Sharp v Parramatta City Council

[2015] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Sharp v Parramatta City Council [2015] NSWCA 260
Hearing dates:	17 March 2015
Decision date:	02 September 2015
Before:	Meagher JA at [1]; Ward JA at [46]; Gleeson JA at [47]
Decision:	1.   Appeal dismissed. 2.   Appellant pay the respondent’s costs of the appeal.
Catchwords:	TORTS – negligence – where appellant injured jumping off 10 metre diving platform – whether occupier of pool owed duty of care to supervise and instruct individuals using platform – whether primary judge erred in finding as to instruction given – whether warning of risk of injury in using platform was given in accordance with s 5M of the Civil Liability Act 2002 (NSW) – whether that risk warning contradicted by instructions given by lifeguard – whether appellant’s injuries were suffered as a result of materialisation of an obvious risk of dangerous recreational activity within s 5L of the Civil Liability Act 2002 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5H, 5I, 5K, 5L, 5M, 5R Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)
Cases Cited:	Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Fox v Percy [2003] HCA 22; 214 CLR 118 Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Streller v Albury City Council [2013] NSWCA 348 Tory v Megna [2007] NSWCA 13 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Category:	Principal judgment
Parties:	Erin Sharp (Appellant) Parramatta City Council (Respondent)
Representation:	Counsel: R Sheldon SC with E Welsh (Appellant) J E Sexton SC (Respondent)   Solicitors: Brydens Law Office (Appellant) McCulloch & Buggy Lawyers (Respondent)
File Number(s):	CA2014/142863
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 17 April 2014 Before: Curtis DCJ File Number(s): DC2011/357852

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant suffered injuries in January 2009 when she landed awkwardly after jumping from the 10 metre diving platform at Parramatta War Memorial Swimming Centre. In the District Court, the appellant claimed that Parramatta City Council was negligent in breaching its duty, as the occupier of the pool, to take reasonable care to avoid foreseeable risks of injury to those persons using the pool and diving tower.

The primary judge dismissed the appellant’s claim on the basis that there was a warning sign at the base of the stairs to the diving tower, which provided a defence to the appellant’s claim under s 5M of the Civil Liability Act 2002 (NSW). The primary judge also found that the lifeguard at the top of the tower had instructed the appellant to “fall vertically, feet first into the pool below” and that this would have satisfied a duty of care to provide instruction to those requesting guidance in the use of the diving platform.

The issues before the Court, which were necessary to determine, were:

whether the primary judge erred in finding that the lifeguard had instructed the appellant to “fall vertically, feet first”, but not also to “run and jump”;

whether the risk that manifested had been the subject of a risk warning within the terms of s 5M; and

whether the injuries suffered by the appellant amounted to harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity under s 5L.

The Court held, dismissing the appeal (per Meagher JA, Ward and Gleeson JJA agreeing at [46]-[47]):

In relation to (i)

The primary judge did not err in not accepting the appellant’s evidence that the lifeguard instructed her to “run and jump” because of his Honour’s adverse view as to the reliability of her evidence: [20]. The finding that the lifeguard had not given that additional instruction was not shown to be inconsistent with the other evidence: [23]-[25].

In relation to (ii)

By its reference to using the platforms and springboards, the warning sign sufficiently identified the general nature of the risk of injury in undertaking the activity of jumping into the pool from the 10 metre platform: [31]. Persons ascending the diving tower in the same way as the appellant were reasonably likely to receive and understand the warning said to have been given: [32], [34]. The instructions given by the lifeguard did not contradict the warning given by the sign: [35].

In relation to (iii)

The risk of injury from impact with the water surface from such a height was obvious: [41]. The activity was a dangerous recreational activity: [42]. The respondent Council was entitled to rely upon s 5L to deny liability in negligence for the harm suffered by the appellant: [43].

The Court considered that the determination of these issues was sufficient to dispose of the appeal: [44].

