Shire of Gingin v Coombe - [2009] WASCA 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHIRE OF GINGIN -v- COOMBE [2009] WASCA 92

CORAM: MARTIN CJ
McLURE JA
MILLER JA

HEARD: 20 NOVEMBER 2008

DELIVERED : 25 MAY 2009

FILE NO/S: CACV 143 of 2007

BETWEEN: SHIRE OF GINGIN
Appellant
AND
BRADLEY MILTON COOMBE
Respondent

ON APPEAL FROM:
For File No              :  CACV 143 of 2007
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :COOMBE -v- SHIRE OF GINGIN & ANOR [2007] WADC 180
File No  :CIV 783 of 2004

Catchwords:

Negligence - Duty of care - Breach of duty - Public authority - Significance of obviousness of risk - Off-road motorbike riding - Adequacy of warning sign - Failure to warn - Causation - Hindsight bias - Role of precedent in negligence cases - Class to whom duty is owed - Effect of encouragement by public authority to use area

Legislation:

Civil Liability Act 2002 (WA)
Control of Vehicles (Off-road Areas) Act 1978 (WA)
Occupiers Liability Act 1985 (WA), s 5

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr M H Zilko SC & Mr J Eller
Respondent: Mr T H Offer

Solicitors:

Appellant: John Eller
Respondent: Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Blyth v Birmingham Waterworks (1856) 11 Exch 781
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Chappel v Hart (1998) 195 CLR 232
Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104
Department of Natural Resources and Energy v Harper [2000] VSCA 36; (2000) 1 VR 133
Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52; (2006) Aust Torts Rep 81-840
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423
Overseas Tankship (UK) Ltd v The Miller Steamship Pty Ltd [1967] 1 AC 617
Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474
Rasic v Cruz [2000] NSWCA 66
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Sydney County Council v Dell'Oro (1974) 132 CLR 97
Tame v The State of New South Wales (2002) 211 CLR 317
Turner v State of South Australia (1982) 56 ALJR 839
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Woods v Multi‑Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

MARTIN CJ: This is another case in which a person suffering personal injury while participating in an inherently dangerous recreational activity has sought to recover compensation for those injuries from the public authority in control of the site, on the basis that the authority breached a duty to warn him of the dangers involved in that activity. The resolution of cases like this turns critically upon the particular facts and circumstances of each individual case. On the facts and circumstances of this case, the trial judge was wrong to conclude that the authority (the appellant, the Shire of Gingin (the Shire)) breached its duty to warn the respondent (Mr Coombe) of the particular dangers involved in the activity in which he engaged.

Trial proceedings and judgment

Neither party to the appeal challenges the findings of primary fact made by the trial judge, although the Shire challenges the conclusions drawn by the trial judge from those facts. The primary facts relevant to the issues raised in the appeal, taken from the reasons of the trial judge and the non‑contentious evidence, are as follows.
Mr Coombe was born on 6 August 1978, and was therefore 24 years of age on the day of the accident. He had been riding motorbikes as a hobby since he was eight years old. When a child, he rode a motorbike around firebreaks. He had not ridden in sand dunes prior to the day of his accident. He described himself in evidence as a confident and good rider, although he did not hold a motor cycle licence, as he did not ride motor cycles on public roads. In cross‑examination he agreed that a good rider would not ride a motorbike where the rider could not see where he was going.
On 19 April 2003, Mr Coombe travelled with a friend to an area of land adjacent to the town of Lancelin known as the Lancelin Off Road Vehicle Area (ORVA), which is an area under the control and management of the Shire. It is also an area which has been gazetted for use by off road vehicles pursuant to the provisions of the Control of Vehicles (Off-Road Areas) Act 1978 (WA). Mr Coombe and his friend had travelled to the area specifically for the purpose of using Mr Coombe's motorbike, a 400 cc Honda farm bike, on the sand dunes.
Mr Coombe had not previously travelled to the ORVA. In fact, he and his friend had some difficulty finding it, and stopped at a bottle shop in Lancelin to ask for directions to the dunes. They arrived at the dunes around midday.
The ORVA had an area of between 120 to 140 ha (it had been reduced in area as it was once 400 ha). It is an area of sand dunes overlaying limestone rock. The configuration of the dunes changes constantly, and quickly, and is affected by the strength and direction of the wind. From time to time, areas of limestone are uncovered as a consequence of the movement of the dunes. The action of the wind also causes some of the dunes to have a steep face on one side, and a more gentle slope on the other.
Vehicular access to the ORVA is provided by an unsealed road which runs off Bootoo Street, Lancelin. The unsealed road leads to a carpark which is on a flat area of land immediately adjacent to the dunes. Although the trial judge made no specific findings in relation to the area of the carpark, it was described in similar terms by a number of witnesses. Mr Errington, who was a visitor to the ORVA on the day of Mr Coombe's accident, described it as 'a fairly decent sized carpark at sort of the entrance I suppose, just inside the driveway to get into the area, where you could hire bikes and buggies and such' (ts 18). Mr Errington agreed that the carpark was an area where people unloaded vehicles from their trailers, and described it as 'sort of quite a large fenced off area' (ts 24). Mr Howe, who was a policeman at the time of Mr Coombe's accident, described the parking area as 'a large parking area on the limestone area' (ts 72). He later described the carpark in these terms:
… there is a fence along two sides of the carpark and then it's just opening out onto the sand dunes which there are no fence. There's large white markers which mark the boundary of the off road area where you are only allowed to drive within. (ts 73)
Mr Fraser, who was the Chief Executive Officer of the Shire at the relevant time, described the carpark in these terms:
It's quite an expansive carpark, sir, fenced to accommodate the off road vehicle enthusiasts and their trailers. (ts 89)
On the unsealed road leading between Bootoo Street and the carpark, the Shire erected a sign on the side of the road which would be used by vehicles travelling to the carpark. It is apparent from the photographs of the area which were tendered in evidence, and Mr Fraser confirmed in evidence, that the width of the unsealed road adjacent to the sign was quite adequate to accommodate any vehicle parking or pausing at the sign for the purpose of reading it.
Although the dimensions of the sign were not given in evidence, it is apparent from the photographs of it that it is very large. Its height appears to be about that of an adult man, or perhaps higher. Its width appears to be in excess of 2 metres. Its dimensions are such that it would be easily noticed by anybody accessing the area. The sign is headed by the logo of the Shire.
The sign was depicted by the trial judge as follows:
17. …'GINGIN SHIRE
Welcome to
LANCELIN OFF ROAD VEHICLE (ORV) AREA
Control of Vehicles (Of Road Areas) Act 1978.'
18.Below this is depicted, pictorially, in a blue rectangular area, the area where the ORVA is situated (shown in red) and its position relative to the Lancelin town site and the Indian Ocean. That blue area is overlaid with wording as follows:
'THE OFF ROAD AREA IS A HAZARDOUS ENVIRONMENT MANY SERIOUS INJURIES OCCUR EACH YEAR.
BEWARE (shown in red)
SUDDEN STEEP DESCENT,
COLLISIONS WITH
VEHICLES/PEDESTRIANS.'
19Below that and outside of the blue area the following wording appears:
'REGULATIONS
1.In accordance with the Act O.R.V.s may only use the area shown (there is shown the area shape as depicted pictorially in red). This area is defined by orange coloured markers.
2.ORVs must be registered and display the appropriate registration plate. These are obtained from the Gingin Shire Office or any Police Licensing Centre.
3.Helmets/Seatbelts must be worn at all times whilst riding/driving ORVs.
IN THE INTERESTS OF PUBLIC SAFETY, THESE REGULATIONS WILL BE ENFORCED RIGOROUSLY BY COUNCIL RANGERS AND POLICE. ALL BREACHES OF THESE REGULATIONS CARRY A MAXIMUM PENALTY OF $500.00.'
This depiction is accurate, save that within the blue rectangular area, under the words 'collisions with vehicles/pedestrians', is a heading 'SAND BOARDING' which is in red and underlined and of the same dimensions as the word 'beware', under which the following words are placed:
It is recommended that this activity
be carried out on the dunes outside
of the off road area, where there is less
vehicular traffic.
Mr Coombe had no recollection whatsoever of any of the events giving rise to his injuries. His last recollection of the events of the day prior to his accident is of asking for directions to the dunes at the bottle shop in Lancelin. The evidence of the circumstances of his accident came from other witnesses.
That evidence established that another motor cylist, a Mr Paul Bramley, had suffered injuries, which proved to be fatal, after falling, while on a motorbike, from the top of a steep face of a dune to a flat area at the base of the dune which comprised a thin layer of sand overlying a base of limestone. This incident had occurred approximately half an hour before Mr Coombe's accident. Police and ambulance officers had been called to attend to Mr Bramley. While they were doing so, Mr Coombe travelled up the gentle slope of the dune on the other side from its steep face.
Ms Murray, a nurse who was attending to Mr Bramley, saw four people standing on the crest of the dune waving their hands. The four people were in two groups of two about 12 feet apart. She saw Mr Coombe travel on his motorbike between the middle of the two groups - being about five or six feet from each group. One group was described by Ms Murray as being boys aged about 9 or 10, and the other group was described as being boys in their teens or early twenties. When asked about the temporal relationship between the people on the crest of the dune waving and the arrival of Mr Coombe, Ms Murray stated that Mr Coombe arrived 'within the minute, two minutes' of the waving.
Mr Coombe and his motorbike then fell down the steep side of the dune, landing about 5 to 6 metres from where Ms Murray was standing. Although some of the witnesses were asked to estimate the speed at which Mr Coombe was travelling, there was no satisfactory evidence on that subject. However, it seems a fair inference from the circumstances of the accident that he was travelling at such a speed that it was not possible for him to stop when the steep descent became apparent to him. As a result of the fall, Mr Coombe's motorbike was damaged and he suffered personal injuries.
The trial judge found that the dune in question was between 10 and 15 metres high, and was at an angle of about 80 degrees.
In relation to the evidence of Ms Murray concerning the people waving on the crest of the dune, the trial judge reasoned as follows:
110.The evidence of Susan Murray suggests that there were people on the top of the dune after Mr Bramley had suffered his accident and they were waving at someone. Given that the next thing that seems to have occurred is the plaintiff on his motorcycle coming over the top of the dune, it is readily open to inference that these persons were waving at the plaintiff. I do not take account of the time gap of one minute or two that she referred to as the time between the people waving and the plaintiff's motorcycle coming over the dune. However, I am unable to make any findings as to whether or not the plaintiff would have seen that waving and what effect it would have had upon him.
It seems from this paragraph that the trial judge accepted the evidence of Ms Murray (which was uncontradicted), and did not attach any significance to her evidence relating to a slight delay between the waving of hands and the arrival of Mr Coombe. The trial judge has therefore found, as a fact, that there were four persons standing and waving on the crest of the relevant sand dune in a totally barren landscape at about 1.20 pm on a fine day in April, and that Mr Coombe passed within 5 or 6 feet of each group. On that finding, if Mr Coombe did not see them, of if he saw them but did not modify his speed, it could only be due to lack of attention.
The trial judge found that at around the time of Mr Coombe's accident, the ORVA attracted about 70,000 visitors per annum, and that they were encouraged to visit by the Shire. Evidence was given of records which were kept of injuries sustained within the ORVA over time. Although the trial judge was not satisfied as to the accuracy of those records, he found there had been a number of accidents known to the Shire, giving rise to injuries of varying degrees of severity in the years preceding Mr Coombe's accident.
As Mr Coombe suffered his injuries prior to 1 December 2003, Div 4 of Pt 1A of the Civil Liability Act 2002 (WA), which contains specific provisions relating to claims for personal injury arising from recreational activities, has no application to this case.

