Romeo v Conservation Com of NT (D584-96 App

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 WEDNESDAY, 1 OCTOBER 1997, AT 10.17 AM

(Continued from 30/9/97)

BRENNAN CJ: Yes, Mr Waters.

MR WATERS: Thank you, your Honour. Your Honour asked me to nail our colours to the mast in terms of what we say the duty of care is and the principles that should be applied, and I should do that. What we assert is not in any way ‑ ‑ ‑

KIRBY J: I am not hearing you, Mr Waters, not a word.

MR WATERS: I am sorry. What we will be asserting is not in any way original or surprising. We are simply saying that the duty of care that applies in this case is that which was enunciated in Hackshaw v Shaw, and as adopted by the majority in Zaluzna. We, of course, say that this is not a case where one has to be too concerned about the questions of proximity, which often colour decisions. We say the Nagle situation is exactly as this is, and that looking at the arguments that we face there really appears to be no dispute about that. The Commission occupied the area. They had the ‑ ‑ ‑

BRENNAN CJ: That is, I do not think, in contest.

MR WATERS: No, it is not, your Honour.

BRENNAN CJ: You have referred to two cases. What is the formulation that you find in those cases?

MR WATERS: Yes, from page 487 of Safeway v Zaluzna 162 CLR, after identifying the old occupier’s standards at the foot of that page the majority judgment says:

It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty.

That is the general duty of care in negligence.

What is reasonable, of course, will vary with the circumstances of the plaintiff’s entry upon the premises.

And then to go to the passage extracted from Mr Justice Deane’s decision in Hackshaw:

“...it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

That is a given, we say, in this case.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

TOOHEY J: Could I just take you back to something that was put to you yesterday afternoon. The pleading asserts that the Conservation Commission was the occupier and it is met with the defence, at least implicitly denies that it was the occupier but accepts that it had the management and control of the reserve.

MR WATERS: Yes.

TOOHEY J: From the appellant’s point of view, does that make any difference to the standard of care?

MR WATERS: No, we would say - - -

TOOHEY J: It is just that you are giving us occupiers liability cases.

MR WATERS: No, it does not we say, and it is, perhaps, misleading to use the word “occupy” because it raises that spectre that we are talking about, some discrete area of duties or responsibilities which are limited or prescribed by occupiers and I do not wish to give that impression. No, we would submit that all that we are really saying is that one looks at the general duty which would apply by reference to the reasonable foreseeability of risk, full stop.

TOOHEY J: Full stop? Do you say it is enough to render the respondent liable that the risk was foreseeable?

MR WATERS: When I say “foreseeable”, I do not wish to exclude the test in Wyong where the notion of how far one should deal with foreseeability is detailed, and I do not wish to exclude the other classifications in Wyong which look at, once there is a foreseeable risk, the scope of the duty. This case really, in the end, is probably about whether the scope of the duty encompasses what we propose or we say that the Conservation Commission should have done in this instance and that is - - -

TOOHEY J: Can you spell that out for us as a principle that is applicable here?

MR WATERS: Spell out what we say the Conservation Commission should have done, your Honour?

TOOHEY J: No, not in terms of particular acts, but what is the principle upon which the duty of care is said to arise here?

MR WATERS: It really arises out of the foreseeability of risk, as it is qualified or defined by his Honour Justice Deane in Hackshaw. We say that the principle was very clearly enunciated in Nagle at the passage Justice Gummow referred us to yesterday starting at the bottom of page 429 and carrying over to 430.

BRENNAN CJ: This is in 177 CLR 423.

MR WATERS: Yes, I am sorry, your Honour, that is so, 1993, at the bottom of page 429 and carrying over to 430. The considerations that one should look at when considering that foreseeable risk in this instance I did detail at page 14 in paragraph 43 of the outline but, when one considers the foreseeability of risk in such cases primarily, as his Honour Justice Mason in Wyong v Shirt 146 CLR 40 at the foot of page 47 instructs us:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative -

and that is a foreseeable risk in this instance -

it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

BRENNAN CJ: Now, Mr Waters, Wyong was a case where the passage that you just cited his Honour was concerned with risk of injury created by the defendant.

MR WATERS: Yes.

BRENNAN CJ: You say that the defendant here created any risk of injury?

MR WATERS: We say that the development of the law has taken that responsibility beyond the instance where there has been an actual creation of the risk and to a situation where, by dint of the nature of the occupation and the involvement of the authority with the area, it has assumed the responsibility and that creates the notion of general reliance, which is really how the majority in Nagle overcame that same problem that your Honour has pointed out and that is ‑ ‑ ‑

BRENNAN CJ: Now, if one looks at Nagle, there is a question of whether there was a duty of care owed to a plaintiff who was not necessarily guilty of failing to take reasonable care for his own safety. Is that a sufficient basis for you to succeed on?

MR WATERS: The factual situation is, as we say, an even more stark illustration of the responsibility of the occupier than it was in Nagle, because in Nagle, Mr Nagle had made a series of choices. He knew the area, he was an employee of the Authority and he made a choice and he also knew, in the broad sense, of the risks of diving but he made a conscious choice to ‑ ‑ ‑

BRENNAN CJ: He did not know the risks of diving, did he? Because if he had known the risks of diving the majority would not have found that a warning would have prevented it.

MR WATERS: What the majority, I understood them to say, is that what the Authority should have done in that instance is to have forbidden diving and that it was the lack of some sign which illustrated that type of sanction which put them into the area of being responsible or, at least, liable in the context of the case.

I may have put the extent of Mr Nagle’s knowledge a little highly; it may be that they were simply, by reference I think to Justice Nicholls’ judgment at first instance, speculating that a mere advice would not have been sufficient, and it may be that he did not know at all. I will not press that.

BRENNAN CJ: The question here is whether or not there is a duty a care to avoid the risk of injury by a person who resorts to the area and who may not take reasonable care for her own safety; is that right?

MR WATERS: Yes.

BRENNAN CJ: You go as far as saying that is the standard of care?

MR WATERS: In many situations, yes, indeed.

BRENNAN CJ: In this situation.

MR WATERS: And in this situation. The key element, we say, that distinguishes this from - I may have been wrong in the extent of Mr Nagle’s knowledge in that case - but the key element which we say puts this on a different level entirely is that it is clear that her tumbling over the cliff, where she tumbled, was not some conscious or deliberate act; it was an act of inadvertence. There are many authorities which say that in considering the duty of care of the occupier - indeed, any person who might be charged with some responsibility - it is proper and appropriate to look at the nature of the occupier, the person that is coming into the area. In this case the Authority should have foreseen that young people, and possibly at night, as young people are wont to do, will come to an area like that and also may well have had inexperience with alcohol.

HAYNE J: The bare fact of foreseeability means, do you say, that they must do whatever is necessary to avoid that risk?

MR WATERS: No, not whatever is necessary, your Honour, that would really put the standard of an insurer upon them. There has to be, as that passage I read to you, an appropriate and reasonable response to the foreseeable risk. Just coming ‑ ‑ ‑

HAYNE J: Assuming then that the park management can be taken to foresee that the young, the infirm, the sober, the not sober, will resort to the park at all hours of the day and night, what follows from that fact?

MR WATERS: They have got to take precautions which would obviate the risk, and they have got to - even if they might involve an expenditure of some funds. There is a qualification and a caveat on that, which in certain cases is going to be important. That is there has got to be a proposal to remedy the ill made available to the Court, and that has got to be looked at in light of concerns about expenditure and reasonableness. We say that in this case we did meet that additional qualification. We say, “Yes, that was a clearly foreseeable risk. Yes, one must look at the nature and the quality of your guest - in this case young people” - and that simply cannot be gainsaid.

We rely upon the case of McLean v Tedman but it is a qualification which has been always incorporated into the outlines of the authorities. If your Honours please, McLean v Tedman is a decision of this Court which can be found at - - -

BRENNAN CJ: Employer’s liability case.

MR WATERS: Yes. But the principles, we say, have not been limited to employer’s liability situations and I can take you to decisions, I think, of his Honour Justice Kirby and, I think, Justice McHugh at the Court of Appeal in New South Wales where, what I am putting, is adopted into the general principles. But, we say, it is clear enough in any event if one looks at Wyong. At that same passage that I read before, he said:

In deciding whether there has been breach of a duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

TOOHEY J: It is not conduct that we are concerned with, is it? It is the state of the park and the absence, you would say, of any warning or of any protection against someone walking over the cliff.

MR WATERS: Yes, indeed, because it is not the case here that the inadvertence - - -

TOOHEY J: I point that out to you simply to say that I do not know that we are much assisted by authorities in which there is some positive conduct on the part of the defendant creating the risk.

MR WATERS: No, I agree with that, your Honour, and I do not want to be deflected from that proposition because we adhere to that quite firmly. We are concerned here with the foreseeability of risk and that has got to be looked at from the defendant’s point of view, the Commission’s point of view and not the other. But I was just taking you to McLean v Tedman, I will give that reference, if I may, quickly. It is (1984) 155 CLR 306 and as your Honour the Chief Justice rightly points out, these statements are made in the context of an employer’s liability but, once again, we say that the classification of the degree of care and so forth is not important, that it is the general law of negligence which would apply.

But, certainly, at the bottom of page 311, the majority, and your Honour the Chief Justice was part of that, this was a case where a garbage collector had been running from one side of the road to another picking up bins. There was a more sensible system that could have been adopted, so it did go off on that issue. But there was some concession that there was something inherently risky or irresponsible, or careless, if I can put it, inadvertent on the part of the employer. At the foot of page 311, it says:

There is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v Shirt) or brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected.

And, we say, your Honour Justice Toohey, it is inherent and significant in the structure and formation of the cliffs and what they bought to it, and I would if I shortly bring you quickly to what we say is a list of elements.

TOOHEY J: But at some point you really have to come to grips with this, do you not? What is the risk that you say was reasonably foreseeable? I mean, you might say, for instance, the park was in such a state that there was a risk that at any time of the day or night sober, affected by alcohol, defective eyesight or no defective eyesight, there was a risk that someone would go over the edge of the cliff or it might be a more limited risk than that, that at night‑time, knowing that persons did frequent the area at night, there was a risk that someone might go over the cliff.

MR WATERS: Yes, exactly, your Honour.

TOOHEY J: Yes, but how do you put it?

MR WATERS: I will leave off my reference to the question of inadvertence but simply to say that one of the issues that one has to take into account is the possibility that the class of persons which come onto your property are going to do some inadvertent conduct. This discussion arose out of the submission by us that there was some significant difference in this case than in Nagle because Nagle was not inadvertent; he may have been careless. But in this case ‑ ‑ ‑

BRENNAN CJ: No, it is the opposite: was not careless but inadvertent.

MR WATERS: Inadvertent, yes, I think that might be so. If I could back to his Honour Justice Toohey’s point because I do accept that that is the key and at the nub of this case. The primary risk is that which was found by the judge at first instance. At page 80 in the transcript his Honour Mr Justice Mildren paraphrases that. We do not really quarrel with the summation. I have of course read to your Honours that passage from pages 25 and 26 about the deception which gave rise to the girls’ errors. But at all events his Honour usefully mentions it at page 80. He says:

The risk which his Honour identified was the risk that a person such as the plaintiff, affected by alcohol and in the vicinity of the carpark at night, may not realise the location of the cliff edge and either walk off and over the cliff edge or fall from it.

BRENNAN CJ: Do you accept that that is the risk in question?

MR WATERS: Well, unfortunately, the way in which the judgment has come about, there is a sort of an “either/or”, but we do accept that that is certainly the risk and that has to be dealt with. We say that it is our responsibility to point to reasonable ways in which that can be dealt with.

BRENNAN CJ: The point is that is the risk against which you say the defendant was under an obligation to guard.

MR WATERS: Yes.

BRENNAN CJ: Take reasonable steps to guard.

MR WATERS: Yes. We also say that they are under another obligation and that is to identify and cure the sorts of land form characteristics which gave rise to what was described as that “deceptive path‑like gap”.

That, in a sense, is a narrower duty. We say that any one of us looking at the photographs or certainly going there would immediately, postulating the existence of night and young people, would have immediately perceived that his Honour was very right in saying that that was a deceptive set of circumstances which, because of the magnitude of the risk, a sheer drop of that distance, called for action. We have suggested action, shortly stated, a fence of some sort, even if a very rudimentary one, anything indeed which would take away the deceptive character of that path‑like gap in the vegetation. So we do put it on two bases, if your Honours please.

We say it is reasonably foreseeable that people of the character and age and inexperience and even with some alcohol on board would go there at night. There are hundreds of thousands of people go there, as I indicated from the material, and I have given references to that. This is a suburban park, this is not a wilderness area, it is not the back of Kakadu. It does resemble, I think as Justice Kirby said, Echo Point, a place in the Blue Mountains which is visited by large numbers of people and, of course, has a fence. It could even be, in an extravagant and Australian proud fashion, identified with the Grand Canyon. The Grand Canyon on the southern rim is 28 miles long. It is visited by hundreds of thousands of people and, of course, it is fenced.

There are many examples which we could give where there has been an apprehension, a proper apprehension of risk and a proper and reasonable response to that risk is usually fencing, possibly in some instances warnings but in a practical sense, given that this is in character, we say, no different from a suburban - well, it is a suburban park. We were not going to say that description but it is no different, we say, as far as the duty of care is that one would have if one had such a landform in one’s backyard and you had guests or neighbours visit your yard, the same degree of foreseeability applies. The same element of risk exists and the same duty to do something to make a reasonable and proper response to that risk exists.

GUMMOW J: How do your submissions square with the minority view in Nagle? Could you bring yourself within the principles applied there or not?

MR WATERS: If your Honour please, in parts of the way in which your Honour Justice Brennan has dealt with it we say it just does fit quite neatly, but in others I do concede some difficulties. The problem in a sense is that it may well be that we do fit quite neatly into the formulation which his Honour has used, but in that instance his Honour really did not have to deal with the frailties of this particular customer, Ms Romeo, in the sense of being an inexperienced 15-year-old at night with some - there is no evidence as to what effect the alcohol had on her judgment or whatever, but the words used are “affected”. So I think we can all understand a little of what it meant, even if his Honour the trial judge did not go into it to some extent.

His Honour in the minority view in Nagle really was not contemplating that basket of disabilities on the part of the person who came to The Basin and I would submit that if he did, it may well be that we could fit within his formulation because really the question has to be asked, if I look at, for example, the middle of page 144 of Nagle, where his Honour says:

Therefore I would hold that the question whether the Board was under a duty ‑ ‑ ‑

BRENNAN CJ: Page 144?

MR WATERS: Page 140, I am sorry, your Honour.

GAUDRON J: Page 440, perhaps.

MR WATERS: Page 440, yes, I am sorry. Or even over the page. Perhaps to be correct I should start at 439. At the foot of that page your Honour said:

In a case where a plaintiff suffers an injury as the result of an obvious danger in an area under the control and management of a public authority, it may have been foreseeable that a member of the public, entering as of right, would be careless of his own safety and would suffer injury.

So your Honour, I think, is picking up a little bit on the McLean v Tedman point that I made, and then you say:

If serious injury were foreseeable, the conclusion that the public authority was under a duty to fence off or to warn against the obvious danger could be easily reached.

Now, the question is in the context of our factual matrix, is it an obvious danger? Well, it probably is not an obvious danger. She was deceived after all and her conduct in tumbling over the cliff was inadvertent. It may well be that when one applies that ‑ ‑ ‑

GUMMOW J: Obvious to whom?

MR WATERS: Well, exactly. Well, we would say it would be obvious to us that a person in her condition at night with all those things impairing her capacity would do as she did, because she was not a lemming and she was not suicidal. It was clearly a classic accidental error, but we would say it is quite possible to say, given that basket of classifications, the duty exists because that land form, given the nature of the girl herself and the nature of the night, was an obvious danger.

