Secretary to the Department of Natural Resources and Energy v Harper

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 6075 of 1998

THE SECRETARY TO THE DEPARTMENT OF NATURAL RESOURCES & ENERGY

Appellant

v

MEGAN ELIZABETH HARPER

Respondent

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JUDGES:	TADGELL, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 August 1999
DATE OF JUDGMENT:	29 March 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 36

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NEGLIGENCE – Breach of duty – Causation – Visitor to forest reserve in national park injured by falling tree during high wind – Whether warning sign should have been erected and would have averted injury – Wrongs Act 1958, ss.14B and 14C.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.W. Kaye, Q.C. and Mr J.A. Riordan	Maddock Lonie & Chisholm
For the Respondent	Mr J.P. Keenan, Q.C. and Mr G.J. Burns	Grice & Grice

TADGELL, J. A.:

I have had the benefit of studying in draft the reasons that Batt, J.A. has prepared. I agree in them and desire to add only a few words of my own inasmuch as we are differing from the full and careful reasons of the learned primary judge.

The conclusion that the appellant was shown to have been in breach of a duty owed to the respondent by reason only of an omission to display a warning sign or signs was, I consider, unrealistic. The risk that during a high wind in the Toorongo Falls Reserve a tall tree might be blown over and topple on to an innocent visitor to the Reserve is no doubt real enough. The same might presumably be said, however, in relation to any comparable tract of Crown land. The Reserve is evidently a part of the Yarra Ranges National Park, of some 760 square kilometres of Crown land, as constituted by s. 17(1) and Part 39 of Schedule 2 of the National Parks Act 1975. It may be taken that that National Park, along with the other 39 National Parks, 40 State Parks, and the Wilderness Parks, Wilderness Zones and other designated areas in the State classified by the Act, has been so classified because it exhibits one or some of the natural or other features mentioned in the Act’s preamble.

The Toorongo Falls Reserve is not in all respects very satisfactorily described in the evidence; and in particular an exact idea of its area or extent is not conveyed. The ranger, Mr J.R. Bye, whom I should assume to be more conversant with the Reserve and to be capable of giving more accurate evidence about it than the other witnesses, swore that it was one of some dozen managed reserves for which he was responsible, and about the third largest of them. He said further that it was “formalised” inasmuch as there was a name displayed so that “ when people drove in they knew where they were going into…’’ There was only one main vehicle entrance, and there were at least two camping areas designated as such by their being relatively cleared over a few hectares, with the provision of some toilet and other facilities. As I understand the evidence, however, there was no expressed or implied requirement that campers should confine themselves to those areas: they were, it seems, free to camp where they wished in the Reserve, although some regulations – not always enforced – prohibited the pitching of a tent closer than 20 metres to the river. The result was that campers were wont to scatter over an undefined area and to seek out secluded retreats. There were also within the Reserve numerous walking tracks available without restriction for those disposed to use them. There was no evidence that visitors to the Reserve need to reach it by motor vehicle. It is a fair inference – which a glance at the preamble and s.17 of the National Parks Act will endorse – that bushwalking and other use and enjoyment of the natural environment is at least by implication officially authorised, if not encouraged. I should, indeed, be prepared to infer that one of the justifications of a National Park under the Act is that it enables those of the public who wish to do so to get away from suburban orderliness and to commune with nature in her elemental simplicity, roaming (within reason) where they will.

It is, moreover, to be remembered that the Reserve is part of the Australian bush, and that much of it is virgin forest. There was in evidence a written report from an aboriculturist, Mr Philip Kenyon, who in September 1994 inspected the two fallen trees in question. He stated that both of the trees “…were located in what could best be described as ‘bush’.” Professor Roger Sands, head of the New Zealand School of Forestry at Canterbury, who was called as a witness for the appellant, observed that a forest is “a natural situation which turns over all the time…you have to accept the fact that a significant proportion of the older trees have got dying limbs”; and that “Forests are a hazard by the very nature of them.” An area such as that in question is not to be compared, for example, with a metropolitan park, a municipal playground or an ordered picnic spot, much less with some sculptured woodland glade. The place where the respondent suffered her misfortune was not a cleared camping area. It was not, as I understand the evidence, at all comparable to the nineteen-acre scenic reserve in which a dead tree fell and injured the plaintiff in Schiller v. Mulgrave Shire Council[1]. That case, as Walsh, J. pointed out at 132, was concerned “…only with a strip of forest adjacent to the track and not with the whole area of the reserve and not, of course, with the forest outside the reserve.” It is true that, as the judge found in the present case, the accident happened not too far away from an attractive and popular but not designated camping spot, fairly close to the river. That seems, however, to have been merely co-incidental or adventitious. In the circumstances I should not regard the appellant as more obviously liable on that account than if the accident had happened some hundreds of metres further downstream or, for that matter, a few kilometres further on along a walking track.
[1](1972) 129 C.L.R. 116.

It is notable that the learned judge found the appellant’s breach of duty to consist in a failure “…to erect an appropriate sign or signs warning of the danger of hazardous trees in the Reserve, particularly in certain weather conditions.” His Honour did not suggest what particular hazards ought to have been the subject of the warning – it is to be remembered that both of the trees that fell, save for a side branch of the one that struck the respondent, were alive – or where or how many signs ought to have been erected, or in respect of what area they ought to have offered a warning. It can hardly be reasonable, as with respect it seems to me, to expect the appellant to have offered a warning covering the whole of the forested area of the Reserve. For one thing, the area in question was not revealed in evidence – although I should infer from the ranger’s evidence that it was very appreciable. For another, no reasonable estimation can be made of the number and density of the signs that would be required to be installed (and, be it noted, maintained) in order to be “appropriate”; and for another, since the range of possible hazards to be warned against is far from self-evident, it is difficult also to form a view of what the text of an appropriate sign should be – or whether the text should vary according to where the sign might be placed in order to afford an adequate warning of a particular hazard.

I suppose that, on one view, a suggestion of these various difficulties might be thought captious: with ingenuity, one could perhaps essay answers to them. I suggest, however, that a formula for the provision of “an appropriate sign or signs” could not be confidently predicted. Leaving aside questions of the placement, number and text of any warning sign or signs that might theoretically be thought “appropriate”, there is a separate question whether any sign erected might be expected, in the circumstances, actually to serve a useful purpose: cf. Schiller’s Case, at 132-3, per Walsh, J. In one sense this question touches the matter of causation – whether the provision of any sign might have served to avert the respondent’s accident, or whether a failure to provide one was a probable cause of it. As I see it the question touches also, however, on the practicability of making such a provision, and thus on the anterior question whether a failure to make one could or should be regarded as a breach of the appellant’s admitted duty to take reasonable care to avoid foreseeable injury by a tree to a person such as the respondent. As to that I offer two comments. First, if the appellant’s duty of care to a member of the public who roams in a forest in a National Park requires a written warning of the hazard of injury by any undifferentiated tree, it would seem to require also a written warning of any other undifferentiated natural or endemic hazard – animal, vegetable or mineral. In the absence of evidence to warrant it, I could not accept that as a proposition. Secondly, if it is reasonably necessary for the Crown to warn of the ever-present danger of a tree or a branch of a tree falling in a forested area on Crown land, why should it not be necessary also to warn of the ever-present danger of a tree or a branch of a tree falling from a similar area on to a road? I do not suggest, of course, that a warning to the public of hazardous animals, vegetables and minerals can never be appropriate: routinely in the country one sees road signs referable to cattle and kangaroos and the like, overhanging vegetation, falling rocks, shallow water and other unusual or concealed dangers. I take it, however, that signs such as these are justified by their own circumstances and that they afford no precedent for the erection, by force of reason or necessity, of a sign or signs as contemplated by the learned County Court judge.