The description of the dune

One of the witnesses (Ms Murray) described the dune on which Mr Coombe suffered his injuries as 'a razor-back'. Another witness (Mr Errington), described it as a 'cliff'. The trial judge uses each term in his reasons (with the tendency to favour the expression 'razor-back'). Neither term accurately conforms with the evidence. According to the Macquarie Concise Dictionary (3^rd ed), a 'razor-back' is a 'sharp ridge'. The dune in question was not a sharp ridge, but had a gentle slope on one side, rising to a crest from which there was a steep descent on the other side. The term 'cliff' is defined by the same dictionary to mean 'the high, steep face of a rocky mass', which is obviously not an accurate description of a sand dune.

The conclusions of the trial judge

Duty of care

The trial judge noted that the Shire did not argue that it did not owe Mr Coombe a duty of care. The Shire accepted that it was the occupier of the ORVA, within the meaning of the Occupiers Liability Act 1985 (WA), with the consequence that it owed to Mr Coombe the duty specified by s 5 of that Act. Each party accepted, and the trial judge determined the case, on the basis that the statutory duty and standard of care created by that section is not materially different to the duty and standard of care applicable at common law - see Homestyle PtyLtd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209, [17] ‑ [30]. Neither party submitted otherwise on appeal.
The trial judge concluded that the nature of the terrain and the activities carried on in the ORVA created a significant risk of injury to those engaging in recreational off‑road activities in the area. Because that risk was not far fetched or fanciful, it followed that the Shire owed a duty of care to Mr Coombe as a member of the class of persons engaging in such activities. That conclusion is not controversial.

Breach of duty

Mr Coombe alleged that the Shire breached its duty of care in a number of different respects. They included allegations of failure to:
(a)implement a system of inspection of the dunes to evaluate their state from time to time;
(b)place signs or cordon off areas of particular risk within the dunes; and
(c)exclude people from the dunes altogether.
Having found that the dunes were ever changing, depending on wind strength and direction, the trial judge concluded that it was not reasonable to implement a system of inspection, nor to identify and either mark by sign or cordon off areas of particular risk, because of the speed with which those areas could change. The trial judge also concluded that it was impractical to exclude the public from the area because of the many means through which access to the area could be obtained by people with off‑road vehicles.
Neither Mr Coombe, nor the Shire, contends that the conclusions of the trial judge were erroneous in these respects.
However, the trial judge concluded that the Shire had breached its duty of care by failing to provide a sign which adequately warned entrants to the ORVA (including Mr Coombe) of the dangers which they faced.
At trial, the respondents submitted that there were a number of deficiencies in relation to the sign. In particular, the respondents raised the location of the sign and the content of the sign. With respect to location, the respondents argued that the sign was 'not in an ideal position' as it was on the entrance road, and that people would not stop unless they were exercising 'a higher degree of caution than reasonable people' [75]. In relation to content, the respondents argued that the word 'BEWARE' was unlikely to alert people as they drove past because it was not written on the most visible part of the sign and further, that the sign should have contained more details about the dangers of 'razor‑back' dunes.
The trial judge's reasons for his conclusion are set out in the following passages:
121.… I find that, to the extent that a sign was necessary to warn entrants to the dunes of the dangers, such sign was inadequate. I accept the plaintiff's argument that that sign was more to denote the area for off road vehicles in a pictorial fashion and to direct persons to the regulations relating to such use. The warning sign under the heading "Beware" is perfunctory and easily lost within the scheme of the sign. Further, I find that the sign was inadequate in its placement. I accept the argument of the plaintiff that to place such a sign on an entrance track without requiring people to stop to read and observe the warnings and regulations is insufficient. It would be far more appropriate to place such a sign within the carpark where visitors had an opportunity to read the same.
…
133.I accept the argument of the plaintiff that to place such a sign on the access road is inappropriate. It requires vehicles to stop and read the sign at a point shortly before the carpark. Human nature being what it is people are unlikely to stop and read the sign, preferring to stop once reaching the carpark. Accordingly, I am not satisfied that the placing of the sign was reasonable or satisfactory.
…
135.The first sign that had been at the ORVA expressed danger. The second sign warned entrants to beware of steep descents. However, that warning as to steep descents is not a warning that stands out against the other information contained on the sign. I have come to the conclusion that there should have been a sign to have warned entrants of the dangers of recreational activity in the area by virtue of, not just steep descents, but the fact that dunes could be eroded in such a way as to create a razor-back or cliff and result in hard rocky surfaces as well as soft dunes. In making these comments I recognise that those sorts of warnings would need to be put into short simple language, or pictorially so as to be readily digestible by visitors to the ORVA of average and reasonable intelligence.

The trial judge did not identify either the language or the picture which he considered would provide adequate warning to entrants to the ORVA in a 'readily digestible' form.
The trial judge was reinforced in his conclusion that the Shire had breached its duty of care by the observation that the provision of adequate warning signs would have involved 'relatively modest expense' [137].

Causation

On the subject of causation, the trial judge noted that there was no evidence from Mr Coombe as to the course that he would have taken if he had been presented with an adequate warning in the form of a sign. The trial judge concluded that it was unlikely that if presented with such a sign, the plaintiff would not have ridden in the dunes at all, having travelled all the way to Lancelin for that express purpose.
The trial judge also noted the evidence given by Mr Coombe to the effect that he was an experienced rider and that such a rider would not ride where he could not see where he was going. Having regard to that and the other evidence, the trial judge concluded:
144.It is self-evidence [sic] that persons going to these dunes do so for the exciting recreational activity that riding in the dunes provides. One cannot imagine that such persons would be doing so at slow speeds. Nevertheless, applying commonsense to that matter, if warned appropriately, it is unlikely that a person, of the plaintiff's experience, would ride at speed in areas where there is a sheer drop without first acquainting themselves with the terrain.
In other words, the trial judge concluded that if presented with an adequate warning sign, the plaintiff's injuries would have been averted, not because he would have reduced his speed, but because he would have first reconnoitred the area over which he was to travel (presumably at a speed which was sufficiently slow to allow him to stop in the event of danger).

