?
MR WALKER: This is a photo taken for the purposes of the hearing. I am unable in every case to tell your Honours from the record who took the photos or when they were taken.
KIRBY J: This was not a family photo taken some earlier time?
MR WALKER: No. Your Honours may regard this as a photo taken for the purposes of litigation.
GLEESON CJ: It must have been taken from the Forster shore.
MR WALKER: It must have been taken from the Forster shore. The bottom ledge, which is indicated lower of those three blue crosses, is explained at page 109 in volume 1, line 25 as being the “bottom ledge” from which on 30 December 1998 the plaintiff jumped. I stress, that is the 30th and it is a jump. What this case is about is the 31st and a dive. I take your Honours next to page 631.
GLEESON CJ: There is somebody in the photograph who looks as though he is about to dive, is there not?
MR WALKER: It certainly appears to be a crouch position. I am not quite sure what the person to the left of that is embarked upon doing either.
KIRBY J: There seems to be somebody on the top rung. It looks like a smallish person, a child perhaps.
MR WALKER: Crouched as if ready to dive.
KIRBY J: Yes.
MR WALKER: Page 631 is a photograph which we know from volume 1, page 114, line 32 was taken in April 2004, taken for the purpose of litigation. It is the site, as the blue cross indicates, in close proximity to the pole supporting the light. It is the site of the dive on 31 December which rendered the plaintiff partly paraplegic.
GLEESON CJ: The photo on 625 is a good photograph because it shows how you get onto the bridge if you are a pedestrian.
MR WALKER: That is how one gets onto the bridge, yes. There are several pedestrian approach photographs of which 625 is one.
KIRBY J: What is the extent of the respondent’s paralysis? Is he wheelchair bound?
MR WALKER: Mostly, yes. Page 639, your Honours, this is a close up, as the legend at 638 shows. It may or may not have been also taken in April 2004. The record is not categorical about that. It is referred to in volume 1 at page 131, line 15. It shows the railing. Your Honours will see the horizontal members, as they are called, by comparison with the postulated vertical members. One sees in particular the flat top, as it is called, of the railing. Your Honours, the evidence and the findings are not entirely consistent concerning the composition. We submit, for reasons which I do not need to go into at the moment, that there is error in the trial judge’s suggestion that it is wooden. It is steel. There is nothing that turns on that for present purposes.
Could I now take your Honours to volume 3 and at the very beginning of that volume, page 1060. It may be as a matter of inference only, not record, that this photo was taken in 2002. In volume 1 of the appeal book at 246, line 40 there is explanation but the picture supplies its own explanation. That shows boys or young men preparing to jump.
KIRBY J: Unless the photographer for the litigation brought his children along and got them to pose there, which has been known to happen in litigation, you know, this is rather confirmation of some of the evidence that it was very common in this holiday area in that time of the year for young people to jump off the bridge.
MR WALKER: Your Honours will have seen from our written submissions, all of which we rely upon, that nowhere do we contest the findings that there has been jumping, and indeed diving, for a considerable period before and after the accident that befell the plaintiff. Could I now take your Honours to page 1315. We know from the record, volume 1 at page 186, line 35, that that was taken on 22 April 1999 and your Honours may see the date legend on the photograph itself. That depicts the so‑called pictogram or pictograph, the sign in question in a replaced version after the accident. The evidence at pages 184 to 186 reveals that that is in a similar position, as the plaintiff recalls it, to the one he had seen but in somewhat better condition.
Can I take your Honours now to page 1345. That is taken on the same date, 22 April 1999, and on the Tuncurry side it shows one of the prohibitions of fishing from and climbing on the bridge. That is referred to in volume 1 in the evidence, pages 186 to 187. Next, two pages over ‑ ‑ ‑
GLEESON CJ: Just before you go from 1345, if that was taken from the Tuncurry side, that means there is one of these pictograms on the Tuncurry side and another one on the Forster side.
MR WALKER: Yes.
GLEESON CJ: Is there on the Forster side a notice corresponding to the notice on the Tuncurry side?
MR WALKER: Yes, your Honour. Page 1346, taken in 2002, from which I would ask your Honours to infer, though the record does not reveal it, the one I had earlier showed you at 1060 was also - it seems to suggest that the camera took two photographs in quick succession, I would ask you to infer. That is depicting - X marks the spot – the position from which the plaintiff dived in 1998. That your Honours will find referred to in the evidence, volume 1, pages 115 to 116 and I do not need to take you to that.
Finally, can I take you back in the same volume to 1136 to the photograph of another bridge altogether relevant to the negligence alleged and found concerning the retention of horizontal rather than vertical members in the bridge. That is the Bulahdelah bridge. Your Honours are, I think, able to see on the nearest concrete abutment that the members supporting the top railing and joining them to the bottom railing are vertical. That was the subject of evidence including that at volume 1, page 463, lines 15 to 35 where the Council engineer revealed in answer to challenges in cross‑examination that construction of that kind would prevent people from launching themselves into the water from the railing, that he had indeed seen people climb the railing of that very bridge, Bulahdelah, and though it made the exercise much harder, he had seen people climb and jump.
GUMMOW J: That is volume 1?
MR WALKER: Volume 1, page 463, lines 15 to 35. There is also evidence concerning that at pages 462 and 352. Could I take your Honours in volume 3 now, not to photographs but to some convenient material concerning the so‑called pictograms, pictographs or signs in Australian Standard 2416-1995 which played a part in the evidence, both expert and lay, at the trial. The standard commences in volume 3 at page 1319.
Could I take your Honours immediately please to page 1340 which we know from page 1338, line 10 is part of an appendix listing symbolic signs for water safety that have been successfully developed and tested. You see number 213 at about line 22 down to line 30 which is “Diving prohibited”. On page 1342 your Honours will see at the foot of the page No 228 “Beware of shallow water when diving”. Those numbers, 213 and 228, are used to designate versions of signs discussed, in particular, by Mr Fogg, the expert to whose evidence I will come later.
Could I take your Honours in particular then, in relation to his material, in the same volume to page 1379. This is material which played a part in the testing of the expert evidence concerning signage. It is 1999 material by so‑called Statewide Mutual Liability which, as the evidence shows, was the result of a political directive for councils and similar bodies to address themselves to matters of water safety. Could I draw to attention at 1382, unlike the 1995 standard, in 1999 there is the suggestion of “NO JUMPING” sign which you will see in the top left, the one that looks like a person is falling.
At 1384 may I draw to attention in the bottom row the “SUBMERGED ROCKS” sign. It does not play a particular part but I draw it to attention, and in same manner on 1385, one sees in the second bottom row a “SHALLOW WATER” sign which appears to show a person wading.
Could I then take your Honours in volume 1, please, to Mr Fogg’s evidence concerning the nature of those 1998/1999 results. At line 15 down to about line 40 he is asked concerning the process which produced them. The “figure 2” that is referred to at line 35 on that page 321 I can tell your Honours is sign No 228, to which I have drawn attention, and one obtains that, though I need not take you to it, from volume 3 of the appeal book, page 1357.
Finally, I need to take your Honours to the text of the standard which was the subject of ultimate findings against us in the Court of Appeal. Page 1337 in volume 3 records just below line 40 under the heading, “SPECIAL REQUIREMENTS FOR SPECIFIC SIGNS” and the subheading, “Diving Prohibit symbol sign” the following:
Where the Diving Prohibited symbol sign is used in situations where serious injury could result from a person diving into shallow water, the words SHALLOW WATER shall either be included with the Diving Prohibited symbolic sign as a composite sign or on a supplementary plate mounted on the same post as, and below, the sign.
At first instance, as your Honours will have seen, the reference is volume 3, pages 1415 to 1416, paragraphs 22 to 24, Justice Dunford observed concerning the requirement for a “shallow sign” word warning that the difficulty was that certainly in the position from which one sees the jumpers in the photographs and from which the plaintiff jumped, not least because of the appearance of the water which concealed rather than revealed its depth that it would be seen that it was not shallow or not necessarily shallow with obvious problems of the efficacy, in general terms, of a sign which contradicted what somebody could there and then see in front of them.
That is what produced at trial Justice Dunford’s devised warning which should have been given by a combination of pictogram and words in order to avoid the negligence his Honour found by simply leaving the sign. Your Honours will find that in volume 3 at page 1429 at paragraph 70. It was the addition of these words, “Danger, shifting sands, variable depth”.
The Court of Appeal rejected that for reasons which include the lack of information in such words above and beyond what the plaintiff in any event knew and preferred – see Justice Ipp, volume 3, page 1535 at paragraph 248 – preferred this composite sign of words and pictures, namely, the “No diving” pictogram which prohibited diving, together with the words “shallow water” noting explicitly that that would be consistent with the clause of the Australian Standard to which I have drawn your Honours’ attention.
Finally, without needing to take your Honours to it, may I note at this point that in relation to signs the evidence from the expert called for the plaintiff was that it was his experience – we would interpolate by way of paraphrase, thus a reasonable expectation – that the vast majority of people seeing a sign would obey it and that there would be a few of the whole population who would disobey it. That cross‑examination is found at volume 1, page 310, lines 20 to 30.
KIRBY J: When was this Australian Standard that you have taken us to at 1335, which seems to be the foundation of Justice Ipp?
MR WALKER: 1995. Could I now go back in time just for a short passage in relation to the Council’s knowledge. Your Honours appreciate from our urging the approach taken by Justice Handley in the Court of Appeal that, for reasons that his Honour explains in ways that we need not elaborate beyond what we have already put in our written submission, it was simply wrong to say that there was prior knowledge of many people diving, as opposed to jumping. On the other hand, we do not wish to spend much time on it now for this reason. We did, after all, pay for the “No Diving” sign to be replaced as a result of the dealings to which I am about to come.
KIRBY J: How much would that have cost you?
MR WALKER: It did not cost very much. It came out of a block grant. Money is not the issue on the sign.
KIRBY J: It was the “after all” that I was reacting to.
MR WALKER: I am sorry, it was not intended to give that suggestion, your Honour. Could I take your Honours in volume 2 to page 722. On that page there is a minute from what is called a MANEX meeting. I am not going to get that acronym completely correct, but it refers to the management executive cadre at the local Council. That is 28 January 1993 and internal to Council there is the decision taken and the executive notes underneath it in handwriting that in effect Council expressed concern to my client:
about young persons jumping from the Forster/Tuncurry Bridge into the lake and regarding erection of appropriate signs.
In relation to Justice Kirby’s earlier question, that of course does not support the proposition that there had been earlier signs. It rather suggests to the contrary but I will come, as I say, to the language which moves in the opposite direction.
The “appropriate representations” are required as soon as possible by the senior management, as one sees in the notations below, and on 10 February 1993 a fax was forwarded, according to this note, to the works engineer at Port, meaning Port Macquarie, which was the depot responsible for this area in my client’s organisation. It was suggesting the erection of signs. That fax is found at page 723, the next page. It is to the RTA at Port Macquarie for the attention of the works engineer. It is about the bridge. It says:
Problem currently being experienced with youths jumping into navigable channels from the higher parts of bridge.
The higher parts mean these humps I drew to attention which are obviously calculated to permit the superstructure and other parts of vessels to clear as they go under.
One sees at line 40 the explanation of the problem so far as those on the spot, the Council, were concerned was “Danger to boating”. Then the suggestion made that the situation needed at least signs and a request for advice. We make these comments by way of argument. It could not seriously be suggested, and was not so far as we can read the record, that this was the facts of a callous man at the direction of a callous committee who, knowing of diving, nonetheless decided to draw attention only to jumping and to the danger to boating. That is of great significance because one finds in the Court of Appeal what might be called ‑ ‑ ‑
GLEESON CJ: He thought the danger was property damage.
MR WALKER: Yes, the repair of fibreglass, I understand, can be both difficult and expensive, your Honour.
GLEESON CJ: Yes.
MR WALKER: In the Court of Appeal, in passages to which reference has been made in the parties’ respective written submissions, one sees the descriptions in very general terms in what might be called a winched up manner of the diving which undoubtedly occurred both before and after the accident as jumping as being very frequent, many people engaging in it, all things are relative. There is no evidence which lends itself to comparisons before and after any signage was put up. There is no evidence that lends itself to comparisons between the frequency of jumping compared to that of diving except as one gets by inference, as I say, from pages 723 and 722. Why would people say jumping if what they meant was diving?
GLEESON CJ: What do you say about the point made by Justice Tobias on page 1563 at line 50, which is, if you can jump from it, somebody is going to dive from it?
MR WALKER: I was about to say I think we find that irresistible, which is an important matter in relation to foreseeability, which plays no part in my argument. If young boys can and do jump to your certain knowledge from a bridge, I am not going to spend any time trying to persuade the Court that that means that one should draw the line in terms of foreseeability so as to exclude from the foreseeable risk the result of a boy diving as opposed to jumping, that is, a simple reversal of the intended anatomical configuration as he enters the water. That would be silly. We do not argue that.
KIRBY J: I took a note of what you said to me at the beginning that nowhere do you contest jumping and diving for a considerable period before.
MR WALKER: Yes, what is contested are the findings which, for the reasons set out by Justice Handley, are beyond possibility of contradiction as to the transcript of the evidence of the relevant officers, the Council in particular. What we do contest is that there was information to my client that boys were diving and this is important because this is a matter which is to be looked at by applying the foresight that should have been deployed for the reasonable response in question.
Now, let me try and deal with the whole of this part of the argument now. Your Honours, I hope will not take too much from our protests concerning the error of fact found in the majority of the Court of Appeal concerning our knowledge of diving because the fact is the sign that was selected says “No Diving” and I have not contested and it is not an issue as to whether, for the reasons Justice Tobias, with respect, cogently points out, it is not contested, but the knowledge we most certainly had of jumping precluded, as a matter of foreseeability, the risks inherent in a jump becoming a dive or a person intending to jump deciding to dive, as in fact happened in this case, indeed, jumping and diving being very common ways of enjoying the prospect and the thrill of water underneath a bridge.
Could I take your Honours now in volume 3 to page 1312 which contains the language I told the Court about earlier. That records 5 December 1995, and this is a Council officer’s diary, Mr Rudman’s diary. Opposite the legend for 3 o’clock/4 o’clock in the afternoon, there is a sign “MR111” – that is the main road that goes over the bridge – and one sees underneath that “REPLACE NO DIV BRIDGE”.
So whether there was one before then is not clear, but certainly by 1993 we know there was – I think, your Honours, it was inferred and correctly so, with respect, and beyond contest now that my client knew of youths jumping in the context notified to them by the Council. It is wrong for the reasons collected by Justice Handley to find that we knew before then of diving or, indeed, that the Council officers recalled diving in the manner erroneously attributed to them by the majority.
HEYDON J: Do you have a reference handy to Justice Handley’s summation that you just referred to?
MR WALKER: Yes, your Honour, it is the passage in his reasons in volume 3 starting at 1471 in paragraph 14. While on that page, could I note that there is an error by his Honour in paragraph 15. The Council did not call Mr Keegan. The Council employed Mr Keegan but we called him. In paragraph 15 at the top of page 1472, and his Honour gives chapter and verse, Mr Keegan, and he is on the spot, knew children jumped, was not aware of any diving. Paragraph 18, line 40, the practice of jumping was well known.
Then his Honour refers to some uncertainty in the transcript which was, as his Honour correctly puts it, with respect, cleared up by the evidence that one finds in volume 1, page 445 at line 46. That did not include diving. Paragraph 19 at the foot of 1472 to the top of 1473, Council officer Pevitt, the distinction is clear there between his knowledge, what his evidence actually was concerning not having seen anyone dive. Jumping and diving became, as it were, treated as if they had both been witnessed, which is quite different from the proposition of Justice Tobias, which we do not contest, that if one can jump, one can dive.
GLEESON CJ: No, if people do jump, some will dive.
HEYDON J: You can foresee that some will dive.
MR WALKER: Yes, your Honour, for the reasons I have earlier put. We did, after all, put up “No Diving”.
HEYDON J: Does the difference between knowledge and foreseeability matter at all in the case, particularly where you did put up a “No Diving” sign satisfactorily or not?
MR WALKER: “Not much” is the answer to your Honour’s question. In terms of the reasonableness of the response concerning what I am going to call the defiance or disobedience issue, yes, for the reasons I will elaborate later.
The passage in Justice Handley’s reasons then he goes down on 1473 to the end of paragraph 21 as my answer to Justice Heydon’s question. Could I take your Honours then to volume 1, page 513. Mr Alexander, one of our officers, was reported back to by two officers who had been sent to Forster to carry out a survey of what I will call pedestrian traffic on, and it turns out from, the bridge. Your Honours have seen in the judgments below references to the administrative and engineering setting of this survey which can be briefly summarised, for present purposes, as follows. The bridge was in itself an attraction, as one can see from its length and location.
The bridge also, whether for tourist or ordinary day‑to‑day purposes was a traffic, not merely a vehicular route. There were many pedestrians. The separation physically, and for safety purposes of the motor traffic and the pedestrian traffic, was regarded as the large problem – the problem with the bridge. Engineering expedients were considered, as the record shows and the judgments record, of a number of different kinds ranging from barriers which raised, of course, countervailing safety risks, through to constructing by cantilevering a wider and separated pedestrian way, a number of different costs and the like.
This case is not about separation of pedestrian and traffic, but the setting shows that that was the concern of the local population. That was the concern of their elected representatives at Council level and that was the concern being considered at the engineering and administrative and fiscal level by my client.
As Justice Handley, with respect, cogently points out, it is not to be supposed that these were people who also had in their mind from visual observation the phenomenon, very frequent or by many people or very often, of diving, as opposed to jumping, from the bridge. There is no suggestion that anything like the terrible consequences suffered by the plaintiff would have ensued from the kind of jump that he had performed without mishap on 30 December had he jumped rather than dived on 31 December.
GUMMOW J: You cast yourself off from Justice Handley insofar as he had this distinction in mind between diving and jumping.
MR WALKER: As I answered ‑ ‑ ‑
GUMMOW J: Yes, I understand.
MR WALKER: ‑ ‑ ‑ Justice Heydon, we do not make as much of that as his Honour does, although I will return to try to make use of it, yes, your Honour.
GUMMOW J: What, then, is the gist of your case?
MR WALKER: The gist of our case is that the warning of the danger conveyed by the “No Diving” sign, and I will come back to the evidence, the best evidence one can imagine, of the plaintiff’s acceptance of the warning conveyed by that, that warning is not shown to fall short of the reasonable response required in answer to the foreseeable risk of injury from diving by the phenomenon of people continuing to jump in defiance and people continuing to dive insofar as that occurred as well.
That is because, in our submission, there is a fallacy in seeing that a sign satisfies the requirements of the common law duty of care only if it compels or produces compliance. I will come back to that to develop it.
For the purposes of that argument which has to do with reasonableness of response, what the evidence reveals, particularly by the absence from it concerning knowledge by us of diving as a very common phenomenon as opposed to a foreseeable phenomenon is very important bearing in mind, after all, the fact that the sign did say “No Diving”. To the extent that that was not reported to us as the proper description of the problem, then why one would not regard that as being, for the purposes of the law of negligence, a reasonable response to keep it in place is, in our submission, a rhetorical question that cannot be answered by the reasoning of the trial judge and the majority of the Court of Appeal.
GUMMOW J: What is the significance of the absence of further physical construction on the railing to make it difficult to jump or dive?
MR WALKER: It would be convenient if I dealt with that immediately as follows. The Chief Justice drew attention to one of the approach photographs and in volume 3 at 1401 there is a clear version of a picture of the kind that my learned friend, Mr Kennedy, cross‑examined on when the matter raised by Justice Gummow came into the case. At 1401, this is not on the bridge, this is on the approaches, you see in extremely familiar fashion a square section wooden member which has been positioned so that one of its edges or corners is in the 12 o’clock position.
There is no evidence of this, although there is a rather amusing exchange in cross‑examination to which I am going to come, but your Honours would take judicial notice of the fact that turning wood like that which is to be used outdoors has been done for as long as people have been squaring wood thereby creating a flat surface for the pooling of water and the rotting of the timber. It is said to be aesthetic by the engineers who were asked about this, but the fact of the matter is this is a commonplace of not only rural but all construction which uses wood, painted or not painted, in an outdoor application.
GLEESON CJ: That picture gives a very good illustration of what the locals were complaining about. They were expected to walk across the bridge.
