Romeo v Conservation Commission of The Northern Territory - [1998] HCA 5

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

ROMEO APPELLANT

AND

CONSERVATION COMMISSION OF THE
NORTHERN TERRITORY RESPONDENT

Romeo v Conservation Commissionof the Northern Territory (D584-1996) [1998] HCA 5
2 February 1998

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory.

Representation:

J B Waters with S R Southwood for the appellant (instructed by Waters, James, McCormack)

T I Pauling QC (Solicitor-General for the Northern Territory) with R J Webb and R P Balkin for the respondent (instructed by Solicitor for the Northern Territory)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Romeo v Conservation Commission of the Northern Territory

Negligence – Duty of care – Source of duty - Reasonable foreseeability – Proximity – Policy considerations - Statutory powers – Public authority's power to control and manage land – Public right to enter – Statutory discretion – Whether municipal council under a public or common law duty to protect members of the public who may foreseeably fail to take reasonable care for their own safety – Obvious dangers.

Negligence – Standard of care – Reasonable foreseeability – Obviousness of risk – Gravity of risk – Nature of precautions required – Relevance of provision of facilities by public authority in control and management of land upon which the public may enter as of right – Relevance of statutory functions, powers and duties – Whether failure to take reasonable care for entrant's own safety with regard to obvious dangers breaks the chain of causation – Whether such failure amounts to contributory negligence.

Local government – Liability of local authority in negligence – Relevance of statutory functions, powers and duties – Suggested immunity for policy decisions – Applicability of policy/operational decisions distinction – Whether Nagle v Rottnest Island Authority imposes excessive burden on authority – Whether Nagle should be overruled.

Conservation Commission Act 1980 (NT), ss 19, 20.