Contributory negligence

On the topic of contributory negligence, the trial judge found that proceeding over the edge of a dune where the other side could not be seen was foolhardy, and that by launching off a sand dune without first ascertaining the nature of the descent, Mr Coombe self‑evidently exposed himself to a significant risk of harm. He therefore concluded that Mr Coombe had failed to take adequate care of his own safety, and that his damages (which have not yet been assessed) should therefore be reduced by 40% to reflect Mr Coombe's negligent contribution to his own injuries. Neither the Shire nor Mr Coombe challenge that conclusion.

The grounds of appeal

The grounds of appeal challenge the conclusions at which the trial judge arrived in relation to breach of duty and causation. It is unnecessary to set out the precise terms of the grounds.

Applicable legal principles

As I have already indicated, decisions of the highest authority establish that the resolutions of cases of this kind are fact specific, with the consequence that the outcomes of previously decided cases are of no precedential value. However, there is, of course, a legal framework within which the relevant facts are to be assessed, and I will endeavour to set out what I take to be the principles applicable within that legal framework, starting with the limitations upon the use of precedent.

The role of precedent

The decision of the High Court in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, in which a public authority was held liable to a diver by reason of its failure to warn him of the presence of submerged rocks in a swimming area, has been regarded as the high water mark of liability in this area (see for example Spigelman CJ, 'Negligence: The Last Outpost of the Welfare State' (address delivered to the Judicial Conference of Australia, Launceston, 27 April 2002), published in Castle TD (ed) Speeches of a Chief Justice: James Spigelman 1998‑2008 (2008) 207 (see p 220)). In a subsequent case involving injury to a diver who struck his head on a submerged rock (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422), it was argued that the decision in Nagle compelled the conclusion that the plaintiff should succeed. That proposition was roundly rejected. As Gleeson CJ and Kirby J observed:
The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT) established that reasonableness never requires a warning sign at the top of a cliff. (footnotes omitted) [3]
The same proposition was expressed in rather different terms by McHugh J (also in Vairy):
28In a case concerned with negligently inflicted physical injury, the most assistance that a judge can draw from legal precedent when determining whether a defendant has breached a duty of care is the basic and general principle that the duty that the defendant owed the plaintiff was a duty to take reasonable care. Since Perre v Apand Pty Ltd and the rejection of 'proximity' as a doctrine, this Court has accepted that the concept of reasonableness cannot be factorised further into any other statements of principle. Judicial attempts to specify the content of a duty of care are destined to be as fruitless as attempts to specify the full set of values to which the reasonable traveller on the Bondi bus subscribes. Both attempts are bound to lead to error because the standard of reasonableness - and reasonable care - depends upon the facts of each case. There are a range of factors - I referred to some of them in Perre v Apand - that determine when the common law will impose on a defendant a duty to take reasonable care for the safety of a plaintiff. But there are no factors other than the Shirt formula by which the common law defines the standard of reasonable care required in a particular case. That is an evaluative task for the tribunal of fact - assuming that there is some evidence on which the tribunal of fact could find negligence.
29As I have already indicated, at times during the present appeal and the appeal of Mulligan v Coffs Harbour City Council heard at the same time, the argument for various parties did not keep the issues of duty and breach distinct. The arguments were often clouded by reference to phrases such as 'the scope and content of duty' and 'duty to warn'. Judges and lawyers often use such phrases. When they are understood as commensurate with the standard of care required to discharge the defendant's duty of reasonable care, they cause no harm. But often enough they are used as if they themselves define or were the duty, or part of it. Using them creates the risk that they will be treated as stating legal propositions and convert what is a question of fact into a question of law. Hence, their use invites error in analysis, particularly the analysis of judicial precedents.
30During the argument, the risk of error surfaced in a number of ways but nowhere more sharply than in the analysis of Nagle. Except in so far as that case recognised 'that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve', it involved nothing more than a question of fact. It is not a precedent in favour of the appellant or anybody else except Mr Nagle. It lays down no principle of law other than that the Board had a duty to take reasonable care for lawful visitors on its Reserve. It is a binding authority in so far as it affirms that bodies such as the Board owe a duty to take reasonable care for the safety of lawful visitors on land under their control. The Court also upheld the trial judge's 'finding that the failure to warn of the danger of diving from the eastern rock ledge into the Basin due to the presence of rocks was a breach of the [Board's] general duty of care.' But that finding and the Court's upholding of it were questions of fact and bind no one. Given a similar case, the most junior judicial officer may disregard its reasoning, if the officer disagrees with it. As Barwick CJ pointed out in Conkey & Sons Ltd v Miller, 'a statement by an eminent judge … is entitled to respect by those who have themselves to decide a question of fact upon the evidence of the case before them. But its persuasion rises no higher: and certainly does not bind in point of precedent.' (footnotes omitted)
(see also Hayne J at [146]).
Callinan and Heydon JJ were of the view that to the extent that Nagle is to be regarded as any form of precedent, the dissenting reasons of Brennan J were to be preferred to the views expressed by the majority [209].
It follows that the outcome of any case will depend upon its own particular facts and circumstances, and will be of no assistance in arriving at the outcome of a subsequent case, in which the particular facts and circumstances will necessarily be different.

Hindsight bias

Much has been written on the subject of what cognitive scientists would call 'hindsight bias' - such as the unavoidable tendency of bringing to account the fact that something has occurred when attempting to retrospectively evaluate the likelihood of it occurring (see, for example, Spigelman CJ above (see p 220 of published version); Fischhoff B, 'Hindsight ≠ Foresight: The Effect of Outcome Knowledge on Judgment under Uncertainty' (1975) 1(3) Journal of Experimental Psychology, Human Perception and Performance 288; Fischhoff B, 'For Those Condemned to Study the Past: Heuristics and Biases in Hindsight', in Kahneman D, Slovic P and Tversky A (eds) Judgment Under Uncertainty: Heuristics and Biases (1982) 335; Guthrie C, Rachlinski J and Wistrich AJ, 'Blinking on the Bench: How Judges Decide Cases' (2007) Vanderbilt University Law School Public Law and Legal Theory Working Paper 07 ‑ 25 101, 123 ‑ 126; Hawkins A and Hastie R, 'Hindsight: Biased Judgments of Past Events after the Outcomes are Known' (1990) 107 Psychological Bulletin 311). The dangers and consequences of hindsight bias have been recognised by the High Court in a number of cases. In Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, Gleeson CJ observed:
There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. [16]
(See also Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 [5])
As Spigelman CJ has pointed out (in the speech to which I have referred - see p 219 of published version), while the evaluation of this phenomenon by cognitive scientists may be a recent phenomenon, there is nothing novel in the proposition, which was expressed by Sir Owen Dixon in the course of argument in Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 115 in the following terms:
I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence.
Recognition of this phenomenon has led to recent insistence by the High Court that the assessment of the existence and content of a duty of care is to be undertaken looking forward from a time before the occurrence of the injury giving rise to a claim, rather than backward from the time of the claim. The reasons for this approach are thoroughly canvassed by Hayne J in Vairy:
The issue
105.The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the 'Shirt calculus' is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would 'a reasonable man in the [Council's] position ... have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]'? If the answer to that question is affirmative, 'it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk'. As Mason J went on to point out:
'[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.'
106.In the present appeal (and in the matter of Mulligan v Coffs Harbour) it is this second set of inquiries (about response to a risk that is foreseeable) which is critical. That is because foreseeability of risk of injury, at least since Shirt, if not before, includes risks which, although quite unlikely to occur, are not far-fetched or fanciful.
107.Diving or plunging into water carries a risk of catastrophic spinal injury if the water is too shallow. That risk is always present, and foreseeable, wherever there is a body of water into which someone may dive or plunge. The diver may strike his or her head on the bottom or on some obstacle in the water. But it does not follow because an injury is foreseeable that the person who has the care, control and management of the land from which a person may enter the water in that way must in every case take steps to warn against, or prohibit, such conduct.
…
The particularity of the inquiry
…
124.Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'.
125.There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.
Look forward or look back?
126.When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. (footnotes omitted)
Gummow J expressed similar views in Vairy at [60] ‑ [61], as did McHugh J in Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at [22] (see also Hayne J at [50]).
More recently, Gummow J reiterated the proposition in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [65] (see also Callinan J [264]).