For these reasons, and those stated by Batt, J.A., I agree that the appeal should succeed and that there should be judgment for the appellant/defendant. The cross-appeal must, therefore, fail.

CALLAWAY, J.A.:

I, too, have had the great advantage of reading in draft the reasons for judgment prepared by Batt, J.A. My only substantial reservation is a doubt as to whether the appellant's duty of care[2] required the erection of a warning sign at or near the sole vehicular entrance to the reserve. Forests are more dangerous than is generally appreciated by an increasingly urban population. I need not resolve that doubt, because I agree with his Honour that the respondent would still fail on causation.

BATT, J. A.:

[2]The correct analysis may be that it was a duty of care at common law modified to the extent provided in Part IIA of the Wrongs Act 1958, but that need not be decided.

The respondent plaintiff, Megan Elizabeth Harper, decided to go on a camping trip to the Toorongo Falls Reserve near Noojee with members of two motorcycle groups for the weekend of 14 and 15 August 1993. She had been born on 4 March 1962 and so was 31 years of age at the time. She was, in the words of the trial judge, a very active woman with a busy social life. I summarise the events and circumstances giving rise to this appeal substantially from the detailed and careful judgment of the trial judge, in which further facts will be found set out.

The respondent travelled in her own vehicle to the reserve. On the Saturday, 14 August, there was a motorcycle gymkhana. The day was cold and overcast with not much wind. By early evening it was drizzly and later the rain set in.

At about 10 a.m. on the Sunday morning the respondent and three men, including one named Paul Page, went down to the Toorongo River to look for “fool’s gold” in the river sand. The river was only a short distance along a vehicular track from where she had camped. Where the track met the western side of the river there was a small sandy beach area. The men became bored and moved off. Two wandered away and Page had moved a few paces behind the respondent. The respondent was still crouched at the edge of the river. Suddenly she was alerted by a warning shout to two trees on the opposite bank of the river. At first they appeared to be bending and then the respondent appreciated that they were falling and that one of them was coming straight towards her. She took evasive action but was struck across the back. She fell on her back and the tree came to rest on top of her. Page was also struck and the canopy of the tree fell beyond him. In a statement of instructions, tendered in re-examination, she had said that they had been taken by surprise.

There were no signs near the beach or elsewhere in the reserve warning of danger from falling trees or limbs of trees.

Page died in the accident. The respondent was pinned underneath the tree. A chainsaw was used to cut a section from the trunk in order to release her. She was eventually air-lifted to the Alfred Hospital. She was in great pain. Two of her lumbar vertebrae were fractured and dislocated. She had fractures of three ribs and of her left foot as well as a ruptured spleen. An operation was performed to fuse her spine. Infection developed. She was left with severe back pain and serious limitations in her movements, which were somewhat alleviated when the metal plate which had been inserted in her back was removed in March 1998. She has been seriously affected by her injuries. She has suffered depression. Her activities have been greatly limited and her ability to work virtually ended.

At trial it was conceded that the Director-General of Conservation, Forests and Lands (which, though with the last noun in the singular, the trial judge had been requested to substitute as defendant in place of the State of Victoria) had responsibility for the care, control and management of the reserve and, at the very least tacitly, of the State forest on the other side of the river. When it was pointed out in this Court that, by virtue of the substitution of a new sub-s.(1) in s.6 of the Conservation, Forests and Lands Act 1987 and the later amendment of that subsection, the body corporate substituted as defendant had been replaced from 1 June 1993 by a body corporate named originally “Secretary to the Department of Conservation and Natural Resources” and, from 1 July 1998, “Secretary to the Department of Natural Resources and Environment”, application was made, and granted, to substitute that body under its present name as the appellant and also, with effect from 1 July 1998, as a defendant. Before us the substituted appellant made in essence the same concession as had been made at trial, but in relation to itself. (The precise statutory provisions under which the appellant had the care, control and management of the reserve here were not identified or explored in argument before us, but it is safe to act upon the appellant’s concession that it had the care, management and control of the reserve.[3])
[3]This is confirmed by the reasons for judgment of Tadgell, J.A., which I have had the benefit of reading in draft. His Honour has done the necessary statutory research.

The reserve, a forest reserve, was one of a number managed from the appellant’s Neerim Operations Area at Noojee, which, in turn, was part of its Central Gippsland Region based at Traralgon.

The reserve is about eight kilometres from Noojee by road. It lies beside the Toorongo River on its western side. It consists of cleared grass areas and forest with some walking tracks. Two toilet blocks and a number of barbecues were provided. It was popular with campers. Many preferred the more secluded areas along the river under trees to the cleared areas. The places chosen by campers were up to 500 metres apart. The “prize camping spot” in the reserve was a grassy knoll a few metres back from the river and a few metres to the south of where the respondent was injured.

No plan of the reserve was put in evidence, but a number of photographs were before the judge. A single road leads into the reserve from the highway. It then forks. To the left the track leads to a camping area and toilet block. The other fork goes straight on for about 100 metres towards the river. Only the last ten or 15 metres before the river is treed. At the river is the beach earlier described and from it a walking track commences which follows the river upstream. The river flows from north to south. The vegetation in the uncleared parts of the reserve on the western side of the river is not dissimilar to that on the opposite, eastern, side but there is this significant difference, that the trees on the eastern side constitute a thick, heavy forest in quite rugged country, through which it would have been very difficult indeed to walk.

On the eastern side the land rises steeply to a plateau. Immediately opposite the beach area is vegetation which has a ground cover of ferns, blackberries and grasses, an under-storey of silver wattles (acacia dealbata) and blackwoods and an over-storey of eucalypts, principally peppermint gums (eucalyptus radiata) and manna gums (eucalyptus viminalis). All the trees there have regrown since the 1939 bushfires. Whilst initially the wattles and eucalypts no doubt grew together, eventually the eucalypts dominated and grew to greater heights. The silver wattles are tall and slim with few, if any, lower branches and with foliage only at the crown of the tree. Sergeant Mathieson, at the time a police member stationed at Neerim South, who attended the accident, said that the wattles grew generally towards the bottom of the valley.

The tree which fell on the respondent was a silver wattle. It was estimated at the time to be between 30 and 55 years old. It was 28 metres high and, when it fell, the upper part, about 10 metres in length, fell on the opposite bank. The foliage appears, his Honour found, to have comprised about the top five metres. The diameter of the trunk at ground level was 32cm. His Honour accepted expert evidence to the effect that silver wattles are not particularly susceptible to falling although they will do so at some stage. They can live to 70 years. The eucalypts, on the other hand, have life expectations of about three times as long.

His Honour made specific findings about the tree which fell on the respondent. In doing so he had to resolve conflicts in the evidence of the expert witnesses, some of whom were highly qualified indeed. His Honour found as follows. The tree had a side branch which emerged 1.9 metres from the base of the trunk. That branch grew upwards and approximately 1 metre from, and parallel to, the main trunk. It was perhaps three-quarters the diameter of the main trunk and it appeared to be at least high enough to reach the opposite bank. The side branch was dead. That fact would have been obvious to a trained observer from the opposite or western bank. The tree itself had a root ball which was about the size to be expected and had no significant evidence of disease or decay. The tree was, however, located close to the river and would therefore have been more susceptible to moisture in the soil around its base from the run-off and the proximity of the river. The tree fell over from the base, exposing the root ball. The wind in the crown was too strong for the holding capacity of the roots in the saturated soil.