MR WALKER: Yes, to dodge round strolling tourists with all the impedimenta of that, to dodge round people who were fishing in defiance of the sign and to deal with traffic centimetres from their elbow. Yes, your Honour, that is exactly it. One can also see why an engineer or a council may have thought, “Why do we not cantilever a walkway outward of the current footpath?”
Your Honours, that picture gave rise to a matter which, to put it kindly, does not find explicit reflection in the pleadings and particulars, but this is not a leadings and particulars complaint because the passage I am going to come to seems to suggest that those objections which were taken did not extend to a relevance objection or an unfairness objection.
Could I take you, in volume 1 in the evidence of Mr Keegan, the Council officer, being cross‑examined on behalf of the plaintiff at page 428 to start and language is introduced at the top of page 428, line 12 or so, a photograph which “shows a railing going up on to the Forster/Tuncurry Bridge”. The railing “is made of wood” and then at line 20, “does that have a pyramid shape on the top of the railing”.
The pyramid shape is produced by Council’s conceptualising of that square‑sectioned piece of timber turned so that the corner or edge faces 12 o’clock and then presumably bisected so as to produce the pyramid in this question and you will see “triangle” used later as well. It is the imaginary slicing of the whole of that timber so that you have the triangular section, later the precision of equilateral triangle is introduced.
GUMMOW J: Seems to be talking about exhibit H, is he?
MR WALKER: Yes, your Honour. The version I showed you is a clearer one.
GUMMOW J: Right.
MR WALKER: The engineer is asked does it “have a pyramid shape” as distinct from a flat top. The engineer says, “Yeah the top rail is put on a corner rather than on a flat.” Then the matter enters, as a matter of forensic opportunity, “of course that would be quite difficult to stand on would not it?” This is the idea that was taken up in the courts below in which the engineering design team of Council and judges produced what no expert had offered and what one does not find in pleading in particulars, it is a lawyer’s thought, that you make it difficult to balance. Presumably that means difficult to balance without in any way endangering pedestrians, let alone endangering yourself in relation to toppling back into traffic.
GLEESON CJ: If you fell in the wrong direction from that rail with those ‑ ‑ ‑
MR WALKER: If you fell in the wrong direction, presumably the injury would be less. Perhaps that is the ‑ ‑ ‑
GLEESON CJ: Not if you fell under a car, it would not.
MR WALKER: Your Honour is stealing my lines. Yes, that is exactly our point. In our submission, the difficulty with this is that that equates an increase of difficulty with being a better way of dealing with the foreseeable risk of boys jumping from the bridge when that has been going on for a while with the foreseeable inclusion in that risk of diving, not just jumping, head first, not just feet first. It commits the fallacy of saying that judges are able to say that would be a reasonable response to make it more difficult by making it more dangerous on top, presumably by reasoning which is not explicit, but which we suspect our learned friends will deal with by referring to the plaintiff’s own evidence.
After the event, the now prudent plaintiff says that if he had been faced with vertical members of a kind that at Bulahdelah did not stop people from jumping off, and if he had confronted the problem of balancing on top, then he probably would not have attempted to jump or dive. Well, as Justice Ipp points out, that is not evidence of a kind which is inherently credible.
KIRBY J: The problem is that there is this knowledge of lots of people jumping and the suggestion is that this is an allurement to young boys and that you make it more of an allurement by providing a flat surface because then you just can stand.
MR WALKER: You make it more of an allurement in that theory of the case.
CALLINAN J: I do not know about that. I mean, young adolescents, males, making it more of an interesting and exciting and therefore attractive challenge.
MR WALKER: Your Honour has also, with respect, anticipated my next point. Dealing first with Justice Kirby’s point, it is to be remembered that this is not a bridge designed as a launching pad for jumping or diving or climbing. Indeed, all of that is prohibited. It was designed at a time sufficiently far in the past that notwithstanding some inconclusive reference in the judgments below we have not been held negligent for our statutory predecessors’ design of this bridge with flat balustrade on the top. A flat balustrade, after all – and this was steel, not timber – a flat balustrade is what passers‑by, pedestrians, elderly people in need of a rest are more likely to require as support than the most unfriendly – and one wonders why there was not a reference to putting spikes along the top such as keep pigeons off, or barbed wire.
GLEESON CJ: You could have razor wire on it. It is not only elderly people in need of a rest, Mr Walker. One of the attractions of this bridge is that you can lean on the rail and look at the water.
MR WALKER: Yes, and look at the water, and watch the marine life – not only the fish and the mammals but the boats and other people. In our submission, so far it is not suggested that to have a bridge to link two settlements, to have a bridge which in itself is of considerable tourist attraction, is such as to equate to the leaving the dray with an open back unattended with a horse such as causes Lord Denman to talk about the inappropriateness of blaming the seven‑year‑old boy from giving in to a temptation – I will come back to the allurement notion in a moment.
KIRBY J: I think it is fair for you to criticise this postulate of the pyramid‑type shape, but on the other hand you know that there are lots of boys regularly jumping off there. It is said by some of the witnesses, or a witness, that this was an accident waiting to happen and all you do is put in a new sign which does not really tell the person, especially a young person, of the actual risk that exists. You interdict it and you do not put into their mind the risk that is presented by diving.
MR WALKER: That is, we apprehend, a variant of the case against us. Can I first answer Justice Callinan and then flag how I will deal with the matter that Justice Kirby has raised. In answer to Justice Callinan, yes, in our submission, graphically confirmed by the evidence of the plaintiff himself in this case, who accepted that risk imparted thrill, in our submission, there is no material in this case and neither is there any proposition of common sense the Bench can call in aid which says that presenting a challenge involving agility and balance to young boys is a sure‑fire way of preventing them from taking it up.
When one reaches that position - after all, boys have been climbing through fences designed to be impassable to them and livestock for a very long time – when one adds that with the deliberate design intention of the barrister and the judges, because there is no engineer who gave evidence about this, the deliberate design intention of the so‑called triangular section of making it difficult – we would submit dangerous – for people on top, in our submission, this case which is forensically opportunistic but with no other merit, ought never to have succeeded.
I may have misspoken earlier. The plaintiff gave the unconvincing evidence about what he would have done after the event in relation to the vertical as opposed to horizontal members - that is, not being given an easy step up. He did not give evidence about whether he would have been deterred by the triangular section for an obvious reason underlining the forensic opportunism of this point. It had not come up until after he had come and gone from the witness box. His counsel at page 428, pursuing this matter with an enfilade of objections and judicial inquiries that needed to be taken into account, at the foot of the page at line 50:
Q. Would that make it difficult for someone to stand on top of that railing given the nature of its shape?
A. It would certainly make it uncomfortable, I don’t know about difficult your Honour.
That, with respect, is Justice Callinan’s point:
Q. And are railings of that type, are they constructed in that way to inhibit or deter people from trying to climb them?
Your Honours will recall that this started with a photograph of those timbers turned that way to deflect water rather than to allow it to pool, I submit from the Bar table, and counsel is suggesting that Council does this in order to stop people from climbing on those rails which are simply on a footpath. With respect, it is fantastic. Then the engineer suggests something that your Honours might think is even equally fantastic:
A. I believe it’s an aesthetic effect your Honour.
I would simply ask your Honours, I hope without disrespect to the witness, to treat that with a grain of salt. The obvious purpose is to let the timber last a bit longer on the assumption that it is ever going to rain again. He then goes on and gives a good Council answer:
This type of fencing is what I know as ordinance – ordinance fencing it is an old style of construction of railings on approaches to bridges mainly for aesthetic effects.
Q. So it would be more difficult to stand on and to balance on [than] a flat railing would that be correct?
One wonders whether this is expert evidence or, indeed, evidence at all:
A. I’d agree with that your Honour.
Q. And there would have been nothing preventing anybody from putting on top of that a triangular sort of piece in order to make it more difficult to climb?
We are now talking about the design by the barrister for a steel railing of that which is achieved by the perfectly mundane turning or swivelling, positioning, of a squared timber pole.
GLEESON CJ: Mr Walker, did the evidence show whether, preparatory to his dive, the respondent used the light pole?
MR WALKER: Yes, the evidence does show that he did.
GLEESON CJ: If you used the light pole to balance you, that would have a material effect on the difficulty, I would have thought.
MR WALKER: The plaintiff’s case did not extend to the construction of the light pole as lending itself to the gripping by hand. So one can say, yes, the Chief Justice’s suggestion is, by implication, part of the design of this bridge not alleged to be negligent by the plaintiff and yet, for obvious reasons which worked in this case, that is, getting up even with the horizontal members and steadying himself preparatory to jumping, as he intended to do at first, using the pole. That is in the nature of things. It is in the nature of boys and, in our submission, understood to be contrary to the prohibition for reasons to which I will come.
CALLINAN J: Mr Walker, was there any suggestion that the two lower rails which I think the plaintiff used as steps, that they too should have had a triangular top placed on them?
MR WALKER: No, but it is to be recalled, to be fair, that the composite suggestion which is found in Justice Ipp’s reasons – although I will come back to that, if I may, later – involves removing those horizontal members except the bottom rail. It involves the vertical members called swimming pool‑type fencing.
CALLINAN J: Did Justice Ipp specify a height? Did he say there should be a particular height?
MR WALKER: No, blueprints were not produced, your Honour, but one does find a design discussion on page 431.
CALLINAN J: Sounds like judicial and not social engineering.
MR WALKER: I think barristerial it came from, your Honour. Line 15:
Well it could from an engineering point of view be readily done –
Now, we are talking about, how do you get this pyramid, triangle, which simply, of course, is produced by bisecting across its largest dimension a squared piece of timber, how do you get that onto this metal bridge? The triangular shapes on top of the railing are referred to by counsel at line 20:
HIS HONOUR: You could attach a triangular wooden railing- -
KENNEDY: Or steel. Steel or aluminium to the top of the railing.
HIS HONOUR: Wait a moment. What do you want? What do you want?
KENNEDY: Well your Honour a railing. It doesn’t matter what it’s constructed of.
CALLINAN J: After his Honour had already made his own contribution.
MR WALKER: Yes, as I say, these are the design discussion, not really evidence. Then the judge:
I don’t know, but I think if you want an engineering opinion on the capacity or on the ability to affix a triangular railing to a metal oblong shape, you need to specify what materials you are asking about.
KENNEDY: Well I’ll come to it. I’ll have to deal with it yeah.
Q. Would it be engineeringly sort of possible to put a triangular‑ ‑
HIS HONOUR: And in, prior to- -
KENNEDY: Q. Prior to 1998 to put- -
HIS HONOUR: Prior to 1998.
KENNEDY: Q. - - a triangular sort of shape portion on top of the existing railing made of wood?
That means an existing railing made of steel, but the triangular shape made of wood:
A. It would have been possible your Honour.
Q. And would it have been possible to sort of put it on made of aluminium?
A. Would be possible your Honour.Q. Or stainless steel?
A. It would be possible your honour.Q. Or steel?
A. It would be possible your Honour.
Then there is a question about costing.
KIRBY J: Could I just interrupt to get into my mind clearly what the overall view of this is because you can get lost in all the detail.
MR WALKER: That detail downed us, your Honour.
KIRBY J: Yes, but what I want to understand is the theory that the plaintiff was propounding was a better notice, a change to the handrail. Did the plaintiff propound a cage or something of that kind? Did the plaintiff propound vertical lines, but even if you have vertical lines on the bridge you have to have something on the top of them, have you not?
MR WALKER: Yes. It really depends what the design brief is. The best way to prevent boys from jumping off this bridge is to prevent boys from getting on to the bridge. Your Honours, high voltage installations show how that is done, you put a cage up all around.
GLEESON CJ: If you wanted to stop people jumping off the bridge you could electrify the fence, but that would not do much good to the walkers who wanted to lean across and look at the fish.
MR WALKER: This is a bridge. It is a bridge.
KIRBY J: Yes, but I am trying to react to the problem that everyone knew that boys in considerable numbers were at least jumping and it is suggested they knew they were diving and that this is a water underneath that is given to vary over time because of the sandbank and that therefore it is an accident waiting to happen.
MR WALKER: That was the judge’s description of it following the view and, with respect, Justice Handley’s response is appropriate. It was waiting a long time, and there is no evidence up to the time of the accident of any accident from jumping or diving. Now, when one puts that together with the absence of the people pressing – when I say “the people” I mean in the democratic sense – as seen by Council or departmental records, for the jumping problem to be dealt with because of the risk of diving and, again, I am not cavilling at foreseeability. Something is foreseeable though it is known never to have happened, of course. But, if it has never happened that would be consistent with careful people perceiving ‑ ‑ ‑
KIRBY J: Your case, I suppose, is that this is just a freak incident, it had never happened before and you just did not have to do anything about it and certainly nothing that would damage the aesthetics and appearance of the bridge and people leaning on it, but it is not a jocular matter because of the fact that we have before us a person who is profoundly injured who has succeeded and has concurrent findings of fact and so we have to just look at – I want to get clear what is the grand theory that the plaintiff propounded, sign, railing, not cages, vertical ‑ ‑ ‑
MR WALKER: Members, vertical members.
KIRBY J: Vertical vents, is it?
MR WALKER: Your Honours, it would be valuable, I think, in answer to Justice Kirby to go in volume 2 to the way Justice Dunford described what I will call trial issues at volume 3, page 1427, paragraph 66:
The plaintiff’s allegations of negligence against the first defendant were ultimately fourfold:
(1)Failure to conduct an adequate risk assessment in relation to the bridge –
That is rejected. The plaintiff fails in paragraph 67. It is not revived -
(2)Failure to provide appropriate warning signs as opposed to prohibition signs -
That distinction is rejected in the Court of Appeal but the proposition that the sign was inappropriate was upheld for the different reasons and in the different way that I have already told your Honours about, the shallow water legend that Justice Dunford said should not be put because it would be plainly incorrect to the knowledge of the plaintiff as he saw the water.
GLEESON CJ: Where was that photo of the Bulahdelah bridge you showed us?
MR WALKER: Bulahdelah is in volume 3, page 1136.
GLEESON CJ: That shows vertical members, does it not?
MR WALKER: That shows the vertical members and when showed to the engineer prompted his recollection that is a very bridge with that configuration on which he has seen people climb and jump. The whole point of the vertical members is to deter – presumably one means to stop – people from climbing and jumping.
KIRBY J: Is this the swimming pool theory?
MR WALKER: This is the swimming pool fencing theory.
KIRBY J: Do we have a photograph of what was suggested or ‑ ‑ ‑
MR WALKER: We have multiple photographs mainly from other bridges which were shown to people. The Bulahdelah one is a paradigm of that.
KIRBY J: Could we be shown that photograph.
MR WALKER: Yes. Another one would be volume 3, page 1349 in Mr Fogg’s report. That is what is meant by “vertical member” and that is a close‑up of ‑ ‑ ‑
KIRBY J: But what is the use of – the value of that is that it is said it does not give you the leg‑up?
MR WALKER: That is right but presumably you use the light pole as the plaintiff did use the light pole. It is 1.2 metres. No one is suggesting it should be higher. That is not the case, I mean. The plaintiff was nearly six feet.
GLEESON CJ: You would not have to be very strong to get onto the top of that thing at 1349, one would have thought.
KIRBY J: But there would be nothing to ‑ ‑ ‑
MR WALKER: No one has suggested that that is a kind of construction which experience shows boys will not try to climb on in order to jump off. There was evidence ‑ ‑ ‑
KIRBY J: You do not get perfection in the law of negligence.
MR WALKER: No, your Honour, there was evidence, and that is a very important point for us when it comes to warning, if I may come back to that.
KIRBY J: The question is what it was reasonable for you, knowing as you did that lots of boys jumped at least from that bridge.
MR WALKER: Your Honour, we had actual evidence from somebody confronted for this purpose in cross‑examination with the Bulahdelah bridge style vertical member and he says, “Well, it didn’t stop the boys I saw when I have observed that bridge from climbing up and jumping off into that very river”, which I can assure your Honours varies in depth.
KIRBY J: It did not stop. It is all a question of what is reasonable.
MR WALKER: Your Honour, that is an important point that we are going to call in aid, particularly with warnings, as I said in answer to Justice Gummow earlier in relation to this notion of a failed sign. Could I complete what I wanted to say about expert evidence by reminding your Honours of the freakish and telling way in which the expert evidence about signs came up in this case. It is all recorded in the written submissions. I do not need to take your Honours to any passages in the books.
When Mr Fogg was commissioned to prepare his expert report for the plaintiff, addressing the question, among other things, as to the kind of signage which reasonable care would require, he had in mind by one of those slips – happy for us, unhappy for the other side – that occurs in litigation that there had been no sign and, in particular, had not been the “No Diving” sign. He gave an expert report and, after a little rockiness, cleaves to its thesis in which he said that one of the acceptable alternatives was the “No Diving” sign of the standard kind to which I have drawn attention in the Australian Standard. So there it was. This is the man who said yes, in his experience – we interpolate, for a defendant’s reasonable expectation purposes – the vast majority can be expected to obey. There will be a few of the whole population to whom it is directed who will disobey.
True it is he offered as his preferred alternative the composite “No Diving” and “No Swimming”, which is recorded by Justice Ipp for the purposes of that appellate finding.
KIRBY J: “No Diving”, “No Swimming”?
MR WALKER: I am sorry, “No Diving”, “Shallow Water”.
KIRBY J: Yes.
MR WALKER: I am sorry. So pictogram, “No Diving”, words, “Shallow Water”, but that is from the same expert who said an acceptable alternative was the “No Diving”. Now, that is, in our submission, of very considerable moment. That is the way the ‑ ‑ ‑
KIRBY J: The Court of Appeal might have thought that that is not convincing but I must say I have some sympathy for what Justice Dunford said, young boys seeing a sign interdicting their behaviour are not going to be stopped by such a sign, but if they are informed that the water is shallow then I think it is a different matter. That is putting ‑ ‑ ‑
MR WALKER: Your Honour, there is no suggestion the plaintiff did not know of variable depths of the water.
KIRBY J: Yes, but he looked into the water and thought it ‑ ‑ ‑
MR WALKER: Saw it was murky, a really deep green – dark green.
KIRBY J: And he sees all these boys jumping into it. I mean.
MR WALKER: He says he had jumped in the day before. There is no suggestion that he thought that this was consistently deep enough everywhere. No one has ever said that. Why else would one position oneself ‑ ‑ ‑
KIRBY J: The photograph shows there is a sandbar so that the normal inference of that is that ‑ ‑ ‑
MR WALKER: Justice Ipp, of course, takes a view which is expressed in trenchant terms to opposite effect. He could not see the bottom, he knew it was concealed rather than revealed, the depth. We will answer our learned friends in their cross‑appeal concerning contributory negligence in due course but it did not strike the Court of Appeal that this was a case where the plaintiff had been, as it were, misled by anything we had failed to say about the shifting sands.
Now, shifting sands, variable depth were verbal legends that Justice Dunford would require in the discharge of reasonable care to have been added to the “No Diving” pictogram but that was rejected in the Court of Appeal. Our point is the plaintiff’s experts said the “No Diving” pictogram was an acceptable alternative. Could I put another point about acceptable alternatives. He also said that a sign, a notice, was an acceptable alternative that is not required in conjunction with a fencing alteration and one see a fencing configuration being changed and one sees that in volume 1 – I do not need to take you to it – at page 327, line 25, in particular:
Q. So one could opt for the sign rather than the fencing, is that correct?
A. Yes, I believe that’s what I said.Q. And you’d be, from your point of view, be satisfied?
A. I would be satisfied.
GLEESON CJ: Could you dive without climbing?
MR WALKER: I would be giving evidence from the Bar table, your Honour, but you would need a pretty good run up.
GLEESON CJ: I know there is some evidence that there is a ledge or something on this bridge that you can jump from ‑ ‑ ‑
MR WALKER: Not in the relevant – no. You have to climb – that ledge is outboard of the railing.
GUMMOW J: You would have to climb over?
MR WALKER: You would have to climb over that in order to stand on the ledge.
GLEESON CJ: The reason I asked the question was that there are actually two signs. There is a sign that says, “No Climbing” and a sign that says, “No Diving”.
MR WALKER: Yes.
CALLINAN J: There was some evidence, was there not, that boys had also dived from the pipe on the other side, is that right?
MR WALKER: Yes.