Reasonable care, not prevention

Spigelman CJ has described the decision of the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Pty Ltd [1967] 1 AC 617 (Wagon Mound (No 2)), as the 'point of departure for the imperial march of the tort of negligence' (speech cited above (see p 217 of published version)). As he points out, the decision in that case set a very low threshold for the imposition of a duty to take action to avert a danger or risk. So, in the view of their Lordships in that case, even in the case of a very small risk, there would be a duty to act 'if action to eliminate it presented no difficulty, involved no disadvantage and required no expense' (at 643 ‑ 644). This approach has been followed in Australia (see for example Turner v State of South Australia (1982) 56 ALJR 839, 840).
It is now established that any risk which is not far-fetched or fanciful is foreseeable, and therefore capable of enlivening a duty of care.
Following this expansion of the circumstances in which a duty of care might be found to exist, the assessment of the content of that duty was classically formulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 ‑ 48, in terms which called for a balancing of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action.
This combination of the formulations to be used for identifying the scope and content of a duty of care in a particular case, created the danger of the imposition of a standard of perfection, applying the 'retrospectoscope' of hindsight, using the particular circumstances which gave rise to the injury to embark upon an inquiry aimed at identifying any step or omission which could have averted that harm. If the step or omission thus identified could have been taken with little trouble or expense, there has been a marked tendency to conclude that a defendant was under a duty to act or not act accordingly.
This proposition was put rather more eloquently by Hayne J in Vairy:
If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds. [128]

In the same case, similar considerations caused Callinan and Heydon JJ to observe that it might have been better to retain the law as it was before Wagon Mound (No 2) was decided (Vairy at [213]). Spigelman CJ has expressed a similar view (speech cited above (see p 220 of published version)).
Similar considerations caused Fitzgerald JA to observe in Rasic v Cruz [2000] NSWCA 66:
An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. [43]
(cited in the speech by Spigelman CJ (see p 212 of the published version)).
In response to these concerns, more recent decisions of the High Court, while retaining adherence to previous formulations of foreseeability of risk, have emphasised that their application is aimed at the identification of a duty of reasonable care, not a duty to prevent all possible harm - see Hayne J in Vairy at [118], Gummow J in Dederer at 49. In Dederer, Gummow J emphasised the point by returning to a 19th century formulation of the cause of action in negligence in the following terms:
'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do' [per Alderson B in Blyth v Birmingham Waterworks (1856) 11 Exch 781, 784 (156 ER 1047, 1049)]. [50]
As Gummow J observed in Dederer:
What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention. [69]

The content of the duty of care

Although in this case there is no dispute that the Shire owed a duty of care to Mr Coombe, the ascertainment of the content of that duty is relevant to the issue of breach. It is of assistance to have regard to previous decisions dealing with the proper identification of the class to whom the duty is owed, the relevance of the fact that the duty is owed by a public authority, and the relevance of the recreational nature of the activity undertaken by Mr Coombe.

The class to whom the duty is owed

Notwithstanding the expression of previous views to the contrary, in Mulligan, McHugh J accepted that authority established that the duty of care owed to persons entering public land is a duty owed to them as a class, and not to each of them as individuals [17]. The content of the duty is therefore to be measured by reference to the class, and not by reference to the personality or characteristics of each individual member of that class [18].
So, the individual state of knowledge or awareness of particular witnesses, or of the plaintiff, will not determine the scope of the duty owed, which is to be assessed by reference to the general class of persons to whom the duty is owed (see Department of Natural Resources and Energy v Harper [2000] VSCA 36; (2000) 1 VR 133).
There is an important distinction to be drawn between the class of persons to whom the duty is owed, and the ascertainment of the content of that duty. Since the statutory abolition of contributory negligence as a complete defence to a claim in negligence, where a duty of care is owed to a class of persons (such as those entering public land), it will be owed to all in that class, including the careful and the careless. However, this is not to say that the content of the duty includes an obligation to protect the careless from harming themselves. The person subject to the duty is reasonably entitled to assume that the beneficiaries of the duty will exercise reasonable care for their own safety (Dederer per Gummow J at [47]). So, the obligation of a road authority is to exercise reasonable care to ensure that the road is safe 'for users exercising reasonable care for their own safety' (Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 [163]). In Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431, the public authority in control of land which included a cliff was entitled to assume that persons entering the area would exercise reasonable care for their own safety, having regard to the obvious nature of the danger presented by a cliff, and was not obliged to fence off the entire cliff face or smatter the area with warning signs.

Public authorities

Public authorities are subject to the same principles governing the scope and content of the duties of care to which they are subject as private citizens. However, when those principles come to be applied to the facts of a particular case, the scope and character of the obligations of the public authority against whom the duty is asserted will be relevant to the ascertainment of their content. Brennan J drew particular attention to the relevance of the scope and character of a public authority's responsibilities in assessing the scope and content of the duty of care in Nagle (435 ‑ 441). Similar observations were made more recently in Vairy by Gleeson CJ and Kirby J at [6], by Gummow J at [80], and by Hayne J at [116], [122], [129] and [145]. The point made in these passages is similar to the point made in relation to hindsight bias. The content of the duty of care owed by a public authority having control of a large area of land to which the public have access, is not to be assessed by looking only at the particular site at which the plaintiff suffered his injury, but rather, prospectively, before the injury occurred, to the entire area under the control of the authority and by reference to the class of entrants to that area generally. The fact that the authority might, for its own purposes, encourage or promote the use of the land for a particular purpose (such as recreation - as in this case) is also a relevant consideration, and tends toward the imposition of a more exacting duty of care - see Gummow J in Vairy at [83], Hayne J at [152].

Recreational activities

The character of the activity undertaken by the person claiming to be owed a duty of care is also relevant to the assessment of its scope or content. Many recreational activities are inherently dangerous, and the activities undertaken by the class of persons entering the ORVA amply illustrate that point. In Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [127], it was observed that adults voluntarily participating in a sport may be assumed to have an appreciation of the risks involved in that sport, just as those diving from a rock platform into the sea might be taken to have some knowledge of the risk of submerged objects. Similarly, those resorting to large sand dunes in order to use off‑road vehicles may be assumed to have a knowledge and appreciation of the general risks associated with that activity. This does not, of course, mean that those persons are not owed a duty of care, but it is relevant to the ascertainment of the scope and content of that duty. Further, the fact that such persons undertake such hazardous recreational activities voluntarily, places them in a different category to those such as road users and employees, who have little or no practical choice in relation to the risks to which they are subjected - see Callinan and Heydon JJ in Vairy at [216] ‑ [217], Callinan J in Dederer at [264].

The significance of prior injuries

In this case, Mr Coombe adduced evidence of the Shire's knowledge of prior injuries suffered by persons using off‑road vehicles in the ORVA. The evidence suggested that at least some of those injuries were suffered in circumstances similar to those experienced by Mr Coombe. That evidence was plainly relevant to the assessment of the extent of a reasonable response by the Shire to the risk which had, to its knowledge, materialised. However, it is not determinative.
In Vairy, prior to Mr Vairy sustaining his injuries, another person had sustained spinal injury as a result of diving off the same rock platform, to the knowledge of the local authority in control of the area. In that context, Hayne J observed:
Of course, it is relevant and important to know that one person had been seriously injured after diving off the rock platform at Soldiers Beach. But showing that the risk against which the proposed warning would be offered is one which has come to pass does not mean that a reasonable council would conclude that it should provide the warning. If the fact of occurrence sufficed to lead to that conclusion, there would be many points along the roadside where an accident has happened and a sign would read 'speed kills' or 'inattention can be fatal'. [150]

The source of, and the capacity to control the risk

As Gummow J pointed out in Dederer:
It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be. [59]
In that case, Gummow J concluded that mischaracterisation of the relevant risk by the Court of Appeal was one of its sources of error [60].
In this case, the risk which materialised and caused Mr Coombe to suffer injury was that arising from driving (or in his case, riding) over the crest of a sand dune at such a speed that he could not stop if confronted with an unexpectedly steep descent. When the risk is expressed in those terms, it is pertinent to note that the Shire was not the source of any aspect of the risk, in the sense that it did not create the sand dune nor provide Mr Coombe with his motorbike. Nor did the Shire have any capacity to control the likelihood of the risk materialising. The trial judge found that it was not practicable for the Shire to exclude off‑road vehicle users from the sand dunes, and that finding is not challenged. Nor could the Shire control the creation of sand dunes having one steep side, nor was it practicable for the Shire to control the speed at which people drove in the sand dunes. These matters are relevant to the assessment of the reasonableness of the Shire's response to the risk, in the same way as in Dederer it was relevant that:
… the RTA did not control Mr Dederer's voluntary action in diving, and nor did it create or control the natural variations in the depth of the estuary beneath the bridge. [62] (per Gummow J)