Judgment

1. MEAGHER JA: This is an appeal from a decision of Curtis DCJ dismissing the appellant’s claim for damages for injuries suffered in January 2009 when she landed awkwardly after jumping from the 10 metre diving tower at the Parramatta War Memorial Swimming Centre, which was occupied and operated by the respondent Council: Sharp v Parramatta City Council (District Court (NSW), Curtis DCJ, 17 April 2014, unrep).

Background facts

2. On 25 January 2009, the appellant, then aged 24, attended that Centre with her partner and two friends, one of whom was Nathan Smith. Two or three hours after the group arrived the 10 metre diving platform was opened. Mr Smith and the appellant walked to the diving tower and ascended the stairs, which were crowded. They did so after having watched people jumping from the platform for about 15 to 20 minutes. When the appellant reached the top of the tower, she was nervous and gave evidence that she no longer wanted to jump. However, and notwithstanding that there were people going up and down the stairs, the appellant did not feel that she could descend. Having sought instruction from a lifeguard stationed on the platform (Mr Milne), the appellant jumped, falling feet first but entering the water at an angle of about 45 degrees with her buttocks making first contact with the surface. In doing so she sustained a compression fracture of the T11 vertebral body, affecting predominantly the superior endplate.

The appellant’s case at trial

3. Although the appellant’s claim as pleaded included several particulars of negligence, the case was conducted on a narrower basis and put in two alternative ways, as recorded by the primary judge at [17]:

In her written submission[s] Ms Welsh for the plaintiff said that:

The defendant ought not to have been permitting patrons to jump from the 10 m board by permitting them to run and jump into the pool. It is the plaintiff’s case that they should either have been properly instructed and supervised or the activities should not have been permitted at all. [It is] the plaintiff’s case that there was no orderly and well instructed procedure which took place prior to the plaintiff's jump.

4. As occupier of the pool, the respondent Council owed a duty of care broadly analogous to that of an occupier of private land: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [81]. That duty was to take reasonable care to avoid foreseeable risks of injury to persons using the pool: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488. Beyond that, the scope and content of the duty depended on the particular circumstances.

5. The first way in which the appellant’s case was put accepted that the respondent’s duty of care as occupier could be satisfied, notwithstanding that the activity of jumping off the platform was permitted, if that activity was supervised and a person such as the appellant was given sufficient instruction about what to do. That submission required consideration of the supervision and instruction provided by the Council or its employees in this case.

The factual issue as to what the lifeguard said

6. Mr Milne was the lifeguard stationed on the 10 metre platform. A factual issue arose as to what instruction he gave the appellant before she jumped. The appellant’s evidence was that he said: “Well, you can just take a run and jump”. Mr Milne’s evidence was that he gave instructions to each group of people on the platform and that he then spoke to each person as he or she came forward to the front of the platform. He gave the same instructions to each group: “Everyone stand one line behind me. Nobody push, no shoving, no running, no jumping … No holding hands, and wait for my signal”. He also told every person before he or she jumped off the tower to jump “like a pin drop feet first” or “so that you go vertically into the water”.

7. The primary judge did not accept the appellant’s evidence as to what she was told. His Honour described the appellant as “an unreliable witness whose memory of the events is poor”: Judgment at [8]. Nor did he accept the evidence of Mr Milne as to the giving of any general instruction. On the basis of video evidence showing other people jumping from the tower on different occasions in a period spanning the day in question, the primary judge was not satisfied that Mr Milne’s recollection of what he said to each group was accurate. That video showed that a “No running” instruction was “either not always given or not always enforced”: Judgment at [12], [13].

8. Relying principally on the history of the incident given by the appellant to an orthopaedic surgeon (Dr Bodel) in August 2011, his Honour found that it was probable that the appellant had been instructed to “fall vertically, feet first into the pool below”: Judgment at [15]. That finding was consistent with the appellant’s evidence that, although after leaving the platform she felt her body “sort of flex backwards or lean backwards”, she had jumped off feet first and was intending to go “feet first into the water”.

