Romeo v Conservation Com of NT

[1997] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D584 of 1996

B e t w e e n -

NADIA ANNE ROMEO

Appellant

and

CONSERVATION COMMISSION OF THE NORTHERN TERRITORY

Respondent

BRENNAN CJ
TOOHEY J
GAUDRON J

McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 SEPTEMBER 1997, AT 3.21 PM

Copyright in the High Court of Australia

MR J.B. WATERS:  If your Honours please, I appear with MR S.R. SOUTHWOOD for the appellant.  (instructed by Waters, James, McCormack).

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:  May it please the Court, I appear with my learned juniors, MS R.J. WEBB and MS R.P. BALKIN, for the respondent.  (instructed by the Solicitor for the Northern Territory).

BRENNAN CJ:   Yes, Mr Waters.

MR WATERS:   Your Honours, this is a case arising out of a serious accident that occurred at about midnight in April 1987 when a 15-year-old girl, in a public park - and there will be some discussion as to justify the assertion that that is what it was - controlled and actively managed and promoted by the respondent, the Conservation Commission, fell some 6.5 metres from a cliff.  She subsequently became a high level paraplegic as a consequence of it.

If your Honours please, the appeal book has a few exhibits and I take you to the first of them which is P1 at page 99, which is - - -

BRENNAN CJ:   Do we have any better photos than these, Mr Waters?

MR WATERS:   I think we made a judgment that the level of photocopying was so splendid that the others were not of a great deal of value.

BRENNAN CJ:   It seems that some books slipped ‑ ‑ ‑

McHUGH J:   Yes, mine are excellent.

TOOHEY J:   I have no complaint whatsoever.

BRENNAN CJ:   I seem to have got some rather - perhaps I will look at my brother, Toohey’s.

MR WATERS:   I would seek, perhaps, to pass you mine.  I have got a good one.

BRENNAN CJ:   No, I will look at Justice Toohey’s, thanks.

MR WATERS:   I am sorry, your Honour got the short straw; it is usually reserved for people like me.  So the photograph, fortunately, was taken about two weeks before the incident in question and so probably, fairly accurately, represents the topography and layout of the area on the night.  In the centre of the photograph there, there is a cross, which is nearest to initials “MCR” and “AH”.  That central cross is what will be described as a landform or a path-like gap in the line of vegetation which is clearly indicated running along the edge of the cliff.  The initials “MCR” stand for Monica Romeo, the appellant’s sister, who marked that spot as indicating where she saw her sister later on that evening, when she had fallen.

TOOHEY J:   Mr Waters, I do not want to take you ahead of your argument, but how did the appellant’s sister come to be on the scene?  It was not entirely clear to me, from reading the material.

MR WATERS:   It was coincidental, if your Honour pleases.  She was there with other friends, was not aware that her sister was down with her friends and she was, in fact, over on this little area or was attracted to it and she saw the activity on the beach, and it was not until a number of hours later that she found to her horror that the victim that she was watching from the cliff tops was, in fact, her sister.

TOOHEY J:   Yes, thank you.

MR WATERS:   It was quite coincidental.  She is a little older and, no doubt, the group of friends and the age of teenagers delineate fairly strictly within age groups and she was not involved.  If your Honours please, the little cross is a gap and the evidence was that the appellant’s party were a group of young people in their cars parked in ranking fashion along the car park that you can see in the photograph.  Also fairly, to some extent, graphically indicated are what can be described as doughnuts or, at least one of the witnesses described as doughnuts, where young people rev their cars in circles on what, at that stage, was a gravel car park.  The significance of that gap will have to be developed. 

Photographs at page 100 were taken some five years later but show that very place that we have been calling a path‑like gap where the two figures can be seen.  No doubt, there was some slight changes in the greenery.  It was taken at a later time of the year and so forth.

GUMMOW J:   What about the fence, or if that is the sufficient description of it, on page 101?

MR WATERS:   The fence, and that can be seen in 101 ‑ ‑ ‑

GUMMOW J:   Yes, but is that as it stood at the time of the accident?

MR WATERS:   As it stood.  That is exactly as it stood, and it is more clearly seen in photograph 101.

GUMMOW J:   Yes.