We say, his Honour Chief Justice Brennan would have little difficulty if he factored in those elements to the notion of obvious danger. If one is postulating obvious danger as meaning in the bright sunlight to a person with his wits about him then it is an obvious danger, and we could not gain any comfort from the minority view.

BRENNAN CJ: Mr Waters, if you had been arguing Nagle, you may have been able to convince me, but you have to come to grips, I think, with the part on page 440, where I hark back to what was said by Justice Dixon in Aiken v Kingborough:

focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public.

Not by the individual plaintiff.

MR WATERS: Indeed, your Honour. That is why I said, like the curate’s egg, we feel that you are with us in bits but not - I would have to say I gain some comfort toward the end that you might - but I think that is a rock upon which we would not be able to convince you. But, clearly, we say that that is really reimporting an old criteria.

BRENNAN CJ: You have two possibilities, have you not, for your argument? One is to say that the standard of care is to be determined by reference to all the idiosyncrasies of the public who might be expected to attend at an area in so far as those idiosyncrasies are foreseeable, and therefore includes young, exuberant, alcohol‑affected people.

MR WATERS: Yes.

BRENNAN CJ: So the duty of care is postulated on that basis. The other basis is to say, well, there is a particular duty of care owed by the person who has care and control and management of the site to individual plaintiffs, and that must be determined right from the start by reference to those persons’ individual idiosyncrasies.

MR WATERS: I clearly, wholeheartedly embrace the first formulation, because we would say that that fits with the modern statement of foreseeability. It is not an exacting standard as people have often said. I do not know whether the second formulation would not create a lot of difficulties, and in a sense, is it really saying much more than the first. Your Honours says of course in advance of these things happening there should be some capacity to foresee, but either one takes a general view of the likely idiosyncrasies, to use your Honour’s words, that particular people might have, or ‑ ‑ ‑

BRENNAN CJ: But if you take the formulation ‑ ‑ ‑

MR WATERS: I just say the second formulation does not really take the matter much further. Perhaps I should be bold and say just that.

BRENNAN CJ: Taking the former formulation, it becomes a question of fact and that is whether or not, in the circumstances of this case, it was reasonably foreseeable, on your argument, that people of the same disabilities as that suffered by your client on the night in question would be resorting there, perhaps in such numbers, that they ought to be safeguarded.

MR WATERS: Yes, it does. Yes, it would clearly be a matter of fact, your Honour. That is right. We say that in the facts found, and in the facts available to be found, if indeed his Honour had gone through that exercise, he would have inevitably come to the conclusion that it was foreseeable and there is not a lot I need ‑ ‑ ‑

BRENNAN CJ: Have you any finding in your favour from either court below?

MR WATERS: Well, none of them approached the question of the foreseeability in quite that way. Unfortunately, a lot of them just came up short on this policy issue and did not - that seemed to dampen their ardour about making findings but, certainly, there was no effort by any of the judges to make an evaluation of the evidence in relation to the frequency. Shortly stated, and I have put it in that supplementary appeal book, there was evidence uncontradicted about the fact that it was a place of common recourse by young people. That is the evidence of Mr Kanaris, a nearby neighbour, who was irritated by them and so on.

There is the evidence of the conservation officials as to the enormous number in any year of visits to the area. There is the evidence of the fact that, of course, the very facility which the Conservation Commission put up, in other words, a car park which, of course, in a sense tended to congregate the cars in the car park, would point to the fact that it was a place designed to attract people, including young people, to congregate there.

The other facility which they put in, the low log fence, which can be seen in those photographs, designed obviously to prevent the cars going forward, but also, really, to facilitate people sitting because it is at bottom level, so all of those factors were not really looked at. I think, because, in a sense, they felt the - and it is being presumptuous a bit - but that they felt that the issue was not the duty of care, it was the reasonableness of the response which we had to carry out, that is to ‑ ‑ ‑

GUMMOW J: You seek a judgment, damages to be assessed?

MR WATERS: Yes, that is so, your Honour. We say that those findings, in relation to the deceptive character of the area, are very clear and were not challenged. We say that there is a clear answer to the question as to what should be done, and that is to fence it. There are arguments about the extent of fencing. My friend, in his previous submissions in another place, will try to say, “Look, that is an extravagantly expensive issue and it goes into the sort of policy realms, and things of that sort.” We, of course, took a view that, if you look at the risk solely in terms of the deceptive character of the landform it is ‑ ‑ ‑

GUMMOW J: There was no evidence about this extravagant expense, was three? It is all just conjecture.

MR WATERS: There was evidence as to what the fencing would cost, and there was evidence that the Commission had itself actively considered fencing. I will just take you quickly to that. It is a Mr ‑ ‑ ‑

GUMMOW J: Were there findings about this?

MR WATERS: No.

GUMMOW J: That is what I thought.

MR WATERS: His honour the trial judge seemed to think that the moment one considered expenditure ‑ ‑ ‑

GUMMOW J: That is right, ring some great alarm bell.

MR WATERS: He just sort of stopped and said, “This involves money.” He did not look at the reasonableness or otherwise; he did not consider the policy operational question. I am not suggesting that he should, but he just did not look at it.

GUMMOW J: Can you just give me the references - there is no need to read it - to the evidence.

MR WATERS: In that supplementary book. The evidence of Mr Peter, Richard John Peter, is at pages 9 through to 15. I will not - it simply talks about how much they cost and the different types of fences and chain wire and just strands of wire. There is the evidence of Mr Weribone at page 38, and that was relatively important. At the top of page 38, it was put to him in cross-examination:

I’m not suggesting that a person determined to climb the barrier could not do so; I’m trying to suggest to you that to prevent a person from perhaps mistakenly following what appears to be a path over a cliff, a simple three-strand fence could prevent them from making that mistake?---Yes, if the fence is up, yeah.

It is not really a matter for great argument, we would think. If you are walking along what you think is a path and you come to a fence, that is the Commisson’s way of telling you that you are not on a path and there is some proper reason for you to not be inadvertent from that point, have your wits about you ‑ ‑ ‑

KIRBY J: What is you answer to the suggestion that, first of all, that shows a great deal of wisdom after the event rather than carefulness or care before the event; that it would be extremely expensive to fence the coastline of Australia and that it would also be singularly ugly in areas which people are entitled to go to, to see the natural beauty of the sea and the bush.

MR WATERS: The first proposition that your Honour put, the magnitude of the risk is manifest; it is beyond any argument, we say, that it is dangerous, where you have got a car park with a barrier, in some places two and three metres from the edge of a 30 foot ‑ ‑ ‑

KIRBY J: That is true, but they have 200,000 people going there every year and they have never had a previous accident nor any previous complaint.

MR WATERS: The law should never be that 10 accidents prompt action whereas one accident does not. The foreseeability of that accident is clear, your Honour, whether it has been demonstrated by previous accidents or not. It is just, we say, if you have a place where people just sit and watch the sunset that close to the edge of a cliff, it is likely they are going to be there at night or stay on. You have got a complicated landform, as identified by the photographs. You have got deceptive characteristics. You have got paths which actually do go somewhere, running off in various directions, and they can be seen in the photographs. One of the paths, indeed, was used by the plaintiff herself - the appellant herself to get to beach cricket on earlier occasions. So we answer that by saying, your Honour, one could certainly be persuaded by a plethora of previous ‑ ‑ ‑

KIRBY J: Is your answer on this point that if the Commission had done nothing, then that is one thing in a different case but, where they provide a car park, road facilities, barriers for cars, barbecue facilities and other things of that kind that, once you start to encourage the public to go there and know that 200,000 people a year or so go there, then you have to take rudimentary protection against the very high risks of injury?

MR WATERS: Yes, your Honour.

KIRBY J: What do you say about the cost and the ugliness of such things?

MR WATERS: The cost is firstly, your Honour - clearly the whole of the coastline of Australia is not - - -

KIRBY J: There is an awful lot of coastline and there is an awful lot of beauty points on the coastline. Does this mean that everywhere in our country where there is a beauty point, councils have to go and mar them with these ugly fences?

MR WATERS: One can argue about how ugly it would be to ‑ ‑ ‑

KIRBY J: Against the off chance that one in 200,000 people will get a bit too drunk and fall over the cliff.

MR WATERS: Clearly the word “reasonable” peppers the whole notion of negligence and it would not be reasonable to take extravagant measures of that sort or appropriate or called for, but the response always has to be commensurate to the risk and likelihood. If the odd bushwalker is going to take a wrong turning in Kings Canyon - my friend’s example that he uses - you clearly would not consider his risk as warranting the sorts of measures any more than the odd milko who slips and tips over somebody’s garden hose or ‑ ‑ ‑

KIRBY J: That is true, but we have to think of the principle that is laid down.

MR WATERS: Yes, indeed.

KIRBY J: You are concerned to win the case for your client which is entirely proper, but the principle has to be one which is not applied with a great dollop of wisdom after the event. It has to be care before the event.

MR WATERS: Your Honour, this had the characteristics of a suburban park and it is the appropriate and reasonable response of a custodian of a suburban park, one with intensive use, it is that standard which one would have to apply. To what your Honour said concerning the aesthetics of it ‑ ‑ ‑

HAYNE J: Does that analogy not suggest that every suburban park has to be fenced against the possibility that the child will pursue the ball out into the roadway?

MR WATERS: I would so far, yes, your Honour, but I do not think I need to. I would simply say a suburban park which has a six and a half metre cliff a few metres from where people are attracted to park their motor cars is certainly a proper example to use, but I would in fact go that - but it would depend on the nature of the park. The reasonable foreseeability of risk and the magnitude of the risk in those two factors have to be balanced. The word “balanced” is used, “a balanced response”. In this instance we say a simple fence. You can argue about whether the fence is - or even visible. I mean, a four‑strand No 8 fencing wire fence between water pipe ‑ ‑ ‑

KIRBY J: Would not that be a horrible rule to lay down, that in every part of Australia’s continental coastline which is a beauty spot, you have got to mar it with a fence? I mean that would be a horrible thing to do, against the possibility that one in 200,000 people or, if it is over a period of years, one in a million people will drink too much and not take enough care for themselves and fall over the cliff.

MR WATERS: I know very well your Honours would never make such a prescription.

KIRBY J: But may that not be what will be read into, just as into Nagle has read the prescription that has closed a lot of suburban and municipal swimming pools, other such facilities, may not there be read into the principle that you are arguing for that everything that is beautiful in this country at a beauty point on the promontory is going to have to be fenced. It would be a horrible result.

MR WATERS: The swimming pool cases have mostly been met, both in terms of the judicial recommendation and in practice, by more rigorous signage. That generally meets the circumstance, even the circumstances in some of the more recent cases. The Court, I do not think, can be hung for having prompted the closing of suburban swimming pools. In this instance, all that a court is doing, we say, is recognising what public authorities and what government authorities recognise in any event and that is if there is an increasing aggregation of people, the level of occupancy reaches a certain point, you have to make commensurate and reasonable responses to the risk that is there. That is what the cases say. It is not an awful nostrum or an awful imposition.

If your Honours please, this very authority in 1993, if I can just take you back to this second book, at pages 70 and 71 - if I can go to 69, I am sorry. There is a letter - this is a few years later but we do not say that the level of occupancy has changed convulsively in that time. This is a letter of June 1993 and it is to the Sacred Sites Authority and it says:

PROPOSED PROJECTS IN ORDER OF PRIORITY ARE:
.....
1. Picnic area extension of two (2) hectares basically adjoining the existing area of Dripstone Park.
2. Installation of safety fence along clifface in the vicinity of the Dripstone cliff section of the Casuarina Coastal Reserve.

At page 71 under the heading “Project No.: 2” they go into some detail about the sort of fence that they have to go in for.

GUMMOW J: What do you say about the finding by the trial judge that if there had been such a fence your client would not have been deterred by that, she would have crossed it?

MR WATERS: I do not want to use too strong a language, but ‑ ‑ ‑

GUMMOW J: That is to say the passages at the bottom of 35 and the first paragraph of 36 of the appeal book.

MR WATERS: Well, your Honour, we say that is an extraordinary conclusion to make having regard to his own findings.

GUMMOW J: I know that, but you have to overcome that conclusion, do you not?

MR WATERS: He has made a series of findings about the inadvertence and that she thought that she was walking along a path and that her inadvertence and the deceptive character of this path would have led her, as he said, literally with her head in the air over the cliff. That is his fundamental findings and I have taken your Honours to that. Now, all we say is anything which would have disabused her of believing in the deceptive character of that area would have solved the problem and ‑ ‑ ‑

GUMMOW J: Are you inviting us to find that?

MR WATERS: That given those basic findings, yes, and for him to say she could have climbed over the top and lunged lemming‑like for the beach ‑ of course, I mean, you could do all sorts of things, but given the nature of the risk, she would be held accountable in circumstances like that, but the nature of the risk, we say, is that the close proximity of those cliffs to the car park mean that you have got to delineate them, not to put some razor wire there to prevent people who are determined to get across from getting across. I mean, if one wants to jump off the Gap at Sydney, you can climb over a fence, I think about a metre and a half tall, and do it, but those people are obviously not designed to be protected, but what we do want to protect is people who have got no such desire and who are entitled to our protection by the implementation of simple measures.

Your Honours, coming back to the matter that Justice Kirby raised, because this is important or one can see in the judgments of the courts below in recent times some concerns. His Honour Mr Justice Meagher in Inverell, I think, was saying we have really reached the stage where occupiers at this stage are being insurers and I think he overstates the matter, but there is a certain public perception which the Court has to bear in mind and I do not want to throw that off, but, firstly, we say that my friend’s suggestion ‑ ‑ ‑

BRENNAN CJ: I think you have said most of the things you want to say, have you not, Mr Waters?

MR WATERS: I have. I want to say one more thing, if I may.

BRENNAN CJ: Yes.

MR WATERS: I want to say two things. Firstly, if public authorities are reluctant to undertake fencing or other measures to protect against foreseeable risk, they can, of course, invoke the legislature. I know Mr Justice Mahoney goes skiing in the White National Park in Colorado. When you go there you are told that the Colorado legislature has legislated out any liability to its national park from any skier that hits his head. So they do have that option and it is the sort of option which legislatures are quite willing to do whenever the degree of responsibility becomes too onerous. They have done it motor accident schemes and workers compensation and so on. So there is always that open.

KIRBY J: Where does Justice Mahoney say that? Is that in Seacan, is it?

MR WATERS: He does not say it, I am simply saying he is a skier. I am just saying that any skier that would go to ski in the national parks of Colorado, which is where all the ski resorts are, has no protection from any land forms that might give rise.

BRENNAN CJ: We will take your word for that.

MR WATERS: I am sorry to confuse your Honours to mention Justice Mahoney’s habits. So, I did want to say that. If your Honours please, any diktat by this Court would always say, so far as fencing is concerned, it has got to be a common sense response to a real problem, and as far as the aesthetics is concerned, I would ask the Court not to pronounce upon the aesthetics of fencing one way or the other. You will be asked to pronounce upon the aesthetics of all sorts of things. If the people do not like the fences, I think the Court should say, “Well the risks are there, and that is the end of that”.

If your Honours please, this is the other one last point and I will stop, your Honour. The current rules which govern negligence, we say, are serviceable; that in anticipation of my friend’s submission to reimport categories, or to create new categories, or to create special rights and duties ‑ special rights, I should say, which attach themselves to public authorities would be a brave and, we say, a wrong step. The true characteristics of this area that we confronted, or Ms Romeo confronted, did not involve any particularly special or exotic responsibilities which sometimes public authorities have to deal with, like gaols and things like that.