BRENNAN CJ. On 24 April 1987 Nadia Anne Romeo, the appellant, fell 6½ metres from the top of the Dripstone Cliffs onto the Casuarina Beach in suburban Darwin. She was nearly 16 at the time. She suffered serious injuries causing high level paraplegia. She claimed damages in the Supreme Court against the respondent, the Conservation Commission of the Northern Territory ("the Commission"). The Commission is a public authority charged with the management and control of the Casuarina Coastal Reserve which includes the Dripstone Cliffs and the beach below. The reserve is an area of natural beauty which extends over 8 kilometres of coastline. The section of the Reserve near the Dripstone Cliffs was described[1] by the trial judge, Angel J, in these terms:
"At that time, most visiting members of the public used the cliff-top area of the reserve in the early evening to view tropical sunsets. An area known as Dripstone Park or Lions Park is some distance from the cliffs. A range of facilities were provided at that park by the [Commission], such as barbeques, showers and toilets, car parking facilities, lighting, play equipment, shade and grassed areas. The only facility provided at the top of the Dripstone Cliffs was a car park, the perimeter of which consisted of low post and log fencing erected by the [Commission]. The grass at the top of the cliffs was cut and maintained by the [Commission] and plants there were irrigated by the [Commission]."
[1] Romeo v Conservation Commission of the Northern Territory (1994) 123 FLR 71 at 72; 104 NTR 1 at 2.
On the day of the accident the appellant worked until 9.00pm at the Casuarina Shopping Square. She met her friend, Jacinta Hay, and arranged to meet other young people for a beach party. They arrived at the Reserve adjacent to the cliffs at about 10.15pm. The two girls had bought a 750 ml bottle of Bundaberg Rum and some Coca Cola on the way. Angel J found that the two girls each consumed approximately 150 ml of rum during the evening prior to the accident. The appellant was an inexperienced drinker and Angel J found that she was adversely affected by alcohol at the time of her accident but it was not possible to say with any accuracy to what degree her behaviour, concentration and judgment were impaired. The appellant and Jacinta Hay both fell over the cliff after 11.45pm. Neither has any recollection of the circumstances in which she fell and there is no other direct evidence as to the circumstances of their fall.
The low wooden post and log fence constructed as a perimeter of the car park was some little distance back from the edge of the cliff. Between this fence and the edge of the cliff there was an open space. Some low vegetation was growing along the cliff top. There was a gap in the vegetation. The appellant was found on the beach at a point below the gap.
Angel J found[2] that the accident happened in the following manner:
" The [appellant] and Jacinta were affected by alcohol. The [appellant] and Jacinta wandered off from the group of friends who were congregating on the sea-side of the log fence. This group of friends were approximately 3 metres from the cliffs nearest edge. It is apparent and I infer that the [appellant] and Jacinta did not realise the location of the cliff edge and walked off and over the cliff edge at the point where there is a gap in the vegetation, some distance from the log fence. Leading to that gap was an area of light coloured bare earth naturally created by surface water running off the cliff. ... In the gloom it had the deceptive appearance to the girls of a footpath leading to the gap in the vegetation. It did not have that appearance in daylight. Nor would it have so appeared to a sober alert person on the night in question. It did not appear so to Mr Henry or to others on the night in question. I infer that the [appellant] and Jacinta were deceived to follow that path to and over the cliff edge. They literally walked over the edge with their heads in the air. They did not slip or at any time apprehend the presence of the cliff edge prior to their fall."
[2] (1994) 123 FLR 71 at 78; 104 NTR 1 at 7.
In the Full Court, Mildren J pointed out that there was no evidence as to how the girls arrived at the point in the gap in the vegetation. His Honour said[3]:
"It is equally possible that the girls decided to jump over the cliff onto the sand below and misjudged the height of the cliff. I should point out that the evidence was that the vegetation on either side of the gap was no more than a metre high and at no relevant place obstructed the view from the car park across the top of the cliffs to the beach and to the open sea."
In my opinion, there is much force in his Honour's criticism of the trial judge's finding. But special leave to appeal to this Court was granted in order to consider the issues of law that arise, or might be seen to arise, on the findings made by the trial judge. As those issues have been fully argued and as a consideration of those issues leads, in my opinion, to a dismissal of the appeal, I need not consider whether the appeal should be dismissed for error in the finding of the material facts. I proceed on the footing that the accident happened in the manner found by the trial judge.
On those findings Angel J dismissed the appellant's claim. The appellant had pleaded that the Commission was in breach of its duty of care to her in failing, inter alia, to give warning of the presence of the cliff or to erect a fence or other barrier at the edge of the cliff. Apart from denying that, on the authorities, there was any duty on the Commission to take these steps, his Honour found[4]:
"The [appellant] 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 [appellant] progressing beyond it; the [appellant] had in fact passed beyond a barrier fence to be in the area she was in immediately prior to her fall. ...
If there had been a sign or signs, or illuminated signs, near the car park fence (and there is no reason why such sign or signs should be located precisely where the [appellant] and her friends gathered), on my view of the evidence, it can not be said that the [appellant] would probably not have proceeded as she did beyond the car park fence, on to the cliff top and over the cliff edge ... 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 [appellant's] mishap either. A log fence near and following the alignment of the edge of the cliff would, on the evidence, have been impractical."
Thus, even if it were held that the Commission was under a duty to erect warning signs or a log fence closer to the cliff edge, his Honour's findings of fact deny any causal relationship between the absence of signs or a log fence and the appellant's injuries.
[3] Romeo v Conservation Commission of the Northern Territory (1994) 123 FLR 84 at 101.
[4] (1994) 123 FLR 71 at 83; 104 NTR 1 at 12.
However, the chief reasons why Angel J dismissed the appellant's claim were founded on his Honour's appreciation of the legal principles that govern the existence and standard of the duty of care owed by a statutory authority having the management and control of land onto which the public may enter by right. His Honour cited from the judgment of Dixon J in Aiken v Kingborough Corporation[5] and appears to have adopted the standard of care which Dixon J held to be the standard of care needed to discharge the duty owed by a public authority to persons entering as of right[6].
[5] (1939) 62 CLR 179 at 209.
[6] (1939) 62 CLR 179 at 210.
I understand Angel J to have adopted Dixon J's statement of that duty of care as definitive of the Commission's obligation to members of the public entering on the Reserve. Angel J held[7] that -
"a member of the public entering as of common right to land controlled by a public authority is only entitled to expect care for his safety measured according to the nature of the premises. In the present case, and particularly given the scope of the [Commission's] duty towards the [appellant], the [appellant] has the difficulty that any risk of injury reasonably foreseeable to the [Commission] was equally foreseeable to the [appellant] and other members of the public who visited the cliff area."
His Honour pointed out that the danger of the cliffs was apparent and known and could have been avoided by the appellant's exercise of reasonable care. Accordingly, the Commission was held not to be in breach of its duty of care to the appellant. His Honour distinguished Nagle v Rottnest Island Authority[8] as a case that "involved the failure to warn of a hidden danger"[9].
[7] (1994) 123 FLR 71 at 81; 104 NTR 1 at 10.
[8] (1993) 177 CLR 423.
[9] (1994) 123 FLR 71 at 81; 104 NTR 1 at 10.