Warning signs, obviousness and the content of a warning sign

Particular issues have arisen in previous cases relating to the obviousness of the risk of which the defendant was said to be obliged to warn, and the appropriate content of such a warning. These are, of course, essentially factual issues, and I do not seek to commit the mistake of elevating them to legal principle by referring to previous cases. However, those cases shed some light on the factual issues that are relevant in this case.
There is a division of judicial opinion on the significance of the obviousness of the risk which is said to have given rise to the duty to warn. Gummow and Hayne JJ are of the view that it can be an error to attach too much weight to the obviousness of the risk - see Vairy at [55], [95] and [162]. However, there is a preponderance of opinion to the effect that the obviousness of the risk 'may be of such significance and importance, indeed of such a very high degree of importance as to be overwhelmingly so, and effectively conclusive in some cases' (per Callinan and Heydon JJ in Mulligan at [75] - see also Vairy at [223]).
Although in dissent, in Vairy, Gleeson CJ and Kirby J put the issues which arise in cases where a public authority is said to have a duty to warn of a recreational hazard, with respect, succinctly and persuasively at [7] and [8]:
7.Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign.
8.Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs. It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits. (footnotes omitted)
As Callinan and Heydon JJ pointed out in Mulligan, in Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 (which was heard together with Brodie v Singleton Shire Council), five members of the High Court regarded obviousness as the decisive factor in the case ([8] per Gleeson CJ (agreeing with Callinan J), [163] per Gaudron, McHugh and Gummow JJ and [355] per Callinan J). In this court, in Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474, Ipp J considered obviousness to be a significant factor [37] (see also Romeo at [50] per Brennan CJ).
Given the preponderance of opinion to the effect that the obviousness of the risk can be a significant, even determinative, factor in warning cases, it is necessary to identify precisely that which would have been obvious in this case. In the absence of the sign erected by the Shire, it would not have been obvious to persons who had not previously travelled to the ORVA that there was a risk of encountering a dune with a gradual slope on one side, and a steep slope on the other. However, it is obvious to any driver (or rider) of a motor vehicle travelling off road through changing terrain, that they are at risk of significant injury if they travel at a speed which is such that they cannot stop within the area of land surface which is visible to them. Put another way, it is obvious to any rider of a motorcycle approaching the crest of a hill, not on a road, that because of the unknown nature of the terrain on the other side of the crest, they should be travelling at such a speed that they can stop before they encounter that unknown terrain. In the circumstances of the ORVA, the unknown nature of the terrain on the other side of the crest of a sand dune was not the only obvious hazard. Perhaps the most obvious hazard on the other side of the crest of a dune was the possible presence of another motor vehicle or motorcyclist. There were a number of reasons why it would have been obvious to every rider of a motorcycle in Mr Coombe's position that they should approach the crest of a dune at a speed which enabled them to stop as soon as they saw what was on the other side.
Turning then to the appropriate content of warning signs, the observations of Gleeson CJ and Kirby J in Vairy which I have set out above are pertinent (see above [69]). The reasonable response of a public authority said to have a duty to warn has to be assessed against factual considerations which include the prospect that a sign may be so general as to be meaningless, or so specific and detailed (if all relevant risks are to be covered) as to lose impact, or the signs so numerous as to be impractical, or individually insignificant, or a hazard in themselves.
In Woods v Multi‑Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460, the plaintiff alleged that the operator of an indoor cricket venue had a duty to warn participants in the game of indoor cricket of the dangers associated with that game and, in particular, the danger of serious eye injury. Rejecting that claim, Gleeson CJ observed:
It is useful to reflect upon what exactly might have been the content of the warning. There was no reason to limit it to the risk of head injury, much less eye injury. There was one particular respect in which the type of eye injury suffered at indoor cricket can be different from the type suffered at outdoor cricket, but there were probably also a number of respects in which the risk of back injury, or concussion from collisions, might be different from the risks associated with outdoor cricket. The risk that, in the confined space in which the game was played, any player, batsman or fielder, might receive a severe blow to any part of the head, including the eye, was, the trial judge found, obvious, and well known to the appellant. It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision. [43]
As I have already observed, in this case, the trial judge did not address, in his reasons, the exact content of the warning which he considered should have been given. For reasons which I will develop further below, if he had done so, it would have been apparent that he was impermissibly reasoning retrospectively from the particular circumstance which caused Mr Coombe's injuries, and postulating a sign which addressed only that circumstance, while excluding from consideration the myriad of other risks to which users of the ORVA are exposed and which would have had to be included in any comprehensive warning. Those risks would include such things as the risk of injury when a motorcycle or vehicle comes unexpectedly to a halt in unusually soft sand, or rolls over, or collides with another vehicle or pedestrian.

Causation

Every claimant in tort carries the burden of proving that the breach of duty committed by the tortfeasor caused or materially contributed to the injury which the claimant suffered, in the sense described in March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
In the case of a breach of duty to erect a warning sign, it follows that the claimant carries the burden of proving that if an appropriate sign had been erected, he or she would have seen it, read it, and thereafter modified his or her behaviour in a way which would have avoided, or reduced the extent of the injuries suffered.

People do not always see, read or comply with warning signs. It is therefore open to a court to find that even if an appropriate warning sign had been erected, the plaintiff would nevertheless have suffered injury to the same extent - as was found in Romeo [44].
In a case such as this (and Dederer), where the plaintiff's claim is not based upon the absence of a sign, but the inadequacy of the signage provided, the plaintiff must establish that the difference in signage would have made a difference to their actions. This may not be easy. As Callinan J observed in Dederer:
In any event, the notion that the first respondent and other youths would have heeded a worded sign when they flagrantly disregarded a pictograph sign of unmistakeable import, strains credibility. Indeed, the making of the excruciatingly fine distinctions, as each of the courts below did, between the content of the signs actually erected, and other allegedly preferable ones, as to which those courts themselves were not in agreement, was quite unconvincing. [276]
In the present case, Mr Coombe carried the burden of establishing that a differently worded and differently placed sign would have resulted in him modifying his behaviour to the extent that his injuries were avoided or diminished. He did not give any evidence to this effect. In Vairy, Callinan and Heydon JJ commented that in Rosenberg v Percival (at [221]), Callinan J had referred to 'the very limited utility, indeed practical uselessness' of evidence by a plaintiff to the effect that they would have avoided a risk (which has materialised) if they had been warned about it [266].
Although the proof of causation is subjective in the sense that it depends upon the particular circumstances, demeanour and behaviour of the plaintiff, in cases of failure to warn, the assessment must often be performed by the court having regard to inherent probabilities and general characteristics of human behaviour. The evidence given by Mr Coombe in this case was extremely brief, and did not address the question of causation at all. It is most improbable that it would have provided any reliable basis for a conclusion based largely upon his personal characteristics, other than the facts that he was a young man, who was an experienced off‑road motorcycle rider, who had not previously visited the ORVA, but who had travelled a significant distance to get there.

Applying the legal principles: the conclusions to be drawn in this case

I turn now to apply the legal framework which I have described to the factual circumstances of this case, in order to determine whether the trial judge was in error in concluding that the Shire breached its duty to Mr Coombe, and that the Shire's breach caused him to suffer his injuries.

Hindsight bias

The trial judge expressly acknowledged that it was his obligation to assess breach of duty by looking forward from a time before the occurrence of the injury giving rise to the claim, rather than looking back at what has in fact happened [98]. However, the process of reasoning elucidated by the reasons for decision is, in fact, a retrospective process. That is evident from its starting point, which is the particular dune upon which Mr Coombe suffered his injuries - variously described by the trial judge as a 'razor-back' or 'cliff' (inaccurately as I have observed). The trial judge has then assessed the reasonableness of the care taken by the Shire by reference to that particular circumstance, rather than by reference to the range of risks to which all entrants to the ORVA were exposed, as a class. That error in approach is most evident in his vital conclusion:
[T]here should have been a sign to have warned entrants of the dangers of recreational activity in the area by virtue of, not just steep descents, but the fact that dunes could be eroded in such a way as to create a razor-back or cliff and result in hard rocky surfaces as well as soft dunes. In making these comments I recognise that those sorts of warnings would need to be put into short simple language, or pictorially so as to be readily digestible by visitors to the ORVA of average and reasonable intelligence. [135]
It is therefore clear that the trial judge has focused his attention exclusively upon the particular feature of the terrain which caused Mr Coombe to suffer injury, ignoring the various other risks to which entrants were exposed, and of which they might have been warned. Had he directed attention to the exact content of an appropriate sign, as Gleeson CJ suggested in Woods, he would likely have concluded that the range of risks appropriately covered rendered a description of those risks in 'short simple language', or pictorially, impractical - or at least in a way which was likely to attract the attention of entrants to the area.
Further, the emphasis given by the trial judge to the consideration that the erection of a warning sign which he would have considered adequate would have involved modest expense, suggests that he succumbed to the risk, of which the authorities warn, of giving disproportionate weight in the evaluation required by Shirt to the relative ease with which the particular risk giving rise to injury might have been addressed. The consequence of such emphasis is that the Shire would be liable for all risks (not far fetched or fanciful) which could be inexpensively addressed. Put another way, the trial judge appears to have committed the error of distraction from the central issue in the case, which is the issue of what the obligation of reasonable care required the Shire to do. The Shire was not under an obligation to prevent all users of the ORVA from suffering harm or injury. Its obligations are limited to taking reasonable care to guard against foreseeable risks.

The class to whom the Shire's duty was owed

The content of the duty of care owed by the Shire is to be assessed by reference to the class of persons to whom it was owed, namely, users of the ORVA taking reasonable care for their own safety. The fact that Mr Coombe did not take reasonable care for his own safety, does not, of course, mean that he was not owed a duty of care. However, the scope and content of the Shire's duty is not to be fashioned by reference to those who, like Ms Romeo and Mr Vairy, failed to take reasonable care to avoid an obvious risk. Nor is the scope and content of the Shire's duty to be fashioned by reference to those who, like Mr Coombe, would drive a vehicle to the crest of a hill, off road, at such speed that they are unable to stop when they see what is on the other side of the crest. Rather, the Shire was entitled to formulate the content of the sign it erected on the assumption that entrants to the ORVA would take reasonable care.