Ms Romeo was really confronting an ordinary occupiers’ risk and if there is any weight in the submission that there should be special rules for public authorities which, as I anticipate my friend might say - I do not believe it should be there, but it should be limited to particular rights and responsibilities which are peculiar to public authorities. The rights and responsibilities of the Conservation Commission in this instance were the same as would attach to any person who, as I indicated before by example, has a cliff in their backyard, or a similar landform. There is nothing different about it and it is for that reason, that one does not have to get into the policy dilemma which certainly is an issue which has, of course, exercised the court that his Honour Justice Kirby mentioned in Stoven v Wise yesterday. It certainly exercised the court in Cekan v Haines another case involving a series - - -

TOOHEY J: Might it not be better to see what is said on this aspect, Mr Waters, instead of trying to anticipate arguments.

MR WATERS: I will do that, your Honour. I will stop there except - because clearly the elements of the decision did involve public policy and I must at least put our position.

In an article by a Ms Allen in (1997) 5 Torts Law Journal at page 15, which is on the list, is what we say is a succinct and proper response to the proposition that the Conservation Commission is absolved from responsibility by virtue of some policy considerations. In the middle of that page, and if your Honours please, I will not read it, but we rely upon the passage which starts, “In Romeo”.

GUMMOW J: You cannot really rely on it because it written for a particular purpose. You can adopt it, I suppose.

MR WATERS: I am adopting it. What I am simply saying is that rather than me read it out, Ms Allen seems to have stated it in words that I do not want to try and embroider upon. We say that common sense approach to the issue is how one should deal with the policy issue in this case. If your Honours please.

BRENNAN CJ: Thank you, Mr Waters. Yes, Mr Solicitor.

MR PAULING: Your Honours, this case concerns the question whether a duty of care is owed by a public authority in which is vested the care and control of lands to which the public has a common right of entry, to take positive action to prevent injury to persons entering those lands from risks which have not been created by, or increased by, the public authority. That is what the case is about.

Only at the end of Mr Waters’ submission did we have a glimmer of what might be relied upon to overcome what we say is the correct statement of principle, that of your Honour Chief Justice Brennan in Sutherland Shire Council. I will come to that in due course. But, I put the proposition another way. It is whether a public authority in control of such lands owes a duty to take positive action to neutralise risks which that body has not created or increased. My learned friend’s answer to that seems to be yes ‑ ‑ ‑

McHUGH J: It is not truly accurate to say that the defendant did not increase the risk, is it? It is true in the sense that it did not do anything to the land, but what it did do was provide an allurement.

MR PAULING: I will come to that when I deal with the facts, if I may, your Honour.

McHUGH J: Yes. I mean, people were invited to come here. You have provided a car park and it is nearby where you have all sorts of facilities; barbecue facilities, showers, et cetera, but anyway.

MR PAULING: I appreciate that that is the impression that is created of what was there and what was done. It is not an impression that is supported by any finding of fact ‑ ‑ ‑

KIRBY J: It sounds a splendid place.

MR PAULING: ‑ ‑ ‑ and it is not supported by any evidence.

McHUGH J: What is not supported by any evidence?

MR PAULING: What has happened is, firstly the authority has created a car park.

McHUGH J: Page 99 of the book shows what looks like a car park, and I think it is at page 11 of the appeal book the judge says that the defendant provided a car park.

MR PAULING: Yes, but the impression that your Honours must be left with at the moment is that here was an area to which access could not be gained. This was an area that the public could not get to until such time as the public authority went along and graded roads and put in an area where they could park. Whereas the supplementary material that my learned friend has put in and relied upon clearly indicates that what had happened was that the public resorted to that place in large numbers well before the authority had any control over the land, and what was done was to restrict the areas where people could park.

They were already parking there, but the fact of the matter, and Mr Waters’ submission supported, was to draw the people back away from the cliffs because of the risk of erosion. Let me give you an example, if I may take you to the supplementary materials book.

McHUGH J: Does that mean that your client was fully aware of the risk of the cliffs?

MR PAULING: Can I take you to page 39? In the middle of the page, this is Mr Weribone’s evidence:

The carparks on the top of the cliff; what do you say they were put there for?---To control traffic from driving close to the edges which created tyre tracks, would eventually turn into soil erosion.
And the reason for putting carparks there was to provide a place where people could park?---Yes. Yeah.
And because it was recognised that people came to that area?
---Yes.
On a frequent basis, on the basis that you have just told us about. And this was to regulate and make comfortable there parking arrangements consistent with a park, so they wouldn’t park all over the place - - -?---Yeah.
- - - and get bogged, and things of that sort.

So that the idea that steps taken to prevent unregulated parking causing erosion damage to cliffs could somehow then become an allurement, a positive attraction to people to come to this area in the close vicinity of the cliffs, does not stack up on the facts.

McHUGH J: But it must, must it not? Just as a matter of commonsense. People may have come there in the past but they are going to come there in greater numbers if they have a nice tarred car park instead of having to drive their vehicles over rough ground.

MR PAULING: Well, it was not a tarred car park.

McHUGH J: Well, that was the impression I got from the photograph at page 99, it was graded anyway.

MR PAULING: It is flat ground. The land form has not been changed.

TOOHEY J: Presumably, it is graded from time to time.

MR PAULING: Presumably, yes, and presumably the fence, not on the seaward side but on the other side, prevented vehicles from driving over what appears to be, in this photograph, a conscious effort to grow something, presumably, to satisfy Mr Kanaris and keep the dust down.

KIRBY J: Was that fence installed by your client?

MR PAULING: The fence I am talking about is ‑ ‑ ‑

KIRBY J: That is on the side of the private property?

MR PAULING: There are two fences. One runs along a bitumen road and then coming towards the sea there is another fence, which is a barrier, and then on the seaward side there is a barrier. But about these matters, while we have the supplementary materials book in hand, and from what your Honour Justice McHugh has said, it is clear that my learned friend has successfully implanted the idea that just a couple of hundred metres away from where this accident happened, there were barbecues and lights, and the whole shooting match.

If you look at the map on page 83 and you compare the bracket, which Mr Waters drew attention to, beside the words “Dripstone Cliffs”, your Honours have page 83?

BRENNAN CJ: This is in the supplementary book?

MR PAULING: The supplementary book, yes. Bear in mind that the document my learned friends brought forward, and to which we took objection in our written submissions but I did not get up and take formal objection here, is a document created years after this accident and with full knowledge of the fact that the accident happened. I can take your Honours to the evidence where the man who drew this document up ‑ ‑ ‑

GUMMOW J: It was 1991, was it not?

MR PAULING: Yes.

GUMMOW J: That seems to appear from the bottom right‑hand corner.

MR PAULING: August 1991. So let us get back to the cliffs before I distract myself again. The bracket on this map when compared with the scale yields the result that the cliffs represented by the bracket or enclosed by the bracket are 1,000 metres long. The accident, Mr Waters said - and we agreed - occurred in about the middle of the cliffs. It follows that the northern end of the cliffs is at least 500 metres distant from where this accident happened. Dripstone Park is more distant still to the northern end of the cliffs. If one looks at the way Justice Angel deals with it, it is quite apparent that Dripstone Park is at beach level, not at cliff level. So that the two areas are a considerable distance apart and they are quite distinct areas.

In quite a number of places in the judgment of his Honour at first instance and on appeal, the comparison is made between the developed and attractive aspects of Dripstone Park as opposed to the spartan - I think that is the term the Chief Justice used - facilities to be found at the cliffs. So that it is a furphy to think that here is a place where people are attracted to come to the cliffs by reason of barbecues, lights, toilets, showers and other facilities. There are none there. Any view, in my respectful submission, of the car park, the area that has been the subject of barriers to prevent cars going too close to the cliffs, with respect, really does not present any allurement. The allurement of the place is its natural beauty; the fact that members of the public as of right can go there to view sunsets, the panorama of the ocean and nature, not car parks.

So that that is one of the misconceptions surrounding this matter. The other is the constant repetition of the idea that there was in fact a path‑like gap. There was no path‑like gap. There was no evidence of a path‑like gap and looking at the pictures cannot answer the question. May I take your Honours to the judgment of Justice Angel in the appeal book at page 25. We are dealing with the last four lines. Your Honour the Chief Justice asked my learned friend whether it was accepted that:

In the gloom it had the deceptive appearance to the girls of a foot path leading to the gap in the vegetation.

I took your Honour to be asking my learned friend if he accepted that proposition. He answered yes. The next proposition your Honour put was:

It did not have that appearance in daylight.

That was accepted. No amount of skilful photography is going to make something which did not appear to be a path in daylight to the naked eye satisfy your Honours that in fact there was a path‑like gap.

His Honour Justice Angel had a view; he went to the place; he has advantages of which this Court has spoken many times in many cases, like Abalos, like Devries, and I will come to the references to those.

McHUGH J: Is not the risk in this case this: the risk was that by reason of the gap in the vegetation and the nature of the ground leading to that gap, there was a real risk that at night a person in the condition of the plaintiff might be deceived into thinking that there was a footpath going beyond the vegetation and thereby exposing herself to the danger of falling over the cliff?

MR PAULING: Your Honour, the short answer is no. The longer answer is that, firstly, there is no finding that there actually was something that appeared like a path. There is a supposition ‑ ‑ ‑

TOOHEY J: There is a statement on page 26 that I find rather puzzling. In line 2:

I infer that the plaintiff and Jacinta were deceived to follow that path to and over the cliff edge.

I am not sure what his Honour means there, because he has already said, “Well, at least in daylight, you wouldn’t think there was a path”.

MR PAULING: Also, his Honour said - and it was not read by my learned friend when he came to this passage - the top of 26:

It did not appear so to Mr Henry or to others on the night in question.

TOOHEY J: When he says “deceived”, it is again somewhat ambiguous, because it is in the passive voice, I suppose. Whether he meant deceived themselves, in a sense, or whether he means literally they were deceived by the appearance ‑ ‑ ‑

MR PAULING: The former, I think, your Honour. In any event, the way in which it is structured suggests it is speculation. On appeal, referring to this passage, Justice Mildren at page 81, he having all the evidence in the matter before him and full submissions - perhaps if we start at 80, the last three lines:

A number of the grounds of appeal refer to a “path-like gap in the vegetation at the edge of the cliff”. There was no finding of any such path-like gap by the learned trial judge. There was no evidence of any such path-like gap.

McHUGH J: But there was evidence that the nature of the ground there was changed; it was different.

MR PAULING: Your Honour, that evidence was about weathering by the run‑off of water all along the cliffs.

McHUGH J: It is like coloured bare earth; it does not matter whether it is along the - first of all, do you concede there was a gap in the vegetation?

MR PAULING: Well, there were many gaps in the vegetation and there was one there as well as in many other places.

McHUGH J: There was a gap in the vegetation and the area was light coloured, the bare earth was of a light colour created by the surface water running onto it.

MR PAULING: Along with many other similar areas on the cliffs.

McHUGH J: Yes. Now, that being so, is not the question whether there was a real risk that at night a person in the condition of the plaintiff might be deceived into thinking that there was a footpath which went beyond the vegetation and thereby exposed her to the risk of danger of a fall?

MR PAULING: No.

McHUGH J: The trial judge found that is what happened to this girl, the two of them.

MR PAULING: He did not find there was any footpath.

McHUGH J: He did not have to. That is not the question at all. There obviously was not. The real problem was, was there a risk that they might be deceived in their condition at night into thinking that there was a footpath and that was the danger because if they were deceived they might enter along that footpath or what they thought was a footpath and thereby fall?

MR PAULING: Well, let us assume, thinking narrowly on that point, that one is only talking about there. That may be correct, but the fact is right along the cliffs were similar areas.

McHUGH J: Yes, I appreciate that, but perhaps that goes to the question of reasonable practicability but, after all, it is a personal duty of care. Duties of care are not owed to the masses. They are owed to individual plaintiffs, as Paris v Stepney Borough Council decided over 40 years ago, and you may have to take greater care in respect of a particular person than you may in respect to others.

MR PAULING: Except that in determining what the standard of care is for a public authority one is looking with foresight in relation to the public, not individuals.

McHUGH J: Yes, but all sorts of people. I mean, there may be elderly people, short‑sighted people, people in various states of sobriety going there at night. Now, the plaintiff falls within that category. The question is, what sort of a duty do you owe her? What is the scope of the duty?

MR PAULING: Well, it is too little to say to take reasonable care. It is quite obvious in this case that there was nothing that ought to have been done, that no reasonable occupier or - sorry, I will withdraw the word “occupier” - no reasonable public authority in the position of the Conservation Commission, by reason of the proposition your Honour has put, would be obliged to take any positive action.

McHUGH J: Well, that is a question of weighing it up, but that letter at 69 and 71 of the supplementary appeal book shows that it was reasonably practical to put a fence there and, therefore, you have got to lose on the issue of reasonable practicability, have you not, on that aspect alone?

MR PAULING: No, because to put a fence there is shutting the stable door after the horse has bolted.

McHUGH J: It is not an admission of negligence, but it is an admission that it was reasonably practicable to put a fence up there. You are planning to do it according to that letter.

MR PAULING: Well, one needs to see why by going to the supplementary material at page 50 because the genesis of that, Mr Delaney, the man who wrote the letter ‑ ‑ ‑

KIRBY J: The letter is written in 1993 and the accident happened in 1987, so presumably this is something that has happened with the wisdom of hindsight.

MR PAULING: Very particular hindsight if you look at point 6 on page 50.

McHUGH J: Yes, it cannot be an admission of negligence, that is what the cases say ‑ ‑ ‑

MR PAULING: Your Honour, I am not dealing with it as an admission.

McHUGH J: - - - that precautions people take after an accident is evidence as to what was reasonably practicable before.

MR PAULING: It may be but can I read the passage:

But you know because you’re in charge of that area -

this is in cross‑examination -

what is intended for the area, whether you read the newspaper or prepare the brief or not?‑‑‑Certainly I was aware that this court case was coming up and actually I would have said initially that maybe we need to fence that - put that fence up there along the cliffs depending upon the court case.

In other words, if ordered or if the effect of the outcome of these proceedings was that a fence should have been there, well then obviously Mr Delaney was prepared to act on that. I see what your Honour is saying about practicability but we say, your Honour, that unless circumstances such as this in relation to risks that were neither created nor made worse nor increased by the public authority - sorry I will start that again. What we are saying is you cannot look at this cliff in isolation or this place in isolation. What is really being demanded by the fact that somebody fell off a particular cliff, if you are going to take reasonable care, there is no reason - there are findings all over the place in this case.

McHUGH J: It may depend. I mean, in some cases what you are saying may well be correct and usually it would be correct, I would think. But it may be that you have a special problem here by reason of the gap in the vegetation and the nature of the ground leading to that gap, that some particular precaution was required. That is a matter I would like you to address your mind to at some stage of your argument.

MR PAULING: I am happy to do that, your Honour. There are findings in this case and repeated on appeal that there was no reason to pick this particular area as a particular hazard. Those findings are very clear and they are made over and over again. For example, at page 35 of the appeal book at line 17:

As counsel for the defendant submitted, there was no basis for identifying this particular spot at the cliff top as a particular hazard and whether this particular section of the coastline under the defendant’s control as opposed to some other part of the coastline under the defendant’s control (some eight kilometres in length in all) ‑

he is really referring to the length of the reserve. The cliffs were two kilometres long according to the evidence -

ought to have been fenced or illuminated at night, or signposted, is a policy question for the defendant.

I know he is dealing with policy there, but the fact is this is but one of a number of occasions when he comes to the point to say that there was no reason why the body having care and control of this particular reserve should have identified this spot as any particular hazard. It was congruent with the nature of the cliffs and to, with magnificent hindsight, be able to pick some features ‑ ‑ ‑

McHUGH J: What does that mean? Does it mean that the risk that existed at this particular area where she fell had the same equivalent number of risks right along the whole area?