MR WATERS:   There is no significant difference and, indeed, we would say that it was never an issue of controversy that those photographs, even though taken some years later, did not fairly represent what was there that evening.  There is some suggestion that, what has been called a sea acacia shown up in photograph 102 was smaller and it may have been bigger at the time the photograph was taken, but its position is the same.           So, we would submit that the photographs are a fairly reliable guide to the topography that evening.

If your Honours please, the other issue that we would like to take you to set the scene, so to speak, as to the circumstances that evening can be found in the supplementary appeal book which the appellants have prepared and which, I think, is to hand.  In that regard, I should like to take you to page 83.  That is from a document headed the “Casuarina Coastal Reserve Management Plan”; a document that was prepared in 1991, some years later.  But at page 83 the Visitor Use Zoning Scheme gives some clue that, of course, the trial judge had the benefit of since there was a view, and no doubt the appeal judges did as well.

What it shows, if your Honours please, is a place called the Dripstone Cliffs, and its size, one can see, is about 1,000 metres, if one looks at the scale at that sign.  One can also see the words “Tiwi” and “Brinkin” on that plan; they are Darwin suburbs - fully developed residential suburbs - and then, beyond the words “Tiwi”, one can see the words “Hospital”.  There has been - - -

TOOHEY J:   Can you tell us where on that map, page 83 of the supplementary book, one would find generally the area that is marked by the crosses on page 99 of the appeal book?

MR WATERS:   Right in the middle of the bracket, if I can put it that way, where it is described as “Dripstone Cliffs.”  Pretty much in the middle, your Honour, of the - if one simply bisects the bracket - Dripstone Cliffs - it is pretty much there.  The point to be made from looking at that is that a significant issue in this case really is the extent to which there was a duty owed,- the significance of the risk relative to the sorts of population pressures upon this particular area.  Other material is referred to in the outline which has been provided to the Court which we say is also significant in gaining an overall view of the sort of area we are dealing with.

There will be some discussions about whether this more closely represents the Wilmot situation, a matter that the Court did deal with in a special leave application, a reserve in South Australia, or whether it more closely resembles, perhaps, the Nagle v Rottnest reserve or indeed the Tuggerah Lakes which is where the Wyong v Shirt tragedy occurred.

In the outline of submissions at - the numbering is a bit disorganised ‑ at the first page but numbered 28, asserts that by 1987 the coastal reserve was attracting some 400 to 500 visits per year.  It might sound a surprising amount, the Darwin population being somewhat less than 100, but it clearly indicates a frequency.

Over the page we also take your Honours to the evidence in paragraph 31 of one of the witnesses, Mr Kanaris, and his evidence is set out in the supplementary appeal book.  We say that a review of those, perhaps, fragmentary pieces of evidence will be sufficient to ground the submission that we are, in fact, looking at not some wilderness, not something which would have evoked a very low level of responsibility, but a level of high usage and indeed, on that map 83, one of the level indicators is described as intensive use.  And if one looks at the description of intensive use it is referring to the Dripstone Cliffs area as well as the Rapid Creek open area to its south, the Dripstone Park to its north.

TOOHEY J:   Mr Waters, if you have finished with the factual aspects for the time being, I just do not want to interrupt you unduly.

MR WATERS:   That is, we say, the physical appearance and the general considerations which affected the area on that day.

TOOHEY J:   Perhaps I could ask you this and if it is something you want to defer for a while there is no problem with that, but is the case against the respondent based upon the occupation, as it were, by the respondent of the area, its control of the area or - there are passages in the submissions that speak of general alliance which is a concept which is not always related to occupation or control?  Can you identify for us the basis upon which liability is sought to be attributed to, the respondent.

MR WATERS:   Yes.  The Act itself, the Conservation Commission Act identifies the paragraph at section 19, and it should be to hand, the functions and responsibilities of the Commission and that is to:

establish and manage parks, reserves and sanctuaries.

That is 19(b), and 20 indicates its powers.

KIRBY J:    There is nothing more particular than that relating to fencing or protection of the public?

MR WATERS:   Nothing mandated by the legislature or, at that stage, at least there was not much mandated by the general ‑ ‑ ‑

KIRBY J:   Is there a local government authority or is this the authority that performs the work of the local government authority in respect of the cliff?

MR WATERS:   This is the only authority that has responsibility for this area.  There is a Darwin City Council.  It clearly would have responsibility over those two suburbs I mentioned, Brinkin and Tiwi, but everything on that map on 83 is solely within the province of the Conservation Commission.