The primary judge’s conclusions

9. It is convenient to start by identifying the matters put in issue at the trial. The respondent Council denied that its duty of care as occupier required it to supervise and instruct each person who wished to jump from the 10 metre platform. It also denied that its duty of care required it to prevent an adult such as the appellant from engaging in that activity at all. The respondent denied that anything said or done by Mr Milne constituted a breach of any duty to supervise and instruct. To the extent that the appellant’s case was that she should not have been instructed to run and jump, as distinct from being instructed merely to jump, the evidence did not show that such an instruction would have made any difference to the likelihood that the appellant might fall awkwardly as in fact occurred.

10. The respondent also relied on affirmative defences arising under the Civil Liability Act 2002 (NSW). It alleged that the risk of harm in jumping from the 10 metre platform was an “obvious risk” (s 5F) of a “dangerous recreational activity” (s 5K). It followed that the respondent owed no duty of care to the appellant to warn of that risk (s 5H) and that it was not liable in negligence for harm suffered by the appellant as a result of the materialisation of an obvious risk of that dangerous recreational activity (s 5L). It was also alleged that the relevant risk had been the subject of a “risk warning” (s 5M(3)) and that, because it had given that warning, the respondent owed no duty of care to the appellant in respect of that risk whilst she was engaged in the recreational activity (s 5M(1)). Finally, the respondent alleged that the risk of harm from jumping from the platform was an “inherent risk” of that activity for which it was not liable (s 5I) and that the appellant had been contributorily negligent (s 5R).

11. The primary judge did not find it necessary to determine all of these issues, mainly because he held that s 5M applied and provided a complete defence to the appellant’s claim. There was no duty to take reasonable care against the risk of injury from engaging in the recreational activity of jumping off the platform because that risk had been the subject of a risk warning: Judgment at [26]-[46].

12. To the extent that he otherwise considered questions of duty and breach, the primary judge declined to conclude that the scope of any duty of care extended to preventing adults from engaging in the activity at all: Judgment at [25]. He also rejected the appellant’s case that the exercise of reasonable care required that the respondent enquire of each participant as to his or her level of skill and experience and “provide proper instruction tailored to their needs”. He found that a reasonable person in the Council’s position would not have taken such a precaution (ss 5B(1)(c), 5B(2)): Judgment at [21], [22]. His Honour also found that if the respondent owed a duty of care in responding to a request for advice as to how to jump, that duty was satisfied by the instruction given to the appellant that she should “fall vertically, feet first into the pool”: Judgment at [22]. Although he did not make a finding as to the respondent’s causation argument in relation to an instruction to run and jump, the primary judge observed that there was “no evidence that the injuries were less likely to occur if Ms Sharp jumped off, rather than ran off, the platform”: Judgment at [16].

13. The primary judge did not consider the question of damages.

The issues in the appeal

14. The appellant’s argument on appeal focused upon whether the primary judge had erred in holding that the Council had discharged any duty of care to supervise and instruct. Ultimately the appellant’s case as argued was not that the primary judge erred in holding that the advice to “fall vertically, feet first into the pool” was reasonable and sufficient, but that his Honour should have found that the appellant also was told to run and jump and that it was negligent to instruct her to run and jump, rather than simply to jump from the edge and fall as directed (tcpt 17/03/15, pp 6.5, 18.25).