The Shire as a public authority

The Shire is a public authority responsible for the control and management of large areas of public land within its municipality. The ORVA is one such area. As occupier of the ORVA, it owes a duty of care to all entrants. The content of that duty is to be assessed by reference to the breadth of the Shire's obligations, and the practicality of addressing particular risks having regard to those obligations.

The Shire's encouragement of the use of the ORVA

The Shire actively encouraged and promoted the use of the ORVA for recreational purposes. This is a factor which tends to expand the content of its duty of care.

The recreational nature of the activity undertaken

The class of persons to whom the Shire owed its duty of care was a class of persons attending the ORVA for the purpose of voluntarily undertaking obviously hazardous recreational activities. In that respect, they are not to be equated to the users of public roads, or employees, who have little or no choice as to the risks to which they are subject. This is a factor which tends to constrain the extent of the Shire's duty

Prior injuries

The fact, known to the Shire prior to Mr Coombe's accident, that others had suffered injury in the ORVA in similar circumstances is a relevant and significant factor in assessing the content of the Shire's duty of care, and tends towards the expansion of that content. However, as in Vairy, it is not determinative.

The source of, and control over, the risk

The Shire was not the source of the risk relevant to this case, as it was not responsible for either the creation of the sand dune with one steep side, nor for the presence of Mr Coombe on his motorcycle. Nor did the Shire have any effective or practical means for controlling the slope of the sand dunes, or the speed at which people drive (or ride) their vehicles within the ORVA. These are factors which tend to diminish the content of the Shire's duty.

Obviousness

The presence of sand dunes with a gentle slope on one side, and a steep slope on the other, would not have been obvious to those who had not previously visited the ORVA. However, the risk of driving an off‑road vehicle to the crest of a hill at such a speed that the vehicle could not be stopped when the driver saw what was on the other side of the crest would have been obvious to all reasonable users of the area.

The content of the warning sign

The trial judge found the Shire to be in breach of its duty of care in part because he considered the content of the sign which it had placed on the access road to the ORVA to be inadequate. The first reason he gave for that conclusion was that the 'sign was more to denote the area for off‑road vehicles in a pictorial fashion and to direct persons to the regulations relating to such use' [121]. But the fact that a prominent feature of the sign erected by the Shire was a map showing the ORVA area supports the Shire's position. That is because the warnings given on the sign were most likely to be relevant to those who had not previously visited the area. Those are the entrants who would have no prior knowledge of the terrain, and the hazards associated with the use of off‑road vehicles within the area. They are also those who would have the greatest interest in a map of the area, which is inherently likely to attract their attention, especially when situated prominently on the only road providing vehicular access to the area.
Next, the trial judge described the warning under the heading 'beware' as 'perfunctory and easily lost within the scheme of the sign' [121]. This is not an accurate description of the warning. The word 'beware' is in bold lettering, is underlined, and is coloured red against a blue background. It is obvious and attracts the attention of the eye.
Finally on the topic of content, the trial judge concluded that the Shire's duty extended to providing a specific warning of the erosion of dunes to create a razor-back or cliff and expose hard, rocky surfaces, but did not suggest how this could have been done effectively. I have already commented on the errors of retrospectivity and over‑specificity of risk which are evident in this view. There is, with respect, another fundamental error. Immediately under the prominent warning 'beware' to which I have referred, the Shire placed, prominently and quite legibly, the words 'sudden steep descent'. Nowhere in his reasons does the trial judge explain why these words were inadequate to warn entrants of the terrain which Mr Coombe encountered. They are an entirely adequate and accurate description of that terrain. They remind any reasonable reader of the sign that the crest of a hill should be approached with caution given the uncertainty as to what may be on the other side of the crest.
The trial judge seems to suggest that some expression like 'razor-back' or 'cliff' might have been used. The term 'razor-back' is not a term in widespread use, and would likely have conveyed less information to those entering the ORVA than the words 'sudden steep descent'. In any event, as I have pointed out, the dune which Mr Coombe encountered is not accurately described as a 'razor-back', nor as a 'cliff'. I can think of no better description of that dune than the one used by the Shire on the sign, namely, as having a 'sudden steep descent'.
For these reasons, the trial judge erred in concluding that the Shire was in breach of its duty of care by reason of the content of the sign which it had erected.

The placement of the sign

The other reason why the trial judge concluded that the Shire was in breach of its duty of care was because the Shire placed the sign immediately adjacent to the access road, rather than in the carpark. That was because he considered that '[i]t would be far more appropriate to place such a sign within the carpark where visitors had an opportunity to read the same (sic)' [121].
With respect, it is evident from the terms in which his reasons are expressed that the trial judge has not addressed the right question. The question is not whether it would have been more appropriate, or preferable, or advantageous to have placed the sign in the carpark instead of on the access road. The question was whether by placing the sign on the access road, the Shire had departed from a standard of reasonable care.
In any event, the proposition that it was more appropriate to place a sign such as that erected by the Shire within the carpark, rather than on the access road, does not stand scrutiny. As I have observed, although the trial judge made no finding in that respect, the evidence was consistently to the effect that the carpark is a large area fenced on only two sides, with at least one unfenced side having immediate access to the sand dunes. The carpark has to be a large area, because many of those parking their vehicles there are towing trailers on which their off‑road vehicles are placed. Because there is no single point within a carpark of that kind which will be passed by all resorting to it, and given the unlikelihood of people either walking a significant distance from where they have parked for the purpose of reading a sign, or reversing their vehicles and trailers from the position in which they are parked to drive up to the sign, it seems clear that one such sign in the parking area would be quite inadequate.
The evidence does not enable any assessment of how many signs would be required in the carpark. However, unless there was a sign immediately adjacent to each point in the carpark at which vehicles might park, there would be a significant risk that many of those accessing the carpark would not read the signs. This raises the prospect of the carpark being festooned with signs which might themselves, at least on the unfenced sides, present a hazard of their own. The prospect of a carpark entirely surrounded by warning signs is no more attractive than that of the entire coast within the Shire of Wyong (Vairy), or all the cliffs in the vicinity of Darwin (Romeo) being covered in signage.
The evidence of Mr Fraser, and the photographic evidence, establishes that there was quite adequate space adjacent to the sign erected by the Shire for a vehicle entering the area to pause while its occupants read the contents of the sign. As I have observed, the prominence of the map of the area was likely to encourage first time visitors to do exactly that. A sign placed on the access road was visible to all who entered the area using that road, whereas one, or even a number of signs located in the carpark would not necessarily have been exposed to all visitors.
For these reasons, the trial judge also erred in concluding that the Shire breached its duty of care by placing the sign on the access road instead of in the carpark. It follows that the trial judge erred in his overall conclusion that the Shire was in breach of its duty of care, and that the appeal must be allowed.

Causation

As I have observed, it was necessary for Mr Coombe to establish that the sign which he contended should have been erected would have caused him to modify his actions in a way that would have averted or diminished his injuries. In order to evaluate that proposition, it is necessary to posit the presence of some other sign, of the kind apparently contemplated but not enunciated by the trial judge, and then assess whether such a sign would have caused Mr Coombe to act differently on the day in question, by comparison to the sign which was in place on that day.
This is a very difficult exercise to undertake hypothetically in a context in which I have concluded that the sign which was in place on the day adequately discharged the duty of care owed by the Shire. However, as the matter was argued in full, I will express some tentative views on the subject.
The first observation I would make concerns the significance which I would attach to the evidence, which was uncontradicted and apparently accepted by the trial judge, of four persons standing on the crest of the sand dune and waving shortly before Mr Coombe arrived at, and fell from, the crest of the dune. If the presence of those persons did not cause Mr Coombe to reduce his speed to the point where he could stop his motorcycle within the terrain visible to him, it is difficult to see why a differently worded sign placed in the carpark would have had that effect.
In making this observation, I do not overlook the fact that the trial judge found that the effect of an improved warning upon Mr Coombe would have been to cause him to 'first acquaint' himself with the terrain [144] which I take to be a reference to a process of reconnoitre. However, it seems unlikely to me that Mr Coombe would have undertaken that process on foot, given the difficulties and distances involved. Accordingly, it can be inferred that the trial judge was postulating a process of initial traverse of the area on motorcycle, but at slower speeds than those travelled at the time Mr Coombe suffered his injuries. But if that is the hypothesis, it again seems to me to be particularly pertinent that the presence of four persons waving their hands on the crest of the dune which Mr Coombe was approaching did not cause him to reduce his speed to that which is safe. It seems improbable that any sign would have had that effect.
This is a case, like Dederer, where there was a sign in place. That sign was in a prominent position, and clearly warned a reader of the prospect of sudden steep descents. Mr Coombe was unable to say whether or not he read the sign. If he did, it seems unlikely that a sign differently worded would have caused him to modify his behaviour. If he did not read the sign, which was prominently located immediately adjacent to the access road which Mr Coombe used to access the area, and which prominently displayed a map which would be of obvious interest to someone like Mr Coombe, who had never been to the area before and who had, in fact, had difficulty finding it, it is difficult to see why a sign placed in the carpark would have been more likely to attract his attention.
For these reasons, while it is difficult to address the Shire's ground of appeal on causation with precision, given that the hypothetical basis for the evaluation of causation is removed by the success of the Shire's first ground, I would nevertheless conclude that the trial judge erred in the conclusion at which he arrived on the issue of causation.