TOOHEY J:   But when you direct our attention to sections 19 and 20, are we to understand that you are relying upon the management of the parks as a function of the Commission or is that to put it too narrowly?

MR WATERS:   Yes, we rely upon that, your Honour, and it is to put it too narrowly because we say that there are functions that they performed which show that they have taken on a positive and proactive approach to the task.  It is not merely the management in some passive sense, it is an active one, and they are mandated to do it.  Section 20 I did refer to.  Subsection (2)(e) of the Conservation Commission Act provides the power to “occupy, use, manage and control” and at the stage that this accident occurred, the level of their activity, their proactive involvement in the management for the benefit of the people of the Northern Territory, is pretty evident from P1.  They have built the barrier which his Honour Justice Gummow asked me about.  They built the ranking car parking area.  They have built road access.  The photograph shows the cultivation or the mowing of the areas and the creation of the park area behind the reserve.

The trial judge and the other judges that have dealt with it have all identified that level of activity.  The level of activity just a few hundred metres to the north is even more profound.  There is change sheds, toilets, showers, a park and a more traditional involvement with the beach.  Here, a couple of hundred metres further up, the level of involvement is pretty much dictated by what you see in those photographs.  It is not the mere management and control that we say created the level of duty and care responsibility they have; it is their active promotion and facilitation of visitors to the area, clearly grading car parks, delineating boundaries of roads, grading and preparing roads in and out to facilitate access.  It is not, as might be said, a simple dedication to the Conservation Commission for whatever purpose.  It is proper, we say, as one would do in any public park, to look to the extent to which they have used their mandate or their charter and in this case we would submit that the use of the area is extensive and it is from that which we say the reliance arises.

This, we say, fits this case into the sorts of reliance that is his Honour Justice McHugh, for example, has detailed in some detail in Parramatta v Lutz.  Perhaps I should usefully go to that.

KIRBY J:   May I ask you, did you ever plead or rely on the breach of statutory duty in support of your common law count, or is this simply, as it were, background of the entitlements of the authority of the Commission?

MR WATERS:   No, your Honour, we did not specifically plead the breach of the statutory obligation of the view we took, and I hope it is the right view, is that the control - - -

KIRBY J:   Are you aware of the recent authority of the House of Lords in Stovin v Wise?

MR WATERS:   Yes, I am aware of it.

KIRBY J: In relation to negligent failure to exercise powers by public authorities. I will just give you that. You might have a look at that overnight, (1996) AC 913.

MR WATERS:   Yes, I have looked - glanced at it.  It is on my list, in fact.

McHUGH J:   You were going to go to my judgment in Parramatta Council v Lutz, but I must tell you that we have had argued an appeal from Victoria in Pyrenees Shire Council.  During argument they said that may be I was mistaken in that case.

MR WATERS:   You are in good company, your Honour.  No, that is easy to say and nice to say but the discussion that I was to take the Court to is one well documented by authorities other than your own.  I do not know what my colleagues from Victoria were able to put, but I am really directing this submission to what you have said, essentially starting at page 327.

BRENNAN CJ:   You had better read the reference into the transcript, I think.

MR WATERS:   Yes, it is Parramatta City Council v Lutz (1988) 12 NSWLR 293.

GUMMOW J:   Is this case against the Conservation Commission of the Northern Territory, is that bought on the footing of a negligent exercise of the Commission’s powers?

MR WATERS:   Yes.

GUMMOW J:   What are the powers, apart from paragraph (e) that you refer to?

MR WATERS:   The power to manage and promote and control the park for the benefit of the public.

GUMMOW J:   What, section 20(2)(e)?

MR WATERS:   Yes, if your Honour pleases.  That would be the power which they were exercising and which we say they exercised in that fashion.

GUMMOW J:   Is that the only footing on which negligence is asserted?

MR WATERS:   No.  We say that there was a duty of care, in any event, because they,  by reference to normal principles of negligence, just as if it were somebody’s backyard, by assuming the responsibility and the management in the way that they did they enlivened the normal obligations of negligence, and, indeed, it is on that that we relied, as I said, in answer to Justice Kirby, in framing ‑ ‑ ‑

GUMMOW J:   But that was a different answer.  You were saying no breach of statutory duty, I understand that.

MR WATERS:   Yes.  That is true, I am not saying a specific statutory duty in that sense; merely that they have - this is the power by which they have assumed the responsibility.  Having assumed that responsibility for that area, they must take the normal responsibility for foreseeable risk of injury to persons who come on to their property, people for whom, in fact, they have created or improved the reserve.