15. As the first step in that argument the appellant challenges the primary judge’s failure to find that Mr Milne also instructed her to “just take a run and jump”. That challenge is made by grounds of appeal 1 and 2. If that challenge is successful, the appellant accepts that this Court could not proceed to determine what instruction the appellant received by way of rehearing: cf Fox v Percy [2003] HCA 22; 214 CLR 118 at [44]-[46], [104]. Accordingly the outcome would be a retrial. The appellant also accepts that before such an order could be made this Court must be satisfied that a substantial wrong or miscarriage would otherwise be occasioned: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

16. The remaining grounds of appeal address the conclusions of the primary judge on liability issues relevant to the allegation of negligent supervision and instruction. It is necessary for the appellant to persuade the Court that any fact finding error could have affected the result so as to justify a conclusion that there has been a substantial wrong or miscarriage: Tory v Megna [2007] NSWCA 13 at [41]; Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 at [109]. Those issues are whether it would have been a breach of the respondent’s duty to give advice to enter the water vertically feet first and to take a run and jump (said to be raised, although not clearly, by grounds 5 and 6) and whether there was a defence under s 5M (grounds 3 and 4). In determining whether there would be a miscarriage of justice if a retrial was not ordered, it is also necessary to consider the additional arguments raised by the respondent’s notice of contention. The grounds of that contention raise questions as to liability for an obvious risk involved in a dangerous recreational activity (s 5L), the duty to warn of an obvious risk (s 5H), the materialisation of an inherent risk (s 5I), causation (s 5D) and contributory negligence (s 5R).

The challenge to the primary judge’s fact finding (appeal grounds 1 and 2)

17. The primary judge did not accept the appellant’s assertion that the only instruction she received was to run and jump because he formed an adverse view as to the reliability of her evidence: Judgment at [8], [48]. His Honour did so having had the benefit of seeing her give evidence and on the basis that her evidence as to why she was nervous and anxious was not consistent.

18. The appellant submits that this assessment was not justified and was wrong because there was no relevant inconsistency. The underlying point in issue was whether the appellant’s being nervous and anxious as she stood at the top of the diving tower was caused or substantially caused by her realisation that she could hurt herself when jumping into the pool below.

19. In her evidence-in-chief, the appellant said that, when she looked over the side of the platform, she was “anxious and nervous and I wanted to decline and not jump”. A reasonable inference arising from that answer was that the reason she did not want to jump at that point was that she recognised there was a risk or danger in her doing so from such a height. The drawing of that inference was supported further by the following cross-examination in which the appellant first acknowledged that she was nervous because she realised that she “could” hurt herself and then retreated from that position:

Q.   You were nervous because you could see that you could hurt yourself when you landed in the water?

A.   And there was so many people around as well.

Q.   Do you mean--

A.   I didn't think I was going to hurt myself.

Q.   Sorry, you mean people in the water?

A.   There were people behind me, people around me rushing around. Yeah, it was from a height. There were stairs. At that point--

HIS HONOUR

Q.   Sorry. You just said a moment ago you didn't think you were going to hurt yourself?

A.   I didn't think I was going to hurt myself by jumping.

Q.   So what was there to be frightened of?

A.   I was anxious just from the stairs, the people, the bustling around and when I looked over the side, it looked a little bit high, but I didn't think I'd hurt myself jumping into the broken water when I see so many other people doing it beforehand and that my lifeguard, the supervisor, that's what he told me to do as well.

PRIESTLEY

Q.   What do you mean by "broken water"?

A.   Well, the water wasn't flat.

Q.   There were some small waves in it?

A.   People had been jumping in it beforehand.

Q.   You thought that that would help prevent injury. Correct?

A.   I assumed so. I wasn't think [sic] about hurting myself.

Q.   What do you mean by "assumed so"? Didn't you just say that you didn't think you would hurt yourself for a number of reasons? One of them was that the water was broken?

A.   Yes.

Q.   So you thought because there was some splash, some waves in the water, that would help to protect you?

A.   Yes.

Q.   You understood, did you, that if you landed on flat water, unbroken to use your expression, you were more likely to be injured?