CALLINAN J: Dived and jumped?
MR WALKER: Yes. The pipe, I think, is a sewer pipe, which was carried on the bridge and had provided a platform, if you like – obviously not flat but in the nature of or the function of a platform for boys who were concerned to do that. But then the “No Climbing” prohibition is because most bridge’s structure lend themselves to climbing. Literally, they are a mixture of posts and beams and cantilevers of a kind that, unless covered in razor wire, will be able to be climbed on.
GLEESON CJ: The “No climbing” might be intended for people who do not intend to go into the water.
MR WALKER: Quite, but who may fall.
GLEESON CJ: But for people who do intend to go into the water they have to contravene two prohibitions.
MR WALKER: Yes, first they will have to climb, that is forbidden, and, second, they will have to dive, that is forbidden.
KIRBY J: Where is the “No climbing” sign? Is that a photograph?
MR WALKER: Yes, those are on the approaches ‑ ‑ ‑
KIRBY J: Is that a pictogram?
MR WALKER: No, volume 3 of the appeal book page 1345. It is one of the photographs I took your Honours to earlier. There is one of those on both approaches to the bridge. May I come back to the survey I was referring to in 1998. Easter 1998 the department sent two officers to see how the bridge was being used for the purposes, as I say, of the perceived problem, which was not boys diving or even boys jumping or both, it was of the danger to pedestrians and the lack of amenity for pedestrians competing with traffic.
While, however, they were there they observed young people jumping. That is the expression, and again there was no suggestion that again this was somebody who had callously failed to include the obviously more dangerous activity of diving as opposed to jumping. So that is another straw in the wind in terms of what is recorded and what is not recorded suggesting that it is very unsafe to speak of diving as something which was a frequent occurrence as if it competed in popularity with jumping and as it if was something that might be regarded as a typical use of the bridge. Again, we do not contest foreseeability of diving and its obviously larger risks than jumping.
GUMMOW J: Do we know how high the footpath was from the surface of the roadway?
MR WALKER: No, only by visual inference, your Honour.
GUMMOW J: Not very high by the look of it.
MR WALKER: It is not very high, no.
GUMMOW J: Any pedestrians been skittled? Any evidence of that?
MR WALKER: Can I take that on notice, your Honour. There is a lot of material about the problem that led to considering of barriers and cantilevering, but I cannot remember about actual injuries. The context during the case which was sought to presumably advance the notion of insufficient risk assessment which was rejected as going anywhere can be highlighted in volume 1, page 519 about line 18. I do not need to take you to it. The question on behalf of the plaintiff to one of our officers:
If there are boys going onto the bridge and jumping off the bridge isn’t that a pedestrian issue?
Mr Alexander, our officer, had been pointing out the nature of the pedestrian issue, as I have explained it. The answer:
Our concern on the bridge was the number of pedestrians crossing the bridge, and the concerns we had from the community and Council about the need to separate them from the traffic on the bridge.
Against that concern they observe the bridge and they do notice and report back on boys jumping. In volume 3 one finds at page 1220 as one of the notes about that survey at line 32, “Groups of young people were observed jumping from the bridge”. That might be taken for present purposes as an instance of an observation which, in the plaintiff’s theory of the case accepted by the judgment against us below, reveals empirically the failure of the signs and we challenge that as a form of appropriate common law reasoning head on.
In material – again I need not take you to it but which is recorded in an answer to interrogatory addressed to the authority, volume 3, page 1162 – there is narrated the attempt by the officers conducting that survey who had made that observation to inform the people engaged in that conduct of the danger and they did inform them. That gels with the evidence from the Council concerning the fruitless attempts to enlist the services of their rangers to stop people from jumping and, it might be supposed as well, diving from the bridge. One finds references in the findings, to which I need not take you, to that. They are sufficiently conveyed by the findings at first instance volume 3, 1421 paragraph 42 and on appeal 1496 ‑ ‑ ‑
KIRBY J: That is not something that is alleged against you?
MR WALKER: No, paragraph 110, but it is significant for this purpose. The rangers approached the young people, “You shouldn’t jump, you shouldn’t dive, this is forbidden, this is dangerous” and they swim away to the nearest sandbank and laugh and wave. Then a police boat was enlisted to try and catch them, similar lack of success.
KIRBY J: This is not the plaintiff? This is other ‑ ‑ ‑
MR WALKER: No, no, these are the groups of young people, the observation of whom, continuing to jump after the sign was in place, is the keystone of the argument against us that resting content with that sign constitutes negligence.
GLEESON CJ: Mr Walker, I know that nobody was likely to take out a summons for the construction of the pictogram, but was jumping prohibited?
MR WALKER: As a matter of law, no, that is, it became an offence. I would not wish to be the prosecutor assuring a local court magistrate that entry into the water feet first constituted the offence of diving.
GLEESON CJ: I suppose to jump you would have to contravene the prohibition against climbing.
MR WALKER: Yes, that would be your backup charge I think they call it. There are also, quite apart from the sign, and this plays no part in this case, but as it happens, it is an offence – I do not think your Honours will be concerned with this – under the Roads (General) Regulation 1994 clause 17 of Part 2 Roads, Division 4 Protection of public safety, there is a prohibition from jumping onto or from any portion of a bridge or other structure that is situated on or forms part of a road.
GLEESON CJ: The police were well within their rights to tell people to cut it out.
MR WALKER: Yes, but this is not a case – and there are evocations of a possible parallel with one of the arguments essayed in Vairy which nonetheless did not become live in this case. There is no allegation against the Council, for example, that they were, in a way that the common law could pronounce wrong, less than reasonably diligent in their enforcement of the signs and of the law which rendered disobedience to those signs an offence. There is no suggestion that there should have been more police boats or more rangers in order to catch these boys who jumped off and swam away rather than come over to be chided, presumably.
Could I finally in relation to the details of evidence take your Honours to what we know from the plaintiff’s own evidence concerning the effect of the sign, together with the knowledge of the world he already had at the age of 14 and a half when he on impulse, his word, decided to dive rather than the jump with which he had climbed the balustrade as his intention. It is in volume 1. The whole passage starts at page 170. I will not read it all to you. It culminates at page 182. I do not say it stops there but it culminates there.
The plaintiff did not find it immediately straightforward to agree what we submit is the obvious concerning what must have been – indeed, what he finally agrees was – his state of awareness. For example, if one picks it up at page 170, line 32 or so:
Q. Do you think the authorities put it –
that is the notice –
up there just to be killjoys?
A. No.
Page 171:
they –
those are the authorities –
were trying to stop people diving from the bridge . . .
A. They may have seen it as a dangerous act.
By the way, at line 10 there is an uncorrected transcript error. There is not some dangerous stranger called Bates, “Psycho”‑style, to be worried about in that question. Those are boats. Quite apart from that error, that is of some moment. The plaintiff gave evidence that as he stood there - he says, by the way, two to three minutes – and on impulse changed his mind from the intended jump to the unfortunate dive, that he timed his descent by listening out for boats under the bridge.
So his awareness narrated in his own case was so highly self‑conscious of what might happen physically to interrupt and render disastrous a jump or a dive included landing on a boat. It also included the notion that one hopes is confined to what is called in the judgments high‑spirited boy or he has called himself a cocky young boy. One hopes it is confined to them but the calculation obviously was: “I’ll make an assumption about how noisy a boat might be” – let us hope no one was drifting with the tide which does run – “and I will assume if I haven’t heard something, or I’ve heard something only of a particular note at what I calculate without seeing to be a particular distance away, travelling at a speed that I will calculate, then I’ll make the decision to jump”. In our submission, this is not the conduct of someone answering the description Justice Kirby has asked me to address, namely someone to whom risks have not been brought home by notice or otherwise. It is to the very contrary.
Then the questioning continues on 171, for example, at line 20:
Q. It might also mean that the water was too shallow to dive mightn’t it?
A. Yes.
What is it that might mean that, that is, jumping or diving off that bridge, see line 14 or so. There are, as I say, an enfilade of objections, but there is another attempt to put the question about understanding danger at line 35 on page 171 and page 172 first attempt to answer at line 9:
A. At that point I did not stop and think on why they had that sign there.
Q. Yeah. So you just completely disregarded it is that right?
A. Yes.Q. You weren’t interested in whether it conveyed a warning or not were you?
A. I didn’t think of that no . . .One thing you did know about is that jumping from heights is that the water is pretty hard if you hit it the wrong way isn’t it?
There is evidence this boy had successfully carried out 10 metre dives in the swimming pool. See the question at line 30:
Q. And you’d have to be careful in jumping or diving into a body of water from a height of 10 metres?
A. Yes.Q. You knew that of course from your experience at the pool didn’t you?
A. Yes . . .it’s a very painful experience to land the wrong way from 10 metres isn’t it?
A. Yes.Q. And you would’ve known that even at the age of 14?
A. Yes.
Page 173, line 12:
the meaning which that sign conveyed to you –
that is the word sign at the approach –
was that you shouldn’t fish and you shouldn’t climb on it?
A. Yes . . .Q. You see as you were watching the people engaging in jumping and diving on this occasion it entered your mind didn’t it that they were undertaking a risky activity?
A. Yes.
Page 174, line 45:
Q. And you understood when you undertook each of those jumps –
that is his jump on the 30th –
that there was a risk [that] you could be injured if you didn’t jump the right way?
A. Yes . . .Q. And you understood didn’t you that if you did a belly flop from the sorts of heights that you were jumping from on the first day that you could be very seriously injured?
A. It’d hurt, yes.Q. You could wind yourself and perhaps drown?
A. Yes.Q. Now one of the reasons that you chose to jump from the bridge on the first occasion was because it was an exciting thing to do?
Then over the page 176, line 9:
Q. You did so because you wanted to get the thrill of jumping from that height?
A. Yes.Q. And part of the thrill was the risk that you were taking in jumping?
A. Yes.Q. And part of that thrill was to see that you entered the water without injuring yourself?
A. I’m not sure about that . . .Q. You understood, didn’t you, that you had to make your own assessment whether it was safe for you to perform that activity on that occasion?
A. Yes.Q. And you knew from your experience in boating with your father, that the level of the river over the period of a day could change by some feet in height?
A. Yes.Q. Because of the tides?
A. Yes.
Then there is a reference to turbulence in the water, tide flowing through. One sees that at 177, line 25. The scouring effect, line 40. He was not a stranger to this. He had been coming here for years with his family and with the sandbars. Page 182 it picks up about line 25 with other physical recreational activities, knee boarding which your Honours would appreciate involves the possibility of falling off the board:
Q. When you knee boarded in the past I take it that you understood there was a risk of injury from that activity?
A. Yes.Q. Involving potentially an injury to your neck if you fell off the board the wrong way?
A. Well yeah.Q. And you understood that diving head first from a distance of somewhere between 8 and 10 metres into water, presented the possibility of a risk of a neck injury didn’t you?
A. Not if I had my arms in front of me, I thought that would reduce that risk. Well eliminate that risk.Q. Well you started to say reduce that risk, didn’t you?
A. Yes.Q. Because you accepted that there was such a risk, correct?
A. Well yes.Q. And it all depended upon how you did the dive to determine whether the risk came home or not, is that correct?
A. What do you mean?Q. It depended on how well you did the dive?
A. Yes.Q. As to whether or not the risk of injury became a real risk or not?
A. Yes.Q. And you would accept wouldn’t you that on the occasions when you decided to jump and dive from the bridge on 30 and 31 December, that the decision to dive was yours alone?
A. Yes.Q. And the decision to jump was yours alone?
A. Yes.
A comment – I am obliged to my friend – just after line 10 – this is about his decision:
On the first day it was more to fit in the group but I believed that the guys I was with had done it before and I sort of just tagged along with them, so, it wasn’t like I was the one that piped up and said, yeah let’s do it. At the first I was following the crowd.
That is the first meaning of 30 December.
KIRBY J: Could you explain this to me, how Justice Dunford apparently rejected the notion put forward by the respondent’s expert that putting a signage type of sign about shallow water, he held, as I understand it, that if the plaintiff would not be stopped by the diving sign he would not have been stopped by that. How did he conclude that he would be stopped by verbal information of the kind he proposed and, by inference, Justice Ipp thought would, slightly modified, have stopped him from diving?
MR WALKER: First of all, it was not our expert. It was the plaintiff’s expert.
KIRBY J: No, I know that.
MR WALKER: Your Honour said “respondent”.
KIRBY J: He is the respondent, you are the appellant in this Court.
MR WALKER: I am sorry, I thought your Honour said ‑ ‑ ‑
KIRBY J: Am I wrong, have I come to the wrong place?
MR WALKER: No, your Honour is quite right. It was the plaintiff’s expert. Could I take your Honours, in answer to that question, first to volume 3 in Justice Dunford’s reasons, to page 1428, paragraph 68 at about line 26. He addresses that very point. First of all he addresses the question concerning a “shallow water” pictogram and that is the 228 sign that I drew to your Honours’ attention earlier:
Mr Fogg, the plaintiff’s expert agreed that either was appropriate, but in the present case it has been shown that the “diving prohibited” sign was not effective.
That means the plaintiff dived.
Whether the display of no 228 would have been any more effective is, I believe, highly problematic. Because of the large number of young persons jumping and diving without incident, it would have been obvious that the water was not generally shallow, and in those circumstances, I consider it probable that that sign would also have been ignored, just as the “diving prohibited” sign was ignored.
That was reversed in the Court of Appeal by the majority. At page 1534 in Justice Ipp’s reasons one can compare that with paragraph 246 where his Honour says, without reasoning to refute the self-evidently correct proposition upon which Justice Dunford had grounded that conclusion, Justice Ipp says in paragraph 246 that:
the words “shallow water” would provide an express reason for the prohibition and indicate the dangers of diving from the bridge. I would observe that the words “shifting sands” . . . would make the nature of the danger even clearer
But, in our submission, that does not answer the obvious problem of defiance of a sign which says “Shallow Water” and the boys know is not all shallow and, more to the point, where they jumped from with such instinct for self‑preservation as they do have, is into the deep water.
GLEESON CJ: I suppose the point that Justice Dunford was making was that the prevalence of this activity cuts both ways. In one sense it assists the plaintiff on the issue of foreseeability. On the other hand, this bridge has been there since 1959 and nobody has been injured.
MR WALKER: That is right. That was Justice Handley’s point. I am sure his Honour was not intending to be jocular when he answered the colloquialism of Justice Dunford “an accident waiting to happen” with “it’s been waiting a long time”.
KIRBY J: I am just concentrating at the moment on what I see as something of a tension in both the view of Justice Dunford and the view of the majority in the Court of Appeal that, accepting the finding that he would not have been deterred by the pictogram of shallow water, why would he be deterred by verbal information that says in words “Shallow Water”?
MR WALKER: It is our case that he would not have been. There is no satisfactory reason as to why he would have been. The plaintiff’s own evidence is simply inconsistent with the proposition that this would have added any information.
GLEESON CJ: But Justice Dunford, rightly or wrongly, seems to have said a sign that said “Shallow Water” would have been untrue and it would have been known to be untrue.
MR WALKER: Quite, because it was not so shallow that for all those decades boys had been jumping and, as the plaintiff himself had noticed the day before, jumping without touching the bottom in the course of the jump. He is six feet. He is jumping between eight and ten metres. I am not going to do physics and water resistance at the Bar table, your Honours, and there was none done in the case, but to describe that as shallow is, in our submission, self‑evidently wrong and presumably ‑ ‑ ‑
KIRBY J: Shallow in places, that is the problem.
MR WALKER: Quite so, but, your Honour, no one has ever suggested that this boy, who with his family had for years been boating into the channel, beaching his boat on a sandbank which fell away so suddenly that he was able safely, he thought, to dive off the stern of the beached boat, no one suggested he did not understand, as yellow and green and gradations between tell everyone, that it varied from shallow, indeed solid dry sand, to deep green sufficiently deep for ocean‑going fishing craft to go down the channel.
KIRBY J: Did the evidence show that you had introduced any modifications at all after the accident?
MR WALKER: Yes.
KIRBY J: What were those modifications?
MR WALKER: Could I take your Honours in volume 3 to 1420. It is one of those telling memoranda. In paragraph 40 the relevant part is quoted. This is from March 2004. You will see it is designing a handrail:
The balustrades will be made from flat bar . . . The reason RTA have adopted a new design –
and at the moment I cannot tell your Honours how this design works –
is to help prevent people jumping off the bridge. The existing handrail can easily be climbed over due to the middle rail. The proposed fence is more like a pool fence and is harder to climb over. RTA have taken this course of action as the authority is being sued by a man who jumped off the bridge and broke his neck when his head hit a sand bar”.
Notwithstanding the use of the words “man” and “jumped”, that really means “boy” and “dived”, it is our case.
GLEESON CJ: But were the modifications that were adopted pursuant to that memorandum the modifications that Justice Dunford or Justice Ipp said should have been adopted?
MR WALKER: No, in a word - vertical members, yes; that element is part of the notion.
GLEESON CJ: Did that memorandum have a proposal that the rail would then be like the Bulahdelah bridge?
MR WALKER: In effect, yes, your Honour, making it harder and it is obviously harder without a horizontal member, yes, I cannot argue to the contrary of that.
KIRBY J: What is the “top and bottom RHS 100x50x5”? What does that all mean? Is that the pyramid shape?
MR WALKER: I do not know, your Honour, I will have to find out. The balustrades, it says, will be made from flat bar. Could I show you in volume 2, page 992. In that memo there is a design, although it is, after all, an elevation, not a section, that certainly does not suggest anything triangular. Page 1003 does not indicate that, although I would draw to attention the bottom right-hand corner of 1003. I think that is as far as I can take my answer to Justice Kirby’s question.
GLEESON CJ: Justice Dunford actually saw this bridge in its altered state.
MR WALKER: Yes, he did.
KIRBY J: In its repaired character? Had it been repaired by the time - I imagine it had.
MR WALKER: No, he saw it in the pre-alteration state.
GLEESON CJ: The pre-alteration state?
KIRBY J: That is surprising, because the accident ‑ ‑ ‑
HEYDON J: No, judgment was on 18 March 2005, the memorandum of 4 March 2004, the trial took place in October 2004. So the trial took place after the memo. Justice Dunford must have seen it after the memo had been acted on, if it was acted on.
MR WALKER: This will come as an enormous shock to your Honour, but I do not think work is achieved in private or public sectors simultaneously with the creation of memos about it.
HEYDON J: I see, so there was no actual alteration made by the time ‑ ‑ ‑
MR WALKER: That is my learned junior’s recollection and I am told by my learned friends that is so. It was in pre-redesigned alteration state when his Honour saw it at the view.
CALLINAN J: Mr Walker, is it possible for you to tell me where the trial judge dealt with the fact that there had not been an accident for what, 39 years? If you cannot do it at the moment, do not worry.
MR WALKER: I am sorry, your Honour, I cannot do that from memory, I will have that done. I can and should say this by way of argument about the way in which the judgments against us below deal with that matter, that care should be taken lest we backslide into a challenge on foreseeability, which we are not doing.
CALLINAN J: I understand that but the balancing exercise still has to be done and that is really what I am interested in, where his Honour did the balancing exercise.
MR WALKER: Thank you, your Honour, I will have that obtained.
KIRBY J: You do not also challenge, as I understand it, the existence of a duty of care?
MR WALKER: That is right.
CALLINAN J: The case really comes down to the balancing exercise, does it not?
MR WALKER: It does. We compendiously rely upon the way Justice Handley put it. Your Honours, may I now take you to passages in ‑ ‑ ‑
KIRBY J: Can I just ask to get it clear. Is there a point on causation?
MR WALKER: There certainly was. Yes, there is, as your Honours will see in our written submissions. It is of a Jones v Commissioner of Roads notion, that is, it would not have made any difference.
HEYDON J: Paragraph 43 of Justice Handley’s judgment you support presumably?
MR WALKER: Yes.
CALLINAN J: The plaintiff’s determination to dive after – apparently he originally intended to jump but then he made a conscious decision to dive in defiance of the signs and with full knowledge. Does that not give you a causation argument?
MR WALKER: Yes, it does. It is not due to any breach of duty on our part. It is not just causation because the full knowledge that Justice Callinan has just referred to is at the heart of the point we make in opposition to the reasoning against us below. It is emphatically a fallacy as a matter of common law balancing reasoning to regard a warning as answering the epithets of denigration, to which I am going to take your Honours in Justice Ipp’s reasons in a moment, simply because people act contrary to either the prohibition or warning, as the case may be.