A second tree fell from the eastern bank at the same time. It was 10 to 15 metres upstream from the first and slightly further up the slope. It snapped its trunk about 1 metre above the ground. It also fell over the river, its crown landing on the western side. There was no evidence that before the accident the crowns of the two trees were connected so that the falling of one caused the other to fall. The police sergeant who investigated the accident was of the view from his observations that the canopies of the trees were “totally separate”, and his Honour appears to have accepted that evidence.

Later in his reasons, when dealing with the case as put against the appellant, his Honour made certain other findings relevant for this appeal. He stated that it was self-evident that a forest was a living entity. Trees and their limbs will age, become diseased, die and fall. It is the life cycle of a forest and must be anticipated, that is, expected (though his Honour did not say by whom). This point was made compellingly, as it seems to me, by Professor Sands, head of the New Zealand School of Forestry at the University of Canterbury in New Zealand, in his evidence. In making some of his findings summarised earlier his Honour preferred the evidence of Professor Sands to that of other experts, and he did not reject the evidence of Professor Sands on the present topic. Professor Sands said that the area on the other side of the river was a typical forest area. It constituted a healthy forest with the usual dynamic arrangement his Honour said was self-evident: in a forest semi-mature and mature trees will have dead limbs and all trees will eventually fall down, usually being blown down. His Honour found that many had fallen over, though the appellant challenges that finding. He further found that the age of the silver wattle trees and the competition for sunlight meant that they were tall and slender with a limited crown, which made them top heavy. They were on a steep slope. They were of a height such that many would reach the opposite bank if they fell. The tree which fell would have appeared sound in its main trunk. His Honour described the area on the western bank opposite to where the wattles fell from as a critical area in that it was the termination point of one of the two major vehicular tracks in the reserve; it was adjacent to the prize camping spot; it was the start of a walking track beside the river; and the small beach area would obviously be a focal point not only for nearby campers but for a large number of other users of the reserve. The ranger, Mr. Bye, who was not a forester, was aware of and permitted the use of the adjacent area for camping notwithstanding that it was contrary to regulations to camp within 20 metres of the water course. He was also aware that the area was a prize camping spot. His Honour found that there had been, over time, considerable instability in trees comprising the under-storey on the eastern bank. He was not satisfied that any disease from the dead limb of the tree which fell on the respondent had affected the tree’s main trunk or root system. Mr. Bye had had no complaints of trees falling across the river.

I turn now to the weather at the time of the accident. His Honour accepted the evidence that the weather was windy with huge gusts every 10 or 15 minutes and that the effect of the gusts was like a “Mexican wave” sweeping up the river and through the trees. Sergeant Mathieson said that it was a feature of sub-alpine weather to have gusty winds which reflected in the trees with the “Mexican wave” effect. His Honour found that in the surrounding areas the wild gusty winds had been prevalent the previous night. The weekend was wet. The nearest meteorological station, which was at Noojee, recorded 35.4mm to 9 a.m. on 14 August, 3.6mm to 9 a.m. on 15 August and 9mm to 9 a.m. on 16 August. The Bureau of Meteorology had issued a gale warning for southern and mountain districts of Victoria excluding east Gippsland at 4.30 a.m. on the Sunday. That included a large area of the State from the Grampians to Bairnsdale. The meteorologist from the Bureau who gave evidence said that he imagined gale warnings for southern and mountain districts were issued about 10 or 15 times a year, though his Honour said that from other evidence it appeared that “this sort of event” occurred up to three or four times a year, albeit that the storm in question was noted as particularly severe because of its State-wide effect.

His Honour found that the appellant was, at the time, conscious of the dangers trees might pose to members of the public. He reached that view largely by reference to documents discovered by the appellant that related to risk management. His Honour quoted from or summarised extensive parts of the appellant’s Risk Management Manuals issued in August 1990 and June 1993 and its internal correspondence on that topic. It is sufficient for the purposes of this appeal to state the following.

It is noteworthy that in what appears to have been the head office letter initiating the 1992/1993 Risk Minimisation Program, a memorandum dated 27 July 1992, all references to trees are to “hazardous trees”. There is a statement that as part of the basis for selection of risk mitigation preference would be given to projects that would mitigate “known high risk situations” and satisfy most of the criteria then set out, the first of which was that the project must relate to the mitigation of risk resultant from “hazardous trees”. I take the word “hazardous” in this letter to be used to denote a known or obvious risk of falling or dropping in the immediate or short-term future. In contrast, Professor Sands used the word “hazard” in a different, general, sense when, as mentioned later, he spoke of the hazard of falling trees and limbs being endemic over all forests. If the letter had used “hazardous” in that sense, every tree might be considered hazardous.

In a memorandum written some time after 27 July 1992, but whose date is unclear, the manager of the Central Gippsland Region proposed works in the Neerim Operation Area of the Region that included:

“Toorongo Falls $1500
Remove and/or prune trees, particularly along walking tracks.
Erect warning signs.”

The proposal was similar in respect of five other locations, in particular including the erection of warning signs. The 1992/93 Risk Management Program for the Neerim Operations Area was submitted to the regional office on 16 October 1992 under the signature of Mr. R.J. Cahill, the planning officer. The proposal in relation to Toorongo Falls was in almost the same terms as set out above, save that it was costed at $873 for approximately seven “man days”. There was in evidence a memorandum from Mr. Bye to Mr. Driessen, the operations area supervisor at Noojee, dated 28 April 1993 on the subject of the cutting of dangerous limbs. In it Mr. Bye reported on the work carried out by a contractor called Harrison for “the cutting of dangerous limbs in various public recreational areas in the Noojee Operations Area during March 1993”. In particular he reported that on 5 March 1993 the contractor had completed “Hawthorn Bridge/Toorongo Falls (Eight Trees).” In a memorandum dated 18 June 1993 Mr. Cahill reported as follows in respect of Neerim: “A travel tower was hired to lop potentially dangerous tree limbs in several recreation areas, including the Noojee Reserve, Toorongo Falls Reserve, Hawthorn Bridge, The Poplars and other sites in Loch Valley.” It is significant that every reference in the manuals to pruning, removing or otherwise dealing with trees is expressed to relate to “hazardous trees”. As one would expect, the Risk Management Manuals concerned themselves with “hazards”.

Mr. Bye gave evidence that his area was under budget constraints and that his instructions were to look at the main dangerous trees and concentrate on where the majority of people would normally camp in selecting trees to have limbs cut.

In the Departmental Risk Management Manual of June 1993 there is a section relating to signage reading:

“The value of signage in loss control depends primarily on its purpose. Signage advising users of the facility that they do so ‘at their own risk’ [carries] no legal backing.
Indeed, such signage can lull staff, members or volunteers into the false belief that they have no liability for the safety of others who may be affected by the department/committee’s action or inaction.
However, there is an obligation to advise members of the public of physical dangers of which they might not otherwise be aware. Signs such as ‘Shallow water – no diving’ and ‘Road under repair – take care’ serve an obvious useful purpose.
...
Care should be taken to ensure that the placement of signs is appropriate to the hazard and that, once installed [they] are maintained and legible ...”