MR PAULING: Yes. The point is that the evidence clearly showed that the edge of the cliff, despite the vegetation, was easy to see and other people could see it and the people who came to this very spot after the alarm was raised had no difficulty seeing the edge of the cliff. There was nothing hidden. It was plain and obvious. Now why Justice Angel hypothesises that they were somehow deceived, I do not know. When you look at the actual findings he has ‑ ‑ ‑

McHUGH J: Well, unless, to use Mr Waters’ phrase, “these two young women were lemmings, bent on self-destruction”, they obviously were deceived.

MR PAULING: They could have been walking and talking, and taking no notice of their surroundings and fallen off the cliff. People do that.

McHUGH J: Well, that may be. But that is the sort of inadvertence that occupiers have to guard against.

MR PAULING: Yes, but this is not an occupiers’ liability case. This is a case of a public authority having care and management of a reserve on behalf of the public, and to which the public can resort as a common right. It is not a case, it is not even a situation that was ever contemplated in the series of cases that led up to Zaluzna, and the reason for that is - - -

McHUGH J: Cases like Aiken, they are voices from another era.

MR PAULING: I think they are voices from the very present time, with respect, your Honour.

BRENNAN CJ: Sometimes they find echoes of a modern time.

MR PAULING: Yes. I think I hear, your Honour. Can I take your Honours to Aiken (1939) 62 CLR 179.

McHUGH J: That was a great advance in its time.

MR PAULING: Aiken?

McHUGH J: Aiken, yes.

MR PAULING: And as is apparent in our written submissions, we say that the two principles identified by Justice Angel, and the way in which your Honour the Chief Justice dealt with it in Nagel, is correct.

McHUGH J: Well, you ask us to overrule Nagel but the question may be whether or not we should overrule Aiken.

MR PAULING: It may be, because it certainly has not been overruled. In fact, Aiken was the first case dealt with by this Court to deal with this issue of what responsibilities should a public authority have in relation in this case to a structure. But it is clear from what Justice Walsh has said in Schiller that the same principle was held to apply to parks and reserves. But at page 208, and I only do this in an introductory way to point out one of the problems here, at about point six on the page, he is talking about some tests that do, in fact, come from another era but the point that he is making is this:

Though not a few instances may be found where by a slip or through looseness of statement the duty has been judicially described as if means of knowledge as opposed to knowledge of the defect or danger were enough to fix the licensor with liability, to extend an occupier’s duty of care for the safety of a licensee beyond precautions against dangers of which the occupier is aware is to depart from principle, principle which, before the present chaos overtook the law of torts, was regarded as settled.

I only draw your Honours’ attention to that for this reason. His Honour, previously, referred to the famous statement by Lord Aitken in Donoghue v Stevenson which needs no repetition and, obviously, the issue of foresight ‑ ‑ ‑

McHUGH J: What is the present chaos his Honour is talking about?

MR PAULING: The neighbourhood principle.

McHUGH J: He regards “neighbourhood” as chaos, or is it the categorisation?

MR PAULING: Well, the recategorisation. What seems to be coming out, apart from the fact of post categorisation, is the way in which dangers are being described in more and more amorphous ways, but my understanding, and I may be incorrect, is that there was firstly chaos in the law of occupiers liability but also it was thought that this new broad flexible principle was likely to cause problems.

But, be that as it may, the situation now is, when one analyses what my learned friend has put to the Court, that the test is that if a risk is foreseeable, in that broad sense, then for the public authority having care and control, a duty arises, perhaps not from the beginning in relation to a natural land‑form, but in relation to this natural land‑form, when the level of occupation requires action. That notion simply does not sit with what was said in The Council of the Shire of Sutherland v Heyman, (1984‑1985) 157 CLR 424. May I take your Honours to that, and then I will return to Aiken.

Just before I do that, the proposition your Honour Justice McHugh put to me has a number of other problems about it. One is it ignores the position of the body having care and control of the area as being a public authority. It ignores what the present law says about nonfeasance, and it does not allow, bearing in mind the findings that I have taken your Honours to, or the findings generally, that there was no reason to pick this area out as being any particular hazard ‑ ‑ ‑

McHUGH J: You can put nonfeasance to one side, can we not? That is a doctrine in relation to highways and bridges.

MR PAULING: The passage I am about to read deals with the difference between positive action - a duty to take position action, or no duty to take positive action. The question is really dealing with the difference between acts of omission and acts of commission.

McHUGH J: I know; but here again, you are referring to Heyman, you are talking about economic loss is really what we are talking about. We are in that area of law. Is not Nagle a governing authority in this branch of the law. Do you not have to face up to the way the problem is approached in Nagle? You either submit, as you say, it is distinguishable; or it is wrong.

MR PAULING: I propose to submit both those things.

McHUGH J: Yes, I know you do.

MR PAULING: I have already done it in writing.

McHUGH J: I am sorry. You are taking us to Heyman.

MR PAULING: I want to coming back to the point your Honour - there is a third point that your Honours proposition, really, in a sense, does not approach, and that is that because of the nature of the body, the public authority, the public have a right to go on. There is no right to exclude people, or classes of people, or say no children ought to be here.

McHUGH J: Have they no power to control the use of the place at night?

KIRBY J: They have a statutory power to manage. That surely would include ‑ ‑ ‑

MR PAULING: Yes, and that then would come, say well, they should have exercised more control. My learned friend used a phrase that caught my ear yesterday, “allowed people”, they “allowed people” to come on at night, allowed young people to come on at night. Well, the way to stop that, I suppose, is to put people-proof fences right around the Reserve, so that people cannot come on unless some gate is opened or some access is made up. This is a public area that people can go on to from any place from the sea side, from the land side, from one end to the other.

TOOHEY J: There are fences around the public reserves around Sydney Harbour and I do not know where this is in relation to the city of Darwin. Of course, the population is much smaller. We are told that there are 200,000 people use the Reserve in a year.

MR PAULING: I will come to that.

TOOHEY J: That is an awful lot of people going there.

MR PAULING: Since your Honour has raised that, may I deal with it?

TOOHEY J: While you are dealing with it, can you clarify what is meant by reserve? There is a reference in the material to the coastal reserve which, I take, to be a larger area than we are presently concerned with.

MR PAULING: Yes. Again, can we go to page 83 of my supplementary materials.

KIRBY J: Do not let my question take you out of your presentation of legal ‑ ‑ ‑

MR PAULING: No, that is all right.

McHUGH J: I am getting the impression that the questions are pulling hither and thither.

MR PAULING: No, I am relaxed and comfortable, your Honour.

BRENNAN CJ: But perhaps not completely focussed.

MR PAULING: If you have a look at the map, you will see that the whole area , you will see a line going out to sea from the coastal reserve and then an area of the coast. So that we have, at one end the northern end lea point and a very long area of beach, some of which is free beach.

Just in passing, it is interesting that in these materials there is evidence where Mr Waters is pursuing the issue of complaints, whether there are any complaints about dangers of the cliffs or complaints about rowdyism or hooliganism, the answer to that was, no. The complaints were about dogs and the free beach, the nude beach. They were the only complaints. But if you come down the ‑ ‑ ‑

KIRBY J: That is the usual priority. How far is this from the city of Darwin? Approximately?

MR PAULING: From the GPO, as it were, I would think about 10 kilometres or something of that ‑ ‑ ‑

KIRBY J: And these suburbs in Tiwi and Brinkin, are they, as it were, extensions of the suburban area of Darwin?

MR PAULING: Yes.

KIRBY J: All of this would be known to his Honour, but it is not known to me.

MR PAULING: Yes. And the University is in proximity there.

KIRBY J: So it is a built up area in the vicinity here?

MR PAULING: Yes. Over time the population has marched out, but it is a reserve, it is a very large reserve. It is not a public park, it is not a suburban park. It is wrong to describe it in that way.

You come down then past the free beach zone, you have got the Darwin Surf Lifesaving Club, then one comes to the Dripstone Park, which I have described, then one goes up and on to the cliff area and one says, why do people go up there? See what the evidence is about this. You go to page 45 of these materials where Mr Delaney, down the bottom:

Do you favour fencing the cliffs?---No, I do not.
Why not?---I believe that that is a semi-natural area and those cliffs have been there since time began -

a bit poetic from him -

to me, the area we’ve never really attracted people to it, although I do know that the major feature of the site is the viewing of the sunset and the people viewing the ocean, but from my point of view, I - I believe it is a semi-natural area and that the cliffs should not be fenced.

KIRBY J: That would be all right if it is a small number, but when you are getting up to the 200,000, with children and people of different eye capacity, visual impairment and ‑ ‑ ‑

MR PAULING: Let me ease your Honour’s anxiety about numbers. Mr Kanaris, according to Mr Waters’ submissions, once estimated that there were about 1,000 people there on cracker night. Even with my limited maths, if there was cracker night every night, all year round, you still only get to 365,000, although Mr Waters’ submissions suggest half a million. Those figures are quite misleading. One goes to pages 65 and 67. These are monthly reports, one for March and one for February 1987. It has “Casuarina 28,321 vehicles Dripstone end. 14,044 vehicles Free Beach.”

KIRBY J: How do they count these? Is there an automatic counter for ‑ ‑ ‑

MR PAULING: Yes, I will come to that. Yes, it counts the number of vehicles going in and you divide by two and make some allowances and you get some figures of this sort. At 67, we have got, “Dripstone 17,883” and “Free Beach 8,896.” The fact of the matter is that the counter was across the southern entrance to the park - here I am using the word “park” - the reserve. So that that counter was counting everyone who was going to the Free Beach, was going to the Dripstone Park or going to the cliffs. The counter could not discriminate as to where people were going. The answer to the question I think you will find at page 23 of the supplementary material, starting in the middle of the page, and we are looking at the monthly reports that I have taken your Honours to:

And it talks of vehicle counts. Do you know where the vehicle counting lines were established or put up?---Yes.
Where was that?---They were parked on the immediate entry to the park of Rockland Drive, within, say, 20 metres off Rockland Drive, on the exit.
Of the vehicles coming into the park, from that point you can go down to the Dripstone Park?---That’s correct.
And further on to the Free Beach?---That’s correct.
Or could go on to the clifftop area?---Yeah, or further down to Rapid Creek, yes.
Are you able to tell us in sort of percentage terms of the vehicles coming to the park, what percentage go down to the bottom area, the Dripstone Park area, and what percentage to the clifftops?---Well, there was - as far I can - know there’s no hardcore evidence of where the vehicles went because the traffic count was put on the main entrance so as to establish the number of vehicles using the park. But from my observations the visitation were probably in the high 80 percents, 90 percents to the Dripstone Park area down to the Free Beach area.

So that really that has literally decimate the figures that your Honour has in mind as to the level of visitation to this area.

KIRBY J: What do you concede is the annual visitation to the cliffs? What general figure are we talking of? Is it 10,000, 20,000?

MR PAULING: I would only be guessing, your Honour.

KIRBY J: Well, say it is a tenth or 15 per cent of the 200,000. We are still up to 25,000 visitors.

MR PAULING: 25,000 visits over a whole year.

GUMMOW J: Well, some people may come twice.

MR PAULING: It is obvious we are not talking about different people. We are talking about people who might go there every night to walk the dog or every night to go to the free beach, every day to go to free beach.

BRENNAN CJ: To do wheelies, by the looks of the photographs.

MR PAULING: Yes, which is another point I want to come to. So what we are talking about is people going there to watch the sunset. That is what it is about. Now, Mr Waters’ submissions suggest that really the public authority knew that large numbers of intoxicated young people gathered regularly on the cliffs and that, therefore, that constituted, I suppose, assuming that the authority knew, some sort of special duty or some awareness that they should have taken some action in relation to it. But his attempts to establish what it was that the Conservation Commission knew fell flat because the records of the body and the two witnesses that were called, whose evidence is in the supplementary materials, established that they knew nothing about gatherings on the cliffs.

There were no records of any complaints or things about being on the cliffs. There was no record of vandalism. They knew nothing about people yahooing and behaving as hooligans or rowdy‑ism on the cliff, nothing at all. The man who said he made complaints, when you analyse his evidence, never even knew or certainly never complained to the body of care and management of the park; he rang the police. But even if it were established that the body knew ‑ ‑ ‑

McHUGH J: It does not have to be established. It is enough that they ought to have known.

MR PAULING: Then you go the next step and say there simply was not any credible evidence of anything like ‑ ‑ ‑

KIRBY J: Mr Pauling, the primary judge at page 31 in his judgment lists a number of factors and we can start with the 25,000 visitors a year or so:

establishing a car park near the cliff top -

well, you say it is not a car park, but there is a delineation in the way in which the road has been laid out.

MR PAULING: Your Honour, I cavil at the word “create” and I do it because ‑ ‑ ‑

KIRBY J: Yes, but it is not natural and it is square and it has been done by somebody, presumably your client.

MR PAULING: Yes, but what they have done is to prevent people driving too close to the cliffs.

KIRBY J: I realise that, but they have done it in a way that, as it were, facilitates car parking. Anyway, that is just the first point.

MR PAULING: But, your Honour, subject to any question of remoteness, one could say that the authority that put in the bitumen road that gave access to the reserve has facilitated members of the public getting there and why should they not have had in contemplation that the road might be going a bit too close to a cliff?

KIRBY J: I am merely trying to see here - what the judge is doing is listing what counsel for the plaintiff argued, but he does not, as it were, say whether he accepts these factors, but just let me know which ones you accept. The second one is “cutting grass on the cliff top”. Was that established?

MR PAULING: Yes.

KIRBY J: The third is erecting a post and log fence in the perimeter of the car park. Is that agreed?

MR PAULING: Yes.

KIRBY J: The fourth is nurturing trees on the cliff top.

MR PAULING: Yes.

KIRBY J: The fifth is establishing toilets.

MR PAULING: No, unless you read it “within other parts of the reserve”.

KIRBY J: The sixth is lighting.

MR PAULING: In other parts of the reserve.

KIRBY J: Not on the cliff top.

MR PAULING: No.

KIRBY J: The next is other facilities on other parts of the reserve. That is where you say the lighting and the toilets are.

MR PAULING: That is right.

KIRBY J: Then there is the general employment of rangers.

MR PAULING: Yes. I will get the reference to where his Honour the Chief Justice of the Northern Territory described what was at the cliff top as “Spartan”, and indeed it was. If anything might have the characteristic of an allurement, it was obviously Dripstone Park. That is where a high 80s, 90 per cent of the people went. They did not go to the cliffs.

KIRBY J: You say it was not just Spartan, it was natural. That was the whole point of the cliffs.

MR PAULING: Yes.

KIRBY J: Leave it as it has been from time immemorial.

MR PAULING: Yes.

KIRBY J: Do not clutter it up with fences.

MR PAULING: As Mr Delaney said, since time began. Yes; do not clutter it up with fences. It is to be remembered, when one gets, if we do get, to consider the issue of policy, that in making the final finding that his Honour did, he put aside cost. He put aside the issue of how one distributes, or allocates, I am sorry, At page 37 he says:

There are sound policy reasons - questions of finance and allocation of resources apart - for thinking that a fence near the edge of the cliff would be wholly inappropriate.

Before that passage he goes through matters that, surely, fall to be decided, not in this atmosphere of saying, “Would a couple of star pickets and a strand of wire have helped this young lady to avoid what happened to her?”, but to be decided with all sorts of things that are unknowable to the Court: public input, and the sort of thing where plans are put out and the public are invited to comment. When the proposal is put that because of the way in which the law of torts is structured, we have to take these precautions, and so all prominent areas need to be fenced. It was Justice Mildren who talked about “Spartan” at 78 and 79.

Really, what I would like to get back to in this case is the fact that it fits within the current law. That is, we do not need to create a new category, or move the duty of care anywhere, in this case. What we say is that the authority was under no duty to take any positive action in respect of the cliffs, because, we say ‑ ‑ ‑

BRENNAN CJ: Would it be of assistance if we discovered what was the foundation of a duty of care of an authority such as this, to start with, and then we were able to look at something which defined for us what the standard of that duty is?

MR PAULING: Yes, it would, your Honour.