TOOHEY J:   I understand that, but I am not sure that Parramatta City Council v Lutz, really - how far that bears upon the cause of action as you have identified it.

MR WATERS:   No, I was only bringing your Honours to what Justice McHugh said in Lutz as to this question of reliance, that I think your Honour raised with me.  We are saying that there is a general ‑ ‑ ‑

McHUGH J:   Yes, but I do not know why you have got to get into this category at all.  In Lutz the issue was whether the council owed a duty at all.  Here, whatever the content of the duty is, I do not think anybody argues that as occupier of this reserve the Commission owed a duty of care.  It may have been easy to discharge, maybe they have discharged it, but is there any argument about a duty of care being owed as opposed to the content of that duty?

MR WATERS:   Your Honour, there is not by the trial judge.  The trial judge appears to concede that the duty is owed.  There is some rather contradictory or rather confusing statements which do emerge as part of the conclusions that Justice Mildren in the Court of Appeal raises, and it was probably useful to mention in that context.  Certainly this should not be one of those cases where the issue as to proximity is really in much doubt.  We would agree with your Honour that if there is an issue of major controversy here it is in the area of what should be done, having regard to what is a clear duty, a duty which is imposed upon the Conservation Commission by its proactive management.

One would then look at the sorts of things that one should have to do having regard to the magnitude of the risk and the sorts of problems that they are confronted with when they look at the area that they are charged with.  I agree, your Honour, that is the issue.

TOOHEY J:   You will need to perhaps exercise some caution in taking us into cases that relate to the powers of statutory bodies and local authorities and so on to give notice to householders or owners of property where there is a defect in the premises unless you propose to rely upon that sort of line of authority and, if you do, you would need to make it good, I think, that that line of authority has application here.

MR WATERS:   I accept that the authorities which we should be concerned about are not the building cases or Anns or Heyman but cases like particularly Nagle which is, of course, the authority which predated this case, the principles of which, we say, have an overwhelming bearing on its outcome.

TOOHEY J:   Well, you plead in paragraph 3 of your statement of claim that:

the Defendant was the occupier of the.....Reserve.

What is the respondent’s answer to that in its defence?  It is a sort of “confess and avoid” almost, is it not?  The defendant says it is responsible for the “management, regulation and control” of the reserve.

MR WATERS:   That is good enough.  I think the word “occupier” might sort of raise the shadow of some of those old authorities, so perhaps their response is a sounder description of what the Commission was than to describe them as occupied.  There does not appear to be ‑ ‑ ‑

KIRBY J:   Is it your understanding that the defendant did dispute a duty of care or is it your understanding that the defendant accepted the duty of care but said there was no breach?

MR WATERS:   I should not presume to speak for my friend who can shift his ground if he wishes, but I think in the end and certainly in terms of his current submissions, it is the scope of the duty that he is concerned to defend rather than that ‑ ‑ ‑

TOOHEY J:   It is not a matter of shifting ground, is it?  It is a matter of what the courts below said, that it is either common ground conceded or, if it were not, what findings were made by the court.

MR WATERS:   I am not sure whether it was common ground at first instance, if your Honour pleases, but certainly I do not think it is now an issue of any controversy between the parties.  My recollection is that all issues were actively agitated at the outset, both as to duty of care and as to the extent of it.  But I do not understand that that is presently the case.

BRENNAN CJ:   The trial judge proceeded on the footing that the duty of care was that laid down by Justice Dixon in Aiken v Kingborough.

MR WATERS:   Yes.

BRENNAN CJ:   Well, that is the point that you have got to come to grips with, is it not?

MR WATERS:   Indeed.  This is the issue I am just about to come to.  The trial judge’s - before I come to the way in which he deals with Aiken v Kingborough, if your Honours please, I just would like to take you to a passage which probably encapsulates the specific findings that the trial judge made as to just what happened that night, and that is to be found at pages 25 and 26, and it is certainly referred to in just about all the - certainly in both the judgments in the Court of Appeal, and in the outline of argument.  It might just be useful if I do that, because that is really the background, and then I will come to what we say are the errors in his Honour’s determinations. 