By writ filed in the County Court at Melbourne on 22 July 1996 the respondent sued the State of Victoria for damages for personal injury resulting from the accident, alleging that it occurred by reason of the defendant’s breach of duty as occupier of the reserve and, further or alternatively, by reason of the negligence of the defendant. The defence filed denied negligence and relied on the defence of vis major (act of God). After a five-day trial before a judge alone commencing on 15 May 1998, judgment was reserved and was given on 27 May 1998.

In the course of his reasons his Honour set out the principles arising from recent cases concerned with the liability of public authorities for those who enter upon facilities for which they are responsible and briefly discussed how those principles had previously been applied. He recorded that it was conceded that the defendant was the occupier of the reserve and had a duty, in accordance with s.14B(3) of the Wrongs Act 1958, to take such care as in all the circumstances was reasonable to ensure that visitors to the reserve were not injured by reason of the state of the reserve or by what it had done or omitted to do in relation to the state of the reserve. His Honour expressed the view that the defendant also owed a duty at common law to take reasonable care to avoid foreseeable risks of injury to visitors to the reserve, it being conceded that members of the public might enter the reserve as of right. However, he observed, the critical questions were what was the content or scope of the duty in the circumstances and whether it had been established that the defendant had breached that duty. His Honour expressed the view that the defendant’s obligations in the present case were essentially the same under both causes of action. He made it clear that he was aware of the dangers which hindsight posed to the decision of the critical questions.

The respondent contended before his Honour that she would not have been injured if the defendant had exercised reasonable care in the circumstances. Although the particulars of breach of occupier’s duty and negligence ranged more widely, the case for the respondent that was presented to his Honour asserted three breaches. The primary submission was that the defendant should have erected warning signs in the reserve, warning of the danger of trees falling or shedding limbs, particularly under conditions of high wind or rain. Alternatively, it was submitted that a proper inspection of the trees in the stand or cohort on the eastern bank of the river, which included the two which fell, would have alerted the defendant to the hazard they posed. They should therefore have been culled. Finally, it was put that the gale warning issued by the Bureau of Meteorology either required oral warnings to be given to those camping in the reserve or required the closure of the reserve itself. On the respondent’s case, the taking of any of those steps by the defendant would have been sufficient to discharge its duty, but, since the defendant had taken none of them, the respondent would establish a breach of duty if any of her submissions were accepted and, if more than one, the steps required would be alternatives.

After careful consideration his Honour rejected the second and third submissions. With regard to the second submission, his Honour found that the defendant had not been obliged to cull either the whole stand of silver wattle trees or simply the tree which fell on the respondent. With regard to the third submission, although the conclusion which his Honour expressed was only that the closure of the reserve would not have been a reasonable response, it is clear from his detailed reasons that he also found that the giving of oral warnings to all individual campers in the reserve would not have been a reasonable response either, for one of his reasons was that the delivering of such warnings within a reasonable time would not have been practical.

His Honour, however, upheld the respondent’s primary submission. At the invitation of the trial judge at the end of the third day of hearing, counsel for the respondent drafted a suggested sign. It was produced on the last day of hearing and could be put physically in cross-examination only to Mr. Bye, though the words it bore had been put to Professor Sands. His Honour stated that he proposed to mark the sign produced as an exhibit, though he appears to have been deflected from actually doing so by further re-examination of Mr. Bye about signs. Nothing, however, turns on this. The sign is headed with the words “DANGER” in large white letters against a red background of elliptical shape within a rectangular black heading occupying approximately the top fifth of the sign. The sign then reads in block capitals:

“USERS OF THIS RESERVE ARE WARNED THAT TREES IN AND ADJACENT TO THIS RESERVE ARE PRONE TO FALLING AND/OR LIMB SHED, PARTICULARLY UNDER CONDITIONS OF HIGH WIND OR RAIN”.

(During the hearing of the appeal counsel for the respondent was inclined or, perhaps, prepared to omit the word “particularly” and the comma preceding it.) Counsel for the respondent submitted that the defendant should have erected that sign at the entrance to the reserve and perhaps at other locations within the reserve including adjacent to the spot where the respondent was struck by the tree.

Mr. Bye thought that, “if we wanted to put that message across” the proposed wording was “okay”. That, of course, is circular. Professor Sands said that a sign worded as set out above would be a simple sign and that it would give visitors some insight as to the dangers of the forest in the area. Since the questions whether a sign should have been erected and, if so, what its wording should have been were peculiarly for the judge as the tribunal of fact it is extremely doubtful whether the cross-examination of the two witnesses just referred to was admissible or helpful. The same observation applies to more general evidence given about the need for and efficacy of a sign. I accordingly do not summarise that evidence. The substance of comments made by witnesses might, of course, be adopted by the judge in deciding the case or by this Court in deciding the appeal. Some evidence of Professor Sands given while being cross-examined about signs is, however, probably admissible. He said that the hazard of falling limbs and falling trees is endemic over all forests. Mr. Bye said that he had not seen signs warning of the risk of falling trees or limbs in any State forest.

His Honour began his consideration of the respondent’s submission concerning signage by dealing with a submission for the defendant in response that there was no evidence that a sign would have made any difference and specifically whether the respondent would have taken any notice of a sign. His Honour acknowledged that there was no specific evidence given by her that, if warning signs had been erected, she would have taken notice of them. He considered, however, that in the present case such evidence would essentially have been reconstruction of doubtful utility. He continued:

“It is my view that the [respondent] was not untypical of the probable users of the Reserve. Even Mr. Williams, a keen camper, who had returned to the Reserve over many years, was unaware of the potential dangers of falling trees until after the accident. He then took greater care including measures to protect himself. The Reserve included substantial open grassed areas as well as a walking track through the bush by the river. It was not wilderness. The camping area used by the [respondent] was only a short distance off the main road. It could not be anticipated that the users of the Reserve would be likely to be aware of the potential dangers of the trees in the Reserve.
The [respondent] had never previously been to the Toorongo Falls Reserve. She was, however, aware of her surroundings on that day. She observed the effect the gusts of winds had on the vegetation. She gave evidence that immediately before the accident she had commented on the stand of trees on the eastern side of the river as a ‘sick looking bunch of trees”. This comment was probably little more than an example of that which led one of the psychiatrists to describe her as a ‘mistress of the throwaway line’. Notwithstanding, the [respondent] impressed me as a person of commonsense and with a heightened sense of self-preservation. I consider it probable that if she had been warned there was a danger of trees or limbs falling, she would have taken notice.”

His Honour then considered other aspects of the respondent’s submission and the defendant’s response and ultimately concluded on the evidence before him that, in the circumstances, the defendant breached the duty of care it owed the respondent “by failing to erect an appropriate sign or signs warning of the danger of hazardous trees in the Reserve, particularly in certain weather conditions. The [respondent’s] injuries were a foreseeable consequence of the defendant’s breach of duty.”

His Honour then turned to the assessment of damages. Medical expenses incurred were agreed. His Honour assessed past loss of earnings at $60,580. He assessed loss of future earnings at $117,969, having reduced the sum he calculated actuarially by two-thirds “to take account of both the exigencies of life and also any income the [respondent] may earn in the future”. He allowed the sum of $160,000 for pain and suffering and loss of enjoyment of life. Interest being agreed in the sum of $5,133, his Honour accordingly pronounced judgment for the respondent in the sum of $346,734.30, including interest, together with costs.