BRENNAN CJ: We are in your hands, Mr Solicitor.

MR PAULING: I suppose one ought to start with Aiken (1939) 62 CLR 179. The starting point is the fact that the public body is given control. That control may be very limited, or it might be absolute, but there is a measure of control. At page 204, in the judgment of Justice Dixon - and just like this case, the corporation had a statutory base - line 5:

If in any statute any intention can be discovered that the council’s control or occupation of the jetty shall or shall not carry with it a duty towards persons lawfully using it to take reasonable care by guarding, lighting or warning for their protection from such a danger as befell the plaintiff, that intention is of course decisive. But, though it is often said that the liability of a public authority in such a matter depends upon the intention of the statute, the truth is that in most cases the statute stops short after establishing the relation of the public authority to the structure or work with which it is concerned and goes no further than defining or describing the nature and degree of its control, authority or occupation, the function it is to perform and the powers it may exercise. It leaves to the general law the definition of the duty of care for the safety of the individual which flows from the position in relation to the structure or work in which it has placed the public authority. The conclusion that such a duty does or does not result and the measurement of the duty thus become matters of principle; and, however much reliance may be placed upon processes of interpretation, except in the rare case of an actual intention appearing on the face of the statute, to give any answer to the problem necessarily means that some general principle of liability is applied, or, what amounts to the same thing, that some presumption has been invoked in favour of a recognized head of liability. Mersey Docks Trustees v Gibbs established in reference to public authorities set up as substitutions on a large scale for individual enterprise a presumption in favour of a legislative intention that the liability of such authorities should be coextensive with that imposed by the general law on the owners of similar works.

Just pausing there, Voli v Inglewood Shire Council (1963) 110 CLR 74 is an example of that, where a stage collapsed. There is no reason, policy or sense to put the Inglewood Shire Council in any different position from a private owner of a theatre upon which there was a stage. As Justice Dixon is about to come to, so where you have a corporation that is in the same sort of business as private enterprise, there is no reason to impose any lesser duty.

TOOHEY J: I am not sure where all this is taking us, but do you acknowledge that the respondent was under some duty of care to persons in the position of the appellant?

MR PAULING: Yes.

TOOHEY J: Perhaps that is a bit vague: persons who come onto the area.

MR PAULING: We have never denied the fact of management and control involved the fact that there is some general duty of care. What we say is that the content of that duty of care is to take reasonable care to make safe those risks which have been created or increased by the public authority but that it is under no duty of care to take any positive action in respect of risks which it did not create.

TOOHEY J: But that cannot be right, can it? Even on the basis of the old authorities, if there was a danger, there would be an obligation to take care to prevent persons being injured by reason of that danger.

MR PAULING: Then one goes to the next step and says, “Well, at least in relation to risks which are ordinary and obvious”, in the way in which that term is explored, for example, in Phillis v Daly.

TOOHEY J: I thought at one stage that perhaps there was really no great argument between the parties as to the nature of the duty of care, but of course an argument as to what it required in the circumstances. But you are putting a substantial limitation on the duty of care owed by the local authority by expressing it in terms of an obligation not to do anything to increase the risk of injury, but that is a very limited obligation, is it not?

BRENNAN CJ: It is utterly inconsistent with Schiller’s case.

MR PAULING: That is true, and I will come to an explanation of Schiller in just a moment. I suppose the true test must be that in respect of risks which are ordinary and obvious like cliffs, or to use Justice Dixon’s expression in Aiken, risks that are not apparent, that is apparent to the entrant, that there is a duty of care to take reasonable steps to prevent injury from that risk.

TOOHEY J: Why is there not just a duty of care, or a duty to take reasonable steps to avoid the risk of injury that is reasonably foreseeable? On that footing, it could be argued by the respondent that this case does not answer that description but it is still not clear what you assert to be the content of the duty of care.

MR PAULING: Put the way your Honour puts it, it is not far‑fetched or fanciful to suppose if you have care and control of an area that involves a drop, a cliff, that blind people might walk over it, that intoxicated people might walk over it, that young children might fall off it, so that one can say that the mere fact that you are in control of this area of cliffs you are charged with foresight that any one of an enormous variety of people from all walks of life may injure themselves and, indeed, my learned friend really came to put his case on that basis that foresight is all. That is all you need. All you need is foresight and assuming that, liability follows. This is ‑ ‑ ‑

McHUGH J: No, no he never put that. Reasonable foreseeability of risk is only one element. The other question is what reasonable precautions are available to avoid or minimise the risk of injury and then the final question is, given that there may be reasonable precautions available, was it reasonable in all the circumstances having regard to the magnitude of the risk and so on, for the defendant not to take the precaution? I mean the fact that it is obvious cannot discharge the duty. Indeed, in many cases it may be a reason why extra precautions are required. If you have got a vat of acid it might be fairly obvious to anybody that someone is going to be seriously injured if they fall into it. That does not discharge a duty. It is a ground for imposing a higher duty, so the fact that it is obvious is neither here nor there. It may be a factor in some cases, but it certainly cannot be conclusive.

MR PAULING: I understand the line of reasoning your Honour is following, which really seems to reflect, starting with the two parts of Shirt v Wyong Shire Council, not far-fetched and fanciful, and what factors might go into formulating it or deciding on a reasonable response. I suppose then one moves to Turner v State of South Australia and says ‑ ‑ ‑

TOOHEY J: All this came about because of the submission that the duty of care was confined to a duty not to do anything positive that might increase the risk.

MR PAULING: If that is the way I formulated it, then I was wrong. That is not what I intended to put.

McHUGH J: I thought you also were putting it that if the danger or the risk is obvious, then there is no duty on the part of the occupier of a public reserve. I think you put it that high in your written submissions, do you not?

MR PAULING: Yes, we do. Sorry, there is a third thing. It is quite obvious - I will withdraw the word “obvious”. It is tolerably clear that where a risk such as a cliff is ordinary and obvious, I mean, you can see it, it is there, you do not have to be told anything about it to realise that if you fell off it you may do yourself some harm. There is another factor, and that is, is the risk one that an entrant, exercising reasonable care for his or her own safety, could not guard against? Because this is what came up in Schiller.

There were two things about Schiller as to why their Honours, although questioning Aiken, nonetheless applied it and found that the case came within it, because in Schiller, (1972) 129 CLR 116 - if I can remind the Court of the facts briefly - that is that the Council of the Shire of Mulgrave had a reserve involving rainforests along Babinda Creek in Queensland and there was an area found to be under the control of the Mulgrave Shire Council and it involved a walking track down to a swimming pool and a further track that went on from that pool down to another feature. Mr Schiller, being there as of right, was walking along the path when a tree that had died, some 30 feet off the track, fell and severely injured him.

In terms of Aiken, it is quite clear that the risk involved with the tree was not one that was apparent to Mr Schiller, nor could it have been. Further, it was a risk that he could not, by taking some steps, avoid. There was nothing he could do to avoid the consequences of the tree falling. So that within the formulation in Aiken, which your Honour the Chief Justice though appropriate to apply in Nagle, this case met the Aiken test. It is true that their Honours were a bit troubled by some of the expressions that were used by Justice Dixon ‑ ‑ ‑

BRENNAN CJ: I do not know that they were troubled by it. I mean, the Schiller Case contains, first of all, a clear statement as to the basis of the duty of care. It is to be found in the judgment of Sir Garfield Barwick at page 120, where he says:

The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area.....the source of liability in this case is the statutory power and duty of care, control and management -

The same observation can be seen in the judgment of Justice Walsh at page 124, which ends up with a quotation of Sir Owen Dixon’s judgment in Aiken v Kingborough. So the first proposition is that it is not occupation which is the foundation of the duty of care, it is the capacity to control and manage the area. Then the next thing is that in Schiller’s Case, because of the duty of control and management and the nature of the area, the duty of care was such that having regard to the people who entered upon it, it was necessary for the authority to look to these, not regularly falling, but sometimes falling trees and to take them out. So Schiller recovered. That is entirely in accordance with Aiken v Kingborough.

MR PAULING: Yes.

BRENNAN CJ: In Aiken v Kingborough the notion basically is that the nature of the duty is to be measured, as Sir Owen Dixon said, according to the nature of the premises and of the right of access vested, not in one individual but in the public at large. There may be some of us who think that that is antiquated. There may be others who think that there is a lot of common sense in it.

McHUGH J: Can I put to you that both Schiller and Justice Dixon’s formula in Aiken, they reflect the law as laid down in Indermaur v Dames. It is the law of the 19th century and we have put the categories behind us. They did it in England under the Occupiers’ Liability Act 1957, and we did it by a process of judicial decision, and it seems to me that the majority in Nagle took the view that so far as occupation of public reserves is concerned, the general law of negligence applies. That is why I put to you earlier that Nagle is the most recent decision in this Court on the subject matter and, arguably, it governs the case and if you say it does not, that Aitken is correct, then may be as you say in your submissions, you have to submit that Nagle was wrongly decided.

MR PAULING: Yes, I do.

BRENNAN CJ: Or distinguishable.

MR PAULING: Yes, your Honour. It is distinguishable for this reason, that what was encouraged in Nagle was for people to go down to The Basin and swim. Now, it is obvious that in order to swim, they have to leave the land and enter the water, and diving is the most obvious way of doing it. There was an activity encouraged in Nagle. There is no activity encouraged in this case.

KIRBY J: Yes, but it depends on how you define the activity. If it is approaching the cliff in order to see the sunset, then you have got an activity which is inherently perilous.

McHUGH J: But you cannot distinguish Nagle on the facts of the case. It is the question of what the principle is. The ratio of Nagle is to apply the law in Zaluzna and Wyong Shire Council v Shirt, in other words, the general law of negligence applies to reserves managed by statutory authorities.

GAUDRON J: But is there anything in Nagle to suggest that the duty of care arises from anything other than the management and control of an area to which the public resort, and to which they have the right to resort?

MR PAULING: No, it would have to be the - - -

GAUDRON J: Well, is that not, in many respects, precisely what was being said by Justice Dixon in Aiken, that is to say, in neither cases we were concerned with occupiers’ liability of the Indermaur v Dames kind.

MR PAULING: No, it is not, and that is what I was going to come to, that Indermaur v Dames never dealt with areas to which the public had a right of access.

GAUDRON J: It may be that the later developments in the area which was once covered by Indermaur v Dames now concentrate on control and management.

BRENNAN CJ: Or the terms on which they are admitted.

GAUDRON J: Or the terms on which they are admitted, or the terms on which people are admitted.

MR PAULING: Yes.

GAUDRON J: So, if there has been a change, it is in the private occupier rather than the person who has the management and control of public lands.

MR PAULING: Precisely. Indermaur v Dames, Zaluzna, Hackshaw v Shaw, Papatonakis are only concerned with the Indermaur v Dames categories, licensee, invitee and trespasser. None of those cases talks about entry as of right, or indeed, entry pursuant to some statutory or other ‑ ‑ ‑

GAUDRON J: The later cases tend to marry those concepts up, in a sense, with what was said by Justice Dixon in Aiken.

MR PAULING: Yes, but the point of distinction between private lands and public lands is that private landowners - and I am talking about public lands that are held for the benefit of the public - have no right of exclusion.

GAUDRON J: Yes, well that is right. In Schiller that was suggested, that that may impose a higher duty of care.

MR PAULING: Yes. That was stated but in the end the test that was applied was the Aiken test. The Aiken test involved something which seems almost politically incorrect at the moment, and that is, the concept that the entrant will take reasonable care for his or her own safety.

McHUGH J: That is where Aiken cannot stand with the modern cases, can it? It cannot stand with Nagle. Can I take you to Nagle 177 CLR at page 428? You will notice there at page 428 at point 4, their Honours say:

The trial judge recorded that it was not seriously suggested that the ordinary principles with regard to liability of occupiers of land in negligence did not apply to public authorities or that, in actions in negligence against an occupier of land such as the Board as occupier of the Reserve, the law was other than as stated by Deane J. in Hackshaw v Shaw.

Then over on 429 at the bottom of the page, their Honours say:

The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve.

That is the general duty. One asks, were there foreseeable risks of injury and have you taken reasonable care to avoid it?

MR PAULING: With respect, that runs together two concepts ‑ ‑ ‑

McHUGH J: No, it does not. Their Honours state the principle. It may well be the case, as I said a decade ago in the Court of Appeal in New South Wales in Western Suburbs Hospital v Currie, that the nature of the entrance is now subsumed under the issues of foreseeability and practicability. The fact that you are entering as of right may affect the standard of care owed to you, but the general duty is as stated by their Honours, unless it is overruled at 429.

MR PAULING: I appreciate that and I understand that if I fail to distinguish Nagle then I must press for it to be overturned.

McHUGH J: You see Justice Dixon in Aiken defined the duty in terms of the person taking care, that is, the entrant taking care for his or her own safety. That is straight out of Indermaur v Dames and, if you were not taking care for your own safety, there was no duty owed to you, whereas under the Nagle test, I would suggest to you, the fact that a person is not taking care for his or her safety is an issue that only goes to contributory negligence.

MR PAULING: Now I see where your Honour is coming from. With respect, that is not right for this reason. Once you have established that the public authority has care and control of the reserve, you can say, yes, that gives rise to a general duty of care to take reasonable measures to protect people coming on from risks, and I will stop with risks because I want to explore the next bit. What your Honour does then is to put an assessment of the steps taken or not taken in with the foresight area, the foreseeable risks, what steps were taken, and one finds that it is a very undemanding test of liability to be applied to any occupier or person in control. It is the simplicity with which one skates over three, we say, distinct areas and each time using foresight as the means to slide by it. You start with, “Was the risk a foreseeable risk, a risk of injury?” and you say, “Of course, not far fetched or fanciful.”

Having said that, because we are dealing in hindsight not in foresight, by the time the questions come to be judicially answered, one runs into the problem that Justice Thomas in the Supreme Court of Queensland ‑ the Court of Appeal in Queensland identifies, that how can the human mind when you know something did happen somehow come to the idea that it was so far‑fetched and fanciful that one could never foresee that it might happen. That is a difficulty.

Then you get to the proposition as in this case that, with hindsight, many years after the event - and remember in Nagle the sign that was thought to be appropriate in this sort of case had not even been invented, had not been designed then, it did not exist so that nobody could ever use that sign because it simply had not ever been devised or approved. So you get to the situation where you are saying - again, although you are trying to look at it with foresight, you are looking at a particular accident to a particular person at a particular place and so you then say, “Well, it presents features that could have been foreseen to pose a hazard or a risk”. Then you just go to the next step and say, in Turner terms, “There was something simple that could have been done; it was not done, ergo liability.”

This simple path is the reason why, for example, Justice Mahoney in the New South Wales Court of Appeal in Bardsley v Bateman’s Bay Bowling Club - I do not think it is putting the matter too highly to say really he and the others, including the judge at first instance, came to the conclusion that this was the law and then chose to defy it.

The disquiet one finds in his Honour’s judgment - and it is in the materials we have supplied, it is unreported New South Wales Court of Appeal, 25 November 1996. Let me remind you of the facts in that case. Mrs Bardsley, whose husband was on the committee of the Batemans Bay Bowling Club went there on a social occasion at Easter. The bowling club committee had been doing their job very well. It was a very, very popular night and there were a lot of people there.

Mrs Bardsley managed to secure and reserve a poker machine and then she, leaving a friend to guard the poker machine, moved her way through a crowded area to the bar to get some ten cent coins and on her way back, not realising that a poor gentleman with a fused hip happened to be kneeling down at a table rather than sitting on a chair, she managed to tread on his ankle and over she went and she was injured. So she sued the club. One might draw breath for a moment and say “Really, she really sued the club in those circumstances?” She did. Really, what she was saying was that they had too many people there, that is the committee should have been less successful than they were or that they should have had somebody patrolling the place making sure there were gaps where people like Mrs Bardsley, who were heading to the poker machines, could do so with safety.