Next, his Honour regarded decisions on questions of public safety and expenditure made by the Commission in the performance of its statutory function of "managing and conserving a natural and beautiful coastal area frequented by members of the public" to be "matters of policy for the [Commission] involving multifarious financial and governmental factors"[10]. Public safety measures of fencing, lighting or erecting signs, which had been pleaded by the appellant in her particulars of alleged negligence, would have involved "financial, aesthetic and other factors which would in their turn have involved budgetary allocations and allocations of resources"[11]. Following what Mason J said in Sutherland Shire Council v Heyman[12], Angel J held that the court should not decide policy questions which the legislature had entrusted to a statutory authority for decision. Therefore his Honour rejected the submission that the Commission was under any common law duty to take any of the suggested measures.
[10] (1994) 123 FLR 71 at 82; 104 NTR 1 at 11.
[11] (1994) 123 FLR 71 at 82; 104 NTR 1 at 12.
[12] (1985) 157 CLR 424 at 468-469.
An appeal by the appellant to the Court of Appeal of the Northern Territory failed. In his reasons for judgment Martin CJ, with whom Thomas J agreed, said that it would be erroneous to define the Commission's duty as Dixon J defined the duty in Aiken v Kingborough Corporation. However, he did not think that Angel J had so defined the Commission's duty and had thereby failed to apply "the general principles of negligence based on the later High Court authorities"[13]. Martin CJ did not find it necessary to determine whether the Commission could be under a duty to take public safety measures when the decision to take the suggested measures was a matter of policy.
[13] (1994) 123 FLR 84 at 87.
Mildren J, following Wyong Shire Council v Shirt[14], held that the Commission's duty of care was to be determined by "what a reasonable man would do by way of response to the risk"[15]. Accepting that "the risk was an obvious one and the danger which the cliffs represented could have been avoided by the exercise by the [appellant] of ordinary care"[16], his Honour did not find that the Commission was in breach of its duty. He did not find it necessary to determine whether the test laid down by Dixon J in Aiken v Kingborough Corporation should now be regarded as correct or not.
[14] (1980) 146 CLR 40 at 47.
[15] (1994) 123 FLR 84 at 100.
[16] (1994) 123 FLR 84 at 107.
To determine the issues of law arising on the appeal, it is necessary first to identify the source of the Commission's duty of care to those who entered on the Reserve as of right.
The statutory functions and powers of the Commission
Section 19 of the Conservation Commission Act 1980 (NT) ("the Act") provides that the functions of the Commission are, inter alia, to -
"(a) promote the conservation and protection of the natural environment of the Territory;
(b) establish and manage parks, reserves and sanctuaries".
Section 20 of the Act provides that, subject to the direction of the Minister[17], the Commission has power to:
"do all things necessary or convenient to be done for or in connection with or incidental to the performance of its functions and the exercise of its powers"
including the power[18] to:
"occupy, use, manage and control any land or building owned or leased by the Territory ... and made available to the Commission".
But s 21 provides that "[t]he Commission shall not acquire or hold any estate or interest in real property". Thus the Commission's authority over or in respect of the Reserve is purely statutory, not proprietary or possessory.
[17]    Section 22 declares that:
"      The Commission, in the performance of its functions and the exercise of its powers, is subject to the direction of the Minister."
[18]    s 20(2)(e).
The Commission's power to manage and control land is similar to the power of the defendant Council in the case of Schiller v Mulgrave Shire Council[19]. In that case a plaintiff, walking along a track in a scenic area to which tourists resorted as of right, was injured when a dead tree fell upon him. It was found that the Council ought to have known of the danger of the dead tree falling and ought to have taken steps to avoid the risk of injury to those using the track. The plaintiff recovered damages against the Council for negligence, the basis of the duty of care being found in the Council's function and power to care for, control and manage the reserve. Barwick CJ said[20]:
"Whilst it is convenient perhaps to refer to the respondent as the occupier of land, I would prefer to describe it as the trustee having the care, control and management of the reserve. The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area. Consequently, in my opinion, the source of liability in this case is the statutory power and duty of care, control and management and not merely the occupation of land."
Similarly, Walsh J said[21]:
"The control by a statutory body of premises used by the public constitutes, in my opinion, the 'occupation' of them by that body. It was said in Commissioner for Railways v McDermott[22], that an occupier of private land may incur liability towards persons permitted or invited to come onto the land, for the reason that his occupation gives him control over and knowledge of the state of the premises and it is right that he should have some degree of responsibility for the safety of persons entering his premises with his permission. In Burrum Corporation v Richardson Latham CJ said[23] that the liability of an occupier really depends upon his control and management which create duties, varying in degree, to persons coming upon and using the premises. When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private land, the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it: see Aiken v Kingborough Corporation[24]." (Emphasis added.)
[19] (1972) 129 CLR 116.
[20] (1972) 129 CLR 116 at 120.
[21] (1972) 129 CLR 116 at 124.
[22] [1967] 1 AC 169 at 186.
[23] (1939) 62 CLR 214 at 228.
[24] (1939) 62 CLR 179 at 203-206.
The basis of liability
Neither possession nor occupation of land is by itself a foundation for a duty of care owed to another who enters on land. The existence and extent of the duty of care depends upon the title of the other to be there, the object with which the other comes upon the land and the interest of the defendant in the other's presence[25]. However, possession or occupation are material to the existence of a duty of care in two respects. First, because the terms on which an entrant enters on land in the possession or occupation of a defendant will determine the entrant's title to be there and, second, because possession or occupation gives the defendant an ability to safeguard the entrant against dangers in the condition of the premises. It is not simply possession or occupation of premises which founds the duty of care but power to determine the terms on which an entrant may enter and power to safeguard the entrant against dangers in the condition of the premises entered[26].
[25] Lipman v Clendinnen (1932) 46 CLR 550 at 554.
[26] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 335-336; see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-579.
In Aiken v Kingborough Corporation, the plaintiff was injured at night by falling into an unlit gap between a bollard and the decking of a wharf under the control and management of the defendant Corporation. He recovered damages. The reasoning of Dixon J proceeded[27] from the Corporation's statutory powers of management and control of the wharf:
" 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."
Although his Honour said that "control and management ... spells occupation"[28], he was unable to assimilate the duty of a statutory authority having control and management of premises to the duty owed by an occupier to any of the three distinct categories in which entrants were then placed - invitees, licensees and trespassers[29]. The power of management and control authorises a public authority to safeguard an entrant against dangers on the premises but it does not, or does not necessarily, empower the public authority to regulate entry by the public onto the premises. The public may be entitled to enter as of right. The power of management and control is thus to be distinguished from occupation as a source of liability. However, by treating the statutory powers of control and management as, or as the equivalent of, de facto occupation, Dixon J[30] was able to treat the duty of the public authority to an entrant as a duty arising under the general principle of Donoghue v Stevenson[31].
[27] (1939) 62 CLR 179 at 204.
[28] (1939) 62 CLR 179 at 203.
[29] (1939) 62 CLR 179 at 207.
[30] See (1939) 62 CLR 179 at 206.
[31] [1932] AC 562.