The appellant appeals to this Court, essentially on two grounds. It contends that his Honour erred, first, in finding that there was on the part of the appellant a breach of the duty of care it owed the respondent in not erecting an appropriate sign or signs warning of the danger of hazardous trees in the reserve, particularly in certain weather conditions, and, secondly, in finding that the respondent’s injuries were caused by the absence of any such sign or signs. The notice of appeal contains 18 other grounds, but they are largely particular arguments in support of one or other of the two ultimate grounds. Some of these grounds challenge findings of fact made by his Honour on the way to his conclusions on breach of duty and causation. Such challenged intermediate findings include the finding (implied, as it seems to me, rather than express) that the tree that fell on the respondent was hazardous; the finding that many trees on the eastern side of the river had fallen; and the finding that the respondent would have taken relevant notice of the proposed or any sign. (The ground challenging the last-mentioned finding, ground 18, adds to its challenge the finding that the respondent would have acted in a way that would have avoided her injuries, though, as will appear, I do not consider that his Honour made such a finding.) It will be apparent that what I have called his Honour’s two ultimate findings were themselves findings of fact. This being an appeal on fact and law, the question for this Court is whether either finding is shown to be wrong.

The respondent has cross-appealed against his Honour’s assessment of damages on the ground, in essence, that he erred in reducing his assessment of her future loss of earnings by 66.6% to take account both of contingencies of life and of any income she might earn in the future. For reasons which will appear, I find it unnecessary to consider the cross-appeal.

I turn, then, to the first main question on appeal, that of breach of duty, which, from another viewpoint, is whether the standard which the relevant duty of care required was met. It is necessary first, however, to state what that duty is. Now, at common law a body that occupies and is under a duty to manage and control for the benefit of the public a public reserve is under a general duty of care to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the reserve: Nagle v. Rottnest Island Authority.[4] The source of liability in such a case is the statutory power and duty of care, control and management and not merely the occupation of the land: Schiller v. Mulgrave Shire Council[5]; Romeo v. Conservation Commission (NT).[6] “[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable”: Wyong Shire Council v. Shirt[7]; Nagle.[8] As explained in Wyong Shire Council[9] foreseeability and likelihood of occurrence are different concepts. It was common ground before us, as it was below, that the appellant was under a duty of care both at common law and as an occupier pursuant to Part IIA of the Wrongs Act 1958 and that the requisite standard of care was essentially the same in both cases. But there is a question whether the standard of care to be observed by an occupier at common law, as ultimately enunciated definitively by the High Court in 1987 in Australian Safeway Stores Pty. Ltd. v. Zaluzna[10], and to that extent the common law duty itself, can co-exist with the standard of care enacted by sub-s.(3)[11] of s.14B of the Wrongs Act in place[12] of the rules of common law which determined the standard of care before the commencement of the Occupiers’ Liability Act 1983[13], a date admittedly a few years earlier.[14]. It may be that the rules of common law “with respect to the liability of occupiers” which (except in relation to the standard of care) are preserved by sub-s.(2) are confined, or refer primarily, to those relating to the other elements of the cause of action, namely, causation and damage. But it is unnecessary to decide the question mentioned, including the effect of sub-s.(2), because it was not suggested that any higher standard of care arose at common law than under sub-s.(3). For that reason also I shall not deal further with the common law claim except to observe that, if the appellant is to be considered as the Crown[15], it is difficult to see how the respondent can rely on a duty outside Part IIA, since under s.23(1)(b) of the Crown Proceedings Act 1958 the Crown is not liable directly in tort, but only vicariously for the torts of its servants and agents[16], and no tort by any particular Crown servant or agent was found by the judge or contended for on appeal.
[4](1993) 177 C.L.R. 423 at 429-430
[5](1972) 129 C.L.R. 116 at 120
[6](1998) 192 C.L.R. 431 at 439-440, 451, 472 and 487-488
[7](1980) 146 C.L.R. 40 at 48
[8]at 431
[9]at 45-47
[10](1987) 162 C.L.R. 479
[11]Set out in [40] below
[12]As stated in sub-s.(1)
[13]1 July 1984
[14]Compare the observations in Stusser v. City of Melbourne (unreported, Court of Appeal, 16 September 1997), pp.1 and 2 and Kocis v. S.E. Dickens Pty. Ltd. [1998] 3 V.R. 408 at 409, 411 and 427. In South Australia Part IB of the Wrongs Act 1936 (SA) operates as a code which, so far as material, displaces the common law by virtue of s.17E(1), though s.17c(1) requires liability of an occupier to be determined “in accordance with the principles of the law of negligence”: Errington v. Target Australia Pty. Ltd. (1995) 65 S.A.S.R. 378, F.C., at 381-382; Hermsen v. Olasz (1996) 187 L.S.J.S. 106, F.C. ..
[15]As to which, however, s.23(3) of the Crown Proceedings Act 1958 is to be noted.
[16]See, for instance, Lyver v. State of Victoria [1983] 2 V.R. 475 at 478 and 482 and cases cited.

I come, therefore, to the appellant’s statutory liability as occupier. So far as the appellant is to be considered as the Crown, it may be noted that s.14C of the Wrongs Act specifically provides that where the Crown is an occupier it shall in its capacity as occupier owe the same duty to persons on the premises as it would owe if it were a subject, and shall be liable accordingly. The appellant conceded, correctly in my view, that it was the occupier of the reserve.[17] Section 14B(3) is therefore relevant. It provides:
[17]The remarks of Barwick, C.J. in Schiller at 120 do not, I consider, lead to a different view.

“(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”

The question under s.14B(3) in each “case” is what care in all the circumstances is reasonable to avoid injury or damage of the kind mentioned. Section 14B goes on to provide in sub-s.(4) as follows:
“(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to –
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.”

As the introductory words show, that list of factors is not exhaustive.[18]

[18]As to it, see Crosthwaite v. Pietila [1999] VSCA 110 at [8].

As the trial judge said, the duty is one to take reasonable care, not a duty to prevent any and all reasonably foreseeable injuries. Accordingly, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty: cf. Wyong Shire Council.[19]
[19]at 48

It is to be noted that no notice of contention has been filed on behalf of the respondent challenging his Honour’s decisions adverse to her that reasonable care on the part of the appellant did not require the stand of wattles on the eastern bank to be culled or require oral warnings to be given to those camping in the reserve or the reserve itself to be closed. This Court is, therefore, concerned only with the failure to erect warning signs.