The reason why I have to answer your Honour Justice McHugh when you put to me that this is the law, I accept that is the law. I accept that that is the law and I say that the law thus stated is not working. It is not producing just results and cases like Inverell Shire Council v Pennington are glaring examples of it. The law needs to say something different. So we have a look at what Justice Mahoney has done.

McHUGH J: Why do you say the law is not working? It is a question of making a judgment as to what is reasonable and people may differ as to what should have reasonably been done to avoid a risk, but so what? Take a case like Bolton v Stone, the cricket ball has got to be hit out of the ground. There is a possibility that somebody may be hit by a ball that is hit out of the ground, but it is a small risk and expense, the nature of the game that you are playing all lead to the fact that you say it is not unreasonable to fail or eliminate that risk. I am just saying here in a club case, it does not seem to me to be unreasonable to say, “Well clubs cannot be doing the sort of things that the plaintiff is suggesting.” It is just a question of common sense.

MR PAULING: My answer to that must be that if one were to have to advise a public authority as to what their liability might be in a variety of circumstances, one would have to say to the client that it is true - sitting here one can by an exercise of common sense say that the real chances of people falling off the cliffs at Dripstone are very remote. They are so obvious, they are sharply defined, plain for all to see. With an appellant such as this, it was an area she already knew. But you have to say to your client that the way in which these cases work - let us take Nagle as an example which, what, took 15 years before eventually it came to the end of the litigation road in that case, and in that time over all that period, what should have been done, so it is said, to prevent the injury to Mr Nagle was not really articulated until it got to the High Court. You would have to say to your client, “I can’t tell you in advance, I can’t predict in advance what some ingenious lawyer is going to come up with as a possible means that might have been taken to prevent any particular accident”.

McHUGH J: But this is the problem with many areas of the law today. “Reasonableness” is a category of indeterminate reference. It is like the “unconscionability” problem in commercial cases. Once you have these categories of indeterminate reference, it is very difficult to advise clients that that is the law. But you want us to make a very rule‑like doctrine to apply here in this particular area.

MR PAULING: Perhaps it is the ‑ ‑ ‑

McHUGH J: You want to say if the danger is obvious, that is the end of it.

MR PAULING: No, I do not necessarily say that.

McHUGH J: I thought you did in your submissions.

BRENNAN CJ: Mr Solicitor, could I ask you whether or not you have any comment on the sentence from my judgment in Nagle which is at page 440:

The text expressed by Dixon J in Aiken v Kingborough Corporation focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public.

MR PAULING: We adopt that.

BRENNAN CJ: Do you accept that?

MR PAULING: Absolutely. I appreciate that it contains - just as “reasonableness” is a term of indeterminate reference or “proximity” or “neighbourhood”, all of those things, that the balance is still in there.

GAUDRON J: Is there not a question in it, namely, “the care ordinarily exercised by the public”? Does that mean that one has regard to inadvertence and lack of care?

HAYNE J: Or does it invite attention to the likelihood of the occurrence of the event; that is, how likely is it that the 15‑year‑old girl affected by alcohol will walk off the edge of this cliff?

MR PAULING: Well, that question under current law has no part to play. It is not a question of whether it is likely.

HAYNE J: Why not? Why does it not have a role to play at the point of determining what is the reasonable response of those who have the care and control? Must they guard against everything which imagination can foresee?

MR PAULING: No. If one looks at what Justice Mason said not in a far‑fetched or fanciful passage, but in how one measures response.

HAYNE J: And their response must be reasonable, as his Honour says in Shirt, must it not?

MR PAULING: Yes. I do not doubt that, but, I mean, we have drawn attention in our written submissions to - and I will take your Honours to the passage. It is at page 7. We have drawn attention to a variety of judicial and academic criticisms of the state of the law at present and might I mention also that in the House of Lords in the judgment of Lord ‑ ‑ ‑

KIRBY J: Hoffmann, I think, is the one you like.

MR PAULING: No, it was not Lord Hoffmann. It was in the judgment of Lord Nicholls, yes, (1996) AC at 934.

KIRBY J: This is Stovin, is it?

MR PAULING: This is Stovin v Wise. There is an enormous list of things, of articles and other matters that are critical of the present state of things and I know that it is one thing to be faced with the logic, as your Honour Justice McHugh exposes me to so well, that is what the law is, but the fact of the matter is and would need to be that in practical terms anyone who fell off any promontory anywhere that was under the control of any body would have to be a walk‑up start as far as a recovery was concerned because that seems to be - can I just use Pennington v Inverell Municipal Council for an example. Pennington is reported ‑ ‑ ‑

BRENNAN CJ: Is it a lengthy example?

MR PAULING: No, your Honour, very brief. The reference to it is Inverell Municipal Council & Anor v Pennington, (1993) Aust Torts Reports 81‑234, and the page is 62,397. May I just remind your Honours of the circumstances. Mr Pennington ‑ ‑ ‑

GUMMOW J: This is another swimming pool accident.

MR PAULING: It is a swimming pool, yes. Mr Pennington was a little over six foot tall. He said that he was at the end of the swimming pool - he knew the swimming pool, he had learned to swim there, as I understand it ‑ that the water was four foot six where he was diving. He knew, because of his size that to execute a deep dive could be dangerous. The trial judge found that he took care to make sure there were no other people in the pool in the immediate vicinity that he might run into; that he did, in fact, execute a shallow dive, and in doing so managed to hit the back of his head on the bottom of the pool and become a quadriplegic. Most non‑lawyers that one might talk to, and you say that, have difficulty finding out how that could possibly be. The facts, as found, do not really admit of the result.

GUMMOW J: The facts are neatly summarised at page 62,409. The council’s submissions in the very last paragraph at the right‑hand column on 62,409.

MR PAULING: For some reason or other, my report goes 407 - 410. Mr Waters has come to the rescue. Thank you. Sorry, which passage? “The mystery of why the accident occurred.”?

GUMMOW J: No, no, 62,409, right-hand column, down the bottom, “In summary, the case concerned” et cetera.

MR PAULING: Yes. Anyway, the first response, to use Justice Meagher’s word or term, is to wonder at the mystery of how the accident could possibly have happened. It becomes worse when it said that the failure to have a sign warning him to take care when diving, how could that possibly have any causative effect when his very evidence, accepted by the trial judge, was that he took exceptional care when diving. So that, Justice Meagher, in that case, does not even attempt to hide his disbelief, but it is but one of many examples, we say, of how, following what has now become a formula, and that is foresight, because not far‑fetched or fanciful, something could have been done, not too expensive, negligence. That is the current law.

Whilst there are all sorts of reasons why this case did not call for any response, it is that state of the law, with great respect, that is causing enormous disquiet, and it is why people like Justice Mahoney say what they do about reform and why this Court, if it thinks this is a suitable vehicle to do so, has to grapple with that state of the law.

BRENNAN CJ: We will have to cogitate about that over lunch.

MR PAULING: Yes, your Honour.

BRENNAN CJ: The Court will adjourn till 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 P.M:

BRENNAN CJ: Yes, Mr Solicitor.

MR PAULING: Thank you, your Honour. Before the luncheon adjournment we had looked at your formulation in Nagle v Rottnest Island Authority 177 CLR 440. The question was raised, but not answered by me, as to what might be embraced by the terms “the care ordinarily exercised by the public”, and that test, as a matter of argument, it could said to be do you mean the ordinary child member of the public, or the ordinary sober member of the public, or the ordinary drunk member of the public.

It seems, with respect, that a standard that has served the law for a very long time, the concept of the reasonable man or person, without having attributes, unusual attributes, the ordinary idea, once encapsulated and the notion of the man on the Clapham omnibus, it is merely an objective assessment that a judge would make as to whether or not, taking into account the obviousness of the danger, should the body in control of the area have set itself a task to protect people from danger or injury from that risk - from that danger, had an extraordinary high level.

To imagine somebody, to borrow from my learned friend’s submissions on contributing to negligence: excessively skylarking, hideously intoxicated, on drugs. When one looks at the nature of the danger, assesses it in advance, not with the benefit or the hindsight of having had an accident happen, and not with the benefit of having some counsel suggest, after much thought, a possible means, tiny little inconspicuous means almost, or inexpensive means by which this danger might have been obviated, that what you do do is to say sometimes people who suffer in serious injuries are the author of their own misfortune.

That is true, for example, with people who are paraplegic. There are many people who are paraplegic who might have suffered that in a single vehicle collision, went over the driver or falling off a roof or tripping over a gutter. So that the fact that there was serious consequences in these circumstances or that the risk may pose serious consequences is not determinative of the issue. For example, in this case we have been told by my learned friend that the cliffs are six and a half metres high and how one assesses this risk, the magnitude of it, and it cannot be said that the fact that the appellant suffered paraplegia indicates that the cliff or the fall necessarily had that as a consequence. The other person had a broken collar bone and a punctured lung.

But then in order to, I think - I suggest, to make it a bit graver my learned friend suggested that the bottom of the star up there was about six and a half metres and bearing in mind that the Australian world champion in the pole vault is just about to exceed seven metres, I would like to see it. But then we got on to talking about the Echo Point and moved to the Grand Canyon. The point I am making here is certainly, when one looks at the obviousness of the danger, one needs to take into account also the seriousness of the danger and I do not gainsay that, but in this case all the way through the findings - and findings, with respect, that cannot be put aside here - are findings that the cliff, the edge of the cliff, the presence of the cliff was obvious. It was known.

The fact that his Honour drifted off into speculation as to what might have happened, how they might have walked out into thin air - and one must recall that there was a dispute as to from where on the cliff they fell, because it at best could be a matter of inference backed from other people’s observations and those sorts of things, but the question that we say cannot be put aside is the fact that the risk here was plainly obvious and obvious it must have been to these girls and there is no sensible explanation as to how they missed the obvious.

The other girl, as the judgments record, was sitting three metres away and looking at the edge of the same cliff. So that what we are saying is that to impose a limitation on the liability of public authorities in respect of dangers that are obvious and make that limitation, that the standard of care required goes no further than to deal with what is needed over and above that which could be avoided by the exercise of ordinary care.

BRENNAN CJ: Ordinary care might include some lapses from the standard of reasonable care which would ordinarily be the measure of liability for contributory negligence. It may be that the nature of the area is such that people do go there to skylark. It may be that that is the nature of the public that resorts there. That is a matter of evidence.

MR PAULING: It is a matter of evidence, your Honour. Yes, I have been trying, since we became aware of this at lunch‑time, to get copies and we will endeavour to give them to the Court. There is a skylarking case, very similar to this, from England called Cotton v Derbyshire District Council. It was decided by the Court of Appeal on 10 June 1994 and reported in The Times newspaper.

GUMMOW J: Of what date?

MR PAULING: The Times report is 20 June 1994. It will also have the case which was downloaded from something called “Lexus”, I think, but in any event we will attempt to get that for your Honours.

The point there, I suppose, being this. As the Court would be aware, in England they have got an Occupier’s Liability Act, and if you look at the terms of it, it is at least Zaluzna with a few specific things. For example, you have to take into account that children might show less care than people of full age. This case of Cotton v Derbyshire Dales was decided, obviously, well after that Act came in. In the course of the decision the Court of Appeal relied upon Glasgow Corporation v Taylor, (1992) 1 AC 44, where at page 60 Lord Shaw of Dunfermline had this to say:

In grounds open to the public as of right, the duty resting upon the proprietors -

GUMMOW J: What is the date of Glasgow?

MR PAULING: (1922) 1 AC 44 at 60.

GUMMOW J: I thought you said 1992.

MR PAULING: Sorry.

GUMMOW J: Lord Shaw has been well and truly dead.

MR PAULING: I beg your pardon?

GUMMOW J: Lord Shaw was well and truly dead in 1992.

MR PAULING: Sorry, did I say that? 1922, yes. Sorry. In other words, what Lord Shaw said formed part of what has been described here as that old law, the ancient rules, old law.

McHUGH J: Antiquated.

MR PAULING: Antiquated, thank you. And not ones that ought to be applied consciously by a court, aware that the law had moved on and that the Occupier’s Liability Act, just like the common law here in relation to occupier’s liability, was in a more modern form. This did not deter the Court of Appeal from applying the words of Lord Shaw:

In grounds open to the public as of right, the duty resting upon the proprietors.....of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious.

In that case, a group of high‑spirited chaps had gone to what is called The Tor, High Tor. They had four pints to drink, though the plaintiff, though he was clearly in no sense drunk. They went up a hillside and started to go down what appeared to be a pathway. From the top of there you would not be aware of the fact that there was, in fact, a very sudden drop and a cliff. They were in a boisterous mood, according to Lord Justice Henry, and all four of them went running down this hill; three of them stopped, turned around, walked back and suffered no injury, but the plaintiff, Mr Cotton, kept going and fell. There, it was decided that there was no negligence on the part of the Derbyshire Dales District Council.

TOOHEY J: There is no evidence here that the girls were skylarking. They might have been not paying attention to what they were doing.

MR PAULING: No, but the point I am making, your Honour, the point I am making here is that even in a modern case where we are looking at a modern statement of occupier’s liability, one still finds them able to say that a public authority’s responsibility does not extend to the protection of people from risks which are obvious, that is, in areas where the public have a clear right of access.

It is also the same case, that is Glasgow Corporation, is also applied in Simkiss v Rhondda Borough Council (1983) 1 LGR 460, again a case decided by the Court of Appeal. The only point I make about it, that when one talks here of the idea that at Zaluzna there was a cut‑off and it is practically impermissible to now talk about things like hidden dangers or concealed traps or any of those terms, the very terms, I might say, that the plaintiff framed her case in - “unusual danger” was how the plaintiff’s case was framed, “hidden danger”.

So that what we urge upon the Court is this, that there is not any heresy to consider whether or not, under the very undemanding test that applies now, it is not unreasonable in respect of public authorities to provide some limitation, to provide some control, to say, “Enough is enough, you cannot expect a public authority to take precautions to prevent injury to people who may behave extraordinarily badly, or might just have one too many drinks and not be sharp enough to know what they were doing”.

At the moment really one would have to say that the standard of care required of public authorities is that of an insurer. That seems to be where things have progressed to because there is no mechanism of control. One jumps straight over Forsyth for the reasons I gave before and it is easy enough to sort something out that might have prevented it, usually at small cost, and prima facie there is negligence.

TOOHEY J: That is not right, is it, because, even on the test that you are attacking, the duty of care is to take reasonable care. It is not merely to guard against the risk of any foreseeable injury; it is to take reasonable care to avoid those sort of risks.

MR PAULING: Yes, your Honour, and we have what we say are unassailable findings in this case that the standard of care we are required to fulfil in relation to this area did not include anything in relation to that part of the cliff: fencing, lighting, signs or anything of the sort. So that in so far as the respondent is concerned and bearing in mind the findings here on breach of duty, on causation, on policy, the respondent is on firm ground here. But what we are saying is wrong with the test is - I will not go to the great variety of materials I have drawn attention to, but it does not work efficiently and it does not work effectively.

So that all we can do, your Honours, is to urge you to review Nagle and to see whether or not a fairer, a juster, a more understandable result is achieved, not by focussing, firstly, on whether the particular event was foreseeable, but focussing on the nature of the danger itself, as your Honour Justice Brennan put, assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public.

TOOHEY J: Are we to understand from that, Mr Solicitor, that if the Court were to apply that passage in Nagle at the foot of page 429 to 430 that we have been taken to, that the respondent has no answer?

MR PAULING: No, your Honour. I mean, I am leaving aside policy and causation, of course, but we say that the effect of the findings of fact in this matter is that the public authority in this case did nothing to encourage people to go to this area at night for any purpose, whereas in Nagle the authority ‑ ‑ ‑

TOOHEY J: I was not looking at the facts of Nagle. I was simply really asking you in terms of whether it is critical to your case that the statements of principle in Nagle be overruled or whether in some way you can live with those principles.