The duty which Dixon J formulated[32] as the duty owed to an entrant as of right by a public authority statutorily charged with the management and control of premises was derived[33] from "the very situation" in which the statute places the authority. The authority is -
"in charge of a structure provided for the use of people who must, in using it, rely upon its freedom from dangers which the exercise of ordinary care on their own part would not avoid. Unless measures are taken to prevent it falling into disrepair or dilapidation or becoming defective, or if it does so, to warn or otherwise safeguard the users from the consequent dangers, it will become a source of injury. The body to which the statute has confided the care and management of the place alone has the means of securing the users against such injury, the risk of which arises from continuing to maintain the premises as a place of public resort and from the reliance which is ordinarily placed upon an absence of unusual or hidden dangers by persons making use of structures or other premises provided for public use."
The standard of care was defined by Dixon J in these terms[34]:
" What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care."
His Honour's formulation of the authority's duty of care reflects the formulation then current of the duty owed by an occupier to an invitee[35]. But, in my respectful opinion, when the sole basis of liability of a public authority is its statutory power of management and control of premises, its liability for injury suffered by a danger in the premises is not founded in the common law of negligence but in a breach of a statutory duty to exercise its power and to do so reasonably having regard to the purpose to be served by an exercise of the power. Of course, the statutory powers of management and control of premises are usually accompanied by the public authority's occupation of the premises, the nature and extent of the occupation varying with the nature of the premises. But, for the reasons stated, that occupation is not, or is not necessarily, to be equated with occupation that regulates the terms of another's entry onto the occupier's premises. In any event, whatever duty of care is imposed on the authority towards those who enter the premises as of right can hardly depend on whether the public authority has gone into de facto occupation of the premises. The powers are statutory and any duty that arises from the conferring of those powers must also be statutory.
[32] (1939) 62 CLR 179 at 210.
[33] See (1939) 62 CLR 179 at 205-206.
[34] (1939) 62 CLR 179 at 210.
[35] Indermaur v Dames (1866) LR 1 CP 274 at 288 per Willes J; affirmed (1867) LR 2 CP 311.
In Pyrenees Shire Council v Day[36], I expressed my opinion that no duty to exercise a statutory power and to exercise it with care can be imposed by the common law on the repository of the power when the statute, operating in the particular circumstances, leaves the repository with a discretion whether to exercise it or not. If it were otherwise, the common law would impose on the repository a duty to exercise the power when the legislature had intended the repository to decide for itself whether and in what manner the power should be exercised. But a public authority charged with the management and control of premises on which the public may enter as of right is given those powers for the purpose, inter alia, of protecting the person of those who enter. As that is a purpose for which the powers of management and control are conferred, the repository is obliged to exercise them and to exercise them reasonably to fulfil that purpose unless there be some contrary statutory direction. But the manner of their exercise is for the repository to determine, provided that determination is not unreasonable in the Wednesbury[37] sense. That being the extent of the statutory duty, the duty owed by the repository to an entrant must be correspondingly defined. One reason why a court cannot hold a public authority liable in negligence for failing to take some action when the taking of the action is a matter of "policy" is that policy connotes a discretion to be exercised by the public authority not by the court. Some public law justification must exist before a court can intervene to compel the exercise of a discretionary statutory power by a repository which has failed or refused to exercise the power.
[36] [1998] HCA 3 at 22.
[37] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
I would respectfully adopt the standard defined by Dixon J in Aiken v Kingborough Corporation[38] as the standard of care to be observed in the absence of any statutory indication to the contrary. That standard expresses the true extent of a public authority's statutory duty to exercise a power to manage and control premises for the purpose of protecting persons entering thereon as of right. The duty is to exercise reasonable care to prevent injury from dangers arising from the structure or condition of the premises which are not apparent and are not to be avoided by the exercise of reasonable care on the part of the entrant. There is no warrant for extending the statutory duty to the taking of steps to protect particular entrants from the consequences of their failure to take reasonable care to protect themselves. The duty being owed to entrants as a class, "reasonable care" must be assessed by reference to the nature of the premises, the extent of their use by entrants and any particular characteristics of the class who enter. This accords with what Dixon J said in Aiken v Kingborough Corporation[39]:
"The member of the public, entering as of common right is entitled to expect care for his safety measured according to the nature of the premises and of the right of access vested, not in one individual, but in the public at large." (Emphasis added.)
Where statute alone is the source of a public authority's duty of care to an entrant on premises, there can be no disparity between the authority's public law duty and the duty owed to the entrant as a member of the class of those entering the premises.
[38] (1939) 62 CLR 179 at 210.
[39] (1939) 62 CLR 179 at 209.
Dixon J was surely correct in holding that the duty to an entrant imposed by the statute on a public authority having no interest in or power over premises other than general powers of management and control must be measured by the duty owed to the public at large or at least to that section of the public entitled to enter as of right. Unless there be either (i) conduct on the part of the public authority creating a risk of injury to an entrant or (ii) some anterior relationship between the authority and a particular entrant affecting the title of the entrant to enter or the terms of entry, the entrant is not entitled to expect any higher standard of care from the public authority than that which is reasonably required to safeguard the public at large or that section of the public entitled to enter on the premises.
In Nagle v Rottnest Island Authority[40] the plaintiff dived off a rock ledge at the edge of a swimming area known as the Basin on Rottnest Island and struck his head on a submerged rock. Mason CJ, Deane, Dawson and Gaudron JJ held that the Board which had control of the Island and which encouraged the public to swim in the Basin was under a duty of care expressed in these terms[41]:
"As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged."