Although his Honour’s conclusion that the appellant had breached the duty of care it owed the respondent by failing to erect an appropriate sign or signs warning of “the danger of hazardous trees in the Reserve”[20] would necessarily seem to contain an implied finding that the tree which fell on the respondent was hazardous in the sense that the appellant knew or ought to have known that there was a risk of its falling or dropping a limb in the immediate or short-term future, that implied finding cannot be correct because his Honour had made specific findings in respect of the tree, or trees including the tree, which are inconsistent with that. Although those specific findings are included amongst the findings set out earlier in these reasons, it is necessary to collect them here, as I now do. His Honour had accepted expert evidence that silver wattles are not particularly susceptible to falling although they will do so at some stage. He accepted that the tree in question was estimated to be between 30 and 55 years old and found that silver wattles can live to 70 years. More importantly, he found that the tree had a root ball of about the size that was to be expected and had no significant evidence of disease or decay. It would have appeared sound in its main trunk. He was not satisfied that any disease from its dead limb would have affected the main trunk or root system. It is true that his Honour did find that the tree which fell, being located close to the river bank, was more susceptible to moisture in the soil around its base from the run-off and proximity to the river, and found more generally, as regards the trees on the eastern side close to the river, that the stability of their roots would have been affected by moisture from the river and the rainfall. That does not, however, mean that the subject tree, and all such wattle trees close to the river, were hazardous in the sense in which I am using the word. Certainly his Honour did not expressly so find. Indeed one of his reasons for rejecting the respondent’s submission relating to culling is inconsistent with such a finding. For his Honour said that had the wattles been inspected (which must mean properly inspected) it is likely that the only action taken would have been the removal of the dead side branch from the subject tree. True, its removal would perhaps have been the most likely and most appropriate course, but it was not incumbent on the appellant to do so. In a context where his Honour had reviewed the appellant’s risk management program, that implies that the tree was not hazardous. His Honour’s findings as to the effect of moisture are no doubt relevant, along with the other findings I have mentioned, on the question of what was a reasonable response to the foreseeable risk of injury.
[20]No point was made by the appellant of the fact that the tree which fell was not in the reserve, but was growing outside it. Nor did the appellant suggest that s.14B(3), with its references to “the state of the premises”, did not apply in relation to the tree which fell. The appellant was, after all, the occupier of the State forest in the eastern side of the river.

His Honour placed considerable weight upon the terms of the documents discovered by the appellant as to its risk management program and, secondarily, upon what he regarded as the unsatisfactory nature of Mr. Bye’s evidence and the failure of the appellant to call other officers concerning its risk management program. I respectfully consider those documents to be of no real relevance because the tree in question, not being hazardous in the sense in which that word was used in those documents, was not within the purview of the appellant’s risk management program.

With the foregoing matters out of the way, I can now state my opinion on the question of breach of duty. I respectfully consider that the trial judge erred in concluding on the evidence that in the circumstances there had been a breach of the duty of care owed to the respondent by the failure “to erect an appropriate sign or signs warning of the danger of hazardous trees in the Reserve, particularly in certain weather conditions.” I have concluded on the evidence, for the reasons which follow, that the appellant’s duty of care did not require it to erect any such warning notice or a warning notice which was similar but which omitted the expression “, particularly”. It seems that the erection of one notice would (or might), in his Honour’s view, have satisfied the appellant’s duty of care, but it is significant that his Honour did not specify the location or locations of the sign or signs which he considered necessary. If one sign would have sufficed, presumably it should have been erected at or near the sandy beach or at the entrance to the last 10 or 15 metres of track leading to the beach. But it is necessary to consider the case on the alternative footing, more favourable to the respondent, of the need to erect signs elsewhere as well, and in particular at or near the vehicular entrance to the reserve. If I considered that the appellant’s duty of care in the circumstances required it to erect one warning sign or several warning signs I should of course not uphold the appeal merely because of the judge’s failure to specify the location or locations, but would do that in my own reasons. Again, his Honour did not say what he meant by “appropriate“ signs, though he did specify the danger against which they had to warn. It may, therefore, be that “appropriate” relates to size, colour and design of the signs, rather than their text. If that be wrong, it is probably reasonable to treat his Honour as referring to the respondent’s proffered draft, which he described as a commendable effort, altered to remove “difficulties” he mentioned. Again, his Honour’s failure to specify what was “appropriate” would not stand in the way of a conclusion, if otherwise to be reached, that he was correct in finding that there had been a breach of duty.

The respondent limited her case before this Court to warning signs to meet the case of the relatively unusual (“10 to 12 times a year”) high winds or gales “in this area”. However, the meteorological evidence was that the warnings and occurrences of such winds or gales were not limited to the “area” – or vicinity - of the Toorongo Falls Reserve, but extended to a large part of the State of Victoria. It is apparent, indeed notorious – and it was not disputed by the respondent - that in that much larger area there are numerous other reserves under the care, control and management of the appellant, which is in substance a government department managing (amongst other things) national parks and the ultimate successor to the Forests Commission.[21]
[21]Relevant to this paragraph are the first passage from Kirby, J.’s judgment in Romeo cited in [49] and the second passage from that of Hayne, J. there cited.

There are two principal reasons why, in my view, the taking of reasonable care did not require the taking by the appellant of any such precaution to guard against an accident of the kind that occurred to the respondent. First, the danger to be guarded against, that of death or injury from falling trees or limbs, was an obvious one, at any rate in high winds. The appellant was entitled to expect adult residents of Victoria, such as the respondent, to know that trees and limbs of trees in forests, reserves, parks and other places occasionally fall, at any rate in high winds, and do so randomly. It follows that, whatever may have been the state of awareness[22] of Mr. Williams, the camper witness, before the accident, I do not consider that his Honour’s statement, set out in [35] , that it “could not be anticipated that the users of the Reserve would be likely to be aware of the potential dangers of trees in the Reserve” (or, I would add, just outside it) is warranted either by the evidence or by the common course of human experience. To enter a forest or its immediate surrounds, like entering the surf, is to take a risk of injury, albeit a remote risk. The risk is “endemic” or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular in forest reserves. This was all explained by Professor Sands and Associate Professor Hallam. The former spoke of forests as hazards by their very nature, but pointed out that one cannot define the precise hazard in advance. The position might be different if the tree in question had been hazardous in the sense in which I have used that word, as it might also be at a beach where the surf was frequently subject to treacherous currents not obvious to a stranger to the beach. The question is one of fact and accordingly is not governed by other cases. It will, however, be apparent that I regard this case as somewhat similar factually to Mountain Cattlemen’s Association of Victoria Inc. v. Barron [1998] 3 V.R. 302 (though the horse riders there were, and were known to be, experienced), and quite different from Schiller, where the tree in question was a dead one within falling distance of the walking track in a rain forest and it was found that the defendant knew or ought to have known of its existence close to the track and of the danger to unsuspecting tourists which such a tree in a rain forest posed from falling in still weather.
[22]The relevant mental state may really have been attentiveness or preparedness to take remote risks, for, when speaking generally, Williams showed his awareness when he said, “I guess trees fall down.” I doubt the finding that Williams (to use his Honour’s words) “had not appreciated the risks until the accident” or “was unaware of potential dangers of falling trees until after the accident.” Rather, to my mind Williams’ evidence simply means that he was less careful or less attentive to danger before the accident than after it.

Secondly, the finding that reasonable care required the appellant to erect a notice or notices imposed a burden on the appellant that was out of proportion to the remote (albeit eventuating) risk of danger to visitors, including the respondent, and was, in short, unreasonable. This is because, if a warning notice was required to be erected in the vicinity of the sandy beach, a like notice was required to be erected in numerous other places in the reserve and in particular at points on the walking track heading upstream from the beach, at which people camped close to the water and past which they walked, for there was a like risk at those points (being of course points within reach of a substantial tree if it fell) even though the risk did not at the time eventuate at those points, as it did at the sandy beach. Moreover, when his Honour’s conclusion is applied to each of the other reserves under the care, control and management of the appellant, both those which were specifically shown by the evidence to exist and those whose existence the tribunal of fact was entitled, indeed bound, to know or infer, it may be confidently concluded that there exist very many other points indeed at which signs must, if his Honour is correct, be erected. I do not extend my consideration to State forests under the care, control and management of the appellant that are not part of reserves, since to large parts, at least, of them the public may not have access. Even when consideration is confined to reserves, it can be seen that the trial judge’s conclusion imposes a heavy burden on the appellant in terms of cost, time and trouble. Further, the amenity of the reserves would be adversely affected by the signs required. In short, his Honour did not, I respectfully think, have sufficient regard to the impracticability and difficulty of eliminating the remote risk in a forest environment. As Gibbs, J. said in Schiller[23], after concluding that there had in that case been a breach of duty at common law:

“The nature of the area, the extent to which the public resort to it and the practicability of eliminating the risk, having regard to the expense, the funds available and the difficulty of the operation, have all to be considered.”