Conclusion

For these reasons, I would allow the appeal and set aside the judgment of the trial judge, and in its place enter judgment dismissing Mr Coombe's claim.

McLURE JA: I would dismiss the appeal. The background facts are set out in the reasons of the Chief Justice.
It was accepted by the appellant at trial (and in the appeal) correctly in my view, that it owed a duty of care to the respondent commensurate with that set out in s 5 of the Occupiers' Liability Act 1985 (WA) (the Act) and that in order to comply with that duty, reasonableness required it to warn entrants to the Lancelin Off Road Vehicle Area (ORVA) of dangers associated with the site (appeal ts 5). The only issues in the appeal are whether the trial judge erred in finding that:
(a)the appellant breached its duty because the placement (location) and content of its warning sign were inadequate (ground 1); and
(b)the breach caused the respondent's loss ( ground 2).

However, much of the reasoning of the Chief Justice is relevant to the question whether reasonableness required any warning sign. His analysis may be read as leading to the implicit conclusion that no warning of any kind was required. In the circumstances, I propose to identify what I consider to be the correct legal principles.

Legal principles

Sections 5 to 7 of the Act replace the common law rules (s 4). The trial and the appeal were conducted on the basis that the statutory duty and standard of care were not materially different to the common law duty and standard. The correctness of that proposition was left open in Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [30].
There appears to be a suggestion that the duty owed by the appellant to the respondent was, as a matter of law, to exercise reasonable care so that the ORVA was safe 'for users exercising reasonable care for their own safety'. If that is the intended proposition, I make the following observations. First, that is not the law applied by the trial judge nor is the omission a ground of appeal. Secondly, the limitation that premises be safe for users exercising reasonable care for their own safety was a special duty under the law of occupiers liability as it stood before the decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The High Court in Zaluzna held that the general law of negligence was the sole source of an occupiers liability.
Thirdly, I do not understand the limitation to form part of the general law of negligence although it may apply to the special case of non‑feasance by a highway authority: Brodie v Singleton Shire Council (2001) 206 CLR 512 [163]; cf Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 [45] (Gummow J); Vairy v Wyong Shire Council (2005) 223 CLR 422 [80] (Gummow J). It was not suggested that the appellant in its control and management of the ORVA was in a position equivalent to a highway authority which, prior to Brodie, was immune from liability for non‑feasance. Fourthly, if it does represent the general law, I am not presently persuaded that it applies to a duty under s 5 of the Act.
Whether or not a particular act or omission constitutes a breach of a duty of care is a question of fact not a question of law: Sydney County Council v Dell'Oro (1974) 132 CLR 97, 119. Whether or not the appellant should have given a warning and its adequacy are questions of fact that depend on all the circumstances (including whether or not users are likely to exercise reasonable care for their own safety) applying the negligence calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 ‑ 48.
As to the general law of negligence, Spigelman CJ noted in his influential article 'Negligence: The Last Outpost of the Welfare State' (2002) 76(7) ALJ 432 that the case law since 2000 demonstrated there had been a reversal in the balance of competing interests from plaintiffs to defendants. That view was supported by a statistical analysis undertaken by Professor Luntz of decisions between 1987 and 2003 (Turning Points in the Law of Torts in the last 30 years (2003) 15 ILJ 1).
The reversal was effected by the High Court re‑emphasising a number of settled principles. First, that reasonable foreseeability of harm of the kind suffered is a necessary, although insufficient, condition for the existence of a duty of care. That is, there is no general duty to avoid injury to everyone whom it is reasonably foreseeable may suffer that kind of injury if reasonable care is not taken: Tame v The State of New South Wales (2002) 211 CLR 317 [247] ‑ [248]. Secondly, the failure to eliminate a risk that is reasonably foreseeable and preventable does not itself establish breach; it is necessary to ask the further question whether a defendant's failure to eliminate the risk showed a want of reasonable care: Tame [98] ‑ [99]. Thirdly, the inquiry as to whether a putative tortfeasor has responded reasonably to a foreseeable risk of injury is prospective not retrospective and thus it is wrong to focus exclusively upon the way in which the accident in question happened: Vairy [160] ‑ [161].
I considered the High Court authorities on the subject of the relevance and weight to be given to the obviousness of the risk in Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52; (2006) Aust Torts Rep 81-840 [36] ‑ [51]. For ease of reference I repeat part of what I said in that case:
36.The relevance of, and weight to be given to, the obviousness of the risk has been considered by the High Court on many occasions and most recently in Vairy (supra) and Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 which were heard together. See also Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234.
37.The High Court has consistently reaffirmed that the central question is whether a defendant's response to a foreseeable risk of injury is reasonable and that is determined by reference to the Shirt analysis. The factual judgment in each case of what is a reasonable response to a foreseeable risk depends on all the circumstances. The weight to be given to the obviousness of a risk and the closely related assumption or expectation that others will exercise reasonable care for their own safety, will vary according to the circumstances of the case. Obviousness of the risk is likely to be accorded greater weight when the only particular of negligence is a failure to warn of a relevant risk. That is because warnings only serve a purpose if they are likely to inform a person of something that the person does not already know or to draw attention to something that might be overlooked or forgotten (Vairy at [7] per Gleeson CJ and Kirby J). Further, in some circumstances a warning will only be a reasonable response if it is reasonable to assume that the persons to whom the duty is owed will exercise care for their own safety. These matters are best understood by reference to the High Court analysis in Thompson, Vairy and Mulligan. In Thompson, the appellant injured her back while attempting to manually move waste bins on premises occupied by the respondent in order to complete a delivery of bread she was making to the respondent. The appellant claimed that there was a systemic failure of the respondent to exercise reasonable care for her safety by failing to have in place procedures to ensure the safe removal of the bins. The primary Judge found that the respondent was negligent. By a majority, the Queensland Court of Appeal concluded that the respondent was not liable in negligence. The High Court held that the Court of Appeal was not justified in reversing the primary Judge's finding. There was no dispute as to the existence or general nature of the duty owed by the respondent to the appellant. The essential issue was whether there was a breach of duty.
38.The appellant did not complain of a failure to warn her of a risk of which she was unaware. Indeed, her evidence was that she knew of the risk of injury involved in her moving the bins. The respondent was also aware because the appellant had complained to the respondent on a number of occasions about having to move the bins. What was involved was not a risk to everybody, it was a risk to the appellant because of her stature. The High Court concluded it was foreseeable that there was a risk of injury to the appellant in moving the bins. On the subject of the obviousness of the risk and the expectation that others will exercise reasonable care for their own safety, the High Court said (at [36] ‑ [37]):
'The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to the circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.'
…
40.Vairy and Mulligan are diving cases in which the primary allegation of breach was the failure to warn of the risk of injury. In both cases the respondent was the local government authority responsible for the area in which the accident occurred …
41.All the Judges [in Vairy] agreed that the relevant question was whether the Council had responded reasonably to the foreseeable risk that someone would be seriously injured if he or she dived from the platform into the sea. Gleeson CJ and Kirby J (in a joint judgment) concluded that there was no error in the primary Judge's reasoning leading to her conclusion that a reasonable response to the risk of injury was the erection of a warning sign. The primary Judge reached this conclusion on the basis of her findings that the platform was unusual both in its formation and its ready accessibility to members of the public and that the Council knew or ought to have known that there could be significant variations in the depth of the water, which information the appellant did not have. McHugh J also concluded that a warning sign was a reasonable response to the risk.
42.Hayne J's approach to the obviousness of the risk, with which Gummow J agreed, is different to that of the other members of the majority, Callinan and Heydon JJ. Hayne J said (at [162] ‑ [163]):
'The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred to as the obviousness of the risk. Reference to a risk being "obvious" is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty.
That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. And in looking at the reasonable response to a foreseeable risk it is necessary to recall that there will be times when others do not act carefully or prudently. That is why, as the Court of Appeal recognised, what it referred to as 'the obviousness factor' is not to be elevated into some doctrine or general rule of law.' (footnotes omitted)
…
44.Callinan and Heydon JJ (in a joint judgment) concluded [in Vairy] that the duty of care did not include an obligation to erect a warning sign or prohibit entry into the water from the platform because (a) when adults voluntarily participate in sport they may be assumed to know the rules, and to have an appreciation of the risks; (b) the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be dangerous; (c) having regard to the area for which the Council was responsible and the variety of natural hazards to be expected in the area, the Council was not negligent in failing to single out the platform for a special warning or prohibition. They rejected a submission that too much weight was attached to the obviousness of the risk with the observation that it was a clear duty of the appellant, and one which a responsible authority would expect him to fulfil, to make soundings at least of depth before diving from the platform.
What emerges from the above is that where the only possible breach is a failure to warn, there is a close factual relationship between that, the obviousness of the relevant risk and the reasonableness of an assumption that people will act with reasonable care. As noted in Ydalia at [46], Callinan and Heydon JJ in Vairy gave significantly greater weight to the obviousness of the risk than the other members of the court.
There are also different views on whether the standard of care required of a public authority towards entrants on land under its control is determined by reference to entrants as a class or by reference to the personal characteristics of the plaintiff: Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 [16] ‑ [18] (McHugh J) cf Vairy [216] (Callinan & Heydon JJ). I propose to follow the McHugh J view.
The appellant's concession that compliance with its duty of care reasonably required it to warn entrants of the dangers of the ORVA is consistent with authority having regard to (a) its management and control of the ORVA; (b) its active encouragement and promotion of the use of the ORVA for recreation; (c) the appellant's knowledge that there had been a significant history of accident‑caused personal injuries to users of the ORVA, the type and frequency of which were recorded by the Lancelin Silver Chain Nursing Centre; and (d) the fact that some of the dangers would not be apparent from casual observation or necessarily expected.