When one adds what Justice Handley has, with great respect, carefully and convincingly demonstrated concerning the errors of fact about our knowledge of diving as a frequent matter, et cetera, when one adds the entire lack of attempt to show comparative behaviour before and after any sign of warning, one sees that descriptions such as “continuing unabated” have no evidentiary foundation at all. They simply refer to the fact that the phenomenon continued to be observed. We do not know about numbers. We do know that an expert called by the plaintiff regarded in his calculus of what was reasonable, taking into account that the vast majority in his experience could be expected to obey but a few would not.
It is not possible to say that there is any evidence justifying any finding below that most people who use this bridge jumped or dived or anything like that. For those reasons, in our submission, the following references by Justice Ipp introduce a form of reasoning which it is important, in our submission, for this Court to identify and to brand as a fallacy.
GUMMOW J: What do you say the reasoning is in short?
MR WALKER: The reasoning is that if after a warning is given, attempted, the conduct against which the warning is directed continues, then, without more, the conduct of the person who gave the warning is shown to be negligent by reason of the warning having failed.
GLEESON CJ: Is there a difference between a warning and a prohibition?
MR WALKER: There is. Would your Honour forgive me if I take that to deal with it very shortly but in a different sequence. There is but it was not material in this case, is the final answer. In further answer to Justice Gummow’s question, but also to go to these passages in Justice Ipp’s reasons which illustrate the fallacy, may I take your Honours in volume 3 first to page 1525. There is a reference there to one of these qualitative descriptions given in Justice Ipp’s reasons which, in our submission, really are not supported by the evidence. See at about line 40 in paragraph 214 there is a reference to “jumping and diving was occurring with” what is called “startling frequency”.
It may well startle after the event a judge or a risk assessment expert, but the fact is jumping was well known. It was not something that had led to community concern. It had not produced any accident. One then sees on page 1526 in paragraph 217 the following passage, line 15:
But, breach of a duty of care is a question of fact, and each case depends on its own circumstances. In the present case, the signs that were erected (and that includes the signs prohibiting climbing on the bridge as well as the pictographs) were not serving the purpose for which they had been erected. They were being ignored and the practice was continuing unabated.
There is no evidence about whether it was unabated. It was continuing.
This was common knowledge. Mr Alexander referred to it as a “well known event” –
and that involves jumping, and we rely upon Justice Handley –
and Mr Previtt and the police had found enforcement of the prohibitions displayed on the sign impossible.
They are the youths swimming off, out of reach of the rangers, waving and laughing. They are the youths not being able to be captured by the police, though why one would be supposing arrest for such an offence is not clear. Paragraph 218 his Honour continues that notion at line 35:
The signs were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months.
In these circumstances, the RTA must have known that the signs were, in a word, useless.
GUMMOW J: The last sentence in paragraph 218 is significant maybe:
The signs were not preventing children and young adults from endangering themselves in relatively large numbers –
The implication is that that is what had to be done. In other words, some measure had to be adopted which would prevent children and young adults from endangering themselves.
MR WALKER: “The purpose for which they had been erected”, at line 20 in the preceding paragraph, seems as to its content to be supplied by what Justice Gummow has drawn to attention, namely, it was a purpose of preventing, and I stress, preventing, it means stopping so it does not happen, children and young adults from endangering ‑ ‑ ‑
GUMMOW J: You are back in the territory of barbed wire, are you not, if you are going to prevent it?
MR WALKER: Paragraph 219, that means they were useless, that is, serving no purpose. Paragraph 220, the notion of whether they were proving effective. That is the empirical notion ‑ ‑ ‑
GUMMOW J: Yes, but effective in preventing.
MR WALKER: That is quite correct. The test in this notion of proving effective is to ask yourself, is anybody jumping off? Answer, yes, therefore they are not serving the purpose because it is not preventing.
KIRBY J: We do not know how many people have been prevented.
MR WALKER: No, and there is no attempt by the plaintiff in discharging its onus of proof to show that there had been no abatement. Paragraph 227, a similar concept:
not entitled to rely solely on the signs once it became apparent that they were not serving their purpose and were not having –
and this seems to be a linked concept -
any noticeable effect on persons jumping or diving off the bridge.
It is true our case did not include the capacity to quantify either but then, after all, the plaintiff’s own expert had said that he would expect the vast majority to obey. One can continue that to 1531, paragraph 235, a form of conclusion by his Honour:
the erection of the signs was no longer a reasonable response to the risk -
The suggestion obviously is they were once. After all, that would be in accordance with the expert whose evidence had not been rejected. When he thought that he was addressing a case of no such sign he said that one of the acceptable alternatives was to put up just the sign you had. “No longer a reasonable response” means that it failed the empirical test measured against this attribution to it of a purpose of prevention and, in our submission, it would be a serious peril for the common law to enshrine the notion that the purpose of a warning is to prevent in the sense that prevention does not occur, has not been accomplished, upon demonstration of someone acting contrary to the warning.
GLEESON CJ: I know you said to us earlier that there was no particular of negligence in failing to police the prohibition and it probably would not have been the RTA’s responsibility to do that anyway, but whose responsibility was it to enforce the prohibition?
MR WALKER: I think it is the Council, is the answer, your Honour.
GUMMOW J: Some very careful discussion by Justice Handley is in there of the statutory framework. I am not sure it deals with this point though.
MR WALKER: Yes. With great respect, we adopt your Honour’s description of it but it does not embrace all the statutory issues that underlay this case. I think the answer to the Chief Justice’s question is the Council; if I am wrong in that I will tell your Honours.
GLEESON CJ: Who put up the sign? Who had the power to put up the sign? Was it the RTA?
CALLINAN J: Did not the Council have to get the RTA’s permission and then the Council did it at the RTA’s expense? Is that right.
MR WALKER: Your Honours, I regret to say I cannot tell you from the record as to whether that was true as a matter of law, but it is certainly true as a matter of administration that there was what is called advice and it does answer the description that Justice Callinan has suggested of permission for part of the block grant given by central government, the RTA, to the Council for the upkeep and maintenance of this bridge, for it to be partially expended upon the erection of these signs.
GUMMOW J: Paragraphs 12 and 13 of Justice Handley’s reasons indicate that the Council did it but it regarded itself as obliged to get the approval of the RTA.
MR WALKER: That is right. That is how they conducted themselves. There are issues that we are not concerned in this Court with that certainly were involved in both courts below as to the successorship, with which we are not concerning your Honours, and as to the status as a road authority. In short, the Council was the road authority as held by Justice Dunford but we had the powers of a road authority in relation to the same stretch of road over the bridge.
KIRBY J: They obviously thought it was your responsibility because they sent that fax to you. The Council thought it was yours and asserted that and you apparently paid for the new sign.
MR WALKER: Through the block grant. Would your Honour excuse me for cavilling somewhat of the word “responsibility” but we have accepted in the passages that my predecessor made by way of concession, certainly in the Court of Appeal and recorded in Justice Ipp’s reasons, we have accepted a sufficient degree of responsibility for the signage, and that involves what is not there as well as what is there, so as to not only involve the duty of care but to give rise to the possibility of a breach of duty of care against us. That is not a live issue in this court.
KIRBY J: If there is a point in the flat surface of the top of the balustrade, I suppose, and if there is a responsibility to change that and to put vertical bars in in the place of what existed, then that is all your responsibility, is it not? That is not the Council’s? They cannot touch the bridge?
MR WALKER: It is certain that our predecessor was responsible for the design and construction of the bridge and we are responsible for keeping that under review, hence, the well‑documented consideration of how to deal with the desirable separation of motor traffic and pedestrians.
KIRBY J: Could you just clarify, you said earlier that there is no case on the design and construction of the bridge, but how can ‑ ‑ ‑
MR WALKER: Except insofar as it comes in indirectly through allurement. It is not seriously suggested that we were negligent because of our statutory predecessor’s design of the bridge so far as the evidence shows without any infraction of them governing design standards to include horizontal members and a flat top in the railing. In relation to the enforcement question, there is a finding which we support but which we do not understand to be in question by Justice Dunford volume 3, page 1424, paragraph 53, line 28, “the Council is responsible for . . . enforcement of signs.
Your Honours, the reason why there is fallacy in the approach of the reasoning against us below concerning warnings and negligence can be pulled together, therefore, as follows. In this case, for the reasons advanced in the Court of Appeal, the trial judge was wrong to discern a distinction between a prohibition and a warning of the radical kind that informed the trial judge’s conclusion and reference was made in a way that we support and rely upon in this Court to the comment or observation by the majority in Nagle 177 CLR 423 at 432 point 3, a passage quoted in a number of the submissions before your Honours concerning a prohibition conveying a warning.
In our submission, the same notion upon which we rely and which we urge this Court is applicable as a matter of common sense in the circumstances of this case can be seen in the observation by Justice Hayne in Vairy to a similar effect 223 CLR 470 paragraph 165, that in appropriate circumstances, my paraphrase, prohibition is an emphatic form of warning.
Your Honours saw the administrative response to the problem raised of jumping off the bridge when conveyed by the Council to my client. It was not to consider warning as opposed to prohibition. It was, if the purpose of a warning be to prevent, whatever prevent means, it was to do so by that emphatic form which is prohibition. That did not miscarry of its evident intent judging from the way in which, for example, the plaintiff in the circumstances of his case understood the sign. This was not puritanical killjoy prohibition. This was to do with the safety of the jumper and the safety, no doubt, of those below.
To similar effect, the reasoning in the Court of Appeal upon which we do rely relevantly of Justice Handley, volume 3, page 1479, paragraph 40, and Justice Ipp, page 1532, paragraph 237. Could I take your Honours to that latter, that is 1532, for a further purpose to do with a form of contradiction that is otherwise going to be addressed in our response to the cross-appeal. At that page, paragraph 237, his Honour correctly, with respect, invoked that passage from Nagle at about line 23 for this proposition:
I think that the prohibitory “no diving” pictograph plainly impliedly warned against danger.
But then in what we submit is a precursor of the kind of contradiction between the contributory negligence findings and the negligence findings, his Honour proceeded:
Nevertheless, I agree with Dunford J that, in the particular circumstances of this case, a reasonable response to the risk of injury would not have been a sign containing “a more prohibition for reasons unspecified”.
That quote comes from Justice Dunford’s reasons for the rejected distinction between a warning and a prohibition. His Honour has just, by referring to Nagle and referring to the circumstances of the case, said of this prohibition that it was not a mere prohibition – far from it. For those reasons, in our submission, there is an inherent contradiction within the very heart of Justice Ipp’s reasoning on this factual issue.
Your Honours, it is clear from the passages to which I took your Honours in Justice Ipp’s reasons, including in particular the passage which Justice Gummow emphasised by way of drawing it to attention, that the informative concept is the ascription to a warning in a case like this of a purpose of preventing certain conduct, the application to a postulated warning or an actual warning of the empirical test, that is the experiment of trial and error, and the application of a fail mark, that is negligence of a kind which I will elaborate in a moment, if there is conduct in defiance of the warning or prohibition.
This case does not permit and is not an appropriate vehicle to essay some notion of single instances, freak, maverick, something that nobody could foresee, are one thing and other possibilities are another thing. The foreseeability of the diving in this case rather suggests that this is not a case, and nobody could suggest this is a case, where the possibility of diving is so remote that if it were to occur it would not cause the sign to have failed in its purpose. According to the reasoning against us and most emphatically according to the argument against us in this Court, the sign fails or, to use Justice Ipp’s other words, it is no longer a reasonable response. That leads to the following sequence of fallacious common law argument. One knows that boys are jumping and therefore may be diving from a bridge. A reasonable response to that is to prohibit diving, and that is this case.
One then observes, probably if you are observing quickly enough, the very same boys, but perhaps others as well, noticing the sign, laughing at it and continuing as they had done before, when accosted by rangers, swimming off laughing and waving. According to the reasoning against us, that is the empirical test which the sign has failed, you have to do something else.
KIRBY J: I think you are overstating what Justice Ipp is saying.
MR WALKER: Not at all, your Honour.
KIRBY J: All he is saying is that you retain your obligation of reasonable care ‑ ‑ ‑
MR WALKER: No question about that and that is why his‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ and that has to be exercised in a context where you are on notice that the sign is not discharging that function, that boys are still jumping. You have at least to then turn your attention to what you can do to try and stop it.
MR WALKER: That is our point, your Honour.
KIRBY J: It may be that your case is strongest on the causation issue that when you actually look at the theories that are put up, the railing, the pyramid and so on, other signs, words underneath, none of those is likely to have caused a different outcome but you cannot be released from your obligation of doing it just by paying a few dollars for a sign.
MR WALKER: Your Honour has not heard a word from us or read a word from us to the effect that we were discharged from our duty.
KIRBY J: You said earlier today, “We did, after all, put a sign in”, as though that is the answer to every problem when you know boys in large numbers are jumping off this thing.
MR WALKER: The plaintiff’s experts said that is what we should have done.
KIRBY J: That is a forensic argument.
MR WALKER: No, your Honour, that is exactly what he said should have been done.
GLEESON CJ: Mr Walker, can I ask you a matter of detail. Did Justice Dunford find that the sign should have – I am looking at 1532 in the passage you just took us to – was one of the forms of negligence not adding to the sign, the pictogram, words, “Danger, Shifting Sands, Variable Depth”?
MR WALKER: Yes.
GLEESON CJ: Was there any consideration given in evidence or argument to whether those words were to be in the English language only?
MR WALKER: No.
GLEESON CJ: One of the reasons for having pictograms, as I understand it, is that if you had a sign in the English language, people of a non-English speaking background would not be warned by the sign. That is why you have pictograms, because of their universality.
MR WALKER: Yes, I think that is one of the matters considered in the authority noted by Justice Ipp at 1531, paragraph 233. It is certainly noted in a number of Court of Appeal judgments. I will just refer to Waverly Council v Lodge 117 LGERA 447. No, that is not the subject of any exploration in this case.
Your Honours, I should say this about Waverly v Lodge as well. Justice Ipp seems to be using Justice Bryson’s approach in that case to what might be regarded as an opposite effect of the reasoning which, after all, culminates in paragraphs 37 and 38 of Justice Bryson’s reasons in Lodge. That was a case where the notion of a sign as an automatic, absolute and permanent panacea does, we suggest, pick up exactly what we are trying to put, namely, that it is wrong to ascribe to a warning the purpose of prevention in the sense of stopping the conduct which should be warned against; that a warning is in the relationship between plaintiff and defendant, a warning is in formation rather than prevention in the sense of stopping phenomena from occurring. It is to ensure that the ‑ ‑ ‑
KIRBY J: But the phenomena here were of boys jumping from the bridge.
MR WALKER: Quite.
KIRBY J: In this country we have compulsory education. Most boys, if that is the problem we are targeting, are going to have gone to school and speak English, as plainly from his language the first respondent did.
MR WALKER: Simply the pictograph alone. He knew that diving was prohibited, he knew of the risk of the descent. Your Honour, there is no possibility of contradiction.
KIRBY J: The prohibition is an interdiction. That is a challenge to the boys. The information is the shallowness.
MR WALKER: Your Honour is rather suggesting, I think, the notion that if softer words of persuasion or – I do not know how you can have a pictogram of ‑ ‑ ‑
KIRBY J: Information: shallowness.
MR WALKER: But, your Honour, no information was lacking in this plaintiff, none.
KIRBY J: That is a causation issue.
MR WALKER: I appreciate that, your Honour, and, with great respect, we adopt your Honour’s comment about that and we have put our case and rely on our case about causation. Can I address the question of the continuing duty. On the approach against us, upon the empirical test producing what is called by this fallacious approach a failure, that is the conduct continues to happen – whether or not it has declined apparently does not matter for this reasoning; it continues to happen. That is the very conduct which had been foreseeable with horrendous consequences in certain cases. It continues to happen and that is why Justice Ipp said no longer reasonable as a response because he is supposing that first time round it was reasonable, and that would accord with this case. When it fails the empirical test of does it produce an absence of that conduct thereafter, and that is what appears to be meant by this notion of preventing, then he says it fails and you have to do something more in order to escape being negligent.
So presumably, if one is still talking about signs rather than caging – and this is not a caging case. They do not say, “We should have caged the bridge”, they do not say, “Barbed wire on the balustrade”, et cetera. So if warnings, including that emphatic form which is a prohibition, is still in question, then one ups the ante, as it were. One has signs, “Danger!” I am making this up from the Bar table because, in our submission, that is really the common law technique that is being proposed by this fallacious argument. If that fails, you have to put skull and crossbones on and, in our submission, what that actually reveals is that there has been a misstep at the beginning of this reasoning to suppose that the function of a warning in a reasonable response balancing exercise is to ensure the conduct does not happen. What it is to do is to enable people to know about a danger which awaits them if they do something.
CALLINAN J: Mr Walker, if you put a warning against shifting sands of the kind that Justice Dunford said, why should you not also put on a warning about passing boats underneath, overbalancing and falling back in front of traffic or overbalancing into the water suddenly, “Do not use the lamppost”? I mean, you could have a full page.
MR WALKER: All of that, and there could be many pictograms. The fact is that once one rejects, as the plaintiff correctly rejected, the notion of physically preventing by what I call a cage, getting off this bridge into the water, once one rejects that as being required as a reasonable response to the foreseeable risk of this terrible kind of consequence from boys jumping or diving, then one is immediately into the position which Justice Bryson appropriately described where there is no panacea available by warning. All you can do by warning is to ensure people know the danger. There is no suggestion that this plaintiff did not know the danger.
KIRBY J: The lack of a panacea is a lack of a panacea for the plaintiff but it is also a lack of a panacea for you.
MR WALKER: Quite so.
KIRBY J: The question is: as a reasonable bridge controller, knowing of all these boys jumping off and that this is a holiday area and that of some who jump some will dive and that that is a very, very risky and profound and catastrophic injury, whether that imposed on you something more in that context. I think that is all Justice Ipp is saying.
MR WALKER: No, your Honour.
KIRBY J: I do not think there is a big fallacy here. He is just saying buying a sign might not be enough.
MR WALKER: With great respect, your Honour, he is saying much more than that. The “no longer a reasonable response”, the reference to “failing by the observed conduct continuing after the sign went up” is precisely saying that was good enough when done, it is shown not to be good enough because it fails in what he calls its purpose. If the conduct continues you have to do more by way of a sign and, in our submission, this is a hopeless slide into an approach to warnings which requires of them that which is inherently impossible and unreasonable thus against the spirit of the common law at the outset.
GUMMOW J: I suppose one has to assume that the person to whom one is directing the sign will react reasonably to the sign.
MR WALKER: And this Court has said ‑ ‑ ‑
GUMMOW J: The question is, the relevant class seems to be teenage boys ‑ ‑ ‑
MR WALKER: Quite, your Honour, that is why I have referred several times to what ‑ ‑ ‑
GUMMOW J: That is how the allurement notion gets in, I think, perhaps.
MR WALKER: That is why I have referred several times to what Mr Fogg said about his experience of expectation that the vast majority will obey. It does raise the allurement question and the way your Honour first put it to me in that question is of course consistent with the way this Court unanimously made an observation about it in a non-warning case, that is Thompson v Woolworths 221 CLR, pages 246 to 247, paragraph 36. Your Honours, I have some comments to make about allurement. Is it a convenient time to do that at 2.15?
GLEESON CJ: Yes, we will adjourn now until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Walker.
MR WALKER: In answer to a question from Justice Callinan, Justice Dunford dealt with the long period without mishap by jumpers or divers in volume 3 of the appeal book, page 1425, paragraph 56. I draw to attention that that happens to be in relation to the claim against the Council, though in principle that should not affect the matter.
KIRBY J: Did you say you were going to deal with allurement?
MR WALKER: Yes, I am. There was also a question concerning whether there had been reports of dangers for pedestrians. In volume 3 at pages 1198 and 1202 to 1203 there are records in 1997 and 1998 of concerns, for example, highlighted by the Oyster Festival, thousands of people traversing the bridge, “a period of extreme traffic volumes, very strong winds which had the potential of pushing pedestrians into the path of oncoming vehicles”, a reference to handrails and people being subjected to a dangerous situation every time they traverse the bridge.