A.   I wasn't thinking about an injury.

…

Q.   Ms Sharp, you were nervous and anxious because you realised you could hurt yourself. Correct?

A.   No.

20. In her first answer the appellant acknowledges by use of the words “and” and “as well” that at least one of the matters which had made her nervous and anxious was that by jumping she could hurt herself. The ensuing questions and answers confirm (particularly by the reference to “broken” water) that the appellant identified the risk of and was concerned about injury caused by impact with the surface of the water from such a height. In the face of this evidence, the primary judge was justified in concluding that her last answer extracted above (and at Judgment [7]) was inconsistent with her earlier evidence. The appellant’s submission otherwise should be rejected.

20. The question remains whether the primary judge is shown to have erred in not finding that the appellant was told to enter the water vertically feet first and also that she should run and jump (tcpt 17/03/15, p 6.5). A finding as to that additional instruction would be significant, it is said, because it was not possible to comply with it and also to fall vertically, feet first into the water.

21. The primary judge’s error in not finding that the additional instruction was given is said to arise because the evidence of that instruction was consistent with Dr Bodel’s note that the appellant was told to “take a run and leap off the tower and then fall vertically feet first into the pool below” and with Mr Smith’s evidence that the appellant was told to “just run and jump”.

22. There are several reasons why it should not be concluded that the primary judge erred in not making the finding argued for. First, a finding that both instructions were given would have been inconsistent with the appellant’s evidence and that of Mr Smith. Each denied that Mr Milne had given any instruction about jumping feet first. That being the position the submission that the primary judge’s failure to make the finding involved error because it was contrary to Mr Smith’s evidence, which in turn corroborated that of the appellant, is equally applicable to the finding that it is said should have been made. Secondly, and more significantly, the primary judge’s finding is not substantially different from the instruction as recorded by Dr Bodel. That advice was to take a run, leap off the tower and to fall vertically. The critical instruction was to fall vertically and enter the water feet first. To do so it was necessary to jump or leap off the platform. An instruction to run (by taking a few steps) and jump would have ensured that the jumper cleared the end of the platform. Such an instruction, if given, was not to be understood as countermanding the primary instruction to fall vertically, or to make compliance with it impossible.

23. Thirdly, the manner in which the appellant jumped from the tower was consistent with her having understood the instruction in that way. Mr Smith observed her to slow down as she ran towards the edge of the platform and then jump off. The appellant’s evidence was that she intended to jump and enter the water feet first. She did not intend to flex or lean backwards as she jumped. Even if the appellant was instructed to run and jump, the evidence does not support the submission that this instruction overwhelmed the primary direction to fall vertically.

24. Finally, Mr Milne denied that he told patrons at the pool to “run and jump”. It is not likely that, having advised the appellant that she must fall vertically and enter the water feet first, he then would have given an additional instruction that was to be understood as making it difficult or impossible for her to do so.

25. By way of summary, I am not satisfied that the primary judge erred in assessing the reliability of the appellant’s evidence or in rejecting her evidence that she was also instructed to run and jump from the platform. Had I concluded otherwise I would not have ordered that there be a new trial as the appellant’s claim was rightly rejected by the primary judge, because of the application of s 5M(1) and because, as contended by the respondent, the appellant’s injury was the result of the materialisation of an obvious risk of the dangerous recreational activity in which she was engaged. Each of these questions is dealt with below.

Was there was a risk warning in the terms of s5M (appeal grounds 3 and 4)?

Section 5M

27. The primary judge held that the respondent was entitled to rely upon s 5M which provides:

5M   (1)   A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

…

(3)   For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

(4)   A risk warning can be given orally or in writing (including by means of a sign or otherwise).

(5)   A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

…

(8)   A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

… .

The relevant warning sign

28. The concrete supporting pillars which were part of the diving tower structure sat on a concrete base or plinth. That base was roughly in the shape of a square. On the side of that square, which faced away from the pool and from the direction in which people jumped from the tower, there were three formed concrete steps providing access to the plinth, which in turn provided access to the first flight of stairs to the 10 metre diving platform. The warning sign was affixed to the supporting pillar immediately to the left of those concrete steps (as shown in the photograph which became Ex DX2). Having negotiated those steps a person seeking to ascend the first flight of stairs would turn immediately to his or her left and walk towards and then past and to the right of the face of that pillar to which the sign was affixed. That sign read:

PARRAMATTA CITY COUNCIL

       PERSONS USING

       THE PLATFORMS

                   AND

       SPRINGBOARDS

       DO SO AT THEIR

             OWN RISK.

