Swain v Waverley Municipal Council

[2004] HCATrans 170

[2004] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S619 of 2003

B e t w e e n -

GUY EDWARD SWAIN

Appellant

and

WAVERLEY MUNICIPAL COUNCIL

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 27 MAY 2004, AT 10.10 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MR D.J.S. JENKINS, for the appellant.  (instructed by Beston Macken McManis)

MR J.R. SACKAR, QC:   If the Court pleases, I appear with my learned friends, MR M.T. McCULLOCH and MR S.P.W. GLASCOTT, for the respondent.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Menzies.

MR MENZIES:   If your Honours please, the issue in this case, duty having been conceded, is breach and, more particularly, was there evidence, more than a mere scintilla, which, if believed, could induce a reasonable person to conclude that the defendant was guilty as alleged?

GLEESON CJ:   Mr Menzies, just a procedural matter.  I have not been able to locate the summing up of the trial judge amongst my papers.

MR MENZIES:   I only discovered this last night, your Honour.  It was not included in the appeal papers.  It is in the application book.

GLEESON CJ:   I do not have the application book.  I did not sit on the application.

MR SACKAR:   Your Honour, we have a copy here, a clean one.  If it would be convenient, we can run off some copies.

GLEESON CJ:   I would be obliged if you would do that, Mr Sackar.  I just wanted to see the way the judge left it to the jury on the issue with which we are concerned.  Although the index to the appeal book says that it contains the judge’s summing up, all it contains is an exchange with the jury about some questions.

MR MENZIES:   Yes, I only appreciated that myself last night, your Honour.  We have a copy of the application book and we could make ‑ ‑ ‑

GLEESON CJ:   All right.  Well, Mr Sackar’s solicitor is going to make some copies for us and we will include that ‑ ‑ ‑

GUMMOW J:A very lengthy summing up.  It is about 50 pages.

MR MENZIES:   Yes, your Honour.  I will come to that when your Honours all have copies of it.

GLEESON CJ:   As I say, two members of the Court sat on the special leave application, but three of us did not.

MR MENZIES:   I am sorry, that was an oversight on our part that it was not included, your Honour; I apologise for that.  The case before the jury was that the defendant Council was negligent in two respects, essentially.  One related to the placement of flags on the beach and the other related to the failure to provide a warning sign.

GLEESON CJ:   We are not concerned with the second one now?

MR MENZIES:   We are not concerned with the second one.  The jury found in favour of the plaintiff.  Damages had been agreed.  The jury found contributory negligence of 25 per cent and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.  Upon the appeal, the Court of Appeal being constituted by Chief Justice Spigelman and Justices Handley and Ipp, the Court of Appeal split.  The first ground of appeal on which the appeal by the defendant Council was initiated, and the only ground which went up to the court initially, was that the verdict of the jury was against the evidence and the weight of the evidence.

During the course of the appeal the appellant amended and raised a ground of appeal that there was no evidence fit to go to the jury.  Ultimately, it was that ground alone which succeeded before the Court of Appeal.  Chief Justice Spigelman, finding there was evidence, Justices Ipp and Handley finding that there was none. 

GLEESON CJ:   Specifically, evidence to support a finding that the placement of the flags was negligent.

MR MENZIES:   Yes, your Honour.  Of course, one needs to go back a couple of steps, first, to duty.  What was the duty, in this case, to take reasonable care in all the circumstances; if a foreseeable risk of injury is identified, then to consider how, if at all, that foreseeable risk of injury should be dealt with by the Council in accordance with the well-known propositions, as in Shirt’s Case.

It is, of course, for the tribunal of fact, the jury, to decide first whether a reasonable person in the defendant’s position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff, or someone in his position, and then, if the answer to that is in the affirmative, and, of course, I am here paraphrasing Justice Mason in Shirt’s Case, what if anything should the defendant have done to deal with that.

Before we get to that point, though, one has to first consider was there evidence fit to go to the jury, the test being, was there evidence more than a mere scintilla upon which a jury, as the tribunal of fact, could find that there was a breach of duty.

It is our submission that once that position is established, if it is, then the question of, first, whether the breach of duty is established, and, second, if it is, what if anything should be the response of the putative tortfeasor are classically questions for the tribunal of fact, and not for the Court.

GLEESON CJ:   I do not imagine anyone would have disputed that it is easy to move flags, easy and cheap to move flags.

MR MENZIES:   Indeed.

GLEESON CJ:   On the other hand, there was no suggestion the beach should have been closed, so the negligence consisted in having the flags in this place, as distinct from some other place.