KIRBY J: That is just irrelevant to the issue before us, is it not, because how they look after the pedestrians is not really material to the problem of boys jumping off the bridge.
MR WALKER: It is all to do with a balancing exercise, your Honour, and it certainly relates to the way in which one would design, for example, a balustrade.
KIRBY J: How does the protection of the pedestrians have anything to do with the way you design the balustrade?
MR WALKER: Your Honour, a concern that balustrades be in positions, for example, that accommodate the use of heavy pedestrians away from traffic will obviously affect the way in which that balustrade may, in due course, be what some would regard as an allurement for boys to climb on them. Whenever you design a balustrade you design something which may be climbed on.
KIRBY J: I do not understand it. Did you do anything to protect the pedestrians?
MR WALKER: Yes, your Honour.
KIRBY J: What did you do?
MR WALKER: We have undertaken some years of design thinking as to what should ‑ ‑ ‑
KIRBY J: Lots of thinking, but did you do anything?
MR WALKER: Yes, your Honour. There has been work commissioned of a kind, details of which do not appear in the record.
KIRBY J: It does not sound as though you actually got out a hammer and put up a structure of some kind.
MR WALKER: To put it mildly, as the material in those passages record, it is not a straightforward matter.
KIRBY J: Nothing is ever straightforward by the time it gets to this Court.
MR WALKER: Particularly not when one mingles pedestrians and motorcars, particularly when the bridge in question is one which people desire for both mundane and tourist reasons and particularly when nobody in this case or outside this Court suggests it should have been caged.
KIRBY J: Even the Parramatta Road now has at Leichhardt some sort of concrete barriers to protect pedestrians.
MR WALKER: The record shows, your Honour, that that was considered and those in themselves raise safety considerations in relation to cyclists and motorists. Everything involves trade-offs.
KIRBY J: Anyway, I repeat, we are not really concerned with the pedestrians, we are concerned with the boys jumping.
MR WALKER: Your Honours, in order to go to the question of allurement can I go to the question of the sign that I will call the Court of Appeal’s sign, that is the pictogram and the “Shallow Water” words. On the reasoning that we identify in the majority, had such a sign been erected and it been followed by observations of continued jumping, that sign too would have failed the empirical test proposed by Justice Ipp. It would have been, to adapt his language, proved to have been useless or to have failed to have served the purpose for which it was designed, that is to prevent, in the sense of eliminating, the conduct warned against. That necessarily comes from something that Justice Kirby raised with me shortly before the break, namely, the duty of care does not disappear upon once doing something which is held to be a reasonable response. It is circumstantial and the circumstances would have changed in the example I have given, namely, jumping continuing after the new sign. The new sign, a reasonable response to what was known before it went up, the new sign shown to have failed in its supposed purpose, according to the fallacious reasoning against us, failed in its intended purpose simply by the fact that people continue to jump.
Quite apart from the absurd spiral which defeats the tenet of reasonableness which is the way in which the common law judges the response, quite apart from the fact that it leaves out of account the reasonable expectation that people will take account of dangers against which they have been warned, we then come to the question of allurement. No attention has been paid to the following combination of circumstances which, in our submission, demonstrate that any notion of allurement is a distraction from the proper common law issue.
First of all, it may be accepted that the basic or fundamental aspect of a bridge, which is that it is an elevated structure over water, is the beginning of the so-called allurement to boys and young men in this case. No one has suggested that that leads as a common law response to a requirement on pain of a finding of negligence against you that bridges must be either very close to the water’s surface, which in this case would have utterly defeated the purpose of permitting navigation and no doubt caused other problems of structural safety, or that they need be so high that only the suicidal would be tempted to jump – that is obviously and self‑evidently absurd. So the fundamental allurement, namely an elevated structure over water including at a height which bears some direct comparison with heights that people are used to attempting in swimming pools, elevated diving platforms, is something which does not reflect in any way badly on those who design it or produce something which calls for anything other than a reasonable response. We submit that those forms of language which are found in these and other reasons suggesting that in situations of allurement the duty is higher need to be elaborated lest error be introduced.
The duty remains the same. It is the duty of care to take reasonable care, that is, that your response be reasonable to the exigencies presented by the circumstances of the case. That is not increased. There is no difference in the verbal formulation that applies in the case of allurement, but the allurement, as it were, is one of the circumstances which must be taken into account, we accept that. The next thing is, this not being a case of proposed caging, it must be accepted by anyone considering an allurement possibility that it will be possible to jump off.
GLEESON CJ: I am not quite sure how allurement would be taken separately into account. If you have already treated as relevant the fact that a lot of people jumped and some dived from this bridge, that covers allurement, does not it?
MR WALKER: In our submission, yes. Allurement is a distraction. It is an evocative word added to what is merely a circumstance to be taken into account in the familiar way for the general standard.
KIRBY J: I may be wrong but I have understood it to mean it is an allurement because it is particularly attractive to the type of young males who were seen for some time attracted by it, that they are the ones who are allured and that is therefore something known to you about which you should respond to.
MR WALKER: Yes, thrill-seeking people. Quite, we accept that. But once caging is put to one side, the possibility of jumping, climbing, diving is inherent and to acquire that to be prevented is, in our submission, either no bridge or caging, that is, physically prevented. We know that that which was alleged against us as to the design feature, namely the requirement at some time in the past and before this accident to have put in swimming pool‑type fencing, the vertical members, merely makes harder something which the test of experience, the empirical approach, had demonstrated at Bulahdelah did not prevent the conduct in question.
GLEESON CJ: I thought that the concept of allurement had a legal significance in the days when the law used to divide occupiers into various categories and if you had created something called an allurement, that modified your responsibilities to perhaps trespassers and other people.
MR WALKER: Yes.
GLEESON CJ: Now that we are past that, in a case such as this it is not easy to understand what the word “allurement” adds to the case if you have already taken into account the fact that a lot of people jumped from the bridge and some dived.
MR WALKER: It adds an inappropriate and misleading sinister note to the conduct of building a bridge which is not caged.
KIRBY J: I think “sinister” is a bit high.
MR WALKER: Allurement is an old-fashioned word designed to suggest somebody who has set out ‑ ‑ ‑
KIRBY J: It was invented by all those very clever English judges of the 19th century including Willes J in Indermaur v Dames because of the well‑known phenomenon that certain bridges over water or similar things can allure young people into very risky situations.
MR WALKER: Quite. No one has suggested there should not have been a bridge. That brings that which is the beginning of any so‑called allurement into existence, and we respectfully adopt and urge what the Chief Justice has raised for my consideration, namely that these are simply facts of the case, circumstances of the case to be taken into account in assessing reasonableness. Finally, as to a sign, be it that emphatic form of warning which is a prohibition, be it in Justice Dunford’s form or Justice Ipp’s form, a sign of that kind that I have suggested in the spiral argument that one might sooner or later end up with skull and crossbones as well, ought not to be readily seen as the opposite of allurement.
Those who seek thrills and derive the thrill from the running of the risk are not likely, one would submit, and on the evidence of this case with some force of an actual story, one would not readily see them as being put off that which will produce a thrill by being informed of the very circumstance imparting the thrill and for those reasons ‑ ‑ ‑
KIRBY J: Mr Walker, I can understand that your argument may well be that nothing you could have done would have stopped the plaintiff’s injury but is the bottom line of your argument on the duty question that really there was just nothing you had to do because there was nothing you could do?
MR WALKER: No. First of all, there is not a duty question, it is a breach question. Second, we had done things, we had not done nothing.
KIRBY J: You had not done much, you bought a sign.
MR WALKER: We have no more done nothing than would or will be the case if a sign in the Court of Appeal form goes up and boys are seen to jump thereafter and if we do not change that sign, to say that we have done nothing would be an inaccurate way of characterising that for the purpose of the common law tort. We would have done something in the past which on an assessment, we submit, would still survive the test “Is that a reasonable response?” because one should reject the notion that warnings fail if people conduct themselves contrary to the message conveyed. May it please the Court.
GLEESON CJ: Thank you, Mr Walker. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I say two things before going on to our argument proper. The first refers to what was said by Justice Ipp at paragraph 218, page 1526 in volume 3. That is where his Honour used the expression “preventing” to which reference was made this morning and has been latched onto thereafter. Your Honours will see at page 1526, paragraph 218, the last sentence of that paragraph. May I say in relation to it, your Honours, it does need to be appreciated, with respect, that all that Justice Ipp was there doing was to refer to what was the factual effect of the then sign and that that is so is apparent from the remaining paragraphs on that page. It is after that, at the next page, page 1527 – if your Honours look at the heading of the part that follows – he there goes on to deal with the question of reasonableness of response.
KIRBY J: Which paragraph?
MR JACKSON: I am sorry, your Honour, I was looking at page 1527 and what I was saying was this. Reference was made by our learned friends to what is in the last sentence of paragraph 218 on the previous page. The point I was seeking to make was that all that the judge was there doing was to refer to what was the factual situation arising from the previous signs. He deals with that to the bottom of page 1526, then he goes on to deal with the question of reasonable response thereafter, as is apparent from the heading at the top of page 1527.
Could I say this. In dealing with reasonable response, both the primary judge and the judges in the Court of Appeal, the matter really had two aspects. One aspect was deterring individuals, but the second thing was, because more individuals were deterred, that would result in the practice becoming less prevalent and if the practice became less prevalent, that itself would operate as a discouragement to those who might otherwise have been involved.
Your Honours, that is explained in a passage of Justice Dunford’s reasons at page 1429, paragraph 70. Your Honours will see in the fourth line of paragraph 70 what he says is, “In my opinion, a warning sign containing words” et cetera “should have been displayed”. Then in the next sentence he draws attention to two things. He says:
Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed.
So, your Honours, the second thing we say about it is if one goes to Justice Tobias’ reasons in the same volume at page 1574, your Honours will see in paragraph 373 that he said at about line 22:
There is no reason to believe that the combination of such remedial steps to the danger that otherwise existed would not have been a deterrent to young people who engaged in the practice of jumping and/or diving from the bridge with the result that the extent of that practice, at the very least, would have been significantly reduced. In those circumstances, the plaintiff’s observation with respect to others jumping and diving from the bridge would not have provided him with the reassurance that it was safe to do so that he apparently assumed at the time of his accident.
If I could go then to Justice Ipp because I need to go in his reasons for judgment to a number of paragraphs.
GLEESON CJ: Before you leave 373, Mr Jackson, although it may be the answer to this is in Justice Ipp, what exactly did Justice Tobias mean by pool‑type fencing?
MR JACKSON: What he is referring to is simply the fencing that has no crossbars but the vertical fencing.
GLEESON CJ: No, as it were, vertical members above the top rail?
MR JACKSON: That is so, your Honour, yes.
GLEESON CJ: In other words, something you can lean on?
MR JACKSON: Yes, you could. Your Honour, could I just say something in relation to the triangle, the plane that is cut into pieces and so on, it is quite wrong to think that the evidence in relation to that was that whole bridge would have that. The evidence was that what was proposed was that the 20 to 30 metres that persons might have jumped or dived from might have that on top of it. I will give your Honours the reference a little later if I may. So one is not talking about something that was a most sophisticated and elaborate piece of engineering, what you are talking about is something of the simplest kind dealing only with the part where the danger might exist.
KIRBY J: What is the answer to the light pole - that the plaintiff grabbed onto the light pole and would have done so again whatever the surface of the horizontal bar?
MR JACKSON: What one sees is that the plaintiff was able to climb up because of the crossbars and got there and no doubt assisted himself by holding onto the light pole, but it is a question, of course, whether he would have got there. One is not talking about absolute prevention. It is talking about a question of deterrents. So it is not to say that he would have done the same thing. What we are talking about is a situation where what is said is that a combination of things, put at the highest in a sense, would have operated as a deterrent to him and as a deterrent to others. The practice would be unlikely to have developed in the way in which it did and there would not be the encouragement to do it it in the first place.
KIRBY J: It may be that Justice Ipp, that you are going to take us to, gives the answer to this but I just have a difficulty in seeing how young boys who are not deterred by the notice, the pictogram, are going to be deterred by the pictogram plus a little statement underneath, “Shallow Water” or anything else. I just think that if people are going to be so motivated for their fun and enjoyment in summertime to do this, and have done it for years and decades, the thought that this plaintiff would have been deterred by three or four little words is very hard to convince me, I am afraid.
MR JACKSON: Could I say, your Honour, I do intend to come to this, but the way in which our learned friend’s argument presents the plaintiff is one which does not accord with the findings made about the plaintiff and his motivation by the primary judge who had the advantage of seeing him. I intend to come to that in a little detail a little later, if I may, because the judge specifically made findings about the passages of evidence to which our learned friend referred and said they were statements not of his feelings at the time but of answers that he gave after the event speaking of his knowledge at the time of the trial.
Your Honours, I was going to go to Justice Ipp on the same topic. There are a number of references. Could I go first to page 1538, paragraph 261 - your Honours will see that, at that stage, in the last few sentences, he says:
The attraction of the bridge as a place to jump or dive would have been substantially reduced had the horizontal railings been replaced by vertical pool-type railings in accordance with the Bridge Building Code . . . Dunford J was correct in finding that the installation of pool-type fencing was a reasonable response to the risk.
He goes on, your Honours, to say, at paragraph 312, in a passage that goes through to paragraph 315 – your Honours will see that in paragraph 312 he speaks of the fact, this is about the second sentence, he says:
Nevertheless, it seems that, immediately before he dived, he did not apply his mind to the risk of shallow water. It is one thing to be aware, in theory, of a risk. It is another to be conscious of that risk so that one bears it in mind before embarking on activities that involve that risk.
Your Honours will see at the end of that paragraph, the last line on that page:
The fact that, for several years, Mr Dederer had observed children jumping and diving, apparently without intervention by the authorities, would also tend to provide him with some reassurance.
Your Honours will see in the next paragraph, he says of the finding:
that, had the signs made it plain that diving was dangerous – and explained the nature of the danger – Mr Dederer would not have dived.
So that was a finding by the judge in favour of the plaintiff. In paragraph 314 you will see that he refers to the fact there might be a further deterrent by “modification of the flat top railing” and also at 315, the fact that he “dived after changing his mind, and moreover, on impulse”. He thought that if the signs had been altered, et cetera, “it is probable that Mr Dederer would not have dived”.
So that your Honours will see that both aspects are involved, one is the aspect of the plaintiff personally but the other is the aspect of the plaintiff personally, in a milieu, where, for years he had seen others doing exactly the same thing. If there had been these deterrents in place then he would not have had the second of those things on the one hand and, on the other hand, the possibility himself of doing it would have been significantly, at least, reduced.
Your Honours, if I could just go back to paragraph 261 of Justice Ipp which is at page 1538, you will see there the magic word in the fourth line “The horizontal railings were part of the allurement of the bridge”. What that is a reference to is simply a passage quoted at page 1498 in paragraph 116 of Justice Ipp’s reasons where all that was said by the primary judge was that:
The bridge, being a launching pad . . . was, I believe, a very strong allurement to youths of the plaintiff’s age group -
He was using it purely in the sense of ordinary words in the language rather than as having a particular technical meaning.
Your Honours, the second, I am sorry to say, preliminary matter, if I may say so, is this, that in relation to the question of no one having been injured for 50 years, Justice Dunford was – your Honours were given a reference to paragraph 56 of Justice Dunford’s reasons at page 1425. I think our learned friend said that is when he is dealing with the position of the Council, but if your Honours look at paragraph 56, what is said is:
I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risks should have been so apparent to the officers of both defendants with knowledge of the estuary bed –
et cetera, and your Honours will see the nature in the preceding paragraph 55 of the knowledge of both defendants of the movement of the sands and the navigation channels and so on. The aspect of no one having been injured for however many years it might have been is referred to in the reasons for judgment of the majority in the Court of Appeal, Justice Ipp at page 1525 at paragraphs 213 and 214 and then at page 1530, paragraphs 231 and 234 and Justice Tobias at page 1564, paragraphs 340, 346 and 348 to 354.
May I come now, your Honours, to a matter of some importance in the end and that is the question of the extent of the knowledge of the Roads and Traffic Authority. Your Honours, the starting point is that it was found that the practice of jumping and diving from the bridge was widespread, of longstanding and well known and, as your Honours will see, that finding was not challenged in the Court of Appeal. Your Honours will see that in paragraph 186 at page 1518.
Now, your Honours, the finding at – may I go for just a moment to the findings at first instance in this regard. They may be seen at page 1422, paragraph 46 where the primary judge said:
I am satisfied on the evidence that the signs were not effective in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water.
Your Honours, at paragraph 54 at page 1424 his Honour said also that:
I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff’s accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays.
He went on to say in the next sentence one of the reasons for that. May I invite your Honours to note that the findings that the primary judge made in that regard involved a number of matters. The first is that he referred to large numbers. The second is that he referred to large numbers of young people and the third is that he did not just refer to jumping, if that be an absolutely discrete activity, but also to diving and doing somersaults, et cetera.
Now, your Honours, those findings were amply justified by the evidence. Your Honours will see we have given the references to the evidence in our written submissions, paragraph 14, footnote 15 and your Honours will see, if one goes to the primary judge’s reasons, the reference in paragraph 20 at page 1415, particularly the evidence of Mr Cunial, who was the other person there on the day in question. Your Honours will see that his evidence was that he had been going to the place for about 10 years:
and had seen persons (ranging from about 10 to 30 years old) jumping off the bridge at the channel near the Forster shore including diving, doing back flips, somersaults, “peg-legs” and bombs.
I will not give evidence about the details of those, but I am sure your Honours will understand there are a variety of activities.
Your Honours will see also the plaintiff’s father’s evidence referred to in paragraph 21, Mr Keegan’s evidence referred to in paragraph 34. You will see also paragraph 39 and paragraphs 41 and 42. May I say immediately in relation to Mr Keegan, it is right to say that in one sense he may have diverged slightly from his evidence of diving and in that regard may I take your Honours to volume 1 of the appeal book.
Your Honours will appreciate that the jumping/diving construct or the jumping/diving distinction is really a forensic thing and our learned friends argue it is something maintained throughout the case as if these are activities that are completely distinct, but when you see the evidence about the somersaults, peg-legs, bombs, et cetera in addition to diving, your Honours would appreciate that these activities are but species of a genus of activities that young people engage in launching themselves from the bridge. To deal with them as if they are two completely opposed things is, in our submission, without any real foundation.
I was going to refer your Honours to three passages in this evidence, first of all, the evidence at page 396 at about lines 20 to 32, then page 419 about lines 42 to 50 where he said:
I’m certainly aware that there would have been general knowledge in Forster/Tuncurry that people had been jumping off that bridge for a long time.
Q. And you would have been aware of that too?
A. I was aware of that.
Then at page 445 your Honours will see between lines 40 and 50 one can assume, I suppose, giving their version of it most favourable to the other side that he was drawing a distinction between diving and other forms of activity. Your Honours, if there is some distinction in his evidence it does not alter the force of the judge’s findings because the evidence of Mr Cunial demonstrates that what was going on was a range of activities. I have taken your Honours to that. Also, Mr Pevitt’s evidence referred to by the primary judge at paragraph 41 at page 1421 was to the same effect, “people jumping off the bridge, some of them doing somersaults”.
Your Honours, we would submit that what was said by Justice Ipp in paragraph 308 at page 1554 about the irrelevance of the distinction between jumping and diving is correct. So too, your Honours, is what was said to the same effect by Justice Tobias at page 1563, paragraph 338. Your Honours, I am sorry to have taken a moment dealing with that, but what the evidence does demonstrate, we would submit, is that it was a widespread practice of people, as the judge found, jumping, diving doing all sorts of things, getting into the water from the bridge, known about in the area for years.
GLEESON CJ: Mr Jackson, could I just take you back to a paragraph you took us to a minute ago. On page 1556, paragraph 315, how do you come to grips with that kind of issue? I mean, a proposition like that is, from one point of view, neither verifiable nor falsifiable. I mean, if you put it crudely you might respond to that proposition by saying, how do you know?
MR JACKSON: Your Honour, I suppose two things. It reflects, I suppose, a range of issues that have to be decided in relation to people’s motivations and have to be decided after the event. Now, if one takes the statement, “The state of a man’s mind is the same as the state of his belly”, the expression was something along those lines, these are matters of fact that have to be determined. That always happens with cases in which there is some element of intention or conduct that was engaged in or might have been engaged in.