[23]at 136

That it is right not to restrict consideration of precautions merely to the tree which fell is shown by what Kirby, J. and Hayne, J. said in Romeo, another case concerning the common law duty. It matters not if their Honours’ observations are not propositions of law, for they make sound sense and I would adopt them as part of my reasoning in dealing with the question of fact with which I am concerned. When discussing the scope of the duty owed by a public authority charged with the management and control of a reserve to the appellant in that case, who, when affected by drink, fell from the top of a cliff in the reserve, Kirby, J. said in Romeo[24]:
[24]at [123] and [124], with footnotes omitted

“Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct.

It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them.”

Speaking of breach of duty and with reference to what Mason, J. had said in Wyong Shire Council[25], Kirby, J. said[26]:
[25]at 47-48. There, in respect of the common law duty, his Honour had said, amongst other things, that the perception of the reasonable response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
[26]at [128], [129] and [130], with footnotes omitted
“Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be ‘balanced out’ before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a break on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that ‘a reasonable man, careful of the safety of his neighbour, would think it right to neglect it’. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. ...
As to the expense of taking alleviating action, it is increasingly recognised that courts must ‘bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for’ bodies accorded that function by law ... Inherent in the suggestion of the obligation of prevention is the cost that would be incurred and the measures necessary to prevent all equivalent accidents of a like kind and risk.
In the reference to ‘other conflicting responsibilities’ regard may be had to considerations such as the preservation of the aesthetics of a natural environment and the avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility.”

Hayne, J. said[27]:
“It was suggested in this court, and below, that all that would have been necessary to stop the plaintiff walking off the edge of the cliff was two star pickets and one or two strands of wire across the part of the cliff which the trial judge inferred that she and her companion had mistaken for a path. Thus, so the argument ran, the cheap and obvious means of avoiding catastrophic injury was readily available. That attributes a false degree of precision to identification of the foreseeable risk; it attributes too high a probability to the occurrence of that risk and it fails to identify properly the response that would have had to be made to that risk to avoid it.”

Later his Honour said[28]:
“Thus it is to attribute a false degree of precision to the identification of the foreseeable risk to say that it was this area (and only this area) which needed fencing against the possibility that a person affected by alcohol would be deceived in a way that a sober and alert person would not. To say that only this area needed fencing assumes (wrongly) that it is only at this point on the cliffs that a mistake of the tragic kind made by the plaintiff on this night might be made.”

[27]at [161]

[28]at [163]

I would acknowledge that the second reason which I have been considering would not be applicable if all that was required was a warning notice at or near the vehicular entrance to the reserve. His Honour of course did not say that that was the case. Nor did the respondent’s counsel on the appeal limit the location of signage for which he contended to the entrance or its vicinity alone. I accept, however, that the precaution of a sign at or near the entrance only must nevertheless be considered. As will appear, I regard such a precaution as inefficacious.

Some other comments may also be made. There was no evidence of the efficacy of a warning sign of the type which the judge found to be required, nor any real consideration of such efficacy. There was not even evidence of the erection of similar signs in reserves elsewhere. The topic of efficacy overlaps with the issue of causation, but it may be said in general that the duty of care does not require occupiers to take precautions that are unlikely to be efficacious: cf Waverley Council v.Bloom[29]. I should have thought that a warning sign at or near the vehicular entrance to the reserve or in the cleared camping area, say, near the toilet block, would have had little effect upon visitors who were otherwise minded to go to the sandy beach or who had in fact gone to it. Since the respondent did not suggest that a sign prohibiting access to the sandy beach was required, it is unnecessary to consider the efficacy of such a sign. I would only say that the erection of such a sign would seem inconsistent with the maintenance of a foot track leading upstream from the sandy beach and that a sign prohibiting entry to the reserve because of the various risks would have been quite inconsistent with the maintenance of the reserve.
[29][1999] Aust. Torts Reports ¶81-157 at [18]

The appellant challenged his Honour’s findings that “many” of the trees on the eastern side of the river had fallen over and that there clearly had been, “over time”, considerable instability in trees comprising the under-storey on the eastern bank. I do not find it necessary to express a concluded view on the correctness of these findings, which, it may be noted, are not expressed in absolute, but relative, terms. The direct evidence does not, I think, support a finding that many trees had fallen in the period shortly preceding the accident, but on a longer view, and bearing in mind Professor Sands’ evidence, it may be true that many had fallen.

His Honour said that “residual questions” raised before him by the defendant as to cost, maintenance, the breadth of the obligation, and policy and financial considerations, as well as the wording and location of signs, could in large part be answered by the application of common sense. These “residual questions” bear on both of the principal reasons on which I have based my conclusion. Whilst it is proper to record that his Honour did go on to find that most of the “residual problems” had been considered by the defendant, they cannot, in my opinion, be left to common sense, but must be taken into account in the synthesis or “balancing out”[30] required by s.14B(3) and (4). That is not to say that it was necessary for the judge to go through all the “residual” matters one by one.[31]
[30]Mason, J.’s expression in Wyong Shire Council at 48-49
[31]Crosthwaite v. Pietila at [8]

I therefore conclude, by reference particularly to the considerations set out in paragraphs (a), (c), (f) and (g) of s.14B(4) of the Wrongs Act, which, despite their present significance, I do not set out again, that his Honour erred in finding that the respondent had established a breach of the duty owed to her.

I come now to the second main question on appeal, that of causation. I do so on the assumption that, contrary to my view, his Honour was correct in concluding that the duty of care owed to the respondent was breached by the failure to erect an appropriate warning sign or signs. The question is whether that failure was a cause of or materially contributed to the sustaining by the respondent of her injuries. It is, I think, helpful on the question of causation to cite the remarks of Kirby, J. in Romeo[32] notwithstanding that they were obiter. His Honour said (omitting his footnotes):
[32]at [134]

“Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage. This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff’s damage and loss. Necessarily, the question is hypothetical. ... Sometimes a plaintiff has been asked directly what he or she would have done if the acts constituting fulfilment of the suggested duty had occurred. Normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment, not subjective protestations after the event.[33] In this case, the appellant was not asked. It was left as a question of fact for the tribunal of fact to decide whether the protective measures suggested would have been effective in preventing her loss and damage.”
[33]But see Chappel v. Hart (1998) 195 C.L.R. 232 at 246, per McHugh, J. (diss.) and at 272-273, per Kirby, J.