Much of his findings to that point are quite unexceptional and are not the subject of challenge.  Middle of that page, at page 25 of the appeal book, he says:

The plaintiff and Jacinta were affected by alcohol.  The plaintiff and Jacinta wandered off from the group of friends who were congregating on the sea-side of the log fence.  This group of friends were approximately three metres from the cliffs’ nearest edge.  It is apparent and I infer -

I might just say, if one looks at P1, the three metre - one can see just how close those set of logs are to the cliff edge.  Those low level logs you see, of course, are only designed as a car barrier and it must, we would say, raise the presumption that people would sit on them.  They certainly would not sit behind their cars if they were watching the sunset - that they would sit on them, and that really drew people to that edge.

I will finish at the bottom of that page.  Perhaps I will not read it but simply take your Honours to it.  We say there is an important finding.  It says:

In the gloom it had the deceptive appearance to the girls of a foot path leading to the gap in the vegetation.  It did not have that appearance in daylight.  Nor would it have so appeared to a sober alert person on the night in question.

Then he says:

I infer that the plaintiff and Jacinta were deceived to follow that path to and over the cliff edge.  They literally walked over the edge with their heads in the air.  They did not slip or at any time apprehend the presence of the cliff edge prior to their fall.

So that is the factual matrix.  We would submit that those photographs, the closeness of that car park, the darkness at night, the height of the cliffs obviously - 6.5 metres almost to the top of the star - makes this a risk of considerable magnitude, a risk which is in fact one of those risks when seen which literally would take one’s breath away.

BRENNAN CJ:   There was no direct evidence as to how it happened, was there?

MR WATERS:   No, your Honour.

BRENNAN CJ:   The girls do not remember?

MR WATERS:   They had no memory of what occurred.

BRENNAN CJ:   So this is inference, as his Honour says?

MR WATERS:   Yes, it is.  The inference that they fell from that particular gap is an almost overwhelming one, given where she fell and various other bits of evidence which were quite exhaustively dealt with in the appeal book.

BRENNAN CJ:   Is it right that those findings that you have just drawn our attention to were accepted by both parties?

MR WATERS:   Yes, except that a problem arises in that the trial judge at a later time does not seem to accept that the risk was created by that path‑like gap.  The factual findings are asserted but the question of just what was the risk that the Conservation Commission had to deal with was not sort of formally found to be that path‑like gap in the vegetation.  We would say that the Court should draw the inference that that was the risk.  We would argue that, whether that be the risk or whether it be the general height and circumstances of the cliffs, it makes no odds.  The only odds that it makes is that when one looks at the reasonable response to a risk of that magnitude, it might contract the amount of expenditure one might have to apply.

BRENNAN CJ:   Mr Waters, as to the appearance, looking at the bottom of page 25, it may be important to see whether or not it is common ground that the gap did not have the appearance of a footpath in the daylight, nor would it have that appearance to a sober alert person on the night in question but it did have a deceptive appearance to that effect to the girls.  Is that all accepted?

MR WATERS:   Yes, I think that is accepted, and it is a very significant point indeed.

BRENNAN CJ:   Yes.

GAUDRON J:   I do not understand the “Nor would it have that appearance to a sober alert person”.  I mean, I just simply do not understand it, because people have varying degrees of useful eyesight, and it seems to me that reference to a “sober alert person” just does not deal with all the issues that might arise in an area such as that.

MR WATERS:   That is exactly so.  It would be useful if, since later on his Honour does look to the Kingborough tests, whether he applied words which are familiar in that context to the description, then it might be of some assistance.  But this is not an attempt to apply a test, and, indeed, the words “sober and alert person” do not comfortably fit into any test, really, as such.  There is no “sober and alert person” test that one has to pass.  So I agree with what your Honour has said; it is not a particularly useful observation to make.  It obviously has some descriptive value but it contrasts the girls as presumably not being particularly sober and not being particularly alert, and thereby falling into risks.

GAUDRON J:   One knows problems about the various colours that are apparent at night, even to people of normal eyesight.

MR WATERS:   We say that in the darkness of the night - and this was a dark night - with due allowance for the frailties of the sort of people that come into this area, whether they be young people, people who had something to drink, whether they just be people unfamiliar with the area, the magnitude of the risk that should have been foreseen was horrendous, at the highest level.  When one looks at the authorities a lot of them are concerned with a fairly low-level risk:  people tripping over hoses on front lawns or tripping over people sitting at tables in a club.  The risk that should have been looked at here was at night, looking at the sort of young people that would come to this place, as kids do, and the height of the cliff and so on makes it one of those cases where the magnitude of the risk calls in a considerable response.