GLEESON CJ: It is more a question of the state of his hormones, I think.
MR JACKSON: Your Honour, the evidence was there. What I mean by that is that this was a case where you had the plaintiff give evidence. I will give your Honours a reference in a moment. He was found to be a frank and honest witness, so the judge took that view of him. The judge also was in a position to hear the responses he gave to the questions that were put to him. In circumstances where he formed the view that it was just something he did on the spur of the moment, it was not something he intended to do in the first place, it is perfectly easy to take the view that if there had not been the encouragement of seeing so many others do it and if there had been things there that made it not so easy to do, then it was unlikely that he would do it.
GLEESON CJ: A possible point of view is that one thing that you have going for you is concurrent findings on this and related issues, but I am just concerned from a wider point of view, perhaps not necessarily related only to this case. It is not as though the primary judge or the majority in the Court of Appeal found that there was some kind of radical difference between what the RTA did and what it should have done. They proposed a modification to the sign and a modification to the fence. If what they had in mind was the sort of thing that you have at the Bulahdelah bridge, it does not appear to be a very radical modification.
MR JACKSON: I will come to that, your Honour.
GLEESON CJ: Yes. Where you say what they should have done was something perhaps not greatly different from what they in fact did, it must be very difficult to make a judgment about whether doing something differently to that extent would have prevented what happened.
MR JACKSON: Your Honour, I accept there can be difficulty. It is a difficulty that arises in a number of contexts, and in particular it really arises perhaps in a slightly different form in questions of reliance because one is endeavouring to say that if things had been different, then something else would have occurred and there would or would not have been reliance upon something. This is in a sense the other side of that where a plaintiff’s case is that if there had been some changes, then different consequences in terms of the actions of the plaintiff would have occurred.
Your Honour, it is an issue that has to be determined but, in determining it, we would submit that is why there are some important things. Obviously plaintiffs will often fail because their evidence will not be accepted on the point; they have not satisfied the burden of proof. But an important thing in relation to it is that if you have a case where the judge who sees the plaintiff – and this is an issue where this does become very important – and the plaintiff is a person whom the judge regards as honest and a person whose evidence the judge believes would reflect what the person would have done if there had been certain things done, there is no reason why that finding should not be given effect. There is no other way of doing it, your Honour, in a sense.
GLEESON CJ: That may be the answer. My concern was really a concern about the legal principle. I could understand somebody looking at this case and being told that it all turns on paragraph 315 saying, “Goodness.”
MR JACKSON: Could I perhaps give your Honour two further references in that regard. The first is to page 1424, paragraph 54.
KIRBY J: What is it, I did not hear that.
MR JACKSON: Page 1424, your Honour, paragraph 54 in the primary judge’s reasons where, in the second sentence, he said:
The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing . . . and the ease of access . . . by reason of the wooden cross members -
So one can see there is a finding that what actually occurred was ease, by circumstances proposed would be changed – that is part of the case – so your Honours can see a connection.
CALLINAN J: But it is an inferential finding, Mr Jackson, is it not, which means everybody is in as good a position to take a different view of it.
MR JACKSON: Your Honour, at trial, sure, certainly. One does then get into some difficulties in an appeal in taking a different view because, inevitably, the view of the primary judge will have been informed by the view of the person and in this case a view as well.
CALLINAN J: By the view, yes, I know there was a view – we do have very good photographs. I would be interested to know what advantage you say the judge derived from the view.
MR JACKSON: He went on the bridge, your Honour, for a start. He went on the bridge, he had the plaintiff giving evidence while he was there – I will give your Honour a reference to that in a moment – but the judge said that explained more to him than he had understood from the evidence itself, evidence which was given in court, and also it explained what he meant when he saw the colour of the water. Can I give your Honour a reference to that later. I do not know that I can answer your Honour more than that really.
KIRBY J: It does come up all the time because you remember in Ellis v Wallsend Hospital, the question was would Mrs Ellis have had the operation. The judge concluded that she would not have had it if she had known of certain risks. Similarly, in Chappel v Hart, similar questions, I would have walked a thousand miles to avoid it if I had known that and so on. In the past it has often been done, the question is asked and the judge then says, “I believe” or “I don’t believe” but I think that has been a bit discouraged in the courts and, therefore, the judge has to do the best that the judge can with the facts to assess what would have happened in events that have not occurred and will never occur and to reach a judgment. As the Chief Justice says, one of the things you have going is that the trial judge did so decide and that was not disturbed in the Court of Appeal.
MR JACKSON: Yes.
GLEESON CJ: One of the problems I have in my mind, Mr Jackson, is that you could always say there is a little more that could have been done. Short of either putting razor wire on the top of the thing or having a policeman permanently on patrol or whatever, you could always say the sign could have given a little more information, the fence could have been a little harder to climb.
MR JACKSON: Your Honour, one always can but there is a question of quantum, I do not mean that in a very accurate sense, involved. What one is endeavouring to do is to work out what is, within the limits of things, a reasonable response to the risk so first of all you identify the risk. Having done that, one looks to see whether what might have been done, that was a response, that might have a significant effect upon that to reduce that risk to an appropriate level – I am sorry, I have been using broad terms, your Honour - and in doing that one arrives at a conclusion.
You see the way in which Justice Ipp went about it in this case. He referred to the various things and then looked particularly at the question of causation, would those things have had that effect? Then he arrived at a view on that topic. Your Honour, that is really the best that can be done. If there were different systems, so be it.
GLEESON CJ: Yes, it may be that I have just been putting an argument in favour of no fault compensation.
MR JACKSON: I was going to say, your Honour, the result – well, no fault no compensation, your Honour, if I can put it differently.
KIRBY J: I suppose that once you have the concurrent findings of fact it has to be plain that an error has occurred. Mr Walker has to somehow show that an error has occurred. You do not have to show that it has not occurred. It has to be shown that an error has occurred for this Court, in a sense, to substitute its view of the common sense of the situation for that reached by the trial judge, or at least had, conventionally speaking, certain advantages.
MR JACKSON: Yes, our learned friend’s argument, if I may say so, with respect, a fair bit of it really sounded like rehashing the evidence without taking too much account of the findings of the primary judge had made.
KIRBY J: I do not think it is quite as weak as that because he has going for him the fact that if there has been all these boys doing this for so long without any injury and if that has been observed, you really have to take a big step to say that if this boy has not been deterred by what in a sense was obvious to him because he had boated up that lake and if he had not been deterred by the sign telling him not to dive, that he would have been deterred by the sign plus a couple of words. Justice Dunford says he would have been deterred by that.
MR JACKSON: In relation to the first part of that, may I say just this, that – may I postpone it for just one moment. Your Honour, what I wanted to go now to, if I can just introduce what I am doing, I wanted to turn to the position of the Roads and Traffic Authority and the evidence, in our submission, demonstrated actual knowledge that the bridge was used as a place for this purpose. Your Honours have seen the document our learned friend has referred to that is in volume 2 at page 273, the 1993 communication from the Council to the Roads and Traffic Authority.
One also sees, and it has a slightly dramatic effect, in effect, that there was the report made on 30 July 1998 by Mr Alexander and that is the report which is in volume 3 at page 1218. That is the report which, at page 1219 under the heading “3”, halfway down the page, speaks of the two RTA officers who spent five hours on each of the two days, 11 and 12 April that year observing activity on the bridge. One of the things they noticed, you will see it referred to at page 1220 about line 32, “Groups of young people were observed jumping from the bridge”. That puts it rather blandly.
If one goes to the evidence a little more one sees that those officers appeared to recognise immediately that what was being done was dangerous and that that is so can be seen from the appellant’s answer to interrogatories which is at page 1162. This refers to those two officers and what is said is, about line 20:
The First Defendant having made enquiries of present and former officers and employees is able to say that despite it having no enforcement powers, one employee of the First Defendant on 11 or 12 April 1998 approached the people jumping from the bridge and informed them that what they were doing was dangerous.
GLEESON CJ: By the way, if you want an example of something that is dangerous, have a look at the earlier dot point on page 1220, the immediately preceding dot point about the young people jumping. There were skateboarders moving on and off the walkway onto the roadway and back onto the ‑ ‑ ‑
MR JACKSON: Yes. Your Honour must not have walked out of here at night sometimes.
KIRBY J: I hope not. You said there was some sort of recommendation that they saw that that was obviously dangerous. Is that only in the interrogatories?
MR JACKSON: Page 1162, your Honour. There is also ‑ ‑ ‑
KIRBY J: There is nothing in their recommendation about the ‑ ‑ ‑
MR JACKSON: No, I am sorry. Your Honour will see that the RTA officers there approached the people who were jumping off the bridge and told them that what they were doing was dangerous. This is at page 1162. The point I would seek to make about it, your Honours, is that it is very difficult, in our submission, to see a valid criticism of the view of the trial judge that the situation at the bridge was an accident waiting to happen when the appellant’s officers, when they saw what was going on, immediately expressed the view that what these people were doing was dangerous.
KIRBY J: What is your answer to Justice Handley’s riposte that if it was so dangerous it did not happen in 30 or 40 years?
MR JACKSON: Your Honour, who knows why it had not happened, but a strange thing is that the RTA’s own officers thought it was. That is the point I am seeking to make. Maybe they are lucky. It might have happened more often perhaps. One just does not know. There is no evidence of it happening before.
Your Honours, in relation to the evidence about the view, the relevant evidence can be seen at volume 1, pages 347 to 351 and Justice Dunford’s observation about it in volume 3, page 1414, paragraph 19. Mr Alexander also in his oral evidence at page 513 in volume 1 at the bottom of that page said it would appear to be dangerous for someone to jump from the bridge in those areas.
Dealing still with the knowledge of the Roads and Traffic Authority and their practices, one had regular three-month soundings carried out by the Roads and Traffic Authority on various parts of the bridge back to the 1980s. You will see examples of that in volume 2 at pages 700 to 701 and 958 to 959. Your Honours will see also that there were maintenance crews of the RTA working in the area over many years. Justice Ipp refers to that in volume 3, page 1499, paragraph 119 and page 1517, paragraph 181. It was the RTA which had caused the signs to be erected.
Your Honours will see that in Justice Ipp’s reasons at paragraph 200, volume 3, page 1520 and also could we refer to paragraphs 195 and 198 to 200 and Justice Tobias’ statements to that effect at page 1562, paragraphs 335 to 338. Your Honours, if it put up a sign saying “No Diving” it does seem moderately odd that it said, “We knew nothing about the diving”. That sounds quite bizarre really. Could we also say that your Honours will see a reference in volume 3 at page 1521, paragraph 198 to:
The existence of no diving signs before the installation in 1995 ‑
Your Honours, it appears to have been clear from the evidence of Mr Keegan that there had been such signs for quite some years. You will see that in volume 1 in his oral evidence at pages 442 to 443 and at page 442, it commences about line 3 and it goes through to the top of page 443. You will see between lines 40 and 50 on page 442 he is referring to a significantly earlier period.
The result of all that, in our submission, is that the finding that the appellant was aware or must have been aware that children jumped and dived from the bridge and in considerable numbers, notwithstanding the pictogram, was perfectly open. The appellant’s case was hardly assisted by the paucity of the evidence which was adduced from the appellant’s own staff. The only witness was Mr Alexander who had only started in January 1998 himself.
Could we refer your Honours to the observations on the state of the appellant’s evidence, first of all by Justice Ipp at page 1519, paragraphs 191 to 194 and to the reasons for judgment of Justice – I will come back to what Justice Ipp said in another connection, where he said rather more about it, but Justice Tobias at page 1560, 329 through to 334.
Your Honours, may I turn next to the actions of the plaintiff. My learned friend’s argument contends, both orally and in written submissions, for example, paragraph 1 of their submissions in reply, that to dive from the bridge was an act in deliberate disregard of the sign and an obvious danger. Your Honours, it is correct in one sense to say that the respondent deliberately disregarded the “No Diving” sign and my learned friends refer, in that regard, to what was said by the primary judge in paragraph 92 at page 1435. You will see he said:
As to contributory negligence, although the plaintiff did not at the time regard the “no diving” pictogram as denoting danger, he knew it meant that he should not dive, but he deliberately disregarded it.
Your Honours, the first thing we would say is that was said in the context of contributory negligence. If your Honours see the remainder of what he said in paragraph 92, one sees that he goes on to say, “He was however only a 14 year old” child; he says in the second sentence that he did not regard that sign “as denoting danger”. Your Honours will also note what he says in the next paragraph, paragraph 93 is, in the last sentence:
For the reasons given above in relation to obviousness of the risk, I am satisfied that the plaintiff did not fully comprehend the nature and extent of the risk involved -
The reference to the reasons given above in relation to the obviousness of the risk seems to refer to several parts of the judge’s reasons. First of all, paragraph 87 at page 1434. Your Honours will see a long paragraph but he says:
the plaintiff was a 14 year old who had seen a large number of persons jumping and diving off the bridge over many years, without any apparent attempt by police or Council rangers to stop them and no known cases of injury. He may have been aware that sandbars shifted (if he thought of it) and know of the variable depth of the water, but from what he had observed and having regard to his age and lack of maturity, the fact that he knew vessels passed through the channel, he looked and saw the water was dark murky green and he could not see the bottom, all of which indicated to him that the water was deep, the risk of serious permanent physical injury would not have been obvious to him, even if it would have been obvious to a mature adult.
Also at page 1432 in paragraphs 80 to 81, your Honours will see that reference is there made to the passages of evidence to which our learned friend referred this morning. Those are the passages which are now in the appeal books, volume 1, pages 170 to 176. What is important is the observation by the judge in the last sentence of paragraph 81 and you will see that he said there:
Moreover these answers, as I understood them –
and the judge saw him giving evidence -
related to how he reflected on the signs at the time of the hearing when he was been cross-examined, not how he regarded them on the day of his accident -
Your Honours, if one goes back also to paragraph 69, you will see that he is saying:
The “no diving” pictogram was a prohibition, it did not convey a warning of danger. On reflection it is easy to reason, as the plaintiff subsequently did, that the prohibition on diving was probably put in place because diving from the railing was dangerous, but that was not immediately apparent. Many prohibitory signs are disobeyed and not all of them are put in place because what they prohibit is dangerous to the persons to whom the signs are directed.
Your Honours will see that paragraph goes on. Could we refer also to paragraph 79 at page 1432 where the judge said in the last four lines or so:
I am of opinion that the signs did not convey a warning but merely constituted a prohibition. As the plaintiff said, he understood the “no diving” pictogram to convey that he should not dive, but he “did not put any danger to it” -
So the judge is accepting the evidence of the plaintiff in that regard. Now, your Honours, could I also refer your Honours to the judge’s finding at page 1427, paragraph 64 as to the state of the water? Your Honours, I will not read the paragraph out, but your Honours will see that the judge – I will give your Honours the reference in a moment – appeared to accept the evidence of the plaintiff and that was the evidence of the plaintiff as to the state of the water. I said he appeared to accept the plaintiff’s evidence. You will see that he said at paragraph 18 at page 1414 in the last four lines:
The plaintiff impressed me as a frank and honest witness who was endeavouring to tell the truth as best he could nearly 6 years after the event. This honestly was best illustrated by his evidence that he had seen the relevant signs before he dived -
Also, your Honours will see the evidence referred to in paragraph 15 about the state of the water.
GLEESON CJ: What did Justice Dunford conclude about the sign? Did he think that there should have been a different sign?
MR JACKSON: Yes. Your Honour, what he thought was that the sign conveyed a prohibition as distinct from a warning and he thought that there should be – your Honour will see paragraph 70 at page 1429 he said there should be:
a warning sign containing words similar to “Danger, shifting sands, variable depth” ‑ ‑ ‑
GLEESON CJ: Right. He did not favour a sign that said “shallow water” as I understand it because he said somebody like the plaintiff would have known that just was not true.
MR JACKSON: That is so, and of course you have got boats going.
GLEESON CJ: I was going to say I think I am right, am I not, in saying that what your client jumped into was a channel?
MR JACKSON: Yes.
GLEESON CJ: That is – it certainly used to be maintained by a dredge in order to permit fishing vessels to go from the Wollamba River area through the breakwater and out into the open sea if they want to.
MR JACKSON: Yes, your Honour. I think there is some evidence – I just do not have a reference to it at the moment – about some fishing vessels still using it.
KIRBY J: It was the Court of Appeal that added the shallow water requirement and your notice of contention does not seek to restore the sign that Justice Dunford, the primary judge ‑ ‑ ‑
MR JACKSON: Your Honour, could I just say what the Court of Appeal said, I think, was that there should be some such sign, speaking about a sign that would be the most suitable sign without, in a sense, the judicial engineering, as it were. May I come back to the sign in just a moment, your Honours. In relation to the apparent greenness of the water, what was seen on the inspection confirmed the evidence of the plaintiff. Your Honours will see that referred to in paragraph 19 by the primary judge at page 1414. A question was raised about the deliberation that was involved in deciding to dive rather than jump from the bridge.
The finding in that regard, your Honours will see the evidence referred to at page 1413, paragraph 13, that he:
decided to dive and after listening to see if any boats were approaching under the bridge, he did so.
It was not something he intended to do when he got up there. The evidence, your Honours, supporting that your Honours will see in volume 1. I will give two references. The first is page 116, lines 4 to 14 and also in cross‑examination at page 155, about line 28. He said “I may have been up there two or three minutes”, and when said to him, “Perhaps more?” he said, “Perhaps more, perhaps less”. So both sides of that were dealt with.
Your Honours, it is also suggested by my learned friend’s submissions, particularly at paragraph 1 of their reply to which I referred earlier, that Mr Cunial had told him more than once, “Don’t jump, don’t jump”, but that really quite misconstrues Mr Cunial’s evidence and that evidence, if I could go to it for just a moment, was to the effect that he did not want him to jump because he wanted to walk across the bridge first and then do it on the way back. You will see that at page 251, about line 29 and also page 257, about line 25 through to the top of page 259. The correct view of the matter can be seen in the primary judge’s reasons and his finding actually about it in paragraph 20 and also at the end of paragraph 92 on page 1436.
Could I come then, your Honours, to the steps which should have been taken and those steps, of course, fell into three categories: different signage, the vertical members in the balustrade rather than the flat step‑ups and for the short distance the triangular top surface. May I deal with them in order. Your Honours, the starting point is to be found in the findings of the trial judge at page 1428, paragraph 68 and your Honours will see a reference to the two signs, 213 and 218. Those signs, your Honours, one can see in volume 3 at page 1369. At that page, the one which is number 213 is on the left. It was the one in fact used and it was the one which the judge said – I am sorry, your Honours, at paragraph 68 the judge expressed the view that probably both would have been disregarded. Your Honours will see there that he said that:
Because of the large number of young persons jumping and dividing without incident -
Your Honours will see then that in paragraph 69 he refers to the fact that:
The reasonable response to the risk of injury was a notice warning of the danger, not a mere prohibition –
for reasons which are not specified and it was for that reason that he went on to suggest, in paragraph 70, that:
a warning sign containing words similar to “Danger, shifting sands, variable depth” should have been displayed either on the telegraph post or the bridge railing near where the plaintiff dived.
Your Honours, may I just say something about the various signs. Your Honours will see they derive from the standard which commences at 1319 in volume 3.
GLEESON CJ: Which are the signs that have, as it were, words as well as pictures?
MR JACKSON: Can I just say this. You will see that the signs are classified at paragraph 3.2 on page 1329. You will see that the signs are classified as regulatory signs which are subdivided into prohibition and mandatory signs, and then paragraph (b):
Warning signs Signs warning of a particular hazard or hazardous condition.
The warning sign, if I could just go back to page 1326, you will see at the last paragraph 1.5.6:
Warning – applied in the context of safety signs to a situation which is likely to be hazardous.
From there, your Honours, one goes to page 1338 which sets out the standard water safety symbolic signs. The two signs of course are 213 on 1340 and 228 on 1342. What your Honours will see is that the “Diving prohibited” sign, which is the one at 213, is one which is expressed not to be used without more. That appears from 3.11.1 on page 1337 where it is said:
Where the Diving Prohibited symbol sign is used in situations where serious injury could result from a person diving into shallow water, the words SHALLOW WATER shall either be included with the Diving Prohibited symbolic sign as a composite sign –
So what you had was a sign that was there which itself was one that did not comply with the standard because it did not say “Shallow water”, which is what it should have said if it was going to be used at all.