Finding that it was foreseeable that a swimmer might dive into the water and strike a submerged rock, their Honours held that a failure to warn of the danger of diving was a breach of the Board's duty of care[42]. Their Honours thought that such a warning would have been likely to alert the plaintiff to the risk and thereby avoid the risk of injury. In determining the measure of the Board's duty, the majority treated the case as though it were identical in principle with cases where a defendant's duty of care arises from the doing of some act that creates or increases a foreseeable risk of damage to another[43]. Taking that approach, their Honours included within the scope of foreseeability "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety"[44]. That approach conformed to the majority view in Australian Safeway Stores Pty Ltd v Zaluzna[45] where the touchstone of the existence of a duty of care owed by an occupier of premises to persons entering thereon was held to 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."[46]
Risks which are foreseeable include risks arising from an entrant's failure to exercise reasonable care for his or her own safety[47].
[40] (1993) 177 CLR 423.
[41] (1993) 177 CLR 423 at 430.
[42] (1993) 177 CLR 423 at 432.
[43] See their Honours' citations (1993) 177 CLR 423 at 431 from McLean v Tedman (1984) 155 CLR 306 at 311-312 and March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 519, 520, 536-537, both cases of conduct exposing the plaintiff to a risk of injury.
[44] (1993) 177 CLR 423 at 431.
[45] (1987) 162 CLR 479 at 488.
[46] Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 per Deane J.
[47] Wyong Shire Council v Shirt (1980) 146 CLR 40; Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872; 42 ALR 627.
In my dissent in Nagle, I preferred the test propounded by Dixon J in Aiken v Kingborough Corporation. I said[48]:
"The test 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. In determining in a particular case the measure of the duty of a public authority having control and management of a large area of land used for public enjoyment, the better assessment is likely to be made by reference to the test expressed by Dixon J."
Having considered further the statutory basis of the duty of care[49] owed by a public authority having the management and control of premises, I would adhere to that test not as a matter of mere preference but as a matter of principle. A public authority empowered to manage and control premises has a discretion as to the steps it will take to protect the person of those entering the premises and that discretion is governed relevantly by the purpose for which the power is conferred. If the discretion be exercised on the footing that entrants upon the premises will exercise reasonable care for their own safety, it cannot be said that there is some additional duty of care to be discharged. There is no statutory duty to take positive action to protect entrants against risks of their own making which the authority has done nothing to create or increase, even if the possibility of an entrant's careless conduct be foreseeable. If the public authority's statutory duty does not extend beyond what Aiken v Kingborough Corporation defined it to be, whence can a more onerous duty be derived in the absence of some conduct on the part of the public authority creating or increasing a risk to an entrant or some anterior relationship between the authority and a particular entrant?
[48] (1993) 177 CLR 423 at 440.
[49] See further my judgment in Pyrenees Shire Council v Day [1998] HCA 3.
The appellant, relying on Nagle v Rottnest Island Authority, submits that all that is necessary to impose a duty on the part of the Commission to take positive steps to prevent a member of the public falling over the edge of the cliff and suffering serious injury is the foreseeability of the risk that such an event could happen given the youthfulness and exuberance of many of the visitors to the area and the possibility of their consumption of alcohol. If this were the correct approach, the statutory powers conferred on the Commission would expose it to liability for failing to take reasonable care to protect any member of the public against that person's failure to avoid the manifest risk of going over the cliff. As McHugh J concludes, that standard of care entitles the appellant to succeed. But it is a standard much higher than the legislature can be taken to have intended the Commission to discharge.
The Commission invites this Court to overrule Nagle in so far as it imposes a duty of care measured by what a reasonable person would do in response to a foreseeable risk including the risk of an entrant failing to take reasonable care for his or her own safety[50]. In the Court of Appeal of New South Wales, in a case of occupier's liability[51], Mahoney JA observed that "the law of negligence is not functioning well in this area". He added:
"The difficulties which it imposes on, for example, local authorities in deciding whether facilities are to be provided for swimming, playgrounds or the like, advice is to be given to the public, and other facilities are to be available and what precautions must be taken are substantial. The Court is, I think, entitled to know that difficulties exist in obtaining insurance against such liabilities and that those difficulties are influenced by the state of the law. It is, in my respectful opinion, proper that the law in this regard be the subject of review."
It has been said judicially[52] that Nagle can effectively place a public authority "in the position of an insurer" and create "a surprising result". If Nagle stands, public authorities will be required to erect structures in reserves, parks and other areas of natural beauty to the detriment of the environment and the enjoyment thereof by the general public in order to safeguard or to attempt to safeguard the few careless visitors against the consequences of their own carelessness. In my respectful opinion, the practical operation of Nagle follows and illustrates the error of principle that informs the reasons for judgment. No vested right would be affected by overruling Nagle. I would accede to the respondent's request that it be overruled.
[50] (1993) 177 CLR 423 at 430-431.
[51] Bardsley v Batemans Bay Bowling Club Limited unreported, New South Wales Court of Appeal, 25 November 1996 at 7.
[52] Inverell Municipal Council v Pennington [1993] Aust Torts Reports 81-234 at 62,404, 62,410. See also the comment of Pincus JA on Inverell in Jaenke v Hinton [1995] Aust Torts Reports 81,368 at 62,807-62,808. Nagle has also attracted criticism from some legal commentators: Allen, "Liability of a public authority as occupier: Romeo v Conservation Commission of the Northern Territory", (1997) 5 Torts Law Journal 7; Berns, "Judicial Paternalism and the High Court", (1993) 18(5) Alternative Law Journal 202; Gleeson, "High Court Presents Problems for Park Managers", (1993) 10(4) Environmental and Planning Law Journal 225.
Applying the test which Dixon J expressed in Aiken v Kingborough Corporation, I would acquit the Commission of common law negligence and of breach of statutory duty. To those who exercised reasonable care for their own safety, the cliff and its dangers were obvious. The Commission was under no duty to fence, light, erect warnings or take any other step to protect the public from those obvious dangers.
I would dismiss the appeal.