Relevant, too, for present purposes are passages in the judgment of Lindgren, J. (whose views, about causation “[p]articularly”, Lehane, J. shared) in Qantas Airways Ltd. v. Cameron.[34] In that case a group proceeding had been brought in the Federal Court on behalf of several passengers on international flights of the appellant who had requested a “non-smoking” seat and claimed to have suffered discomfort or ill-health from “passive smoking” or “environmental tobacco smoke” (ETS). His Honour said[35]:
“In any case based on an alleged negligent failure to warn or inform it is necessary (i) to identify with certainty the kind of warning or information which the circumstances called for[36], and (ii) to prove that if the warning or information called for had been given, the loss or injury alleged would not have been suffered. In the present case I am content to accept, without deciding, that the duty to warn incumbent on Qantas required the giving of the para.(e) warning [scil, a warning that ticket holders or prospective passengers might be exposed to cigarette smoke during flights in specified circumstances]. ... It must then be inquired what course the respective group members would have taken upon being given that warning.
One might have expected this question to be put directly to each group member. It was not. ... It may be ... that other evidence relating to particular group members makes it proper to infer that they would have responded to the warning in a particular way. But it is evidence of the response which would have occurred to the particular hypothetical para.(e) warning that matters ...
In sum, if the evidence does not establish that it is more probable than not that a group member would have heeded the para.(e) warning and taken a course in which he or she would not have suffered from the effects of ETS in the aircraft, that group member will have failed to establish a necessary element in the cause of action in negligence. ...”

Later his Honour said[37]:
“Even if a group member established on the balance of probabilities that he or she would have heeded a para.(e) warning, it does not follow that he or she would have avoided the ill effects suffered or their sequelae. Many factors would have been relevant to a determination of this question in the case of any particular group member, such as the availability of appropriate medication and the readiness of a group member to use it, and the availability of conveniently timed ‘non-smoking’ flights and the exigencies of commitments at the place of destination. Evidence relating to such matters was not led on behalf of the respective group members.”

[34](1996) 66 F.C.R. 246. (A motion to set aside the orders pronounced by the Full Court of the Federal Court was dismissed: Qantas Airways Ltd. v. Cameron(No.2) (1996) 68 F.C.R. 367.)

[35]at 293-294 (emphasis supplied)

[36]It is unnecessary to consider whether certainty is always required, but in the present case one might reasonably expect that the minimum precaution which the duty was said to require could be identified.

[37]at 295

It will be recalled that the respondent impressed the trial judge as a person of common sense and with a heightened sense of self-preservation and that he considered it probable that, “if she had been warned there was a danger of trees or limbs falling, she would have taken notice”. He later concluded that her injuries were “a foreseeable consequence” of the breach of duty.

Two aspects of his Honour’s reasoning on causation call for comment. First, there was no evidence bearing directly upon what the respondent would have done had a notice been erected at one or more locations in the reserve. The question was not put to her. It is clear from the passages which I have cited from the judgments of Kirby, J. in Romeo and Lindgren, J. in Qantas Airways that there are different views about the usefulness of doing that. It may well be, as the trial judge said here, that the answer would have been a reconstruction of doubtful utility, but it is undoubtedly the case that the question is often asked. Be that as it may, as the cases show, there can be evidence from other sources than a plaintiff that bears directly on the point, such as evidence that precautions of the kind in issue are frequently effective; but none was led here. His Honour, however, was entitled to draw inferences from other evidence if such inferences were open. He was, I think, entitled to find that the respondent was a person of common sense. But, when regard is had to her life history, which I have not troubled to summarise but which includes accidents, and risky pursuits and pastimes, I am doubtful whether he was entitled to find that she had a heightened sense of self-preservation, notwithstanding the evidence she gave as to the stand of trees opposite the sandy beach. Even if he was so entitled, I respectfully consider that it was not open to him on the evidence to infer on the balance of probabilities that, if the respondent had been warned, “she would have taken notice”. In my opinion, it cannot be said that according to the course of common experience the more probable inference from the circumstances proved was that she would have taken notice. I accept the appellant’s submission that there were at best conflicting inferences of equal degree of probability so that the choice between them was a mere matter of conjecture: Holloway v. McFeeters (1956) 94 C.L.R. 470 at 480-481, citing Bradshaw v. McEwans Pty. Ltd. (unreported, High Court of Australia, 27 April 1951). I would add that I do not take his Honour to have relied upon Mr. Williams’ greater carefulness after the accident as a pointer to the respondent’s likely response to a warning sign. The appellant’s criticism of such reliance is therefore, I consider, misconceived.

Secondly, and more significantly, in determining that the respondent would have taken notice his Honour asked and answered only part of the relevant question. That question was whether the precaution of a warning sign or signs would, on the balance of probabilities, have averted injury to the plaintiff from the falling tree. The concept of “taking notice” of a sign or signs is vague or ambiguous. This is especially so where the sign is monitory as opposed to prohibitory. Thus, if the hypothesis is that warning signs would have been placed at or near the vehicular entrance to the reserve, near the toilet block and in the vicinity of the sandy beach, taking notice of one or more of them might be constituted by or result in not entering the reserve or not going to the sandy beach or keeping a sharp lookout at the beach. His Honour did not make it clear what he meant. The proposed wording of the sign did not urge or advise either of the first two courses of action. In my view, in the absence of very explicit evidence, it is quite unrealistic to suggest that the first course of action would have been adopted, and counsel for the respondent did not do so. He did, however, submit that the respondent would not have gone down to the river in high winds, that is, that she would have taken the second course. That course would have averted the injury in fact suffered. However, I am of the view that the evidence did not, and does not, directly support any such finding and that such a finding could not and cannot be inferred from the evidence on the balance of probabilities. Indeed, the common course of human experience would suggest, I should have thought, that a relatively young camper would not have been deterred or deflected by a warning sign from going to the river to look for “fool’s gold”.

One is left, then, with the third course of action, and it may well be that that is what his Honour had in mind in making his statement. Even if it had been open to his Honour to make such a finding, the finding would not have discharged the respondent’s obligation to establish causation on the balance of probabilities. As the passage from the judgment of Lindgren, J. in Qantas Airways at 293-294 points out, it was necessary for the respondent to establish that it was more probable than not that she would have heeded the warning and taken a course of action in which she would not have been injured. It is necessary, therefore, to investigate the second half of the requirement, or in other words the part of the question which his Honour did not ask. On the basis of the respondent’s statement of instructions, perhaps also on her oral evidence, it was open to find that she was taken by surprise by the falling trees. I have therefore considered whether, had she been prompted by a warning notice to keep a sharper lookout than she did or to be more alert than she was, she might have moved with sufficient additional speed to get out of the way of the falling trees. His Honour of course made no such finding. But such a finding is, I think, within the general purview of what the respondent contended for, and, if I considered that it should be made, I would uphold the judgment below. I have concluded, however, that it was not open to his Honour, and is not open to this Court, to be satisfied on the balance of probabilities that the respondent would, in the hypothetical circumstances, have taken action which would have avoided injury. There is no evidentiary basis for such a finding. It would, in my view, be merely conjecture.[38]
[38]I do not regard this as a case where the respondent could rely on an evidential presumption of causation arising from proof of breach and injury (discussed in Hamer, “Chance would be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World”, (1999) 23 Melb. Univ. Law Rev., 557 at 616-628). Nor was that argued.

Each case depends upon its own facts as revealed by the evidence and the question is one of fact. Nevertheless, I note that Walsh, J. in Schiller[39] expressed the view that it was impossible to know whether or not a warning notice would have prevented the accident from occurring and that Gibbs, J.[40] in fact expressed the view that it would have served no good purpose merely to warn persons using the track onto which the dead tree in question fell, because the tree might, as the event showed, come down so suddenly that a person on the track could not escape it.
[39]at 133
[40]at 135

For the reasons I have given, I would allow the appeal and substitute a judgment for the appellant, as substituted defendant below. I would dismiss the cross-appeal. Subject to any submissions counsel may make, I would give the appellant costs both here and below.

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29 March 2000