GLEESON CJ: Justice Dunford would have rejected that. Justice Dunford said it should not have said “Shallow water” because this young man would have known that that was not correct.
MR JACKSON: Yes, that is so, your Honour. In paragraph 70 his Honour said in effect what your Honour has said to me, that a sign of the nature to which he referred:
would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others –
Your Honours, that view that he expresses there must, at least to some degree, depend on the view which he took of the plaintiff when he saw him give evidence.
HEYDON J: Did he actually give evidence in relation to either the Court of Appeal combination of changes that were not made that should have been made or the ones that appealed to Justice Dunford or any other version of the plaintiff’s case?
MR JACKSON: Yes, there is, your Honour. I think it is at page 170. Could I come back to it. When one comes ‑ ‑ ‑
GUMMOW J: There is some evidence at 170, is there not?
MR JACKSON: I think it is 170, your Honour.
GUMMOW J: Line 30:
I want to know what you thought about . . . the ‘No Diving’ pictogram?
MR JACKSON: Yes. There is another passage I wanted to refer to. Your Honours will appreciate that is one the passages I think that the judge was referring to as speaking at the time of the hearing. If one goes to Justice Ipp’s reasons at page 1532, you will see that his Honour expressed the view that the “No diving” sign did impliedly convey a warning against danger but he went on to say, as you will see from the concluding words of 237 that he agreed:
that, in the particular circumstances of this case, a reasonable response to the risk of injury would not have been a sign containing “a mere prohibition for reasons unspecified”.
He then proceeded in what appears at paragraphs 238 through to 251 to say that a word message was appropriate. Your Honours will see, if one looks at paragraph 240, that he quotes from the Standard in saying that:
“A word message sign will usually be required where no standard symbol exists . . . , or it is not possible to communicate the message by means of a symbol.”
I think the other reference, your Honours, is page 134. Your Honours will see then that in paragraph 247 Justice Ipp says:
In my view, a sign prohibiting diving would be more effective than a mere warning of dangers. On a common sense basis, a warning sign is more likely to be ignored than a prohibitory sign. A sign that prohibited diving and expressly explained and emphasised the nature of the danger would have been more effective than the sign the RTA erected or the sign proposed by the judge.
Now, your Honours will see then that it is said at paragraph 249 that:
A composite sign in the terms of the notice of contention would have complied with that clause and conveyed the danger involved.
Your Honour will see paragraph 244 sets out what was there suggested. Now, your Honours, the point about it is that whether it be the sign proposed by the primary judge or the sign proposed by the Court of Appeal, neither sign was in fact there and either sign, in a sense, would have done the trick or been sufficient. The difference between the two does not in significant measure matter for the purposes of the appeal, in our submission.
Could I refer your Honours also to paragraphs 250 and 251 of Justice Ipp’s reasons where he appropriately summarily disposed of the “availability of resources” contention in relation to the sign? Could I come to the second aspect, the vertical members. Your Honours will see that as the primary judge had said at page 1429, paragraph 71, by the time the wires in the bridge were replaced in 1993 – they are the horizontal wires between the railings – vertical rather than horizontal members had become the norm. Your Honours will see also his reference to that at page 72. The Austroads Bridge Design Code to which he refers your Honour can see in volume 2 at page – relevantly it is at page 663.
GLEESON CJ: Did the evidence show what the reason for that change was?
MR JACKSON: I think it does, your Honour. I think the standard itself may say that. It rather conveys it, your Honour, by saying, as at page 663, paragraph 1.6.1(c):
(c)vertical balusters without climbing footholds shall be provided (in preference to a series of horizontal rails) -
It really conveys, in a sense, the reason for doing it. Now, he goes on to say in paragraph 72 that whilst that code applied strictly to new bridges, there was a risk problem which required some remedial action and the cost of the new handrail was only $108,000.
Your Honours, the reference to the $108,000 comes from volume 2 at page 891 where you will see that figure set out. Importantly, what the primary judge said in paragraph 73 at page 1430 was that, essentially, all that is being spoken about is something similar to a pool fence, something which makes it “harder to climb over”, that was what was currently proposed. He said:
Pool fences have been around for many years and there is no reason why such a structure could not have been installed earlier
All that the RTA could say in response is:
that it did not have a policy to deal with such situations.
Your Honours, could I say there was evidence that pool-type fences do operate as something of a deterrent, of course they do not mean that someone cannot, if they are sufficiently enthusiastic, get over them but there was evidence they do operate as a deterrent. You can see that in Mr Fogg’s evidence in volume 1, page 306. It is really the whole page but in particular it is the second half of the page commencing about line 38 going over to the top of page 307. One can also see it referred to in volume 3 in his report at page 1358 where he spoke of “guard railing system on a bridge which prevents horizontal purchase”. He said:
Whilst the measure that I have proposed will not deter the most ardent of “jumpers” in their question for a “thrill”, it does provide for a level of intent of an organisation that has considered their duty of care towards our young adults based on older and wiser experience and implemented a system that is not financially onerous, but one that provided a level of deterrent and a level of advice of the dangers “below”.
GUMMOW J: Mr Jackson, could you look at page 134 again?
MR JACKSON: Yes, your Honour.
GUMMOW J: What the witness was being shown is identified as “MFI #2 PICTOGRAM” ‑ ‑ ‑
MR JACKSON: It is 228, I think, your Honour. It is the one numbered 228. I am sorry, your Honour, I got myself lost then.
GUMMOW J: Number 228 is 1342, is that right?
MR JACKSON: Yes, 1369 shows the two signs. The one on the left is 213, the one on the right 228.
HEYDON J: Was there any cross‑examination on the last question and answer on page 134?
MR JACKSON: Can I give your Honour a reference to answer that in a moment?
HEYDON J: Yes.
MR JACKSON: Your Honours, could I just say Justice Ipp at page 1556, paragraph 314 deals with the deterrent effect once again. I think I may have taken your Honours to that earlier. Your Honours will see that Justice Ipp at page 1538 in paragraphs 260 and 261 picked up what had been said by the primary judge in relation to:
“Pool fences have been around for many years and there is no reason why such a structure could not have been installed earlier.”
Your Honours will then see that he accepted that at paragraph 261 subject to what he said was the “availability of resources” argument. Your Honours will then see that he goes on to deal with a very detailed and, in our submission, compelling and rather damning analysis of the evidence or, more accurately, the paucity of evidence, from the appellant on that issue. Could I move your Honours on in that regard to page 1543. In paragraphs 273 through to 279 he discusses the principles and then in a long passage which goes from paragraph 280 through to 307 discusses what the evidence was from the appellant in relation to the availability of resources.
Now, your Honours will see that effectively what is demonstrated in that passage is that there was no attention to the topic, no endeavour to obtain money, no real consideration of the issue at all. I will not go through it in detail, but your Honours will see that dealt with in that passage, as I said, which goes up to paragraph 307. Your Honours, could I come then to the question of modification to the handrail and this really was something of the most minor kind and it is hardly surprising that it is a matter that arose in the course of the evidence. The primary judge refers to it at page 1430, paragraph 74, where he speaks of it being a “comparatively simple modification”.
As I said, what was not in mind was a modification of the whole of the handrail but only for a distance of 20 to 30 metres, persons who were able to avoid the skateboards, prams, all sorts of things going along there, might still be able to lean on the rest of it and observe the beautiful view. That it was only for a short distance appears from Mr Keegan’s evidence at page 432, lines 10 to 20. Your Honours will see that Justice Ipp dealt with this issue at page 1537, paragraphs 256 to 259. He said at paragraph 258:
Whether the modification of the handrail alone would have deterred Mr Dederer is a difficult question. It must be remembered that he had first decided to jump, not dive, and, on impulse . . .
It is not necessary, however, to decide on the effect of the handrail alone.
Your Honours, the cost of this would have been trivial. Those views about deterrence gave rise to the question whether the measures would have been effective and that gave rise to what I referred to earlier as the two related aspects, deterrence of the plaintiff and deterrence of the practice. I have given your Honours the references earlier, but it is put shortly, in effect, by Justice Tobias at page 1573, paragraphs 369 through to 374 and, in particular, paragraph 373 at page 1574.
Your Honours, one goes back then to Justice Ipp at page 1555, paragraphs 309 through to 315 where he dealt with the question of causation and, in particular, your Honours, at paragraph 319 he says:
There is little doubt that Mr Dederer was influenced by the fact that the practice of diving off the bridge had gone on for so long and was being undertaken by children of his own age.
I am sorry, your Honours, that is dealing with contributory negligence. What I was going to say was, if one goes to paragraph 313 he said that he accepted the finding made by the primary judge and at paragraphs 314 and 315 he thought it was probably that he would not have sustained his injuries.
KIRBY J: Could I just refer to Justice Heydon’s question where the witness gave that evidence himself that he would not have dived. That is at 134, line 20. Was that ever the subject of cross‑examination of the plaintiff?
MR JACKSON: Not, as I understand it, by the appellant, your Honour. I am just checking on the question whether there was cross‑examination.
KIRBY J: I see. You just tell us if you can find that. I realise these questions are coming all over the place.
MR JACKSON: It is page 188, I am told, your Honour. I think it goes through the whole page.
GUMMOW J: That is talking about the sign that was actually there on which he had given evidence at pages 114 and following. The pictogram at page 1368 is not the sign that was there, is it, the pictogram he was examined in-chief about at page 134?
MR JACKSON: Yes, your Honour.
GUMMOW J: I am not sure he was ever cross‑examined about that.
MR JACKSON: Your Honour, I think that is right. I may check that myself and then give your Honour a response to it in writing if necessary.
GUMMOW J: Thank you.
MR JACKSON: Your Honours, could I finally go to what was said on this point by the primary judge at paragraph 70 at page 1429 - I have taken your Honours to that paragraph already - and also to paragraph 74 where, in the last few lines of that, he makes a finding about the effect of the modifications on the plaintiff. Those views must depend to some degree on the character of the plaintiff as it appeared to the trial judge.
Your Honours, may I just say something, if I could put it perhaps under the title of allurement. I simply wanted to refer to the fact that observations have been made in a number of cases about the activities of children and the things that can have a kind of magnet effect upon them. One does have to bear in mind in this case that the plaintiff was not an adult, he was a 14½‑year‑old boy. It was plain on the evidence the bridge was a magnet for young people. Could I in that regard give your Honours reference to three observations of members of the court in Munnings v Hydro-Electric Commission (1971) 125 CLR. I wanted simply to refer first to a short passage at page 6 where, halfway down the page, Chief Justice Barwick said:
The tendency of youth to climb is notorious. That youth does so without authority and wittingly, or unwittingly, in breach of legal prohibition is, in my opinion, also a matter of notoriety.
Your Honours, in that could we refer also to what is said at page 19 ‑ ‑ ‑
GLEESON CJ: This was all pre-Zaluzna in the days when liability to trespassers might be affected by considerations of allurement.
MR JACKSON: I accept that, your Honour, but I am not referring to it really for a legal proposition but simply to say that the observation he makes there is really factually unchanged. The same at page 19 where he says about six lines down the page:
Children of the neighbourhood, including the plaintiff, were accustomed to play on the land without any let or hindrance from anybody.
And then Justice Windeyer, at page 35, halfway down the page, refers to what was said by Lord Denman in Lynch v Nurdin:
if a child be tempted to a place, the child is not to be reproached with yielding to the temptation. A thing that is alluring to a child can have another bearing on liability for negligence
Quite apart from the situation in relation to the grades of entrance, your Honours may recall the observation of Lord Reid for the Privy Council in Southern Portland Cement Ltd v Cooper [1974] AC 623 at page 643 between letters F and G, after referring to the allurement cases being “based on the injured child having been impliedly a licensee”, he went on to say:
But so far as their Lordships are aware no difficulty was ever felt in holding that, in a case where any warning would have been ineffective, the occupier was bound to do a good deal more than merely give warning.
Thirdly and finally on this point, your Honours, may we refer to a decision of the New South Wales Court of Appeal in Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 which is a case where pedestrians crossed a freeway against prohibitions, in effect, and where there was a passageway they commonly used and the plaintiff was allowed to succeed, of course, with some contributory negligence. I will not go into the detail but could we refer, for example, at paragraph 96 to what was said by their Honours:
The law has long recognised that, particularly in the case of children, the presence of an allurement on land is relevant to the finding of the duty of care –
Then, your Honours, paragraph 104 on page 469:
I have pointed out that the obvious risks involved in crossing the freeway by the path were not deterring the local inhabitants, of which many were children. The RTA could not assume that most persons would take reasonable care for their own safety.
Then it goes on through the remainder of that paragraph. Your Honours, it is a case which deals at some length with obligations in circumstances where persons are engaging in conduct in which they should not.
Your Honours, may I come then to the question of contributory negligence, and this is a matter on which we would seek special leave to appeal. Our submission is the two matters are very closely connected. The trial judge’s assessment of contributory negligence was at 25 per cent. That is page 1435 in volume 3, paragraphs 92 to 93. Can I take your Honours to that for just a moment. Your Honours will see in paragraph 92 what the judge says about the conduct of the plaintiff. Then he says in paragraph 93:
In all the circumstances, I am satisfied that the plaintiff was guilty of contributory negligence and I apportion his share of responsibility for his own injury at 25 per cent.
Your Honours, that was an assessment made after seeing all the evidence and seeing and hearing the plaintiff. Your Honours, as was said in Podrebersek v Australian Iron & Steel Pty Limited, a case your Honours have seen more than once I fear, (1985) 59 ALJR 492 at pages 493 and 494 the assessment is akin to a discretionary decision. The Court of Appeal doubled the proportion of contributory negligence to 50 per cent. You will see that at page 1556, paragraphs 316 to 320. Paragraph 316, the primary judge’s reasons are set out. At paragraph 317 it said the RTA’s “conduct involved negligence to a serious degree”. At paragraph 318, “Mr Dederer’s age at the time is a relevant consideration”. Paragraph 319, “little doubt that Mr Dederer was influenced” and there is a discussion of that. Then it is said, your Honours, in paragraph 320:
The apportionment determined by Dunford J is reflective of a view by his Honour that the contributory negligence of Mr Dederer was substantially less than that of the RTA. For my part, however, I do not agree.
He said they should be equal. Now, your Honours, that appears to be no more than a simple disagreement with the trial judge. Your Honours, what, if one looks at it, is the error of principle? None is identified. What relevant misapprehension of the facts has there been? None is adverted to. Was Justice Dunford’s assessment so out of the range that it did not reflect the facts as found? In our submission, certainly not. The 25 per cent contributory negligence was a judgment perfectly open to his Honour.
What it appears to be is simply a case where the Court of Appeal took a different view from that of the primary judge. It was a case where there should have been but was not appellate restraint and it was a case where there should not have been interference with the 25 per cent.
KIRBY J: On the other hand, he was a boy who had been with his parents in this area and he knew how low the water got in some places. They had moored their boat on a sandbank, so it was not as though he was completely unfamiliar. On one view, that is a matter that goes to causation and recovery of anything. On another view, it is something which even in a young boy of 14 and a half is something that goes to the extent of any contributory negligence.
MR JACKSON: Your Honour, there is nothing to suggest that the primary judge had not taken into account all those facts. It really is a case where the Court of Appeal did nothing more than to say they had a different view from the primary judge.
KIRBY J: It is not a case of tinkering. We sometimes get a case where it goes from 20 per cent to 30 per cent or 35 per cent. This is a case where the Court of Appeal said this was a substantially too low assessment and doubled it.
MR JACKSON: That is the result of what they said but, if one is looking to see whether it was an appropriate thing for them to have said, that is a different question. Your Honour, one is not dealing with a simple appeal in the ordinary sense. One is dealing with a decision which is fundamentally discretionary in nature.
Could I come then to just one matter dealt with by our notice of contention. Your Honours will see that our notice of contention, particularly in ground 2, relates to the view which was expressed by the primary judge that the sign conveyed a prohibition as distinct from a warning. Your Honours will see that referred to by the primary judge’s reasons at paragraphs 60, 69, 70 and 79 and also I think paragraph 92. Those findings were disagreed with to some relatively mild degree by Justice Ipp in his reasons at page 1512, paragraphs 167 and 170, and then page 1532, paragraph 237.
Our submission is that the findings were ones which the trial judge was perfectly entitled to make. On the bridge were a number of prohibitions: no fishing from or climbing on the bridge; there was the pictogram; there were people, indeed generations of people almost, jumping and diving from the bridge; there was no enforcement, it was a practical matter. The view was perfectly open, in our submission, that the sign was not to warn of dangers of the kind presently in question but rather to warn against the possibility of contact, for example, with boats in the channel.
Your Honours, could I come then to the question of costs. I am sorry to raise such an issue, in a sense, your Honours, but what your Honours will have seen is that the first respondent as plaintiff sought to make the present appellant responsible for the costs that the first respondent had to pay the Council because it succeeded in its appeal to the Court of Appeal. The order made by the Court of Appeal appears in volume 3 at page 1654, namely, that our notice of motion in that regard be dismissed itself with costs. The reasons in support of that conclusion commence at page 1635. I will go to them in just a moment, your Honours, but in essence they amount to what is said at page 1641, paragraph 24.
KIRBY J: I am sorry. I am getting a little lost in the appeal book. It gives as the page of the notice of contention 1447 and that is not correct.
MR JACKSON: Sorry, your Honour. This is the cross‑appeal.
KIRBY J: I realise you have a cross‑appeal subject to special of leave and you have a notice of contention. Now, I just want to find the documents. I can find the notice of cross‑appeal. It is in the appeal book.
MR JACKSON: The notice of contention, your Honour, is attached to the summons, I think, that I referred to this morning.
KIRBY J: I see.
MR JACKSON: I was dealing with the question of costs. I am sorry, your Honours, I got there a little quickly. What I was saying, your Honours, was this. We had sought to make the RTA responsible for the costs. We had to pay the Council because the Council succeeded in the appeal in the Court of Appeal. The order made by the Court of Appeal was that we failed. That is page 1654. The reasons in support of that conclusion commence at page 1635. In essence, they amount to what is said in paragraph 24 of those reasons at page 1641 and that is that whilst “it was reasonable” for us to “join the Council” as a defendant, the conduct of the RTA was not “such as to make it fair to impose some liability on it for the costs” of the Council.
The contention we advance, your Honours, is that the Court of Appeal in some way appears to have misapprehended the evidence. The position, stated shortly, was that prior to the commencement of the action the plaintiff’s solicitors had asked both the RTA and the Council, who, to put it shortly, is responsible for the bridge? Each of them replied saying RTA. You will see that, your Honours, at page 1586, paragraphs 3 to 5.
GLEESON CJ: Does the Council have an interest in the outcome of this argument?
MR JACKSON: Your Honour, they have been joined as a party to the proceedings, but have indicated I think they will abide by the ‑ ‑ ‑
GLEESON CJ: When they submitted, was this a live issue?
MR JACKSON: I think so, your Honour.
GLEESON CJ: I see. This is not raised by your ‑ ‑ ‑
MR JACKSON: Your Honour, I will have to have that checked. I had assumed that was the case.
GLEESON CJ: All that was going through my mind was the question, whether or not the applications that you made right at the beginning this morning which were not opposed by Mr Walker were applications in respect of which the Council had a right to be heard.
MR JACKSON: Your Honour, I am not certain that it affects the rights of the Council because we have to pay them in any event. The current situation is we have to pay the Council.
KIRBY J: Yes, but they might want to hang onto that. This is something that is raised in your cross‑appeal, is it not?
MR JACKSON: Yes, your Honour.
KIRBY J: And they are named in the notice of cross‑appeal, so one would infer that they would have been given notice of it.
GLEESON CJ: You are still going to have to pay the Council. The question is whether you can get, in effect, reimbursed.
MR JACKSON: Yes, that is right.
GLEESON CJ: That is an issue in which the Council might have a financial if not a legal interest, if you get my drift.
MR JACKSON: I suppose they might support us, your Honour.
GLEESON CJ: They might like to have two possibles. It might depend on solvency.