TOOHEY AND GUMMOW JJ. The resolution of the issues raised by this appeal from the decision of the Court of Appeal of the Northern Territory[53] turns very much on an appreciation of the location and circumstances in which the appellant sustained her injuries.
[53] Romeo v Conservation Commission of NT (1995) 123 FLR 84.
On 24 April 1987 the appellant, who was then nearly 16 years of age, was badly injured when she fell from the top of the Dripstone Cliffs onto the Casuarina Beach in Darwin. The distance of her fall was 6½ metres or thereabouts. Her fall occurred some time after 11.45 pm.
The Reserve
The Dripstone Cliffs are part of the Casuarina Coastal Reserve ("the Reserve"), an area of 1,361 hectares "which includes some 8 kms of coastline and adjacent land and offshore areas extending from Rapid Creek to just beyond Lee Point, within municipality of the City of Darwin, to the north of the suburbs of Brinkin, Tiwi and Rapid Creek"[54]. The Conservation Commission Act 1980 (NT) established the respondent[55]. One of its functions is to "establish and manage parks, reserves and sanctuaries": s 19(b). It is common ground that the Reserve falls within par (b) and that the respondent is responsible for its management.
[54] Casuarina Coastal Reserve Management Plan 1.1.
[55] s 9. References are to the Act as it stood at the relevant time.
The Reserve runs roughly north‑east and south‑west. There is a small area of intensive use at Lee Point, at the northern end of the Reserve. At about its centre is a Free Beach Zone. Further south is the Darwin Surf Life Saving Club, then Dripstone Park which has facilities such as barbecues, showers and toilets, car parking facilities, lighting, play equipment, shade and grassed areas. Further south again and fairly close to the end of the Reserve are the Dripstone Cliffs. The southern end of the Reserve is at Rapid Creek. The area from the Free Beach Zone to Rapid Creek is also an area of intensive use.
As found by Angel J, the trial judge[56]:
"The only facility provided at the top of the Dripstone Cliffs was a car park, the perimeter of which consisted of low post and log fencing erected by the [respondent]. The grass at the top of the cliffs was cut and maintained by the [respondent] and plants there were irrigated by the [respondent]."
[56] Romeo v Conservation Commission of NT (1994) 123 FLR 71 at 72; 104 NTR 1 at 2.
Angel J described the Reserve as an area of natural beauty and the Dripstone Cliffs and Casuarina Beach as a popular recreation area to which members of the public were attracted for recreational purposes. He added[57]:
"At that time, most visiting members of the public used the cliff‑top area of the reserve in the early evening to view tropical sunsets."
[57] (1994) 123 FLR 71 at 72; 104 NTR 1 at 2.
The accident
At the time of her accident the appellant had part‑time work from 5.00 pm until 9.00 pm. On the day in question she and her friend, Jacinta Hay, had arranged to meet other young people at Dripstone Cliffs for a beach party. The appellant said that after leaving work she bought a small bottle of Bundaberg Rum and six Island Coolers. There was evidence as to what she drank. It is unnecessary to detail this evidence. The trial judge's conclusion, which was not challenged on appeal, was in these terms[58]:
"I am of the view that the [appellant] was adversely affected by alcohol. However, it is not possible to say with any accuracy to what degree her behaviour, concentration and judgment were obviously impaired."
[58] (1994) 123 FLR 71 at 75; 104 NTR 1 at 5.
On arriving at the Reserve the appellant went with Jacinta Hay and another friend, Kelly Docherty, to Dripstone Park near the barbecue area. They arrived there at about 10.15 pm. They reached the car park at Dripstone Cliffs between 10.45 pm and 11.00 pm. They spent some time talking with friends. The appellant and Jacinta were seen talking to each other on the sea side of the log fence and to the east of a Sea Hibiscus which appears in photographs tendered in evidence. The evidence placed them there until about 11.45 pm.

Neither the appellant nor Jacinta has any recollection of what happened thereafter until they found themselves on the beach at the base of the cliff. Ambulance officers (alerted, it is not clear by whom) arrived on the scene at 2.07 am the next morning. The two girls were injured, the appellant seriously. Clearly, they fell over the cliff onto the beach but there is no direct evidence as to how this happened.
There was a conflict of evidence as to the position the appellant was found on the beach and as to the position on the cliff top from which she fell. The position of the latter is of some importance because it is the appellant's case that at the point where she fell there is a gap in the vegetation which borders the cliff. After a detailed examination of the evidence, Angel J said[59]:
"I find that the [appellant's] position was ... at a point on the sand directly below the gap in the vegetation on the edge of the cliff face".
That finding was not seriously challenged and this Court must proceed accordingly. It should also be noted that a number of witnesses described the night of 24 April as a clear, dark night.
[59] (1994) 123 FLR 71 at 78; 104 NTR 1 at 7.
As mentioned earlier, there was no direct evidence as to how the appellant fell from the cliff. However, Angel J reached certain conclusions. He found that the appellant and Jacinta "wandered off from the group of friends who were congregating on the sea‑side of the log fence ... approximately three metres from the cliff's nearest edge"[60]. His Honour continued:
"It is apparent and I infer that the [appellant] and Jacinta did not realise the location of the cliff edge and walked off and over the cliff edge at the point where there is a gap in the vegetation, some distance from the log fence. Leading to that gap was an area of light coloured bare earth naturally created by surface water running off the cliff. ... In the gloom it had the deceptive appearance to the girls of a footpath leading to the gap in the vegetation. It did not have that appearance in daylight. Nor would it have so appeared to a sober alert person on the night in question. ... I infer that the [appellant] and Jacinta were deceived to follow that path to and over the cliff edge. They literally walked over the edge with their heads in the air. They did not slip or at any time apprehend the presence of the cliff edge prior to their fall."
[60] (1994) 123 FLR 71 at 78; 104 NTR 1 at 7.
The implications of the term "deceived" are not clear. In the passage just quoted, Angel J spoke of "the deceptive appearance to the girls of a footpath leading to the gap in the vegetation". This must be a matter of inference; neither the appellant nor Jacinta said that she was deceived. At the same time he said that the appearance was not deceptive to anyone in daylight or to a sober alert person on the night in question. We infer therefore that by "deceived" his Honour meant that, because of their condition, the appellant and Jacinta did not appreciate what was apparent to others, namely, that there was not a path leading to the edge of the cliff. In that sense, they deceived themselves.
At the point where the appellant fell, the top of the cliff is unfenced. Indeed there was no evidence of fencing anywhere along the cliff face in the Reserve. There was no suggestion of anyone else having fallen over the edge of the cliff in the Reserve or of any complaint about the safety of the area prior to the accident[61]. On 28 June 1993, some six years after the appellant's accident, the Director of the respondent wrote to the Sacred Sites Authority with a list of proposed projects in the Reserve. One was: "Installation of safety fence along clifface in the vicinity of the Dripstone cliff section of the ... Reserve." There was no evidence that such a fence was ever installed. Had a fence been installed at that time, its relevance would have been only to the practicability of a precaution that might have been taken[62]. What is described in Angel J's judgment as a "log fence" is simply a low barrier around the car park to contain vehicles in order to prevent erosion.
[61] Although the fact that an accident had not happened before cannot, of itself, be determinative of the claim: Fryer v Salford Corpn [1937] 1 All ER 617 at 620.
[62] Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 223‑224; Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.
Rejection of the claim
The appellant's claim against the respondent was formulated on the basis that the respondent was the occupier of the Reserve and further that the respondent was responsible for its management, regulation and control. As Barwick CJ observed in Schiller v Mulgrave Shire Council[63], the source of liability in a case such as this is "the statutory power and duty of care, control and management and not merely the occupation of land". Essentially, the claim was one in negligence, particularised in various ways. The particulars of negligence included failure to install adequate lighting, to erect warning signs and to erect a fence or other barrier at the edge of the cliff.
[63] (1972) 129 CLR 116 at 120.
Angel J rejected the appellant's claim for several reasons, principally because the cliffs and their physical circumstances were there for all to see in daylight, adding[64]:
"Their dangers were inherent and self‑evident. ... The [appellant] knew of the presence of the cliffs from her general knowledge of the area and her observations and experience prior to the night in question when going to and from Casuarina beach via the cliff area."
[64] (1994) 123 FLR 71 at 80; 104 NTR 1 at 9.
The appellant's appeal to the Court of Appeal was rejected by all judges. Martin CJ and Mildren J delivered separate reasons. Thomas J agreed with the Chief Justice. Martin CJ accepted the approach taken by Angel J but went a step further by holding[65]:
"[I]t was not reasonably foreseeable that a person in the position of the [appellant], affected by alcohol or not, would venture onto a place, whether it looked like a path or not, which that person knew, and could see, was in the immediate vicinity of the top of the cliffs. The risk of a person in the appellant's position doing such a thing was far fetched or fanciful."
However, although Mildren J dismissed the appeal, he did point out in relation to Angel J[66]:
" His Honour found that the risk of someone falling off the cliff and suffering injury was reasonably foreseeable. That finding is not challenged. That being so the only question is whether the appellant had established that the respondent was in breach of its duty of care."
That statement puts the matter in its correct perspective. Mildren J held that the respondent was not in breach of its duty of care, largely as we read his judgment, because the risk of someone falling over the cliff where the appellant fell was no greater than at any other point so that, on the appellant's argument, it would have been necessary to provide a barrier along the whole of the cliffs, some two kilometres in length. And furthermore, according to his Honour, a warning sign would probably not have deterred the appellant from proceeding as she did.
[65] (1995) 123 FLR 84 at 99.
[66] (1995) 123 FLR 84 at 100.
Causation
There is one aspect of Angel J's reasons that calls for comment immediately, if only to bring it into question as a legitimate foundation for rejecting the appellant's claim.
His Honour held, as a further reason why the appellant should not succeed in her claim, that she had failed to prove that the alleged breaches of duty on the part of the respondent were "causative" of her injuries. This was because the appellant 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 alcohol; and provision of fencing, while acting as a barrier, would not have prevented her progressing beyond it; "the [appellant] had in fact passed beyond a barrier fence to be in the area she was in immediately prior to her fall"[67]. With respect, this progression of propositions culminates in a non sequitur. To begin with, the appellant had not passed beyond a barrier fence in any relevant sense. The "log fence" was not intended to do any more than keep vehicles back so that they would not cause damage to the environment. There is simply no basis for concluding that the appellant would have climbed over or through a fence clearly intended to keep persons back from the edge of the cliff. On the other hand, Angel J was justified in concluding that the presence of warning signs was unlikely to have prevented the accident. The appellant knew the general area well and the conclusion is inevitable that nevertheless she did proceed to the edge of the cliff.
[67] (1994) 123 FLR 71 at 83; 104 NTR 1 at 12.
None of this is to say that the respondent was negligent in failing to fence off the cliff top or indeed in failing to light the area or provide warning signs. There are other considerations that bear on this issue, considerations to be discussed later in these reasons. But it is to say that if the appellant established a breach of the duty of care cast upon the respondent, by reason of the failure to provide a fence a finding of causation was almost inevitable. If negligence lay in the failure to provide a warning sign, causation would remain a live issue.
The duty of care
The appellant relied heavily upon the decision of this Court in Nagle v Rottnest Island Authority[68] in which a statutory authority was held liable to a person who was injured when diving into the water at a reserve managed by the Authority. The respondent argued that the decision was distinguishable from the present case. In the event that this submission was not accepted, the respondent sought leave to challenge the correctness of the decision[69].
[68] (1993) 177 CLR 423.
[69] See Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316; Lange v ABC (1997) 71 ALJR 818 at 822‑823; 145 ALR 96 at 101‑102.
The appellant relied particularly upon the following passage from the judgment of the majority[70]:
" 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. As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed."
[70] (1993) 177 CLR 423 at 429‑430.
Although, in argument, the appellant relied upon Nagle, the statement of claim is expressed to some extent in the earlier language of occupier's liability. There is a pleading that the cliff was "a concealed danger known to the Defendant" and "an unusual danger of which the Defendant knew, or ought to have known"[71]. Nevertheless, Angel J correctly identified the source of the duty of care upon the respondent as its control of the Reserve. His Honour distinguished Nagle as involving the failure to warn of a hidden danger when a warning sign would have been an effective deterrent to the plaintiff diving where he did.
[71] See Allen, "Liability of a public authority as occupier: Romeo v Conservation Commission of the Northern Territory", (1997) 5 Torts Law Journal 7 at 7‑8.
Although Angel J referred to the more recent authorities which apply the ordinary principles of negligence to an occupier of land, in particular Australian Safeway Stores Pty Ltd v Zaluzna[72], his Honour was clearly influenced by the statement of Dixon J in Aiken v Kingborough Corporation[73] that:
"the public authority in control of ... premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care".
However, that statement must be read in light of the majority judgment in Nagle while that decision stands. As will appear, in light of the majority judgment, the appeal must fail.
[72] (1987) 162 CLR 479.
[73] (1939) 62 CLR 179 at 210.
Breach of duty
Whether there was a breach of the duty of care owed by the respondent to those who came onto the Reserve depended on "the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed"[74]. An assessment of that action must be on the footing that the respondent had to take into account "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety"[75]. But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger.
[74] Nagle (1993) 177 CLR 423 at 431.
[75] Nagle (1993) 177 CLR 423 at 431.
Because the appellant was aware of the danger presented by the cliff and since she failed to exercise ordinary care for her own safety, Angel J held that the respondent was not in breach of its duty of care. This approach directs attention to the degree of probability of the occurrence of an accident. There is however some tension between this approach and decisions of this Court which place this factor on the scales, to be weighed against the seriousness of the foreseeable risk and the expense, difficulty and inconvenience of precautions which could be taken[76].
[76] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47‑48.
In Nagle Brennan J (who was in dissent) saw a reconciliation between the Zaluzna approach and that taken by Dixon J in Aiken. He expressed it in this way[77]:
"The flexibility available in determining the response of the 'reasonable man' to the foreseeable risk under the Zaluzna approach means that the measure of duty resting on the public authority need not be different from that ascertained by reference to the test advanced by Dixon J in Aiken v Kingborough Corporation. But, in practice and with the wisdom of hindsight, a concentration on the gravity of a particular plaintiff's injury, the foreseeability of such an injury occurring (albeit contributed to by the plaintiff's own carelessness) and the modesty of the cost of fencing off or warning against the danger causing the injury would tend to impose on the public authority a liability which might not have been imposed if attention had been focused on the duty owed by the public authority to the public at large. The test 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. In determining in a particular case the measure of the duty of a public authority having control and management of a large area of land used for public enjoyment, the better assessment is likely to be made by reference to the test expressed by Dixon J."
As can be seen from the passage quoted, Brennan J placed emphasis on the nature of the danger itself, assessed before the event according to its obviousness and the care ordinarily exercised by the public. This is not the test of "concealed danger" pleaded by the appellant or referred to in some earlier decisions. It is simply that the care to be expected of members of the public is related to the obviousness of the danger.
[77] (1993) 177 CLR 423 at 440.
The point from which the appellant fell was not a viewing point except in the sense that visitors used the car park in order to watch sunsets from their cars. It was an obvious part of the cliff, even allowing for the vegetation in the area. And the evidence does not support a conclusion that there was an appearance of a path leading to the edge. If reasonable foreseeability is isolated from any other consideration, there may have been a "risk" of someone falling over the edge of the cliff in the sense used by Mason J in Wyong Shire Council v Shirt[78]:
"A risk which is not far‑fetched or fanciful is real and therefore foreseeable."
But in the present case the risk existed only in the case of someone ignoring the obvious.
[78] (1980) 146 CLR 40 at 48.
In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality. But reasonable steps did not extend to fencing off or illuminating the edge of a cliff which was about two kilometres in length. The relationship of the car park to the rest of the Reserve did not call for special precautions at the cliff face nearby. A sign might serve as a warning to someone unfamiliar with the area. But to someone who was familiar, as the appellant was, a warning sign would serve no purpose. Angel J held[79]:
" If there had been a sign or signs, or illuminated signs, near the car park fence ... on my view of the evidence, it can not be said that the [appellant] would probably not have proceeded as she did beyond the car park fence, on to the cliff top and over the cliff edge".
As Mildren J observed[80]:
"There was no evidence upon which a challenge to this finding could succeed."
[79] (1994) 123 FLR 71 at 83; 104 NTR 1 at 12.
[80] (1995) 123 FLR 84 at 108.
In that case, for the reasons given earlier, any negligence on the part of the respondent in this respect would not have caused the appellant's injuries. In that regard the case stands in contrast to Nagle and also to Shirt where the sign was ambiguous.
The respondent was under a general duty of care to take reasonable steps to prevent persons entering the Reserve from suffering injury. But the taking of such steps did not extend to fencing off an area of natural beauty where the presence of a cliff was obvious. In other words, there was no breach of the respondent's duty of care in failing to erect a barrier at the cliff edge.
While we would not support, in all respects, the approach taken by the trial judge and the Court of Appeal, their conclusion that the appellant had failed to establish negligence against the respondent was correct.
For this reason it is unnecessary to deal with the respondent's submissions on the distinction between policy and operational factors in relation to statutory bodies and what was said to be the "non‑justiciability" of policy decisions made by such bodies. These matters do not call for consideration.
We would dismiss the appeal.

GAUDRON J. The facts, the issues and the relevant legislative provisions pursuant to which the respondent Commission ("the Commission") occupied and managed the public reserve ("the reserve") on which Nadia Romeo ("the appellant") sustained her injuries are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for concluding that her appeal should succeed.
The central issue in this case is the content of the duty of care owed by the Commission as a body having statutory power to control and manage the reserve. However, that issue is illuminated by a consideration of the source of the duty owed by public authorities to members of the public who enter upon public land. That source was identified by Barwick CJ in Schiller v Mulgrave Shire Council[81] as "the statutory power and duty of care, control and management and not merely the occupation of land."
[81] (1972) 129 CLR 116 at 120.