HAYNE J:   Are we to understand his Honour there to be saying that the girls made a mistake; they would not have made that mistake had they not been affected by alcohol?

MR WATERS:   I am not sure that it could be framed in quite that - I suppose that is the converse, your Honour would say, of the assertion about sober and alert people.  I do not know whether it is quite the converse, because we are talking about - is the sober, alert person that he is talking about an adult, a 15‑year‑old who had minimal familiarity with alcohol - we know that from the evidence.  It is probably not the true converse.  I would submit Justice Gaudron is right, that it is a test or an observation with not a lot of relevance to the sorts of things that one has to consider in cases of this sort.  That is the way we would put it.

KIRBY J:   There had never been a previous accident at this place, despite the hundreds of thousands of people who went there?

MR WATERS:   There has been quite a lot since.  Not at exactly the same place.  There had been one, I think, a couple of hundred, or 100 metres, or 200 metres further up the cliff, but not - - -

KIRBY J:   That was established by evidence, was it, the accident a couple of hundred metres up the cliff?  Otherwise, we cannot have regard to it.

MR WATERS:   Yes.  It was not put forward as being directly relevant, because the - - -

KIRBY J:   Well, anyway, if it is not in evidence we cannot have regard to it.

MR WATERS:   It is not evidence, no.

KIRBY J:   No one had ever complained about the lack of a fence, or barrier, or protection?

MR WATERS:   There were certainly complaints about the congregation of people and the rowdy-ism and the yahoo-ism.

KIRBY J:   That is the rowdy-ism.  That is the hooliganism.  That is not the danger.

MR WATERS:   No, that is so.  This was a first, in that sense.

GAUDRON J:   The evidence establishes, does it, that it was known to the Commission that young people gathered there?

MR WATERS:   Yes.  There was evidence of complaints being made to people.  There was evidence of a Mr Weribone - and I have, in fact, put the full measure of that evidence - it is not particularly overwhelming - in that supplementary appeal book; Mr Weribone and Mr Delaney being the two Conservation Commission officers who seemed to have a general responsibility for the area.  But certainly, this case was never framed on the basis that we had to prove actual knowledge of those matters, so it was not a matter of great energy put to it.  But there is certainly some evidence of that.

If your Honours please, if I can come to where we say the trial judge was wrong.  Having made that finding that I have taken your Honours to, we say that important finding as to how it all happened, on pages 25 and 26, his Honour went on, on page 27, appeal book 2, to refer to Heyman at about point 20 on that page.  Indeed, he discussed it at some length throughout that page.  He refers to Zaluzna at the foot of that page and we, of course, make no complaint as to the analysis he has made of the authorities to that point.

Over the page, he also then picks up an observation from Gala v Preston.  We make no complaint about that.  In the middle of page 28, he appears to be asserting, or he does assert that the necessary proximity of the relationship was established because at the bottom of that page he says:

The learned counsel for the defendant submitted that in the present cash there was no duty of care.  However, I can not agree with that submission.  The defendant, as I have said, is a public authority statutorily vested with control of the coastal reserve which is managed for the public who here as a right.

So, your Honour has got that right.  But then we say, his Honour, has then, we would say, has misapplied the scope or extent of that duty and he has done so, we say, because of his references to Aiken and, of course, it would be fair to say derived at, to some extent, from his Honour the Chief Justice’s decision in Nagel.  It is clear enough.  But at the top of page 29, he says:

The member of the public, entering as of common right is entitled to expect care for his safety measured according to the nature of the premises and of the right of access vested, not in one individual, but in the public at large.

We say that is really a statement that his Honour Justice Dixon had made in the context of considering the responsibilities of a particular type of person coming into a particular type of property and then he was affectively applying the occupier liability criteria.  In the middle of that page, his Honour Justice Dixon:

What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right?  I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and which are not to be avoided by the exercise of ordinary care.

If your Honours please, we appreciate that your Honour the Chief Justice is of the view that those criterias still have a role to play and have a life in the current law, but we would respectfully submit that if the Court is to follow what it has said about the application of the ordinary principles of negligence, then one would not judge them by reference to that inquiry or that statement, but by reference to the principles as enunciated in Heyman and applying the foreseeability criteria set out in Wyong v Shirt, and there are many authorities which would, I think, give us comfort about that assertion and I will take this Court to some of them.