MR PAULING: No. I am sorry, I misunderstood what your Honour was saying. In the end result we do not argue that the fact of the Conservation Commission having control over the area generated a duty of care and that at the end of the day that might have to, assuming the law to be as it is, be answered by saying, “Well, when we come to a separate question, not whether a duty of care existed, but what was the content of that duty of care” and we look at the facts in this case, we say whatever it might have been, it did not include the sort of thing that is suggested, that two‑star pickets and wire or fencing or anything else, because there was no reason to identify this area as a particular hazard.

So on the facts, yes, we can live with that statement, that is ending with the words - well, in Nagle it is suggested that the board was the occupier. Maybe it was, but it is the ability to manage and control that generates a duty of care.

BRENNAN CJ: But the real question arises at page 430, does it not, at about point 5 of the page and the question that Justice Toohey asked you was really whether you can live with the proposition of the requirement to discharge the duty which requires a warning:

of foreseeable risks of injury associated with the activity so encouraged.

Now, as I understood your argument, it was the activity encouraged here is people can go onto the reserve.

MR PAULING: Yes.

BRENNAN CJ: But that does not mean that there is an associated risk of foreseeable injury by tipping over the cliff.

MR PAULING: It depends whether one uses for foreseeability there, not far fetched or fanciful. It is not far fetched or fanciful that someone going to the Three Sisters at the Blue Mountain, assuming there was no fence there, might walk over the edge. That is a foreseeable risk. Looked at in those terms, it is hard to see why it would not then require the public authority to scout about over all the land that was under the control in the reserve, and ferret out every possible risk and warn people of it. Because if the risk came to pass, then it would be very difficult to say it was far fetched or fanciful.

TOOHEY J: No, but it may not be so difficult to say, picking up the language in Nagle, that there was no failure to take reasonable care in all the circumstances, which would include a whole range of considerations that had been discussed in the arguments of counsel; costs, aesthetic effect and likelihood of somebody passing beyond the fence and getting close to the cliff. But those things all go to whether or not there has been a failure to take reasonable care?

MR PAULING: Yes. The last bit we could not live with, that it would naturally require that they be warned of foreseeable risks of injury associated with activities so encouraged. It all comes back to what was encouraged in this case. It cannot seriously be put that the public authority, in any way, encouraged young people to party on the cliffs. In those circumstances, we say that common sense suggests if, by reason of them doing that, and in the presence of an obvious risk they become injured, then that person is the author of their own misfortune. They should not be looking about for somebody solvent who might be able to provide compensation. One is reminded of Lord Templeman’s words in CBS Productions along those lines.

Can I move to another topic and that is the issue of causation. Your Honours, in our written submissions we deal with that at page 19. There are clear findings of fact by a judge who had the full advantages of a view, who had the opportunity to assess the witnesses, and one sees from the way he dealt with the issue from where did the plaintiff fall, that his Honour very carefully assessed the credibility of many witnesses. He has made the findings, very clear findings, that the plaintiff had failed to prove that the alleged breaches of duty were causative of the injury. Can I take your Honours to page 36 - I will be very brief with this. His Honour deals from line 13 on page 36:

If there had been a sign or signs, or illuminated signs, near the car park fence -

and he follows that down and plainly finds no causation. And, with respect, that finding is unassailable.

GAUDRON J: That deals with a lot of things, presumably, of the kind shown in the photograph.

MR PAULING: Yes, and that is because the idea of two star pickets and a strand of wire was not developed by my learned friend as a possible thing until the matter got to the Court of Appeal. The Court of Appeal dealt with that.

GAUDRON J: Was it particularised in terms of a log fence only?

MR PAULING: In the statement of claim? In the particulars that occur at page 3 of the appeal book, paragraph 7(g) - - -

GAUDRON J: “Any or any adequate fencing or other type of barrier”.

BRENNAN CJ: “- - - at the edge of the cliff.”

MR PAULING: Well, then you go to page 36:

The plaintiff knew of the existence and nature of the cliff edge; she was aware of the danger of walking on the cliff top in the darkness, particularly if affected by the consumption of alcohol; and provision of fencing, while acting as a barrier, would not have prevented the plaintiff progressing beyond it; the plaintiff had in fact passed beyond a barrier fence to be in the area she was in immediately prior to her fall.

GAUDRON J: That was the low log fence?

MR PAULING: Yes. The way in which the case was presented at first instance was really, I suppose, that there should have been something there to alert her to the edge of the cliff. Well, as we say, she has already gone over one barrier. But the point, and I will move on from this, the point I am making here ‑ ‑ ‑

GAUDRON J: That was a barrier for cars, was it not?

MR PAULING: Yes, it was. When I deal with his Honours findings in relation to policy, we will see, again, what his Honour says about the problems associated with putting people fences anywhere. But what we say is that the finding in relation to causation, puts this case, really, as the obverse of the Pennington v Inverell situation. Here is a plain, clear findings supported by evidence and, your Honours, in our respectful submission, according to the principles expounded in Devriesand Another v Australian National Railways Commission and Another (1993), 117 CLR 472, they cannot be affected or overturned in this Court.

TOOHEY J: Some of them are not really findings of fact, are they? At page 36, the passage you read around line 5:

provision of fencing, while acting as a barrier, would not have prevented the plaintiff progressing beyond it; the plaintiff had in fact passed beyond a barrier fence -

that is an inference. In fact it is hardly an inference.

MR PAULING: No, it is a finding. He found as a fact that she took herself from within the car‑park area, beyond the barrier, to another area.

TOOHEY J: Yes, unquestionably, but that is not the point of what I am putting to you. What you describe as a finding is in terms of the provision of fencing, while acting as a barrier, would not have prevented the plaintiff progressing beyond it.

MR PAULING: Yes.

TOOHEY J: That is not a finding of fact, is it? I mean, on what basis could you find that as a fact other than to infer it from the fact that she unquestionably passed beyond the barrier fence. But your point is that that fence was there - and to call it a fence is something of a misdescription. I mean it is a standard form, apparently, of pine log and uprights that mark out the perimeter of a parking area.

MR PAULING: Yes, those are ubiquitous.

TOOHEY J: Not to prevent cars going over the cliff, I think as you put it to us, to prevent cars causing erosion.

MR PAULING: That is right.

TOOHEY J: There is nothing in the existence of that particular structure, of itself, that alerts anyone to the fact that you are in danger if you pass beyond it. I mean, there are other considerations of the sort that you have taken us to.

MR PAULING: Yes.

TOOHEY J: All I am saying is that it does not seem to me that one could say as a finding of fact that, had there been a fence there, it would not have prevented her progressing. At best it is speculation.

MR PAULING: A bit like his Honour thinking that they might have been deceived by a path, speculation.

TOOHEY J: I am not underestimating the other considerations which you have put to us. I am just simply saying that that does not seem to me to take it much further.

MR PAULING: No. I, to an extent, stand corrected. Your Honours, can I deal with policy then at page 34. His Honour said:

I think there is a further reason as to why the plaintiff can not succeed in the present case. There are matters of policy to be considered in the present context. The defendant had charge of managing and conserving a natural and beautiful coastal area frequented by members of the public. Questions of public safety in that context and whether expenditure should occur in respect to fencing or lighting or setting up signs are matters of policy for the defendant involving multifarious financial and governmental factors.

GAUDRON J: Where does this notion find its support ‑ ‑ ‑

MR PAULING: I am sorry, your Honour.

GAUDRON J: In relation to the existence of a duty of care? Where does the notion of policy considerations impinge on whether there is a duty of care come from?

MR PAULING: You can come at it from two positions. The first is that the issue would be not justiciable in the sense that the present Chief Justice of South Australia put it in the Torts Law Review article that we have given to the Court. It is in our list of authorities, 1994 Tort Law Review 189 at 187.

KIRBY J: I think there is a more orthodox basis, is there not, and that is the line of authority culminating in Stovin where it is suggested it is the third of the three questions that you ask.

MR PAULING: Yes.

KIRBY J: That is not concerned with justiciability. That is concerned with where you draw lines.

MR PAULING: Yes, that is true.

KIRBY J: I think that goes back to the earlier decision, it may be at the House of Lords or the Court of Appeal in England, it starts with a “C”.

MR PAULING: In Stovin Lord Hoffmann in examining the issue ‑ ‑ ‑

KIRBY J: Caparo I am thinking of.

MR PAULING: Caparo, yes. Let me just then deal with Stovin. Lord Hoffmann posed the proposition that it cannot be that the fact that there are financial considerations or matters involving the allocation of resources takes the matter into a policy area and that is not reviewable in a court.

GAUDRON J: But you concede - I am lost in this because you concede that by virtue of its power of control and management there is a duty of care.

MR PAULING: But it is not a duty defence.

TOOHEY J: I think there is a grave risk of confusion arising because of these references to policy, because many of them occur in cases where there is no question of occupation by the defendant or management or control of property or premises, but where there is a statutory power to do something, such as to call upon the owner of premises to take some step in regard to the premises, and then questions of policy have been raised in various decisions of the Court, but if you accept that there is a duty of care in the way that you formulate it, how relevant is it to speak of policy?

MR PAULING: You come to the ‑ ‑ ‑

TOOHEY J: Could I just add one thing: I can understand questions of finance having relevance if, for instance, the step that is suggested that could be taken is one of very great expense, measured against the possibility of someone suffering any harm, but what do you mean by “policy” here?

MR PAULING: I mean that a decision, to pick up Justice Kirby’s example, to fence every coastal beauty spot because people may be attracted to it and there is a remote risk that people might fall off, engages issues as to whether, bearing in mind that this area, this reserve, is under the control of the Conservation Commission for the benefit of the public, for their use and recreation, in weighing things up in the end as to whether, for example, an area ought to be fenced, it is the very sort of issues that Justice Mason in Sutherland grapples with. That is where, for this country, we say that the issue of policy is to be found. Can I take you to that case, Sutherland Shire Council v Heyman, 157 CLR ‑ ‑ ‑

GAUDRON J: Does it impinge on whether it is reasonably practicable? Is that where it becomes relevant, once you have acceded to a duty of care?

MR PAULING: It might be reasonably practicable, to use Mr Waters’ example, to put razor wire all along the cliffs. I mean, during the war barbed wire was all along the cliffs. That is practicable, but it is hardly desirable. The problem that policy raises is this, that when you are sitting, dealing with one concrete case, about one accident, and thinking about fencing, what the Court cannot take into account, but a reasonable body like the Conservation Commission have to take into account, because their charter is to manage and control the land on behalf of the public - not on behalf of individuals, behalf of the public - that the Conservation Commission, were it wanting to fence or do any other thing that would affect the amenity of the locality, that would deal with safety issues, would go through a process, and it has.

The process is to be found in the supplementary documents. That is what the document is about. In order to resolve issues of that sort this Court does not have those mechanisms. It is an inappropriate forum in which such a decision ought to be tested.

So that - and one might refer to what two of the judges in the Full Court of the Supreme Court of South Australia said in Wilmot (1993) 62 SASR 562. I will just remind your Honours about that case. It concerns some vacant Crown land near Burra and many people with trail bikes went there. The authorities did nothing to encourage them. For example, at 569 we see the statement in the judgment of Justice Cox:

It did nothing to attract the public to the land - nothing, certainly, that could be held to offer any inducement to trail bike riders - and it did not by the presence of staff or equipment or notices or anything else indicate to any visitor that it was exercising any management or supervision of the area.

Now, I know that case is clearly distinguishable from this on the facts ‑ ‑ ‑

TOOHEY J: Distinguishable, perhaps on the facts, but two lines earlier on it is said:

The department was under no statutory duty to manage and control the area for the benefit of the public; nor did it assume any such function.

MR PAULING: That is right. That is not the point I am relying on this case for. I concede that we are in a different situation, but what had happened in that case was that at first instance the issue of policy was raised and the trial judge said, “Oh well, I cannot deal with that because there is not any cabinet decision about this land, so there is no policy, therefore, it does not apply.” On appeal their Honours, as we have pointed out in our submissions - but both Justice Duggan and Justice Debelle were of the view that if made at a high enough level or made by people who usually made those decisions that there ought to be no fencing and, therefore, there was no fencing and later somebody was injured, that such a decision could not be properly tested in a court because of the multifarious matters that went to the making of the decision.

I was going to say about Lord Hoffmann in Stovin that he doubted that finance and allocation of resources could be part of it because every case, so he thought, would involve such a consideration, but in this case, having reviewed all the matters to be taken into consideration in deciding whether to build a fence, his Honour puts it to one side - he says on page 37

There are sound policy reasons - questions of finance and allocation of resources apart - for thinking that a fence near the edge of the cliff would be wholly inappropriate.

And he had earlier listed those matters which would have to be properly considered. The defence near the cliff edge may create its own problems, that it may cause erosion. So it is not simply, as in some cases, people say at a cost benefit analysis, you do not say whack a fence there and that will prevent people walking off the cliff. In doing that you may be destroying the cliff, the very amenity that people want to come here and see, apart from aesthetics.

Then you add aesthetics and add the whole amenity of the area. Who wants to sit on the blanket and watch the sunset looking through a Cyclone wire fence? I mean, those sort of things a public authority can take into account because it has processes to find out what the public thinks and a court does not and that is why in our submissions we have drawn attention not only to John Doyle’s article, because that in fact was a review of what had been written by Justice Sopinka on the same point which in turn analyses, among other things, the Canadian Supreme Court decision of Just v British Columbia (1990) 64 DLR (4th) 689 in the judgment of Justice ‑ ‑ ‑

TOOHEY J: Could I ask you how far this submission goes because you used the term “non‑justiciable” a little earlier?

MR PAULING: What I say is that if the Court were to decide that a decision whether or not to fence these cliffs was a matter involving considerations of policy for the public authority - and it is somehow because by its nature cannot arise in relation to private landowners - that once the court got to the thing saying, “Well, it’s not so simple as to say they should have put up a fence. They had many things to take into account”, the very sort of things that Justice Mason talks of in Sutherland Shire Council v Heyman.

KIRBY J: I did not understand what Lord Hoffmann said in Stovin to suggest that because there are policy considerations in drawing a line that the issue is therefore non‑justiciable to courts. I understood him to be saying that because there are such considerations, it may be appropriate to leave it to councils and for courts not to intervene. But I do not think courts can disclaim their obligation to draw the line and therefore the issue is justiciable.

MR PAULING: In that sense that is plainly right, your Honour, but at a point, depending on the evidence that comes in, a court may say because of all these factors that had to be taken into account, it is for that body to have made a decision. They made a decision not to put up a fence and this Court cannot say it was unreasonable for them to have made that decision. The decision cannot be gone into.

BRENNAN CJ: One can understand that approach if one starts from the proposition that the legislature has opposed the power of management in the authority, and that must involve the authority in making decisions about safety, on the one hand, amenity on the other. That does not mean, however, that the court cannot say that allowing for the discretion which the authority has, nonetheless, they have it wrong. There may be some situations where danger is so obvious; risks are so great, that even if they thought it was better to leave things alone, the court would have to say the dangers to individuals are too severe and he should have done something. But, you may have a point in saying, nonetheless, the court is to take into account that the fact that it is they and not the court who have the power of management in determining what is reasonable.

MR PAULING: Your Honour, I appreciate that this area is not uncontroversial.

BRENNAN CJ: It has to be structured in some way. We have to get a framework in which we can deal with the concepts that you are putting forward. If we say something is simply “not justiciable”, it means that you have, as it were, a hole in the framework of concepts that you have to deal with in determining whether or not there is liability.

MR PAULING: Perhaps if we put it in this framework, rather than the “non-justiciable” framework, that is - and I suppose it is said in a way already in the statement of Justice Mason in Sutherland Shire Council v Heyman, 157 CLR. Perhaps if we go to page 469, or start with the last five words of page 468:

The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions. Accordingly, it is possible that a duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other.

Then his Honour refers to “discretionary function” and its development under the Federal Tort Claims Act in the United States:

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

That is really the starting point there. One could not be found, in our respectful submission, to have breached a duty of care if the public authority, taking into account all these multifarious things, has reached a policy decision that these places of natural beauty ought to remain natural.

GAUDRON J: Does that mean that if they decide not to effect any improvements or works at all - I mean, one can understand that but surely the point must come where if some works are going to be carried out, as in this case where some have been, the question is: can they stop where they did?

MR PAULING: Well, it is not a question of stopping where they did. It is not as if they had started off somehow to protect people from the edge of the cliff but had not gone far enough. The object of the work that was done was to protect the cliff from cars; was irrelevant as far as people were concerned. People might come there in cars. I mean, the plaintiff herself arrived there on foot from the Lions Park, so she was not lured there by the presence of a car park; she did not have a car. So that when you look at the particular facts in this matter, all those considerations seem to be not yielding a result.

What we say is that if the authority has decided to keep a natural area natural, or semi‑natural, to use Mr Delaney’s words, and it ought, in carrying out its statutory charter which gives it the care and control and management of the area on behalf of the people - has taken into account what the public wants and all those sort of things. On your Honour Justice Kirby’s earlier thinking, one might say that if Mr Waters was right and there 200,000 or 300,000 people a year going there, but not different people, obviously - - -

KIRBY J: But you have reduced that considerably.

MR PAULING: Yes, I have done that, I know. But, in any event, we are talking about going there for years and we have got one accident. That must say something about the obvious nature of the risk and what goes on there. So that when you start weighing things into the basket, that fact, we would suggest, clearly would outweigh the fact that if you fell the wrong way six and a half metres onto sand, you could suffer quite serious injury. But so you could if you fell four feet or fell over in the street, so that just to say a six‑and‑a‑half‑metre cliff and this lady is a paraplegic, therefore, the public authority should have been looking at the cliffs and saying, “My goodness, look at this, anyone who fell off this would be a paraplegic” is an absurd proposition. So that what we are saying here is that the prime amenity is an area of natural beauty. That is found as a fact in the judgments, that is not an inference. But to this area of natural beauty people went to see the sunset, so that in any balancing exercise it cannot be that you say, “Look, it’s quite possible or it is not far‑fetched or fanciful that somebody might get intoxicated out here at night and fall off the cliff; therefore, the obligation was on the public authority to destroy the very amenity that is there”.

That is where, in cases of this sort, one senses disquiet. If the law then says, I am sorry about that, but you should have fenced it and your failure to fence it means that you have got to pay damages, and that for the reasons I gave when I engaged his Honour Justice McHugh on questions of foresight. But, your Honours, I do not want to say anything more about policy. Our submissions, I think, in that regard are full and I appreciate that it is almost an invitation to the Court to pass a self-denying ordinance. I am not saying that it is right ‑ ‑ ‑

GAUDRON J: Is it an invitation to decide that there is no duty of care?

MR PAULING: Yes, it is.

GAUDRON J: But you have conceded that there is.

MR PAULING: I am not being consistent in this. What I am saying is that because there was care, control and management, that gave rise to a general duty of care and it is not inconsistent with that to say, “But, no duty of care arose in relation to the presence of the ordinary risk of the cliffs.” That is so because of their natural and ordinary state and because nothing is done to create them or increase any risk.

So that once we go from the general to the particular, from the fact of being in control of a reserve to the fact that there are cliffs present, it is no inconsistency to say, in the latter case, “There was no duty of care.” There was no requirement to do anything. That is the proposition we put. So that formulating a general duty of care merely means, “All right, well let us look at the reserve and see what is there”, and these sort of things: “Is there anything required in relation to the cliffs?” The is answer is “No”. And the answer is no because an obvious, natural risk, on the findings at first instance, confirmed on appeal, there was no reason to suppose that the area from which the plaintiff fell, if that is where she fell from, posed any particular hazard. Any question of fencing did not involve a metre or two metres, it involved fencing all of the cliffs because they were all along there were similar features.

On the facts, as presented by my learned friend, the suburban park, the couple of hundred metres, all that sort of thing, it started to sound almost reasonable. But, on the facts as found, there clearly could not have been an obligation on the Conservation Commission to have done anything in relation to these cliffs.

We do say that, in so far as - and it may not be necessary at all - it is necessary to question the correctness of the majority decision in Nagle, we urge the Court to do that and to adopt what your Honour the Chief Justice said in dissent in that case. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Waters.

MR WATERS: If your Honours please, we say that the cases that my learned friend has referred to, and, indeed, others that have been touched upon in his list, such as the case of Jaenke in Queensland, Bardsley is mentioned, Inverell, Currie, Wyong, none of those cases, we say, demonstrate or have exposed any injustice which would require there to be any attention given to ameliorating or changing the test as set out in Nagle. It is not true to say that - although there has been an unhappy reference to that - that the progress of the law, so far as occupiers or persons in control of areas, has progressed to the point of being - that such occupiers or people in control are insurers. We say that my friend is extravagant in asserting that and that there is not a proper ground.

We say that the law is, as Nagle has outlined, a serviceable one, that is a duty of care, that is to take reasonable care to avoid foreseeable risks of injury to people lawfully visiting the area, in this case the cliffs. That is a serviceable test. If the Court adopts my learned friend’s approach, and that is to, we say, reimpose or graft onto the current law a new test or a qualification which apparently is limited to public authorities, that is, that they should be protected except from obvious and ordinary tests, that that would constitute a considerable retreat from the reasonable and incremental progression of the law of tort in this area.

In recent years, the Court has in Mengel got rid of or incorporated into the ordinary principles of negligence the old actions on the case and have assigned Rylands v Fletcher into the ordinary principles of negligence in Burney v Port Authority and General Jones. To do, as my friend does, and then to protect groups of people, public authorities, who patently, we say, do not need protection, by giving persons dealing with them another and higher hurdle, to impose, in fact, a special hurdle, would be to go against the approach that the Court has taken in its modern approach, starting for Papatonakis and proceeding forward. Having appeared in Papatonakis, I would be very sad if what happened there was to be reversed, and the Zaluzna approach was not to be pursued.

If your Honours please, in causation, my learned friend says that there is material in the trial judge’s general summation at the end which would entitle you to make a finding that the fence would not have prevented the injury. The injunction in March v Stramere is that, of course, you apply a common sense approach to causation. It is clear, we say, as it was clear to, I think, Mr Weribone, who I referred to before, but to anybody, that a fence would have overcome the appellant’s inadvertence or whatever brought her to that point; that must be common sense. My learned friend’s submissions concerning some inference which could be drawn from the fact that she passed the log barrier, and to draw some inference from that, that she would have passed any barrier, even though it was perhaps a more practicable barrier designed to prevent people, like four strands of wire of some Cyclone wire fence, for him to say that you should sensibly follow that inference once again, we say, flies in the face of common sense.

I do not even say, frankly, your Honours, that the judge at first instance was really contending the barrier fence, as everybody says, in fact, was plainly simply to tell cars where to stop and, indeed, a glance at the photographs will see that it was designed to facilitate the approach of people through it rather than to obstruct them in any way. We would ask your Honours not to be impressed by that submission.

We say it is plain and clear that the injury would have been avoided if, and in the exercise of the duty, a simple fence had been put up. The Court does not have to mandate how many feet or hundreds of yards such a fence would require. One does not have to reflect on this issue of policy because, as I think her Honour Justice Gaudron has put it - perhaps I should not put it again but I will because it is an important issue - once the duty of care has been conceded, and we say that is the case here, the control of the area has passed to this group. In a sense one might say they have already made a policy, the policy being to manage and control this area for the benefit of the public.

Once that policy has been made and once the duty of care has been assumed, as it clearly has in this case, it is not a ground of appeal or cross‑appeal as to the existence of a duty of care. My friend conceded that in argument. It is clear from the pleadings and the way the other decisions were made. There is an existing duty of care. Once that has occurred, we say no policy question truly can arise and, accordingly, the reference to Heyman is of no comfort or consequence because it comes under the general responsibility of reasonable conduct which of course is clearly contemplated by his Honour Justice Mason in the very passage my learned friend read.

BRENNAN CJ: If I could just interrupt you there, let it be assumed that there is a case similar to this, that there is evidence that the Commission had a meeting in order to consider whether there should be fencing placed along the cliffs and consideration was given to the natural beauty which might be impaired by the erection of a fence, consideration was given to the number of people who go there, the way in which they conduct themselves while there and so forth, and at the end of the time they are informed that there have not been any accidents of people falling over the cliff and a decision is taken that, although somebody could fall over a cliff, it would be so damaging to the environment that on balance it seems the right decision is not to put a fence there. In that situation is a court to say, “We think that you were wrong”?

MR WATERS: A court may say that and the court should not, we say, do any more than consider the very issues and, perhaps, other wider issues which are illegal issues, which brought the authority in the example you gave to make that decision. In other words, the mere fact of them having made a determination may impinge on the court’s discretion in the sense that one might give some deference to people of experience in much the same way as you would an expert. If your Honour pleases, I would submit the proper approach that a court should take would be to bring their own judgment in deliberative capacities to the very issues which you have detailed that they may have looked at.

BRENNAN CJ: Considering the same factors?

MR WATERS: There are other factors which a court has to consider and that is questions of the foreseeability of risk by reference to legal standards and it may well be that that group that you mentioned does not do that.

BRENNAN CJ: That is what I am trying to get at. Let us assume that they considered the foreseeability of risk and came to one view. The court considers foreseeability of risk, of course. Does it also consider the other factors, what might be regarded as the countervailing factors or is it concerned only with the foreseeability of risk of damage being done to a plaintiff?

MR WATERS: I am very nervous to say that that checklist of factors have anything like the degree of importance or significance in the determination. His Honour Chief Justice Mason in Heyman, of course, clearly allowed for other factors and, indeed, most of the courts that have endorsed or followed the approach since then have certainly allowed for a wide variety of factors because they all come under the heading of the reasonableness of the response.

I think, even the aesthetics, I think Mr Justice Samuels in I think it was Currie made a reference to that as being possibly a factor. I would not dismiss those matters, if your Honour pleases. I think Justice Kirby touched on it also in the same case, and I think it was Currie, but as part of the background and as matters for consideration, I cannot recall all of the examples your Honour gave, but I think all of them would be matters which certainly, given the reasonableness of the measures proposed, should be given regard to. I would accept that.

I think my junior is reminding me that it may not be appropriate to go through that exercise where there has not been a clear and defined policy, sorry, where there has already been, one might say, a policy decision which has already extended the management and control of the area, also invested the management and control of the area into their care. In other words, it may well be that that exercise which your Honours just outlined to me, if it occurs at some later stage, you might say, in other words, they get the care and control, they do not define their care and control of management in precisely those terms. It may well be that a later or belated attempt to delineate their responsibility in that form would not deter the court from imposing a duty.

I would submit that probably in the obligation to look at the reasonableness of the measures, most of the matters that your Honour touched upon should properly be looked at, but the Court should not simply say, “We will cede to the public authority the responsibility for making such a determination”. That would be to virtually say that the issue is non‑justiciable and the Court should never take such a step. That would not be warranted. They have an expert role and their own views should be, perhaps, given deference in the same way as any court would give deference and respect to persons who have a particular experience or expertise. If your Honours please.

KIRBY J: Did you wish to say anything more about the problem that was raised of overcoming the trial judge’s conclusions, having regard to the principles in Abalos? This is on the question of causation.

MR WATERS: Yes, thank you, your Honour.

KIRBY J: Do you say that fits within the principles of Abalos, or how is this Court authorised to reach a different conclusion having regard to the fact that he saw all the evidence and he came to the conclusion which he stated.

MR WATERS: The problem I have is that there is a certain disjunctive issue as to determine just what findings, really, I need to confront. Certainly, if one looks at pages 35 and 36, there is a collection of assertions which seem to be drawn from conclusions of fact which appear further back. But most of them - I am sorry to be so indefinite, but point by point we say ‑ ‑ ‑

KIRBY J: It was raised by the Solicitor in his argument, so I just wanted to hear what you had to say in reply.

MR WATERS: The issue that I took your Honours to briefly before was certainly the issue that he raised to the effect that there would be no fence. The fence would not be of much use. We have to meet that head on, I suppose.

GUMMOW J: How do you do so?

MR WATERS: Well, firstly, a reading of that passage makes one wonder what he is talking about when he refers to a fence. A log fence was never - I will just go to the passage I think that I should be concerned with.

GUMMOW J: It is the third last passage of the judgment, the third last paragraph.

MR WATERS: Indeed, if that is the one. He says:

If, on the other hand, there had been a log fence closer to the cliff edge than the fence at the perimeter of the car park, one could not say that that, in all probability, would have avoided the plaintiff’s mishap either.

Now, there simply is not any evidence that such a log fence was ever advanced as being in any way a reasonable response to the risk, but there is certainly no - I am confident you will not find any reference to it further back in the judgment and I have certainly taken you to a couple of passages in the supplementary appeal book where the wire fence was suggested to Mr Delaney or Mr Weribone, I think it was, and I have certainly taken you to that passage where the efficacy of the chain‑link fence was referred to in the Conservation report. So it is difficult to know where he is coming from in relation to that, but ‑ ‑ ‑

GAUDRON J: Well, the real problem with what his Honour says simply does not seem to marry up with his hypothesis as to how the accident occurred and it certainly would not have prevented the plaintiff progressing beyond it, if determined to do so. This seems to take a point that there was - well, it seems to be proceeding from a point at which there is a decision to go beyond it rather than going beyond it by inadvertence, going beyond a safe point by inadvertence.

MR WATERS: Yes. When I sort of coyly said that these conclusions seem to be rather disjunctive with his earlier findings, that is really what I was driving at and I should not have been so coy about it. The way you put it is very much to the point and I probably do not seem to - the point being there is not a situation where one has to provide a barrier to stop this lady from wilfully progressing and I know I used a hyperbole before when I talked about razor wire fences and so on, but all that one has to do is to provide - and this is surely the import of what he said when he talked about the deception that actually gave rise to it - surely all one has to do is to provide a barrier at the point of risk which would have disabused her of the impression that she could have proceeded safely beyond that point.

We are dealing with a person whose primary problems, it seems, arose from inadvertence or the darkness of the night. A person coming to a fence would - one does not have to look for a finding for something quite as obvious as this - who comes to a fence and previously had thought that she was on a path would be told by its existence that there is none, that there is no path or there is something which should sensibly interrupt her progress and that is really what his Honour should have been looking at when he came to make the statement at the bottom of page 36. We would say that even the Abalos principles which entitle the Court to overrule such findings could be brought into play, but I could probably deal with it simply by saying when that statement was made his Honour, it could not be said, was considering the risk of the danger that he had himself identified earlier in his judgment and to say no more than that would entitle your Honours to draw your own inferences from the far more concrete set of facts which he himself found earlier in the judgment, draw the inferences which you yourself are entitled to do under Abalos and you are in the same position to draw inferences as they would be and the difficulty evaporates.

It would be different if one could sensibly tie in his references to the fence to the findings that he had earlier made as to the true nature of the risk but we submit that he did not and, in fact, there is really some debate about just what he means, puzzled as I am by this reference to a log fence. That simply just did not come into it. My friend might be able to seize on some passage where it popped up. What was proposed at first instance and in the Court of Appeal was any form of barrier fence of a serviceable kind such as the ones that I have already referred to. If your Honours please.

BRENNAN CJ: Thank you, Mr Waters. The Court will consider its decision in this matter.

AT 3.36 PM THE MATTER WAS ADJOURNED

[1997] HCATrans 270

Key Legal Topics

Areas of Law

Administrative Law

Negligence & Tort

Legal Concepts

Duty of Care

Negligence

Causation

Standing

Judicial Review