The appellant’s argument

29. The appellant submits that the primary judge erred in three respects in concluding that s 5M(1) was satisfied. First, it is said that the sign did not warn of the general nature of the particular risk concerned (s 5M(5)). Secondly, it is said that the warning was not a “risk warning” because it was not “given in a manner that [was] reasonably likely to result in people being warned” (s 5M(3)). Thirdly, it is said that the oral instruction given to the appellant by Mr Milne contradicted the risk warning and disentitled the respondent from relying on it (s 5M(8)).

Warning as to the general nature of the particular risk

30. A risk warning must warn of “the general nature of the particular risk”. In Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128, Basten JA (Hoeben and Ward JJA agreeing) considered (at [27]) the specificity with which a risk must be identified:

A “risk warning” is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk: indeed, such instruction might be counterproductive. Further, an adequate warning can be given, at least in some circumstances, by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard which may be encountered: s 5M(5).

31. The general risk involved in using the 10 metre platform was of injury from diving or jumping from the platform. In my view the sign warns of that risk. The risk to which the sign is directed is that involved in the activity of “using” the platforms and springboards. The use referred to is that of jumping and diving into the pool below. That describes the purpose for which the platforms and springboards were intended to be used. Thus, the sign warns that there is a risk of injury in undertaking the activity of diving or jumping into the pool below from the springboards and platforms, including the 10 metre platform.

The likelihood of people being warned

32. The question raised by s 5M(1) is whether the relevant risk of injury “was the subject of a risk warning to the [appellant]”. Section 5M(3) provides that question is to be answered in the affirmative if the warning was “given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity”. It directs attention not to whether the relevant person received or understood the warning or was capable of doing so, but rather to whether the warning, by the manner in which it was given, was reasonably likely to result in “people” being warned. The “people” referred to are not all people but people in the same position as the relevant person. Such people would only have been “warned” if they were reasonably likely to have received and understood the warning said to have been given.

33. The primary judge found that the appellant and Mr Smith approached the platform by means of the concrete steps at the back of the plinth: Judgment at [38]. That finding is not challenged. As the evidence of Mr Milne and Mr Lenard describes, and as Ex DX2 shows, a person gaining access to the plinth, and to the first flight of stairs leading to the 10 metre platform, via those concrete steps had to walk towards and “directly past the sign” which was at eye level and in large and clear letters: Judgment at [39]. In the circumstances the appropriate inquiry was whether a person who gained access to the plinth by means of the concrete steps, as the appellant did, was reasonably likely to have seen and understood the warning sign. The primary judge approached this question in that way and concluded that “the sign was placed in a manner reasonably likely to result in [the appellant] being warned of the risk”: Judgment at [40]. That conclusion is not shown to have involved error.

34. The appellant’s reliance on the evidence of Mr Milne and Mr Lenard to the effect that people could gain access to the first flight of stairs by walking up the sloping edge of one of the other sides of the plinth, without having to walk past the sign, was misplaced. Whilst the warning was not given in a manner that was reasonably likely to result in those people being warned, the same conclusion did not follow in relation to people, such as the appellant and Mr Smith, who used the concrete steps as their means of access to the plinth and first flight of stairs.

Was the risk warning contradicted?