We say that his Honour then goes to the same error at page 31 where he seeks to distinguish Nagle and your Honours will be very familiar with the facts of that case and the principles which governed it.  A young employee of the Rottnest Island Authority dived into a part of the foreshore known as The Basin and struck his head and became quadriplegic.  It was determined that once there had been a clear assumption of responsibility for the area by the Authority that they were responsible for any risks that were there, provided those risks were not farsighted or fanciful.

TOOHEY J:   At this point in your argument, Mr Waters, are you still with the question as to whether there was a duty of care or have you passed beyond that to the measure of that duty?

MR WATERS:   Yes, we say that there was a duty of care.  We say that that passage I took you to ‑ ‑ ‑

TOOHEY J:   Yes, I understand you say that, but I am now asking you whether these passages and your comments on them are directed at that issue or at the, well to pick up the term from the judgment in question, the measure of that duty.

MR WATERS:   Yes, that is it, or the scope.  I am really to that point, your Honour, and I should have clearly delineated that.  We say we passed that point in a sense when his Honour conceded that, so to speak, at the foot of page 28.  He is essentially saying there, “Look, there is the necessary proximity of relationship.”  Learned counsel for the defendant has admitted that in the present case there was no duty of care.  He is saying, “Well there clearly is” and then he is really going on at that point, and so am I, to say, “What is the scope of that duty?”

It is in this area of the scope which we say he is certainly out of step with the majority of this Court by defining the scope in terms as he does by reference to Aiken v Kingborough and Lipmann v Clendinnen, by saying that they were talking about notions of ordinary care and really resurrecting some of the tests which, we say, were consigned out of the law by the clear adoption of the modern principles of negligence in Heyman, extending as they do to occupier or occupier situations by virtue of Papatonakis, Hackshaw v Shaw and Zaluzna.  We say that he should go no further than to look at the ordinary duty of care.  The scope of the duty is defined in that way.

At 31 he distinguishes Nagle on the basis that, about point 5, he says:

That case involved the failure to warn of a hidden danger.

We say that is not really what that case is about although, of course, the light on the water may have, in fact, been part of Mr Nagle’s misfortune.  That is not the point which created the duty of care.

If your Honours please, at page 32, we say he is once again in error, and probably in the plainest terms because he says:

However, I do not think these submissions advance the case for the plaintiff, for, as appears from the judgment of Dixon J in Aiken, a member of the public entering as of common right to land controlled by a public authority is only entitled to expect care for his safety measured according to the nature of the premises.

And that, we say, is in error.

GUMMOW J:   How do you say the facts of your case would fit in with the statement of principle in Nagle 177 CLR at 429 and 430 in the judgment of the majority? Beginning at the bottom of 429, “Duty of care: conclusion”, then going over to 430.

MR WATERS:   Clearly, we will assert it is absolutely four-square with that.  Taking it point by point, there is a general duty of care at common law not one such as I have just described from the passage in Aiken, to avoid foreseeable risks and, of course, that is not fanciful or farfetched, the risks.  We say people of the type, young people, allowed in at night, no lights ‑ ‑ ‑

GAUDRON J:   I thought I read somewhere that there were lights; that the Commission had installed lights somewhere.

MR WATERS:   Not at that particular point or not that would have influenced the area.  It might have influenced in the sense of deceptively, from some while away, but no, your Honour, not at that point.

TOOHEY J:   There were lights in the park, were there, in the Dripstone Park?

MR WATERS:   Yes, but that was 200 metres up the road.

TOOHEY J:   Yes, I appre;ciate that but that was the reference, was it not?

MR WATERS:   That is what her Honour Justice Gaudron was referring to, I am sure.

BRENNAN CJ:   Mr Waters, have you finished answering
Justice Gummow?

MR WATERS:   I am tempted to answer it more fully but ‑ ‑ ‑

BRENNAN CJ:   You might prefer to do it in the morning.

MR WATERS:   If I may.  Is it time?

BRENNAN CJ:   It may be of assistance if you were to articulate in whatever terms you think appropriate the standard of the duty of care which you say should have been applied in this case.  That is something we will give consideration to overnight.

MR WATERS:   Yes, thank you, your Honour.

BRENNAN CJ:   The Court will adjourn until 10.15 tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED