Sean Thomas Clarke v Coleambally Ski Club

[2003] NSWSC 1112

CITATION:	Sean Thomas Clarke v Coleambally Ski Club & Anor [2003] NSWSC 1112
HEARING DATE(S):	10/11/03,11/11/03,12/11/03,17/11/03,18/11/03,19/11/03
JUDGMENT DATE:	2 December 2003
JUDGMENT OF:	Cripps AJ
DECISION:	(i) A verdict and judgment for the defendant on the plaintiff's claim against the defendant.; (ii) There will be verdict and judgment for the Board on the defendant's claim against the Board.; (iii) The plaintiff to pay the defendant's costs of the proceedings between the plaintiff and the defendant.; (iv) The defendant to pay the Board's costs of the proceedings between the defendant and the Board.
CATCHWORDS:	negligence - liability of " - duty of care - breach of duty - causation - "occupier" - "obvious risk"
LEGISLATION CITED:	Crown Lands Act 1884 Law Reform (Miscellaneous Provisions) Act 1946 Pastures Protection Act 1934 Rural Lands Protection Act 1989 Soil Conservation Act 1938
CASES CITED:	Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Hadland v Council of the City of Blacktown (NSWCA, 21 May 1997, unreported) Indermaur v Dames (1866) LR 1CP 274 Jones v Dunkell (1959) 101 CLR 298 Mulligan v Coffs Harbour Council (2003] NSWSC 49 Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 Waterways Authority and Anor v Mathews (NSWCA, 12 November, 2003 unreported)
PARTIES :	Sean Thomas Clarke - Plaintiff Coleambally Ski Club - Defendant Narrandera Rural Rural Lands Board - Cross Defendant
FILE NUMBER(S):	SC 20885/01
COUNSEL:	J Gormly SC and D Graham - Plaintiff D Nock SC and S McCarthy - Defendant I Harvey - Cross Defendant
SOLICITORS:	McClellands - Plaintiff Ebsworth & Ebsworth - Defendant I V Knight, Crown Solicitors - Cross Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

2 December 2003

20885/01 - Sean Thomas Clarke v Coleambally Ski Club Inc & Anor

JUDGMENT

1 HIS HONOUR : On 28 November 1998 Sean Clarke, the plaintiff, was seriously injured while attempting a backward somersault from a rope swing attached to a limb of a tree overhanging the Murrumbidgee River. The plaintiff has sued the Coleambally Ski Club (the Club) an incorporated body comprising members of the Coleambally community alleging liability in negligence as occupier of an area of land used by it with the permission of the Narrandera Rural Lands Protection Board (the Board) for water skiing activities of its members.

2 The Club has denied liability and cross-claimed alleging that if it is liable it is entitled to indemnity or contribution from the Board pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 on the basis that if sued by the plaintiff the Board as owner and occupier of the site referred to above would have been held liable. The Board has denied hypothetical liability to the plaintiff.

3 There is no longer any issue concerning the quantum of damage. It is agreed that should the plaintiff be entitled to a verdict and before any deduction is made on account of his contributory negligence (which is admitted) he would be entitled to damages in the sum of $7,567,086.

4 The Club has denied it owed the plaintiff a duty of care but that if it did it denies breach. It also denies its acts or omissions relevantly caused or materially contributed to the plaintiff’s injuries. It has alleged volenti and, as I have said, the plaintiff has admitted contributory negligence although there is a dispute between the parties as to the extent of it.

5 Before turning to the nature of the Club’s “occupancy” of the site and what are said by the Club to be the obligations of the Board with respect to it there are two matters that should be noted.

6 The first is that although the Club used the site to facilitate water skiing recreation of its members it was not responsible for the attachment of the rope to the limb of the tree which the plaintiff used as a swing.

7 The evidence has established that over the years ropes had been attached to the limb of a tree and used as a swing. It is part of the plaintiff’s case, which I accept, that members of the Club had, in the past, removed rope swings attached to the limb of a tree overhanging the water because members considered they would be dangerous if used. The rope swings were not always precisely in the same position, but, as I find, were attached to the same tree. The evidence does not disclose that there had been any prior accidents.

8 As will be seen I do not know what period of time the rope that was used by the plaintiff had been hanging from the limb of the tree. Three weeks before the accident a club member, Mr De Maniel had seen a rope hanging from a limb of a tree over the water. His recollection is that it appeared to be somewhat longer than the subject rope and ended in a large knot and not with a piece of timber attached to it and that when at rest it was not over water contrary to the description given by the plaintiff’s witnesses of the rope on the day of the accident. Either the previous rope had been taken down by some other person and another attached or that the rope seen by Mr De Maniel had been modified by the attachment of a wooden bar and/or the level of the river was not the same three weeks before the plaintiff’s accident as it was on the day of his accident.

9 The second is that it was common ground that the Club had no power to exclude members of the public from coming onto the site and that the plaintiff came onto the site as a member of the public and not as a member of the Club.

10 The negligence alleged against the Club is that it should have posted a warning to discourage people from using a swing attached to a limb of a tree overhanging water and that had it done so the plaintiff would not have used the swing. That, at least, was one way the plaintiff’s case was put in final address. But his essential claim against the Club is that it was aware that swings were attached to the overhanging limbs by persons unknown after club members had removed them, and because of the dangers recognised by club members to persons using the swings, the Club should have caused overhanging limbs to be removed. It was not disputed that before any lopping could be undertaken the Club needed the consent of various authorities concerned with the management of lands and rivers. However it was submitted that had permission been sought it would have been given and had that happened prior to 28 November 1998 there would have been no swing in the area of the Club’s occupancy and hence there would have been no accident.

11 The plaintiff was born on 28 July 1976. He was twenty two at the time of his accident. Until he left school he had lived in Coleambally all his life. He had returned to Coleambally shortly before the accident.

12 On Friday evening 27 November the plaintiff and his friends Mr Kelly and Mr Fairweather (both of whom gave evidence) drank in the local hotel until 1 am and thereafter at the home of Mr Kelly until about 4 am. Some time during the morning of 28 November the plaintiff, Mr Kelly (and his girlfriend Renelle), Mr Fairweather and Mr Rowan King (none of whom were club members) drove from Coleambally to the Club area a distance of about forty kilometres. The plaintiff did not drive.

13 Conflicting evidence has been given concerning the amount of alcohol consumed by the plaintiff before and at the time he arrived at the riverbank with his friends. I think, however, I need do no more than say that at the time of the accident (which varied, according to different witnesses between a little after 11 am and a little after noon) I do not conclude the plaintiff was intoxicated. However as will be seen I have come to the conclusion that the plaintiff attempted a high spirited and foolhardy manoeuvre on the rope which led to his accident.

14 There is no evidence that there was a club member present at the site when the plaintiff and his friends arrived there. The plaintiff has said that when he arrived at the site he saw a piece of rope attached to a limb of a tree that overhung the river. According to the plaintiff the timber came to within a metre of the top of the bank and was about one or two metres above the water level. He said that when he swung on the rope he had to lift his feet to clear the bank. He said that his friends Mr Kelly and Mr Fairweather had swung on the rope before he did and that he saw them drop from the rope and enter the water feet first. He attempted to execute a backwards somersault after leaving the rope and to enter the water feet first. He said that on the first occasion he attempted it he was unsuccessful and he landed in deep water and had to swim to shore. He said that in the course of swimming to the shore he touched the bottom which he felt was muddy and “squishy”. Although the plaintiff had used the rope before the accident he said he did not check the water when he attempted his backward somersault the first time because Mr Kelly and Mr Fairweather had indicated that the water was deep enough and sometime well before the day of the accident he had seen other people swimming in the general area. He was aware, by reason of what he noticed when he swam ashore the first time and by what he saw of Mr Kelly and Mr Fairweather after they had dropped into the water, that the bottom of the river sloped down and that it was only waist deep some seven to eight metres from the water line.

15 The plaintiff described what happened to him as follows:

“…took a few steps back with the rope to get a sort of run-up, swung out and went to release to do the somersault and it seemed to somehow get dragged back into the riverbank a little too far which brought me into shallower water and managed to somehow – so me head was going down first and hit the bottom of the river”.

16 As I have said Mr Kelly and Mr Fairweather gave evidence that they dropped into water and when they did so the water did not come above their waists. They entered the water more than once before the plaintiff was injured. Mr Fairweather said that he saw the plaintiff swing out, his legs went across the bar and his head was down. It appeared to him that the plaintiff went back a short distance after the swing reached its extremity before dropping off and entering the water headfirst.

17 Mr Kelly said that he remembered the plaintiff attempting a back somersault before the swing. He said that he thought that the rope hung over the water about a metre and a half from the water line and that the bottom of the rope came within a metre or two of the water. He said he had entered the water on more than one occasion but at no time did he have to swim ashore. He simply waded up the gentle slope.

18 If I had to choose between Mr Kelly’s evidence and Mr Fairweather’s I would accept Mr Kelly’s evidence. Mr Fairweather seems to have only a sketchy idea of where the rope was and the height of the bank. He seemed to think the bank as only a foot high whereas everyone else thinks it was between one and one and a half metres above the water line. Also answers he gave in the witness box were inconsistent with statements he had previously made. For example, he had earlier said that there were five passengers in the car in which the plaintiff was a passenger. In evidence he said there were only four.

19 However, in my opinion I do not think a great deal turns on the discrepancies in the evidence of the plaintiff, Mr Kelly and Mr Fairweather. The plaintiff swung out intending to do a backward somersault and to enter the water feet first. Either because his feet were caught (as he seemed to think) or because he misjudged the time he should let go the handle he may not have dropped out at the extremity of the swing. If not he probably dropped just as it was returning. He entered the water headfirst, struck his head on the bottom and suffered the tragic and catastrophic injuries the subject of the litigation.

20 It is important to remember the plaintiff was not attempting to dive into the water. He knew that would have been extremely dangerous and foolhardy. He was attempting to enter the water feet first albeit preceded by a backward somersault. He had seen both Mr Kelly and Mr Fairweather enter the water. It is, of course, possible that Mr Kelly and Mr Fairweather either entered the water before or after the extremity of the swing and that the plaintiff, as he claimed, entered the water the first time beyond the ledge. But on any view of the matter the plaintiff must have known that the water was relatively shallow under the arc of the swing. Before attempting the manoeuvre which resulted in his injuries he must also have been aware that his ability to do a backward somersault and enter the water feet first was suspect. If, as the plaintiff wants me to accept, his first attempt of the backward somersault resulted in him entering the water beyond the ledge he must have only just cleared it.

21 Members of the Club gave evidence concerning ropes that had been attached to limbs of a tree extending over the water. The Club has submitted that I could not be sure to which tree the ropes were attached to before the accident to the plaintiff. There were a number of trees with limbs overhanging the water. I record I am satisfied that the ropes were attached to a limb or limbs of a particular tree, being the tree identified by the plaintiff and being the tree to which the swing was attached on 28 November. However, the evidence is less than clear for how long the rope used by the plaintiff had been hanging from the tree.

22 Mr De Maniel was the Vice President during the years 1996 to 1997 and was on the committee thereafter. He said he had seen ropes attached to a tree before 1998 and he corroborated Ms Sutton’s evidence that remnants of ropes had been left on the limb after the ropes had been cut down. He was adamant as were other witnesses that the Club did not put the rope up and Mr Gormly SC, on behalf of the plaintiff, has not endeavoured to persuade me that it did. However, he last saw a rope about three weeks before the plaintiff’s accident. It was hanging over land and not over water and the bottom of the rope was not attached to a piece of timber. It is therefore not clear whether the rope Mr De Maniel saw three weeks before the plaintiff’s accident was removed and another put up in its place or whether a stick had been tied to the bottom of the existing rope.

23 Mr Payne gave evidence that he had seen a rope hanging from a tree previously. He thought the ropes he had seen were connected to the same tree as the rope used by the plaintiff. He thought it was not a safe place to swing because of the altered depth of the water depending on seasons, water usage in the irrigation area and, as well, usual problems of submerged objects in running streams. Although Mr Gormly has submitted to the contrary, the inherent dangers referred to by Mr Payne were known to everybody including the plaintiff.

24 Ms Sutton gave evidence that she had seen fragments of rope attached to the limb of a tree and I infer from her evidence she was referring to the same tree as that identified by the plaintiff.

25 Mr Tooth, a club member, corroborated the evidence that there were other ropes previously attached to a tree and that they were taken down “because we had removed it”. He was there on one or two occasions when it was removed. He said it wasn’t easy to cut it down because “you had to get on something high to get to it”. The limb from which the swing used by the plaintiff was attached was removed in the next tree lop which occurred in the year 2000. Mr Tooth said the application to lop trees was made, not to cut down the subject tree, in particular but “for general safety in the camping area – to prevent branches falling on vehicles and caravans and they seemed to be dangerous”. He also said, however, that the Club took the opportunity to lop the branch to which the swing was attached.

26 I infer from the evidence that the previous ropes had been attached to the same tree as the rope used by the plaintiff. I do not know how often ropes were removed or how long they remained before removal. I infer, however, that removal of the ropes was probably effected by club members.

27 I have already referred to the fact that, generally speaking, I accept the evidence of Mr Kelly as to what happened but, as I previously said I do not think a great deal turns upon what has been said to be discrepancies of witnesses for the plaintiff. It is clear that the plaintiff was endeavouring to do a backwards somersault before he was injured and on at least one occasion previously he had unsuccessfully attempted the same manoeuvre. He released too late either by miscalculation or because his foot was momentarily caught with the result that he plunged headfirst into a shallow part of the water striking his head and leading to his quadriplegic condition.

28 Mr Nock has also submitted that I should draw an inference adverse to the plaintiff by reason of the failure of the plaintiff to call Mr King who was a passenger in the car with the plaintiff when he was driven to the ski area and who was outside the court during the presentation of the plaintiff’s case. I am asked to infer that Mr King was not called because his evidence would not have assisted the plaintiff (Jones v Dunkell (1959) 101 CLR 298). Mr King was a friend of Mr Kelly. I do not know the extent of his friendship with plaintiff. I accept that he was not called because he would not have advanced the case of the plaintiff. But I cannot draw any adverse inference to the plaintiff because I do not know why he was not called or what he would have said had he been called. It may have been that he would have corroborated the evidence of Mr Kelly to the effect that Mr Kelly was never out in deep water and that when he dropped he dropped up to his waist. That is a finding I make in any event. He may have said that the plaintiff never got beyond where Mr Kelly had dropped into the water. But this is pure speculation and I am not prepared to make findings on speculation. Indeed bearing in mind that Mr King was outside the court why, it might be asked rhetorically, shouldn’t there be (if the defendant’s submission has weight) be an inference adverse to the case of the defendant who, for all I know, could have called him.

29 It is not disputed by the plaintiff that he is guilty of contributory negligence. Therefore, as it seems to me, a great deal of cross-examination testing witnesses’ recollections as to what they remembered five years ago about precisely when the plaintiff disengaged from the rope is somewhat artificial. As I have said the plaintiff’s principal case against the Club is that it owed him a duty of care and that the content of that duty included an obligation on it to warn against using the swing or (the principal allegation) to cause the limb of the tree to which the rope was attached to be lopped.

30 The Club occupies a small part of the Billenbah stock travelling route reserve. Billenbah Reserve was created pursuant to the provisions of the Crown Lands Act 1884 and was set apart and reserved from sale “for the purpose of a stock travelling route” on 24 December 1904.

31 Billenbah Reserve is an area of about 96 hectares with a one kilometre frontage bordering the southern bank of the Murrumbidgee River. The parish map indicates that Billenbah Reserve was placed under the control of the Pastures Protection Board by Gazette Notice 15 October 1937 pursuant to s 41(2) of the Pastures Protection Act 1934. The Board continued to have control of Billenbah Reserve as a Travelling Stock Reserve by reason of s 80(5) of the Rural Lands Protection Act 1989 and, such control as was given to it by the legislation was in existence in November 1998.

32 The Club “occupied” land in the reserve for a length of approximately 200 metres along the river bank but how far in from the shore is not clear.

33 In 1990 the Board received a letter from a Mr Muntz telling it that the Department of Lands had informed him that the Club had received “the OK” from the Board to build an amenities block on the site. The Board requested further details but, it seems, none were given.

34 Over the years the Club built boat ramps, a shade shelter, toilets and a water tank. Members of the Club mowed the lawns, kept the site clean and occasionally, and with permission, lopped trees.

35 In 1993 a delegate of the Commissioner of Soil Conservation Service issued the Club with an authority to occupy.

36 As I have said, in the past the Club applied to various authorities to lop trees. In December 1992 it applied to the Lands Department for permission and in 1993 it negotiated with the Forestry Commission to lop trees. In May 1993 it was granted a two year authority by the Conservation Commissioner (pursuant to the Soil Conservation Act 1938 to lop trees within “a stream length of two hundred metres along the Murrumbidgee River”.

37 Mr Harvey has submitted that I could not conclude on the evidence that the Club ever obtained permission from the Board to undertake activities and that such permission that it did have it had from other government bodies.

38 However, in the mid nineties the Board was consulted by the Department of Land and Water Conservation with respect to options being considered by the Club as to whether for example the Crown should dedicate an area of the Reserve (about fifteen hectares) as a recreation area and land to be leased to the Club. Nothing appears to have been done about the matter. In March 1997 the Board asked the Department of Land and Water Conservation to excise approximately about fifteen hectares of land “currently used as a recreation reserve” by the Club from the Billenbah Travelling Stock Route.

39 In December 1998 and after the plaintiff’s injury the Board continued to be involved with the Club’s request. The Club’s application was refused and in February 1999 the Board granted a permit to the Club pursuant to s 86 of the 1989 Act for one year from the 15 March 1999.

40 Mr Harvey has submitted on behalf of the Board that had the plaintiff sued the Board he could not have succeeded because the Board exercised no control over the subject land. As will be seen I am of the opinion that had the plaintiff sued the Board he would have been unsuccessful. However, I think I am entitled to conclude, as I do, that in November 1998 the Board exercised some control over the land because, as I have said, in February 1999 it granted a permit to the Club pursuant to s 86 of the Rural Lands Protection Act 1989. I will shortly give my reasons why, in my opinion, the Board had no duty of care to the plaintiff and that had the plaintiff sued the Board he would have been unsuccessful. I should also add that there was no evidence that the Board had any knowledge of the presence of any rope swinging from any tree on the southern bank of the Murrumbidgee in the Billenbah Reserve.

41 Use and occupation of the Billenbah Reserve is regulated by the Rural Lands Protection Act 1989. The legislation casts obligations on Rural Lands Protection Boards to have care and control of travelling stock reserves (as Billenbah became). Pursuant to s 81(1) of the Act the Board is responsible for:

(a) taking appropriate measures to prevent unauthorised persons, animals and vehicles from trespassing on the reserve; and,
(b) suppressing and destroying noxious weeds and noxious insects that are within the reserve; and
(c) taking measures to remove and destroy trees that are likely to prevent the passage of travelling stock; and
(h) taking such steps that the board considers to be appropriate for the proper land care, and the conservation of native trees, plants, birds and animals, within the reserve.

S 81(2) of the legislation provides:

“if in relation to a travelling stock reserve, a board considers that it is necessary to exercise some other function in relation to the reserve, the board may exercise that function so long as the exercise of the function is otherwise lawful.

Section 82 provides that if there are trees within a travelling stock reserve the Board must not fell or destroy trees without the consent of the Forestry Commission.

42 Section 85 refers to prohibition concerning members of the public but provides that the prohibition does not apply;

“to a person who enters and remains on or occupies or uses a travelling stock reserve for a purpose or activity prescribed by the regulations so long as any conditions or any restrictions attached to the entry, occupation or use of the reserve for that purpose or activity are observed”.

43 Regulation 50 relevantly prescribes the following:

(a) walking, running or other kinds of individual physical exercise;

(b) horse riding;

(c) picnicking;

(d) fishing;

(e) swimming;

(f) pedal cycling.

44 Section 86 of the legislation prescribes that a person is entitled without the approval of the board concerned to use a travelling stock reserve on any day between sunrise and sunset for any recreational activities prescribed by the regulation.

45 As I have earlier mentioned it is not disputed that the Club had no entitlement to keep members of the public out of the site occupied by it and it had no control over activities by members of the public when they were there. Moreover, in my opinion, the Board could not have prevented a member of the public entering the Reserve to undertake a prescribed activity and, as I have said, in any event, was wholly unaware of the existence of the rope from which the plaintiff dropped leading to his horrendous injuries.

46 Did the Club owe the plaintiff a duty of care? On behalf of the plaintiff it is submitted that it was foreseeable that a member of the public might swing on the rope and that if or she did they could suffer serious injury. Mr Gormly submits the twin tests of foreseeability and proximity are met and that the Club was in breach of its duty of care because it failed to warn of the dangers of using rope swings or to prevent the plaintiff from using the swing by lopping the branch from which the swing was attached.

47 Mr Gormly has submitted that by reason of its activities the Club “encouraged” members of the public to enter upon the site. In terms he eschewed a case of allurement or inducement. I do not conclude that the Club encouraged members of the public to enter its site. Such evidence as there is before me concerning the attitude of the Club to members of the public would indicate the contrary, bearing in mind the evidence concerning the litter caused by members of the public and the activities undertaken by the Club to keep the site clean. Moreover, as I have mentioned, the Club was anxious to obtain a lease of the subject land “occupied” by it.

48 Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 is the high-water mark of the plaintiff’s case. At trial Nagle’s case was lost because the Court thought the plaintiff had not discharged the onus of establishing his injuries were relevantly caused by the Authority’s breach of duty. The plaintiff had alleged the Authority failed to give adequate warnings that the ledge was not safe to dive from when it knew, or ought to have known, that the public would assume it was. The trial judge found the Authority effectively ran the Island as a business and derived revenue from visitors. It promoted parts of the area for swimming and related recreational activities by means of publicity and signs. It encouraged members of the public to use that part of the island where the plaintiff was injured as a venue for such activities as installing maintaining and servicing change-rooms and toilets adjacent to the parking area. The trial judge also referred to the circumstance that a wide cross-section of the public visited the area. In short the trial judge approached the case by reference to the general duty of care arising from foreseeability and proximity.

49 The Full Court of Western Australia held there was no duty owed to the plaintiff. The High Court upheld the trial judge’s finding that the Board was under a general duty of care under common law to take reasonable care to avoid foreseeable risk of injury to visitors, lawfully visiting the Reserve. In doing so it relied on the findings of the trial judge referred to above and held that the Authority had brought itself into a relationship of proximity with those people who pursuant to encouragement lawfully visited the subject site. It held, contrary to the Full Court, that what happened was relevantly foreseeable.

50 In Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 the High Court decided that the development of the law of negligence had reached the stage where liability should be tested by “ordinary common law duty to take reasonable care” and not by special duties formulated in earlier cases (see Indermaur v Dames (1866) LR1CP 274). However, in Zaluzna the High Court pointed out that in almost every case to which it had been referred and which had been previously decided by reference to a special duty of care, the outcome would have been the same whether the test was described by reference to the special duty of care or the general duty of care. The Court recognised that in formulating the nature of a general duty of care (including its scope and content) in its application to an occupant of land, it was relevant to have regard to the nature of the occupancy as well as the manner of the plaintiff’s entry. In Zaluzna it was noted that the plaintiff’s entry was lawful upon the land of the appellant which was conducting a shopping centre and hence encouraged members of the public to visit its premises.

51 The legal liability of the Club cannot be answered by asking whether in the abstract the defendant had a duty of care to members of the public who came on the land which it had permission to occupy as it did. In theory the question would have to be answered in the affirmative because it could come under a duty if, for example, there were hidden or unusual dangers and the like connected with its occupancy of which the Club was aware but others were not. The real question in this case, in my opinion, is whether the Club came under a legal duty of care to the plaintiff in the circumstances of the plaintiff’s presence on site and what he did when he was there. If the existence of the duty depends upon foreseeability of injury it could be said that it was foreseeable that someone would be injured using the rope swing. That had never happened in the past but the conduct of the defendant persuades me that it was the sort of danger it wished to avoid. But foreseeability is not the end of the inquiry. Foreseeability merely defines the limits of liability. The plaintiff was not a member of the Club, he was a member of the public who had the right to come on the premises and the right to use the swing. The Club did not erect the swing and it could not legally have stopped the plaintiff from using it.

52 The nature of the Club’s occupancy is relevant. Were it not so and if Mr Gormly’s submissions were accepted, the Club would have come under the same duty of care as is alleged in this case if, other things being equal, the rope had been attached to a tree on the other side of the river.

53 The circumstance that the possibility of injury was foreseeable does not of itself create a legal duty of care. The depth of the water in the present case was not relevantly a hidden or unusual danger. It was known to the plaintiff before he attempted the manoeuvre which resulted in his injury. He had seen Mr Kelly and Mr Fairweather in the water. In my view the plaintiff took a foolhardy risk in attempting to exercise the backward somersault manoeuvre – the risk was that he may not have been able to do it (as he did not the first time) and that had that occurred, it may have occurred at the time when he was over shallow water (as he was on the second occasion). I would adopt, with respect, the observations of Whealy J in Mulligan v Coffs Harbour City Council [2003] NSWSC 49 unreported, par 298 where his Honour said:

“As a matter of law there is a point at which those that indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety”.

54 But assuming contrary to the view I have held that the Club was under a duty to take certain steps by reason of it being aware that members of the public would come on the site and that those people might use the swing which the Club considered to be dangerous. A question remains whether it had an obligation to erect a warning sign or an obligation to remove the limb of the tree. So far as the warning sign is concerned, I have come to the conclusion that even if the Club could have been said to have been under a duty to erect the warning sign to members of the public of the dangers of using the rope, I do not think that the failure to erect the sign caused or materially contributed to the plaintiff’s injuries. It is to be recalled that he entered the water after he had observed Mr Kelly and Mr Fairweather dropping from the end of the rope and that his accident occurred after he had unsuccessfully attempted a backwards somersault at least once. He was not attempting to dive into the water. He knew that would have been an extremely dangerous manoeuvre. What he was trying to do was to enter the water feet first preceded by a backward somersault. In my opinion, the presence of a sign of the type submitted by the plaintiff would have had no effect on what he did. I have not found the plaintiff was intoxicated at the time of the accident, but he was clearly high-spirited and foolhardy.

55 Did the Club have an obligation to remove the limb? If it did the question of causation does not arise. But in my opinion, even if there were a duty of care imposed on the defendant, I do not think it was in breach of that duty because it did not lop branches that overhung the river. If it was it necessarily came under an obligation to lop every limb overhanging the river from which a swing could be attached. I would infer from the evidence that when the Club members saw the rope was up, it was removed. The fact that the Club had removed the rope in the past cannot be used to impose on it an obligation in the future to ensure that a rope could never be placed on any limb of a tree overhanging the Murrumbidgee in the area “occupied” by it.

56 In Waterways Authority and Anor v Mathews [2003] NSWCA 330,unreported) the Court of Appeal unanimously upheld an appeal against a verdict entered by the District Court Judge against two defendants. In that case the plaintiff fell approximately 2.4 metres from the western end of a harbour-side pool onto an exposed rock and sustained injury. The first appellant was the lessor of the land upon which the pool was constructed and the second the owners of the strata plan. It was alleged against the first appellant that it should have erected a fence or wall or chain so that a person in the position of the plaintiff would not fall off and as against the second appellant, for not lodging an appropriate request for a fence, chain or wall to be erected. After pointing out that the dangers of walking along the path chosen by the plaintiff was obvious to everyone including the respondent, Meagher JA said:

“In these circumstances I cannot see how either appellant can be liable to the respondent. Counsel for the respondent stressed, undoubtedly correctly, that the duty owed by an occupier of land to an entrant is a high one (although I cannot see on what possible basis the first appellant can be called an “occupier” of the pool; that persons who exercise a degree of control over premises must usually exercise that control for the safety of persons who are at some foreseeable risk on the premises; that negligence on the part of the plaintiff does not automatically negate a defendant’s duty of care; that when a duty exists in relation to a risk the fact that comparatively cheap means are available to cope with that risk usually compels a finding of negligence; and that the absence of any prior accident is not necessarily conclusive of the absence of negligence in the defendant. All this may be granted.
But in my view neither defendant in the present case owed any duty to the respondent, who fully knowing the risk, affected (even if slightly) by liquor, and subject to giddy fits, climbed voluntarily at the dead of night along a narrow (and probably slippery) ledge.”

57 I have approached this case upon the basis that the presence of the tree had some relevancy to the occupancy of the Club in the sense that the tree was within a larger area used by the Club for its recreational purposes. But I do not think that the Club relevantly occupied the tree. Its members were entitled to use the tree for recreational purposes as was the plaintiff.

58 Because I have come to the conclusion that the Club did not owe the plaintiff a legal duty of care to warn him against the dangers of using the rope, or to lop the branches of the trees overhanging the river to prevent him from using the swing, I need not determine whether, had the plaintiff taken proceedings against the Board, he would have been successful. Mr Nock, on behalf of the Club, has submitted that if it is liable it is entitled to contribution from the Board because the Board if sued would have been liable. Mr Gormly, on behalf of the plaintiff, has not sued the Board but he has submitted that had he done so the Board would have been liable because the Board exercised control over the site. I have already briefly set out the nature of the Board’s “occupancy” of the Billenbah Reserve. It would seem not to be straining the language of the Regulation to conclude that the plaintiff was engaged in a form of activity which was within the lawful ambit of Regulation 50(1) of the Regulation, i.e. he was undertaking a form of physical exercise and, I think, it would not be stretching the word to conclude that he was also swimming. The Board had no knowledge of the swing. It did not encourage members of the public to attend the site. It did not promote the site as a place for recreation for members of the public. Moreover, in my opinion, it would be wholly unreasonable to hold that the Board was under an obligation to inspect the Billenbah Reserve and to remove swings. If it had that obligation along the one kilometre length of the Murrumbidgee it presumably had the same obligation in respect of any travelling stock reserve bordering a river and it would follow that all Rural Land Protection Boards would have a similar obligation under areas of their control. The Board had no knowledge of the swing and had no reason for supposing it to be there. Accordingly, I would conclude that had the plaintiff sued the Board he would have failed. Accordingly, I enter judgment for the Board against the defendant.

59 Because I have come to the conclusion that the plaintiff must fail, I need not deal with the submission on behalf of the defendant that had there been a duty of care and breach of it, the plaintiff would fail by operation of the doctrine of volenti non fit injuria. In Hadland v Council of the City of Blacktown (NSWCA, 21 May 1997, unreported) Clarke AJA said:-

“The weight of authority and observations of text writers seem to me to support the proposition that it is only where the inference is drawn that the plaintiff consented to run the risk at his or her own expense, in the sense that he or she could not sue if injured, that the defence will prevail … Some writers have contended that it must be possible to infer an agreement between the plaintiff and the defendant, whereby the former assumes that the relevant risk, before the defence will stand but it seems to me the better view is that it is necessary only to establish that the plaintiff accepted the risks in the sense that he or she gave away his or her right to sue if injured as a consequence of the danger. A conclusion on this question would invariably depend upon whether that inference is available from the proven material.”

60 In the same case Handley JA was content to impose a lesser test viz the defence was made out “If the plaintiff with sufficient knowledge, voluntarily accepts the risk of physical injury”.

61 If the view advanced by Clarke AJA is accepted it could not be inferred in the present case, in my opinion, that the plaintiff relevantly “gave away his right to sue”. On my appreciation of the events of the morning in question, the plaintiff did not apply his mind to the matter. He believed he could execute a backwards somersault manoeuvre and enter the water feet first as had Kelly and Fairweather. If, however, the view of Handley JA were to prevail I would conclude that the plaintiff had sufficient knowledge of the risks associated with what he was endeavouring to do by reason of his knowledge of the characteristics of the river and the depth of water into which he was liable to fall, together with the real possibility that he would not be able to enter the water feet first, to conclude that he voluntarily accepted the risk of physical injury in undertaking the manoeuvre he attempted.

62 I should mention also that I do not have to determine the Board’s claim of immunity by operation of s 238 of the Rural Lands Protection Act 1989, it was immune from suit because it has not been shown that at all times the Board acted otherwise than in good faith for the purpose of discharging its functions.

63 I also need not consider the question of contributory negligence beyond observing that if, contrary to my earlier findings, the plaintiff was owed a duty of care and that the Club was in breach of that duty because it failed to warn the plaintiff of dangers associated with using the swing or because it failed to ensure the limb or limbs of the tree from which the rope was attached was lopped, a case for contributory negligence has been made out. The plaintiff does not dispute he is guilty of contributory negligence but submits that it should be between 25% and 35%. The Club has submitted that it should be significant, bearing in mind that the injury would not have occurred had the plaintiff not attempted the manoeuvre he did over shallow water. Had I been required to determine the extent of the plaintiff’s contribution to his own injury I would have assessed his contribution to his injury at 60%.

64 For the reasons set out above there will be:

(i) A verdict and judgment for the defendant on the plaintiff’s claim against the defendant.

(ii) There will be verdict and judgment for the Board on the defendant’s claim against the Board.

(iii) The plaintiff to pay the defendant’s costs of the proceedings between the plaintiff and the defendant.

(iv) The defendant to pay the Board’s costs of the proceedings between the defendant and the Board.

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Last Modified: 12/05/2003