MR JACKSON: Yes, well, your Honour, that is possible. I suppose that is possible, your Honour, but all I can say in that regard is perhaps they would support our application rather than anything else. Your Honour, apart from proceeding with it, I do not know that I can do much more on it at the moment. All I wanted to say was what our case was on the point and I am happy to either ‑ ‑ ‑
GLEESON CJ: I wonder if it might be appropriate for your solicitors to bring the attention of the Council’s solicitors to what has transpired under this part of the transcript and ask them whether there is anything they want to add or say and give them an opportunity to do that within, say, 21 days of that communication.
MR JACKSON: We would be perfectly happy to do that.
GLEESON CJ: Are you happy with that, Mr Walker?
MR WALKER: Yes, your Honour.
MR JACKSON: Your Honour, I just wanted to say a few more things.
GLEESON CJ: You could send them a transcript of what has been going on.
MR JACKSON: Yes. Your Honour, what I was going to say was this. If one goes to page 1586 you will see the affidavit of Mr Watson who was a solicitor for the plaintiff. You will see in paragraphs 3 to 5 on that page he said he sent letters to both the defendants saying that the only appropriate defendant would be the RTA. The letters can be seen at pages 1593 through to 1597 and they are to that effect, where each of them says the RTA is the body. As appears from his affidavit, the matter then proceeded to trial with the RTA as the only defendant and that was hardly surprising, one might think, in the light of what had taken place and the solicitor, one might have thought, was doing the right thing; find out which was the right defendant and then sue the right defendant.
The case in the ordinary course of events came on for trial. It was due for hearing in the Supreme Court of New South Wales and would have been heard in September 2003. That appears from paragraphs 16 and 17 of that affidavit at page 1588. At that point the appellant indicated that it wished to amend its defence.
The defence to that point was in the form which appears at pages 5 to 7 in volume 1. The proposed amended defence was to be in the form which appears at page 1615 and it proposed also to join the Council as defendant. If I could take your Honours to page 1615 for a moment, you will see that in paragraph 2 it proposed to add paragraphs (b), (c) and (d) in which it said:
in respect of the pedestrian way and “No Diving” pictogram signs, the Council had the immediate control, day to day management and supervision, including but not limited to, the risk management of the Bridge –
In consequence of that we amended the proceedings so that the defendant became a defendant in addition to the RTA. You will see that in the affidavit at paragraphs 22 to 23. Your Honours will see that the document at page 1615 is somewhat obscure. It speaks in paragraph 2(a) of:
certain signs . . .
(b) (“Council”) had responsibility . . .
(c)in respect of the . . . “No Diving” pictogram signs, the council had . . . the risk management of the Bridge –
Your Honours, a solicitor confronted with a proposed pleading like that would ask, “What are they really saying?” The first thing, one would assume, is that they are trying to contend in one way or another that the Council was and the RTA was not liable. There would seem little point in a pleading between the RTA and the plaintiff of saying anything about the Council unless that position was being taken.
The Court of Appeal’s view appears essentially to have been that expressed at page 1641 in paragraph 23. Your Honours will see that it is said:
Mr Dederer commenced proceedings against the Council at a time when the RTA was admitting that it was the relevant road authority.
That is true but they have said they proposed to amend the defence. He then goes on to say:
I have pointed out that the amended defence and further amended defence did not withdraw this admission. The admission was withdrawn on 7 October 2004, more than a year after Mr Dederer had joined the Council.
Those sentences appear, with respect, to miss the point and to be erroneous. The relevant defences were the initial defence which is at page 5, the amended defence which is at page 19 – that was filed on 15 September 2003 – a defence to an amended statement of claim which was filed on 14 July 2004 and the further defence filed 7 October 2004, the last two documents being pages 28 and 47.
The sentences, in our submission, miss the point because the question was not whether something said by the RTA about the Council was wrong, nor was it material that the RTA did not mislead the plaintiff or conceal from him anything he could not have found out for himself. What the Court of Appeal’s reasons have got wrong, in our submission, is simply this. The plaintiff’s solicitor did the very thing that was appropriate for a plaintiff’s solicitor to do; ask each side who was responsible for the bridge. An action was started against the RTA on the basis of the common answer. The RTA resiled and, worse, in a way which was rather Delphic or ambiguous or wrong.
Why would the plaintiff not then sue the Council and why would not the RTA, if it were wrong, pay for the flutter which it had had.
KIRBY J: Is the answer that the Court of Appeal gave back, they should not have sued the Council because they should have taken their own advice and found that by that time there was an intervening statute which limited the Council’s liability?
MR JACKSON: Your Honour, the difficulty ‑ ‑ ‑
KIRBY J: Is that what the Court of Appeal said in judgment No 2?
MR JACKSON: It is perhaps saying that, your Honour.
KIRBY J: It seems to be.
MR JACKSON: Assuming it is saying that, all it is founded is it is reasonable for us to sue ‑ ‑ ‑
KIRBY J: Not if this Parliament has taken away your rights.
MR JACKSON: I am sorry, your Honour. We sued because both parties said it is the RTA. Then there was no point suing the Council when both sides said it is the RTA. We sue the RTA. The RTA then wants to change
its defence and say it is them or, I mean, why change the defence against us if they are not saying ‑ ‑ ‑
KIRBY J: Did the Council immediately, when it was joined as a party, file a defence in which it relied on the Civil Liability Act?
MR JACKSON: Yes, your Honour.
KIRBY J: They took their advice. Their advice was legally correct as it has been upheld and that is the impediment to your suing. You did not bother to inquire into this. You just went ahead and sued because the other party said that they would like you to.
MR JACKSON: No, that is not, with respect, quite right. Certainly it is right to say we sued, but if there had not been the change, then we would have been in a position where we would have sued earlier. Our joinder of them was because it was a suggestion of liability on their part. It is really that part of it that is the important bit. Can I just say one thing, your Honour. Your Honour Justice Kirby referred to him having been swimming from the boat and so on. The last time he was there was about two years before the accident, so he would have been 12.
KIRBY J: But it is not as though he did not know the area and was a stranger to it. He knew it was a place with sandbanks, et cetera. I am only trying to understand why the Court of Appeal so radically changed the contributory negligence allowed by the primary judge.
MR JACKSON: Yes, but, your Honour, that was not the part he jumped into or dived into. He dived into the channel. Your Honours, those are our submissions on those points.
GLEESON CJ: How long do you think you will require, Mr Walker?
MR WALKER: About ten minutes, your Honour.
GLEESON CJ: Yes, go ahead.
CALLINAN J: Can I just ask you, really repeat the question that Justice Heydon asked you about cross‑examination on the different sign?
MR WALKER: Yes. At pages 189 and 190 of volume 1 something called the document marked for identification 1 is referred to just before line 30 on 189. It is described as, “the diamond sign shows someone diving and injuring himself”. That is, as we understand it, the sign which is known as number 228, the one that my friend was showing your Honours, not just diving but diving with a radial graphic and uneven bottom to show striking the bottom.
GUMMOW J: That is what was referred to at 134 in‑chief, is that right?
MR WALKER: Yes, your Honour. I draw to attention that 134 in the document marked for identification 2, I think ‑ ‑ ‑
GUMMOW J: No, it is MFI 1 with two pictograms, plural, it should read. The last line on 134.
MR WALKER: Yes. There is in fact a document which is found in the book at 1357 of volume 3 which is marked MFI 2 that has “Figure 2” – this is Mr Fogg’s figure 2 – which is the same as number 228. I am sorry, your Honour, but it is clear from the text, I hope, that at 189 what he is being shown in the cross-examination is someone diving and hurting himself. That seems inexorably to be 228. So far as trying to answer Justice Heydon’s question as Justice Callinan has asked me, it would appear that the top of page 192 finishes it, but 190 is where it is contained. The second question on 190:
this is the one I’ve been asking you about, would only have told you that the water depth was about half an average human body length –
that is because the graphic shows ‑ ‑ ‑
GUMMOW J: Wait a minute, Mr Walker, I have to get to the bottom of this.
MR WALKER: Sorry, 190, your Honour.
GUMMOW J: Is that talking about 1357 even though that is marked MFI 2?
MR WALKER: It is talking about “the diamond sign shows someone diving and injuring himself”. Then he is being cross‑examined on what the graphic shows which it shows your head hitting while from your waist below is still outside the water.
CALLINAN J: The cross‑examination proceeded on the basis that he jumped and the water had been head high or higher and this sign really did not represent anything that would have been a warning, in fact.
MR WALKER: It would have told him something that he knew to be wrong:
And having been able to jump in successfully and go in over your head -
is what Justice Callinan has been referred to at line 15 on page 190:
would’ve meant nothing to you, wouldn’t you agree at this location?
He insists, no:
It would’ve told me danger . . .
would’ve told you nothing about the depth of the water . . .
A. No it would’ve told me it was shallow…Q. Well you’d had two attempts or test entries into the water?
A. Yes.Q. And you’d been able to get your body –
that is six feet –
completely below the water, is that correct?
A. Yes.Q. And accordingly this sign would’ve been irrelevant to you after you’d performed your own tests because you could have seen that was depicted here just wasn’t right at the location you were jumping?
Then the witness, the plaintiff, offers, well:
they may have stopped me from doing my first practice jumps.
GUMMOW J: But what was not put to him was what he had said at 134, that is what I am trying to get out of you?
MR WALKER: Your Honour anticipates what I was about to say – that is as much as I can find.
GUMMOW J: As close as it gets, is it?
MR WALKER: And that partakes of meeting what one found at 134 only insofar as it challenged the proposition that it would have told him, shallow, about the location he had jumped from and proposing to dive from, or proposing to jump from again before he changed his mind and dived. It would have told him something that he knew to be wrong and that is as far as we can take it from the record.
Your Honours, this case, in our submission, is as far as can be imagined from the kind of position that Lord Denman referred to in Lynch v Nurdin to which my learned friend went. That was the unattended cart and horse with the 7‑year‑old boy and another boy leading the horse off, as he fell off, so that he fell off the shaft and broke his leg. This has nothing in common with the construction of a bridge, particularly where there is no allegation of caging. Similarly, with Edson, the 25,000 estimate of people crossing the freeway is as remote as one can imagine.
Your Honours, there is reference, with great respect, with real force against us, as I tried to recognise in‑chief to the fact that we did after all co‑operate in placing a “No Diving” sign. May I simply throw in as a small consideration about that, which makes it consistent with the absence of any evidence of knowledge of diving beforehand, that it would appear from the evidence to which we took you in‑chief and to which my learned friend took you back in his address that there was at the time no standard “No Jumping” sign. That came in later. I drew attention to that earlier today.
KIRBY J: It is just pretty hard for you to overcome. If you know about the jumping you know it is possible it is diving and you agreed on a sign for diving, so, really.
MR WALKER: I do not want to say anything against that, your Honours.
KIRBY J: It is not your best point.
MR WALKER: No.
GUMMOW J: Mr Walker, I am not going to give up. At page 192 it becomes apparent that the witness previously has been talking about what would have been the impact to him of this pictogram on the first day, is it not, because at the top of 192 he says:
First day no, second day I – I did witness that second sign.
MR WALKER: Your Honours asked me to explain that reference?
GUMMOW J: Yes.
MR WALKER: I do not think I can.
GUMMOW J: Where does this leave us? He seems to have been shown ‑ ‑ ‑
MR WALKER: There is no factual dispute about him having seen the sign before the accident and knowing what it said.
GUMMOW J: He was asked at 134 if he had been shown it on “the day of your accident”.
MR WALKER: Yes, but that is not the – at 134 ‑ ‑ ‑
GUMMOW J: Which is the second day not the first, “what would your attitude have been” and then that is not really cleared up in cross‑examination.
MR WALKER: At 134 around line 20, the “pictograms which are contained in the report, the plaintiff’s expert report, without any writing” that includes what I have taken your Honours to, so-called figure 2 in Mr Fogg’s report, that is the one hitting the bottom.
GUMMOW J: Yes.
MR WALKER: “I’ll just have you look at this one on the right hand side” and that is the one hitting the bottom.
HEYDON J: Figure 3. Mr Walker, it is figure 3 of Mr Fogg’s report. We have to correct this on our transcript. Figure 2 of Mr Fogg’s report is a sign depicting “Diving Prohibited” with the diver’s hands just above the water. Figure 3 is the diver halfway into the water with his head hitting the bottom and that is the way the cross‑examination is structured.
MR WALKER: I am sorry about the confusion. It is in the record at 1357. I accept entirely what Justice Heydon has just said but 1357 there is a figure 2 which, just to add delight to the exercise, is the same as the figure 3 to which Justice Heydon has drawn attention at 1368. I am sorry. It is exactly the same pictogram. There are those different references for reasons that I will leave
HEYDON J: That is MFI 2.
MR WALKER: Yes. In any event, that appears to be the one, hitting the bottom, that gives the answer:
A. That’s shallow water and if you dive you will hit bottom.
Q. And if such a sign –
so the one hitting bottom –
had been erected on the bridge on the day that you were there, the day of your accident, what would your attitude have been to diving from the bridge?
A. I wouldn’t have dived because I would have – it would show me that it was shallow water.
The reason given is that which was taken up by the cross examiner, “Well, would it have shown you as shallow water? You jumped in in that location and found it was not shallow?” So that was how the cross‑examination attends to it. May we make this overall observation. No judge below found that that is the pictogram which reasonable care required to be in place. No judge. We have not come here to meet the case and that is not the case upon which, by way of notice of contention or otherwise, it has been suggested that negligence should be upheld against us. The hitting the bottom pictogram is not in the case. It certainly was in the hearing at 134 and 190 to 192.
Your Honours, there was reference by my learned friend to what Justice Dunford said in paragraph 70 of his reasons. That is 1429 at about line 28. Could I simply draw to attention the inherent fragility of that conclusion where his Honour talked about what would probably follow if – and I stress the word “if” – such a sign had inhibited people from behaving in a particular way and if it had tended to break a culture. In our submission, there was absolutely no evidence and no factual findings which would support the capacity to answer either way the answer to the question, well, not if, but what are the prospects of that occurring?
Justice Tobias in a somewhat similar fashion, paragraph 373, page 1574, my learned friend drew to attention, we would simply observe that if the culture had been broken by some people being prevented in greater number than had hitherto been the case by the warning exciting motives of self preservation, there would still be, on Justice Tobias’ reasoning, some people still jumping and to the extent that that was successful, of course, one can simply say there is not a skerrick of evidence to suggest that the plaintiff would have been put off his jumping and diving by the fact that he had seen a smaller number of people than records kept over weeks or months might have revealed had hitherto performed the same daring feat. If he saw anybody do it safely, then on his reasoning that would be enough.
Finally on the main point, in relation to the questions of reasoning back, as my learned friend’s argument, with respect, attempted to do, from what would have prevented this plaintiff in that circumstance may we call in aid without reading them the passages found in Justice Hayne’s reasons in this Court in Vairy 223 CLR 461, paragraphs 123 to 125 and the comments by Justice Gummow in the same report at page 443, paragraphs 60 and 61. In our submission, there is error in the approach against us of the kind identified by your Honour and his Honour in that passage. While giving references to Justice Hayne’s reasons, in our submission, the argument concerning the failing of a warning which is urged against us is also answered by the passage in Justice Hayne’s reasons at 223 CLR 467, paragraphs 148 and 150.
Your Honours, as to contributory negligence, for the reasons we have put in writing, neither special leave should be granted nor the appeal upheld. The nature of the reasoning by their Honours in the different descriptions they gave to the conduct of the plaintiff from those given by the trial judge, similar but not the same, was enough, in our submission, to vindicate the appropriateness of appellate intervention. It is not a true discretion, we submit, it is in the nature of an assessment about which one can never be precise about which reasonable minds might differ, that is, not a true discretion in the sense protected by House v The King and, in our submission, for those reasons the magnitude of interference is enough to indicate that there was an appropriate appellate approach.
As to costs, again, we submit, for the reasons we have put in writing, that this is not a matter for special leave but if special leave were to be granted, the appeal should be dismissed on the point. The fact is that the way in which the forensic course was described on pages 1637, 1638 and 1641 in paragraphs 11, 12, and 23 of Justice Ipp’s reasons for the costs was correct factually.
What was done was that the RTA, as noted on the foot of 1637, obtained an adjournment so as to join the Council as a cross-defendant – that is in September 2003. I do not have an explanation for the fact that it was not until 14 July 2004 that that cross‑claim was filed but that was the reason. There was also a defence amendment which was made rather more promptly – that is set out ‑ ‑ ‑
KIRBY J: Could I just ask on that, did that delay bring in the new Civil Liability Act? In other words, can it be said that your delay there occasioned the intervention of the Civil Liability Act?
MR WALKER: No, our delay in filing our cross‑claim against the Council is, I think, not argued as having anything to do with the plaintiff’s advices, actions or inactions. Certainly the coming into effect of the Civil Liability Act had the effect which the result in the Court of Appeal illustrates.
HEYDON J: The problem is this, is it not, on 20 August 2002 you filed a defence admitting that you were the responsible authority and responsible for the signs – three or so months later, the Act commences. If you had taken up then the position that you have since taken up, might not they have started their proceedings before the Act stopped ‑ ‑ ‑
MR WALKER: It is not said so, your Honour. That is not the way in which it was put supported by a solicitor’s affidavit in the application for the Sanderson order, rather, there was attendance to what happened in September 2003 or, at least, that is how we understand the matter that his Honour refers to, in particular, in paragraph 13 of his reasons at 1638. I am bound to point out that at line 30 there is no question that the solicitor’s evidence should be understood as referring to the state of affairs, no doubt in part engendered by the correspondence to which Justice Heydon has referred.
HEYDON J: Take Mr Dederer’s solicitor’s affidavit there, if the terms of the defence on 20 August 2002 had been different, he would have had information to suggest possible liability on behalf of the Council, would he not?
MR WALKER: He would have had the statement from the RTA. The overall point that Justice Ipp makes and that the Court of Appeal holds is that it was not for the RTA to advise the Council’s professional advisers as to whether the Council was or was not ‑ ‑ ‑
HEYDON J: It is a very unattractive submission. You are talking about a terribly injured child really, still, and you have two wealthy defendants and litigation ought not to be conducted in that fashion.
MR WALKER: Your Honour, on the other hand, there are professional advisers who bring equality of arms.
HEYDON J: I have heard that before.
CALLINAN J: Statutory bodies, too, and they should be model litigants, should they not?
MR WALKER: Yes, without question. If there was an error, and no one is suggesting it was not an error, which led to the eventual finding that it was the Council who was the road authority. But I stress, the RTA with the powers of a road authority, it still remains the case, as Justice Ipp points out in paragraph 23 on page 1641, that it was not as argued, see paragraph 20, the withdrawal of the admission that could possibly have led to the eventual commencement of proceedings against the Council because the admission had not been withdrawn when the proceedings against the Council were commenced.
If my friend was suggesting that the defence has been misunderstood, on the top of 1638, the documents that your Honours will find, particularly at page 19 of volume 1 of the appeal book, make it clear that the amendment following the successful application to vacate the first hearing date continued the admission that the RTA was the authority responsible for the bridge and certain signs. It continued that admission and that is why the error is identified in the argument for the way in which the Sanderson order was sought by Justice Ipp at page 1640, paragraph 20 and informed his conclusion at paragraph 23 and no error has been found factually or in the logic of the way his Honour disposed of the way the argument was put.
GLEESON CJ: Mr Jackson, did you want to say anything in reply on that matter costs?
MR JACKSON: Two things, your Honour. The first is, if one looks at the affidavit which is at page 1586, paragraph 5, it is said that:
As a result of the information that I received from both the RTA and the Council I was of the view that the only appropriate defendant in any proceedings would be the RTA.
I would refer also to paragraphs 27 and 28 of the same affidavit on page 1591 which are, in effect, to the same effect. The second thing, your Honours, relates to one matter I would just like to correct, if I may, and that is in relation to the material about the sign. Your Honours will see at page 1428 in the primary judge’s reasons at paragraph 68 one of the things that was submitted was that the “shallow water” pictogram should have been used. That was put. If we look at paragraphs 68 to 70 ‑ ‑ ‑
GUMMOW J: 68?
MR JACKSON: Paragraphs 68 to 70, your Honours, reading them together it is not entirely clear that the judge is saying in paragraph 70 that the sign to be used was the number 213 plus the statement he speaks of warnings and he speaks of a warning sign that would be more appropriately described as 228.
GLEESON CJ: Thank you. We will reserve our decision in this matter. We will adjourn until 10.00 tomorrow.
AT 4.40 PM THE MATTER WAS ADJOURNED
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