Content of warning

The respondent's case was that the appellant's warning sign was inadequate because of the wording of the warning, its graphic presentation (colour, print size, context) and the location of the warning sign.
The trial judge held that the appellant's warning sign at the entrance to the carpark was inadequate. He said:
I accept the plaintiff's argument that that sign was more to denote the area for off road vehicles in a pictorial fashion and to direct persons to the regulations relating to such use. The warning sign under the heading 'Beware' is perfunctory and easily lost within the scheme of the sign. Further, I find that the sign was inadequate in its placement. I accept the argument of the plaintiff that to place such a sign on an entrance track without requiring people to stop to read and observe the warnings and regulations is insufficient. It would be far more appropriate to place such a sign within the carpark where visitors had an opportunity to read the same [121].
The trial judge found that people were unlikely to stop and read the sign, preferring to stop once reaching the carpark [133]. He continued:
The … sign warned entrants to beware of steep descents. However, that warning as to steep descents is not a warning that stands out against the other information contained on the sign. I have come to the conclusion that there should have been a sign to have warned entrants of the dangers of recreational activity in the area by virtue of, not just steep descents, but the fact that dunes could be eroded in such a way as to create a razor-back or cliff and result in hard rocky surfaces as well as soft dunes. In making these comments I recognise that those sorts of warnings would need to be put into short simple language, or pictorially so as to be readily digestible by visitors to the ORVA of average and reasonable intelligence [135].
The dimensions, location and content of the sign at the entrance of the carpark are detailed in the reasons of the Chief Justice. I start with the adequacy of the wording of the sign. The warning is in the following terms:
THE OFF ROAD AREA IS A HAZARDOUS ENVIRONMENT
MANY SERIOUS INJURIES OCCUR EACH YEAR.
BEWARE:
SUDDEN STEEP DESCENT
COLLISIONS WITH VEHICLES/PEDESTRIANS.
The appellant contended the trial judge's approach to the question of breach was a methodologically flawed hindsight analysis. It is ordinarily necessary at the outset for a trial judge to make findings as to the circumstances of the accident, including the physical cause(s) of the claimant's injuries. That information is used to identify the risk that materialised which in turn is relevant to whether the alleged negligent act or omission is within the scope of the duty and constitutes a breach and if so, whether the negligent act or omission caused the damage.
The risk in this case was of driving over the crest of a sand dune, the downward side of which was a near vertical drop (80 degrees) of some considerable height (10 ‑ 15 m) to a hard rocky surface. There was nothing in the morphology of the area or in the approach to the crest of the sand dune to alert a driver to the possibility of what lay beyond the crest. This type of risk, although known to the appellant, would be unexpected to first‑time entrants and the location of dangers of this type would not usually be known even to those who had previously visited the site. The trial judge found that the shape of a dune or dunes could change quite rapidly due to weather conditions and wind action. The exposure of hard rocky ground was also caused as part of this process.
The trial judge correctly identified the relevant risk and concluded that it was not, but should have been, addressed in the warning. I am not persuaded the trial judge impermissibly reasoned retrospectively. The appellant had determined prospectively that it had to warn of, inter alia, unexpected hazards associated with the terrain. The risk that eventuated in this case was known to the appellant and was, in broad terms, within the general category of risk identified in its warning. The only issue for the trial judge was whether the warning of 'sudden steep descent' (in its context) was adequate to warn ORVA users of the known risk of sudden (ie unexpected) sheer (very steep) lengthy drops to a hard rocky surface. The reference to a hard rocky surface is significant because the reasonable expectation is that the driving will be on sand dunes.
In my assessment, the question of content adequacy is determined in this case by reference to whether the level of risk of harm communicated to the class of entrants is materially less than the known risk that eventuated, and if so, whether a warning of the greater risk would increase the likelihood of greater or different precautionary measures being taken by that class of entrants. The levels of risk are materially different in this case. An alternative warning of sudden sheer drops to a hard rocky surface (with an admonition to check the route first) identifies the high end of the known range of risks of serious harm. Such a warning would encompass the lesser risks of a broadly similar type the subject of the appellant's warning. Moreover, when regard is had to the class of entrants (men, predominantly youthful in years or maturity), the appellant's warning is more likely to be perceived as a matter reflecting on driving prowess than the alternative.

In my view, the trial judge did not err in his approach to, or conclusion on, the adequacy of the content of the warning sign.

Presentation/location

The presentation (colour, print size, context) and location of the sign are related matters. The warnings were in red and black on a blue background and in comparatively small print. The sign was in a lay‑by area adjacent to the road just short of the entrance to the ORVA. Access to the ORVA would be by means of a motor vehicle. It was not suggested that the fact, or content, of the warning could be seen or read by persons in a moving motor vehicle [66]. That is, persons driving (even slowly) towards the open entrance to the ORVA carpark would not be alerted to the fact that the sign contained the safety warnings. What could be seen during such an approach is the name of the appellant, the welcome to and name of the ORVA and a pictorial representation of the area in question. The trial judge correctly describes the warnings as being easily lost within the scheme of the sign. The only information on the sign that could not be seen or read without stopping are the warnings and the regulations (the latter figuring more prominently than the former). That further reduces the likelihood of entrants stopping to read the sign. The trial judge was correct to infer that people (or more particularly the class of entrants to whom the duty is owed) were unlikely to stop to read the sign.
If, as appears to be the case, the location of the sign near the entrance to the carpark was the only practical position, its content, size and presentation should have been such as to notify (by words or otherwise) persons driving towards the entry to the ORVA that they are about to enter a hazardous environment and should stop at the sign to read important safety warnings. I would dismiss ground 1.

Causation

Another person had been fatally injured at the same place shortly before the respondent approached the crest of the dune in question. There was evidence that people on the crest of the dune waved to the respondent. The trial judge concluded that he was unable to make a finding in relation to what, if any, warning the people on top of the dune

may have conveyed to the respondent [110], [154]. The appellant did not, in its grounds of appeal, challenge the trial judge's failure to make a finding. As a result, relevant evidence was not included in the appeal book. The appellant did not at the hearing of the appeal seek leave to amend its grounds of appeal notwithstanding some indications of encouragement from the bench. In the circumstances, the appeal should be decided solely on the findings made by the trial judge.

There was very little direct evidence on causation. By reason of the respondent's accident‑caused injuries, he was unable to recall whether or not he had read the warnings on the sign at the entrance to the carpark. He was not asked, and did not give evidence, about what he would have done if he had read the warnings or been warned of the existence of sudden sheer lengthy drops to hard rocky ground.
The only evidence relied on by the appellant was the respondent's evidence that he was a very good rider (ts 10) and that a very good rider would not ride into a situation where he cannot see where he was going (ts 12). The trial judge found that it is exactly what the respondent did do and at some speed, for which he was found to be contributorily negligent to the extent of 40%.
The appellant raises no issue of principle. Accordingly, it is unnecessary to address the case law on the subject of how the subjective test of causation applies to a true omission: Bennett v Minister of Community Welfare (1992) 176 CLR 408; Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (2001) 205 CLR 434. The appellant's sole argument boils down to this: the respondent was a good rider; as a good rider he knew he should not ride into a situation where he could not see; because he did not do what he knew reasonableness required, a warning would not have caused him to alter his behaviour. The trial judge rejected that submission for reasons with which I agree. He said:
It is self-eviden[t] that persons going to these dunes do so for the exciting recreational activity that riding in the dunes provides. One cannot imagine that such persons would be doing so at slow speeds. Nevertheless, applying commonsense to that matter, if warned appropriately, it is unlikely that a person, of the plaintiff's experience, would ride at speed in areas where there is a sheer drop without first acquainting themselves with the terrain [144].
I would dismiss ground 2 and the appeal.
MILLER JA: I agree with Martin CJ.