35. The appellant does not repeat its submission, rejected by the primary judge, that the lifeguard’s mere presence on the platform suggested that jumping from the tower bore no risk of injury: Judgment at [45]. She does however press her argument that an instruction to “just take a run and jump” “contradicted” the general warning of the risk of jumping or diving from the tower: s 5M(8). Although I have concluded that the primary judge did not err in finding that such an instruction was not given, it is necessary to consider the appellant’s argument at this point by reference to the findings that she would contend for in a new trial. On a retrial the appellant would also support a finding that what she was told included that she should enter the water vertically and feet first. Such advice as to how she should fall and enter the water implicitly acknowledged that there was a risk of injury in jumping from the platform, particularly if the appellant did not execute her jump in accordance with that instruction. The primary judge was correct to so conclude: Judgment at [46].

36. The primary judge did not err in concluding that s 5M(1) applied and in my view that conclusion would not be different if the primary judge had found that Mr Milne’s instruction included that the appellant should run as well as jump.

Dangerous recreational activity (contention ground 1)

Sections 5F, 5K and 5L

37. Section 5L(1) provides:

A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

38. An “obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”: s 5F(1).

39. The appellant accepts that in jumping from the platform she was engaging in a recreational activity. The appellant disputes that she was engaged in a “dangerous recreational activity”, namely one that involved “a significant risk of physical harm”: s 5K.

Was the appellant’s claim for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity?

40. The primary judge did not consider this defence which, if upheld, has the consequence that the respondent is “not liable in negligence” for the harm so suffered.

41. The particular risk which materialised and caused the appellant’s injuries was that of impact with the water surface from a height and in an uncontrolled or unintended way: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [60]. That risk would have been clearly apparent to and understood by a reasonable adult in the appellant’s position. The cases in support of that being the relevant test of obviousness are referred to in Streller v Albury City Council [2013] NSWCA 348 at [30], [31]. Furthermore, the appellant’s evidence (extracted above at [19]) and the evidence of Mr Smith (who described jumping off the 10 metre platform as “[a]bsolutely” dangerous) confirms, as one would expect, that the risk was readily apparent to each of them. The placement of the warning sign at the bottom of the tower and the presence of a lifeguard on the platform also would have confirmed the existence of that risk in the mind of a reasonable person in the appellant’s circumstances (s 5F(1)).

42. Whether there is a “significant risk of physical harm”, for the purpose of determining that a recreational activity is dangerous (s 5K), requires an objective assessment of the riskiness of the activity, taking account of the probability of physical harm coming to pass and the seriousness of the harm which would or might then result. Again, see Streller v Albury City Council at [44]-[48] and the cases cited there. The activity of jumping into water from a height of 10 metres carried with it a probability of harm that was real and present and the consequences of which included serious injury from impact with the surface of the water.

43. Here the obvious risk which materialised and caused the appellant’s injuries was also, viewed prospectively, the significant risk of harm which made the activity of jumping from the platform relevantly “dangerous”. Accordingly, s 5L(1) was satisfied with the result that the respondent was not liable in negligence for that harm. This conclusion applies irrespective of whether the finding contended for by the appellant as to the advice she received is made. Indeed, s 5L(1) answers both cases of negligence advanced by the appellant (see [3] above).

Remaining issues

44. In view of my conclusions thus far, the remaining issues raised by the respondent’s contentions may be dealt with shortly. I am not satisfied the primary judge erred in not finding that the appellant was instructed to run and jump. The appellant does not contend that in the absence of that advice, there was, nevertheless, a breach of the respondent’s duty of care as occupier. The appellant did not allege a duty to warn and for that reason the application of s 5H does not arise. The questions of causation (s 5D) and contributory negligence (s 5R) do not arise in view of the conclusion as to there being no breach. Nor is it necessary to consider the difficult factual question whether the appellant’s injuries were the result of the materialisation of an inherent risk (s 5I).

Conclusion

45. The following orders should be made:

1.   Appeal dismissed.

2.   Appellant pay the respondent’s costs of the appeal.

46. WARD JA: I agree with Meagher JA.

47. GLEESON JA: I agree with Meagher JA.

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Decision last updated: 02 September 2015