MR MENZIES:   Yes, your Honour.  We need then to turn to look at what was the evidence.  I do not think there is any issue about this so that the ground is covered.  Suffering a spinal injury in surfing was reasonably foreseeable.  There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries.  That is found of Mr Tagg at 229.  Mr Nightingale, who was the lifeguard on duty, gave evidence of having learned about spinal injuries and their risk, and that is at 246.  The circumstances of the events are these.  They were summarised by Justice Spigelman, no issue taken by the majority in the Court of Appeal, and essentially it is this ‑ ‑ ‑

GUMMOW J:   What is the critical passage in the judgment of the majority in the Court of Appeal?  Which paragraph?  About paragraph 181, is it? 

MR MENZIES:   Yes.  Your Honour, the judgment begins at page 367, paragraph 145, and then ‑ ‑ ‑

GLEESON CJ:   And 172, I should have thought.

MR MENZIES:   That is so, your Honour, paragraphs 172 and 181.  Can I just deal with it this way.  To encapsulate the evidence, this much appears and it is uncontroversial.  Three people went to the beach that afternoon, the plaintiff and his two companions.  The conditions were benign; we say the benign conditions hid a danger.  Each of the plaintiff and his two companions went into the water between the flags, and that was a strongly contested issue at the trial.  The male companion, whose name was Wilson, went in first.  His evidence was, he went into the water, he was wading out when he kicked something and it was the edge of a sandbar – a sharp, if you like, sand wall – when he was about waist‑deep.  He did not see it before that.  The references are all in our submissions. 

Ms Galvin’s evidence – she was a friend of both the plaintiff and Mr Wilson – was that she went into the water and, effectively, to paraphrase it, she stumbled into a level change, a variation in the water depth.  She did not see that before she encountered it.  The plaintiff’s evidence was that he went into the water, he was in water to about waist‑deep or a little higher, a wave came towards him, he dived – and it seems uncontroversial that what he was describing was a flat dive – into the wave, and that is all he recalls until he realises that he is severely injured.  He saw nothing.  So, to that extent, there was a condition in the water which was not obvious to those three people at least.

Evidence was called from Mr Nightingale, who was a lifeguard.  There were on that day between five and three lifeguards on the beach.  When Mr Nightingale was working, from 10 till in the late afternoon when this injury occurred, there were three.  Evidence was adduced from Mr Nightingale that one of the other lifeguards was overseas.  There was no evidence about the third and there was no evidence about the other two who had been on duty in other parts of the day, particularly the lifeguard who had placed the flags on the beach.

Mr Nightingale’s evidence was that he patrolled the beach.  So far as the flags were concerned, he could not say what had occurred with respect to their placement between 6 and 10 and there was no evidence otherwise, except that they had been placed at 6 o’clock in the morning.  From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed.  He patrolled the beach and also, when he was not patrolling the beach, he could observe the conditions in the water from his outlook post, which was described as being a demountable shed on the north groyne at the beach.

The shed was in a position, it would seem, on the concrete walkway at Bondi Beach on the northern side of the surf lifesaving club.  In the evidence is a large photograph, which is exhibit B, and attached to that is an overlay, which Mr Nightingale has marked where the north groyne was and where the demountable shed was.  It is not reproduced in the appeal book because it was not possible to do it.  I have asked the Registry to have the photograph here should your Honours need to look at it at this stage.  I do not suggest that you do. 

KIRBY J:   I think there is a large one with your instructing solicitor.  I would like to see it.

MR MENZIES:   It is a large one, it is a copy of exhibit B but regrettably, it does not have the overlay on it, but perhaps sufficient for our purposes, that the beach obviously, the surf lifesaving club, the promenade, the north groyne is here.  That is generally north, generally south and the demountable shed, the overlay will show, was here on the promenade. 

KIRBY J:   There is no tower at Bondi Beach?

MR MENZIES:   There was a tower at the time, but it was not in use because it was dangerous and the shed was near where the tower was then, the tower now having been demolished. 

KIRBY J:   There was some evidence that from the lookout, if I can use that expression, Mr Nightingale could see some colouration of the water, which would indicate sandbars, is that correct?

MR MENZIES:   Significantly, there were two – and that is significant for our purposes.  It appears twice in the evidence.  It is in our submissions.  It is at 251, at 10 to 15, and 261, at 50 to 55. 

GLEESON CJ:   Was Mr Nightingale the senior council person there, as it were?

MR MENZIES:   I am not sure of the answer to that question.

GLEESON CJ:   Would he have been the person who had the responsibility for deciding whether the flags ought to have been moved?

MR MENZIES:   Yes, one of them, because his evidence is that he would go along the beach and look for, keep an eye out for things that were dangerous, and, for example, his evidence was that if he found a place which was dangerous to swim, he would mark it in some way.  So it would seem to follow that if he found that the flags needed to be moved, then he could move them.

GLEESON CJ:   Really, the negligent act or omission with which we are concerned is that of Mr Nightingale, perhaps and some others.

MR MENZIES:   Yes.  Any of the three or five people who were there during that day, it would seem, would have had similar duties with respect to the flags.  Mr Nightingale makes it perfectly plain that, with his expertise, he could tell whether the water was shallow or deep, where there were sandbars and where there were not.  It would seem to follow from that that he would have been able to see where, in this place where the jury obviously found the swimmers had gone between the flags, as their evidence was, existed the channel.  It would have been obvious to him.  It was not obvious to the people at the water’s edge.

KIRBY J:   It was common ground, was it, that the flags signify an area that is safe for swimming?

MR MENZIES:   Yes, it was.

KIRBY J:   It is not that they simply indicate the spectrum of the beach which will be under surveillance of a lifeguard so that if you got into trouble somebody would go out and rescue you.

MR MENZIES:   No, your Honour, the former.  Mr Nightingale gave evidence in‑chief, at 238, between 15 and 20: 

Q.       And can you tell the members of the jury what the flags are?
A.       The flags – there’s two sets at Bondi in the summer.  The flags are – indicates to people a reference where they can swim safely.  If they stay between the flags, ideally they should come to not harm.  It’s safe swimming.

Q.       Apart from the flags, are there any other things the lifeguards do in patrolling the beach?
A.       Yes.  We also – we are experienced to basically examine the beach and point and we find the dangerous places which may bring swimmers that aren’t very efficient to trouble.  And what we do we usually – do I go on?

Q.       Please.
A.       We usually mark those areas with a danger sign to basically give a warning to the public.

KIRBY J:   I do not quite understand that.  It is not entirely clear:

we are experienced to basically examine the beach and point and we find the dangerous places which may bring swimmers –

What does that mean?

GLEESON CJ:   Might bring them into trouble.

MR MENZIES:   In other words, for example, both Mr Nightingale and an expert called by the plaintiff, Mr Williams, gave evidence about the dangers that can exist in deep water, a channel near the water’s edge, which, depending upon the circumstances of the day, can be very dangerous.  It is not the issue here, but it is an example.  A poor swimmer going into a channel, for example, if there is a rip running, would not be able to identify the rip and be placed in a position of danger.  It is that sort of thing.  Now, our simple case is that here was a situation where there was a foreseeable risk of injury, the foreseeable risk being exactly what happened to the plaintiff, in circumstances where the lifeguard, with his expertise, would have been able to identify that risk.

KIRBY J:   I do not know why you put it that way.  The question is not whether there was, whether we are convinced that there was.  The question is whether there was some evidence on which the jury could reach that conclusion.  It is very easy for us, in this age where jury trials are so rare, to fall into the slip of treating them as if it is an appeal from a judge who gives reasons.  This is somewhat arcane law in most areas of the law, but it is very important we stick to the old law in this case.

MR MENZIES:   I am very grateful for your Honour to direct me to be less ‑ ‑ ‑

KIRBY J:   We all said that in Naxakis.  The whole Court said it.

MR MENZIES:   Yes, I am very grateful to your Honour for reining me back in, as it were, so that I do that.  Of course, our proposition is no more than that.  There are a few more matters I need to take your Honours to, with respect to the facts, but the facts reveal the existence of evidence which a jury could then take into account to find breach.  It is a question for the jury to decide – breach or otherwise.  All that we have to demonstrate is the existence of the evidence.  Once we demonstrate that, then, in our respectful submission, that is the end of it.

GLEESON CJ:   Did the jury have to concern themselves – I do not know, and one of the reasons I want to look at the summing up is to see how it was left to them – with whether there was evidence that there was any better place to put the flags?

MR MENZIES:   I would need to go back to that and check that myself.

GLEESON CJ:   You are not suggesting the beach should have been closed.

MR MENZIES:   No, of course not, your Honour.

GLEESON CJ:   Indeed, the waves were very small on this day and your client was trying to dive under a very small wave.

MR MENZIES:   Or through it is how he describes it.

GLEESON CJ:   Yes, but that seems to be the point of departure between the majority and the minority in the Court of Appeal.  Was it ‑ ‑ ‑

MR MENZIES:   There seem to be two, your Honour.  One is that the majority says, and we, with the greatest respect to them, cannot quite understand this, that although it was safe to swim, although there may have been a representation that it was safe to swim, that is not to say it was safe to dive.  Now, Justice Spigelman’s position on that and, indeed, ours, because obviously we embrace Justice Spigelman, was surfing at Bondi Beach or anywhere else requires as part of the activity, diving, so that distinction, with respect to the Court of Appeal, really goes nowhere.  If it was safe to swim then one has to accept, we say, it must incorporate safe to dive, obviously within reasonable bounds ‑ ‑ ‑

McHUGH J:   That is the only issue in the case, is it not?  The issue is so narrow you can hardly see it.  It is whether the representation that Mr Nightingale agreed the flags indicated that it is safe swimming includes safe diving through waves as you go out into the water.

MR MENZIES:   That is certainly our ‑ ‑ ‑

McHUGH J:   In paragraph 175 of the majority judgment they say:

The flags are there to designate swimming areas and to indicate to people where they can swim safely.  They do not indicate that it is safe to dive anywhere between them.

The question is whether a jury could take a different view, is it not?  Is that not the beginning and end of the case?

MR MENZIES:   Our simple ‑ ‑ ‑

McHUGH J:   Is there anything more than that?  Your opponent says all the flags do is say that this is a safer place to swim.

MR MENZIES:   Well, that was not the evidence, your Honour.  I am sorry to be ‑ ‑ ‑

KIRBY J:   Everybody who has ever gone to a beach in Australia to surf, even people who are poor swimmers like myself, you do launch into the waves, you do not just go paddling around.  Justice McHugh on the special leave said that if you want to just swim as swim, you go to the Bondi Icebergs, a place I have never been to, or graced or even heard of, but presumably that is a swimming pool.

MR MENZIES:   On the southern end of the beach, your Honour, and depicted in exhibit B.

KIRBY J:   I just do not see how the majority could say that you just swim.

MR MENZIES:   Our simple position is that obviously diving is incorporated in the concept of swimming.

McHUGH J:   I would have thought 90 per cent of people, at least under the age of 50, get wet by diving through the first lot of waves they encounter, and this is what your client did, did he not?

MR MENZIES:   Yes, your Honour.

KIRBY J:   At least the question is whether that was open to the jury.

MR MENZIES:   Yes.  In our submission, it becomes a simple jury question.  We are content if that is the end of the exercise.  If it is not, we say that when one looks at the balance of the – there is other evidence that was also available which completes the picture.

McHUGH J:   What evidence though – and this goes to the causation issue to go to the jury – is there from which the jury could reasonably find that the sandbar was there for long enough for the lifesavers to perceive the danger?

MR MENZIES:   Mr Nightingale’s emphatic evidence that he patrolled the beach, he kept a close eye on all of it and the conditions did not change at all during the day.  From that the jury could infer ‑ ‑ ‑

McHUGH J:   It was there for most of the day.

MR MENZIES:   It was there for most of the day.

KIRBY J:   Was there any evidence of a system whereby a person a little bit more vigilant than Mr Nightingale, if they saw a sandbank, would shift the flags?  I got an impression from the written submissions that they were just put up at 6.00 am and just left there.  Is that a correct impression of the evidence or not?

MR MENZIES:   No.  The evidence so far as it went was that the flags would be moved if conditions required it.  The determination of whether conditions required it was made by the lifeguards on duty at the time.  Mr Nightingale’s evidence was that he both patrolled either on foot, I think, or on a thing called an ATV, which was an all‑terrain vehicle, which seems to be a small four‑wheel drive, four‑wheeled motorbike, or observed from his position at the lookout post.

GLEESON CJ:   If there was no suggestion that the beach should have been closed and the negligence consisted in the placement of the flags, the case must be that the flags either should not have been there in the first place in that location or should have been moved to some other location.

MR MENZIES:   That is so, your Honour. 

KIRBY J:   Was there any evidence that on any occasion ever, flags had been moved because of a sandbar?

MR MENZIES:   I think that is at page 242.  This was in‑chief.  He is asked to mark the flags on the exhibit.  At line 25 he was asked:

Q.       Had you been involved in . . . the process of shifting, for example, the flags?
A.       Yes, that’s part of it because we set up at six . . . 

A.       We set up at six but during the course of the day we are always observing the beach, of course, and at times situations change; you might have a wind change, a swell starts to come up and what was a safe area might have to be minimised or moved.  So we basically – apart from watching for people in trouble we are waiting to reassess the situation.

Then at 200 one finds the evidence of the expert called by the plaintiff, and then towards the bottom of the page, he is asked about channels:

Q.       And the dimension, the depth of the width of the channel, is that always the same or is it variable depending upon the circumstances?
A.       No, it’s a fluctuating entity determined by the concentration of water or the tidal influence.

Q.       And during the course of any day on the beach, do the channels, if they have been created, do they stay constant or do they move?

Answer, it depends.  Lifeguard’s job at 55, what does a prudent lifeguard do?  Does he take that into account.  Answer, yes.

Q.       And if there is some variation in the channels, could that affect what steps, if any, the lifeguard might take, for example, with the flags?
A.       Yes.

Q.       And do the channels themselves present a hazard?
A.       Yes.

Q.       And can a sandbar present a hazard?
A.       Yes.

Q.       And what hazard does a channel present . . . 

And then importantly at 21:

Q.       And what’s the hazard that’s presented by the trough that’s created –

because he has talked about a channel creating a trough –

A.       Well, the circumstance is that it’s a variable depth and people aren’t familiar with that circumstance.

So there was evidence before the jury, capable of them accepting that such a circumstance commonly existed, certainly existed on that day.  It would have been, should have been observable to Mr Nightingale, and under that circumstance, he could have done something, that is, moved the flags to a safer place.  The evidence of the majority in the Court of Appeal referred to the channel being the same along the beach, in other words, there was nowhere else you could move it, but that, with respect to them, was not the evidence.

GUMMOW J:   Where do they say that, Mr Menzies, can you just find that?

MR MENZIES:   I think it is 181, your Honour.

GUMMOW J:   “Therefore normal”?

MR MENZIES:  

if not inevitable . . . Moving the flags along the beach in front of another part of the same sandbank or anther sandbank would not have protected the respondent from a channel and its sandbar.

There was no evidence upon which they could draw the inference that the channel of the nature that these people came to grief on, with its vertical edge not clearly visible to them, was along the whole length of the beach.

GLEESON CJ:   Was Mr Nightingale asked about moving the flags, about why he did not move the flags on this day?

MR MENZIES:   No.

GUMMOW J:   Therefore, 182 seems a non sequitur?

MR MENZIES:   Yes, your Honour.

GUMMOW J:   Paragraph 182 seems a non sequitur:

In our opinion therefore there was no evidence ‑ ‑ ‑

MR MENZIES:   Of course, the plaintiff was never in a position to lead evidence about conditions of the beach elsewhere.  There were five people potentially available from the Council at least who could have given evidence about it.

McHUGH J:   Was there any evidence to support the second sentence in paragraph 181:

It was therefore normal, if not inevitable, that there would be a channel and therefore a sandbar in the swimming area between the flags.

MR MENZIES:   I think Mr Williams gave evidence that that was commonplace, your Honour.  I am sorry, that is incorrect.  Mr Williams gave evidence that you place the flags opposite a sandbar.  It does not follow from that that ‑ ‑ ‑

GLEESON CJ:   Say that again.

MR MENZIES:   Mr Williams’ evidence was that the flags were placed opposite a sandbar.

GLEESON CJ:   Deliberately, you mean?

MR MENZIES:   Yes.

GLEESON CJ:   You set out to do that?

MR MENZIES:   Yes.

GLEESON CJ:   Why do you set out to do that?

MR MENZIES:   Because the ‑ ‑ ‑

KIRBY J:   Presumably, because it is not too deep and, therefore, people of variable swimming skills go in and not be in difficulties, at least so far as swimming is concerned.

MR MENZIES:   Yes, that is right.  But there is not evidence that that is always preceded by, on the beachside ‑ ‑ ‑

McHUGH J:   By the channel.

MR MENZIES:   ‑ ‑ ‑ by a deep channel.

McHUGH J:   It is the channel that is the problem.

MR MENZIES:   Yes.  Obviously, if, for example, the tide is low – it does not matter whether it is low or high – if there is onshore shallow water which is obviously shallow which then leads to deeper water, one would clearly sensibly put the flags there provided there were no rips and all the rest of it.

GLEESON CJ:   This is not necessarily against you, but nobody seemed to have asked Mr Nightingale the $64 question.

MR MENZIES:   Well, I was not going to do it, your Honour.

GLEESON CJ:   If everybody is pussyfooting around it – I mean, the finding of negligence is that Mr Nightingale did not move the flags and nobody asked Mr Nightingale why he did not move the flags.

MR MENZIES:   Yes, your Honour.

McHUGH J:   What did he say about the channel itself?  Was he conscious of it?

MR MENZIES:   He was not asked about the channel specifically, your Honour.  He was asked about his capacity to determine whether there was a channel there or not.

McHUGH J:   I suppose he probably could not remember the events of the day, but anyway.

GLEESON CJ:   Hang on, there was somebody very seriously injured.  I suppose there would have been an investigation of this accident pretty quickly after it happened.

MR MENZIES:   The only evidence that was before the jury of that is contained at 264.  There is an entry in what is described as, I think, an occurrence book – it was exhibit C – and the accident is described.  It is pointed out that appropriate assistance was given.

GLEESON CJ:   I presume one of the particulars of negligence given before trial was placement of the flags where they were.

MR MENZIES:   Yes, your Honour.

GLEESON CJ:   So when the matter went to trial everybody concerned with the trial would have known that one of the primary allegations of negligence was that Mr Nightingale should have moved the flags and did not.

MR MENZIES:   That is so, but the concentration at the trial by the defendant was moving the plaintiff out from between the flags. 

GLEESON CJ:   I understand that.  I understand there was a different issue about that.

MR MENZIES:   Yes.  That was where the matter was concentrated.  But there was no doubt at all that the issue which went to the jury and which was alive from the very start was that this accident had occurred between the flags and that the plaintiff was induced to go between the flags by them being there.

GLEESON CJ:   I am just trying to look at it from the jury’s point of view.  When they came to consider this issue, they have the man who was responsible, or one of the people responsible, for locating the flags, an allegation of negligence being that the flags were located in the wrong place, and nobody asks him why he did not move the flags. 

MR MENZIES:   That is so, your Honour.

KIRBY J:   Mr Nightingale was called in the defendant’s case?

MR MENZIES:   Yes, your Honour.

GLEESON CJ:   He was the senior person, as it were, from the defendant who was giving evidence, was he?  I mean by that, of the Waverley Council employees who were on duty on that day and who had responsibility for moving the flags, he was the senior person available to the court. 

MR MENZIES:   He was the only person called, your Honour.  The only explanation given with respect to the potential other witnesses in that area was that one of them was overseas.  There was a total of five between about 10 and 4, Mr Nightingale came on at 10, and there were three from 4 o’clock.  Now, one of the other two, one of whom was Mr Nightingale, was a man who was overseas.  There was no evidence given about the third man and no evidence or explanation with respect to the other two.

GLEESON CJ:   It comes down to a very fine point indeed.  What instructions or directions were the jury given about what they could make of the fact that nobody asked Mr Nightingale whether there was any better place to put the flags?

MR MENZIES:   Your Honour, I do not know the answer to that question, because ‑ ‑ ‑

GLEESON CJ:   By better, I mean safer, by the way.

MR MENZIES:    ‑ ‑ ‑ I have not gone back to look at that.  My learned friends kindly provided copies of the charge to the jury, if your Honour pleases.

GLEESON CJ:   Thank you.

KIRBY J:   There was no ground of appeal to the Court of Appeal criticising his Honour’s directions to the jury?

MR MENZIES:   No.  The only ground upon which the appeal succeeded was no evidence.

KIRBY J:   That was not a ground of appeal initially, is that correct?

MR MENZIES:   That is so, your Honour.  The only ground of appeal initially was that the verdict was against the evidence and the weight of the evidence.  There was never a criticism of the summing up.  In the Court of Appeal, the grounds were amended to add a no evidence ground and that was the only ground upon which ‑ ‑ ‑

GLEESON CJ:   Was there any evidence about the length of this sandbank?

MR MENZIES:   No, your Honour, I do not think so.

GLEESON CJ:   By length, I think I mean width, but you know what I mean.

MR MENZIES:   Yes, I do.

GLEESON CJ:   North‑south dimension.

MR MENZIES:   No, there was not, I do not think.

GLEESON CJ:   And was there any evidence about the conditions to the north or to the south of where the flags were located?

MR MENZIES:   Other than that generally the conditions were, relatively speaking, benign, it was a smaller surf, and it did not change during the course of the day.

KIRBY J:   Is not the fact that the practice was to put the flags opposite a sandbar against your theory that to do so is or can be negligent, because it propounds the theory that safety lies, on the whole, in putting the flags in a position where there is a sandbar so that people of variable swimming skills can wade and get wet and so on?

MR MENZIES:   Your Honour, that proceeds upon an assumption that it is going to be apparent to the people going into the water that ‑ ‑ ‑

KIRBY J:   Well, they do have feet.  They walk, they feel, as you said Mr Wilson did.  He felt it. 

MR MENZIES:   Indeed, but he did not see it.  Each of those people did what was a perfectly ordinary thing to do in those circumstances, that is, wade in until you are about waist‑deep, and when a wave comes along, the first one that might cause you to be pushed back, dive through it.  Perfectly ordinary, everyday swimming practice.

GLEESON CJ:   Unfortunately, ordinary swimming practice also includes what I have been guilty of engaging in many times myself, and that is diving into very shallow water at the entrance.  It is sometimes good fun.  But commonsense would seem to suggest that whether or not placing of flags in a particular place is negligent depends on the alternatives. 

MR MENZIES:   Yes.

GLEESON CJ:   Unless, of course, it is suggested that the beach should have been closed.

MR MENZIES:   Yes.

GLEESON CJ:   Who, in the circumstance, had the obligation of asking Mr Nightingale that question?

MR MENZIES:   Not us because ‑ ‑ ‑

GLEESON CJ:   Because if you are right about that, then that would dispose of the no evidence point, would it not?

MR MENZIES:   Yes, your Honour.

GUMMOW J:   You see, your evidence was that the flags were not moved.  That was your point.

MR MENZIES:   Yes.

GUMMOW J:   And you say it was up to your opponent to say some exculpation.

MR MENZIES:   Yes.  See, it is not a case which required technical expertise where we might then have been in the position of being required to call an expert to talk about reasonable practical alternatives.  It is not that sort of case at all.  This is a case where we cannot know in the nature of things.  We can point to a circumstance where we say the jury could have found breach.  It is for the defendant, not for us to provide the explanation which will counteract that, and can I just add this, I am sorry, your Honour, that whether the jury then accepted that is a matter for it.

GLEESON CJ:   I do not think what I am about to put is inconsistent with what you have just been saying ‑ ‑ ‑

MR MENZIES:   I hope it is not, your Honour.

GLEESON CJ:    ‑ ‑ ‑ but is it your proposition that having demonstrated the existence of a hazard in a place where the flags were located, you having demonstrated that, the evidentiary burden of showing that there was no safer place to locate the flags was on your opponent.

MR MENZIES:   Yes, your Honour.  It is a bit like Chief Justice Jordan had to say in De Gioia that we have to show evidence of the breach.  That is enough.  It is for our opponent then to provide the exculpatory explanation.  But we go a little bit further than that and say that even then, both of those issues are questions for a jury.  If we have got as far as we have, a foreseeable risk of injury having been demonstrated that a jury could accept, that is the end of it.  Whether there was an explanation or not is another jury question.

GLEESON CJ:   In all events, nobody asked Mr Nightingale whether there was any safer place to put the flags.

MR MENZIES:   That is right, your Honour.

McHUGH J:   Was that because of the way the case was fought forensically, that the defendant’s case was that by reason of drink, taking ecstasy the night before, the plaintiff was reckless and was outside the flags?

MR MENZIES:   That was their case.  That was the case we were meeting, that is certainly so, and we had ‑ ‑ ‑

KIRBY J:   It would have been hard before the jury to say, “But if you come to the view that he was not affected by alcohol and drugs, you’ve got to consider this alternative case”.  It would not be a very palatable way to run your case in two fashions, would it?

MR MENZIES:   I am sorry, your Honour, I did not quite ‑ ‑ ‑

KIRBY J:   I am saying that if they chose their battleground in terms of recklessness and outside the flags, it is hard then forensically before a jury to run an alternative case.  If he is a pure white knight who was completely unaffected by any drugs or alcohol in the flags, you have to consider this alternative case.

MR MENZIES:   Indeed.  Your Honour, we spent three or four days, I think, at the trial with the defendant trying to get the plaintiff out from between the flags and the plaintiff trying to keep himself inside them.

McHUGH J:   The note made by the lifeguard seems to suggest that the accident happened a completely different way, that the plaintiff got dumped when he was – he caught a wave, he got dumped and hit the sandbar.

MR MENZIES:   Yes, and clearly the jury did not accept that.

GLEESON CJ:   There were not very many dumpers around on this day, were there?

MR MENZIES:   No, that is quite so.  It would be almost inconceivable in those circumstances that there would have been a dumper.

GLEESON CJ:   Presumably the contributory negligence found by the jury consisted in diving under a very small wave.

MR MENZIES:   Perhaps, your Honour.

KIRBY J:   Is the logic of your case though that every beach around the thousands of kilometres of the coastline of Australia you have to have somebody who is standing guard and running around moving the flags all the time?

MR MENZIES:   No, your Honour.

McHUGH J:   Your case stems from the flags, does it not, that the flags contain a representation that it is safe to swim in this particular area?

MR MENZIES:   Yes.

McHUGH J:   A question as I put to you earlier is:  what does that mean when you say it is safe to swim there?  Is it only safe from rips or is it safe to swim in the way that people normally surf?

MR MENZIES:   The defendant’s evidence, of course, was that if you swim between the flags, it is safe swimming, which would seem to incorporate ‑ ‑ ‑

GLEESON CJ:   Yes, but we do not want to close down all the beaches in Australia.  There is nowhere on any beach in Australia where it is safe to dive everywhere between the flags.  It is very dangerous to dive between the flags at the point where the water is ankle deep.

MR MENZIES:   Indeed, your Honour.

GLEESON CJ:   So there is no representation by putting the flags there that you can dive anywhere between the flags, because there are some very dangerous places to dive between the flags on any beach.

MR MENZIES:   Obviously.  We accept that.  That was not our case.  Our case was he went into the water, it was waist deep or thereabouts.  There was a wave coming.  So far as he sees, there is nothing to indicate that the water is not waist deep.  He dives a shallow dive – at least, that is what the jury were entitled to conclude – and he collided with a wall.

KIRBY J:   Is the theory that you propound that the sandbank, though able to be of such a depth that it was waist deep where he was standing, rose thereafter so that, in effect, when he dived through the wave he came into contact with the sandbank, as he must have?

MR MENZIES:   With the vertical face of it or perhaps ‑ ‑ ‑

McHUGH J:   In another generation it would have been called a concealed trap.

MR MENZIES:   Yes, indeed, hence the evidence of the other two who were there as well, open for the jury to accept and if it comes back to the proposition is, was there evidence which a jury could accept?  Now, there it was.  Three people go into the surf.  They all come to grief against something they had not seen until the grief occurred.  Regrettably one of them becomes a quadriplegic, the other two remain unharmed, but the point is, for our purposes, they did not know it was there.

KIRBY J:   But a bit depends, as the Chief Justice has been putting to you, about how the jury accepted that the plaintiff dived.  If he, as it were, dived straight down then that is a very, very dangerous manoeuvre.  If they accepted, as one must infer they did, that he dived through, then what did their contributory negligence verdict mean?

MR MENZIES:   The answer is, your Honour, obviously we do not know.  It may have been that they were influenced by the fact that he had partaken of alcohol and a drug beforehand.  It may have been that they had concluded some ‑ ‑ ‑

GLEESON CJ:   It is a risky thing to do, to dive under a small wave which is exactly what he said he did.

MR MENZIES:   Yes, well through it, your Honour.

GLEESON CJ:   Well, the manoeuvre that he attributed to himself might well have been regarded by the jury as a risky manoeuvre.  That does not necessary let the defendant off the hook, but it explains the finding of contributory negligence.

MR MENZIES:   Indeed, because obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it.  Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil.

KIRBY J:   It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said “too Santa Claus”.

MR MENZIES:   Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts.  The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason.  It is not a bad example of the separation of powers and the appropriate organ of Government.

KIRBY J:   How is that done?  Have you the section of the civil liability?  Has that passed into law in New South Wales?

MR MENZIES:   It is now, your Honour, yes.  It was not relevant at the time.  I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” ‑ ‑ ‑

GUMMOW J:   What does it say?  What is the critical provision?

MR MENZIES:   Well, 5J:

applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff.

Recreational activity is divided into two kinds.  There is;

“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.

That is in the definition section 5K, and:

“recreational activity” includes:

(a)      any sport . . . 

(b)      any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c)      any pursuit or activity engaged in at a place (such as a beach . . . 

5L No liability for harm suffered from obvious risks of dangerous recreational activities . . . 

5M No duty of care for recreational activity where risk warning –

so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity.  If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it. 

KIRBY J:   It does not sound as though this is categorised.  That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”.

MR MENZIES:   True.

GLEESON CJ:   What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others?

MR MENZIES:   I have no doubt that at some point that is going to entertain your Honours.

GUMMOW J:   Here we are again, more imperfect law reform.  Now, the charge to jury by the judge might be worth looking at I think, Mr Menzies, at this point.  It seems that your opponent flagged four issues.  If you go to page 20 of the summing up on 13 May, the first issue was whether what happened was “swimming between the flags”, so that is the “between the flag” issue.  Then 22, did the plaintiff hurt himself in the way he said he did, that is the dumping question, and the third, at the bottom of 23 was reasonable care, that is, place the flags elsewhere or do something else, and then the last one is at 26, “contributory negligence”. 

GLEESON CJ:   Would not Mr Taylor, your opponent, in address, ask the jury whether the flags should have been placed somewhere else?  I will bet the jury thought to themselves, “Why didn’t you ask Mr Nightingale that?” 

MR MENZIES:   Your Honour, further on placement and moving of flags could I just take you to 261, line 20.  He was asked about from where he had his vantage point, could he see whether there was a need to do things like move the flags?  At 25, he says:

Yes, for sure I could tell. 

Then at 50 he makes it plain that he can tell the difference between water depth:

I can see a sandbank because it’s yellowy.  And a deeper water would be signified by darker green.

KIRBY J:   Where is that passage, “I can see a sandbank”?

MR MENZIES:   I am sorry, your Honour, that is at page 261, line 50.  Your Honours, I also draw your attention to 208.

KIRBY J:   Your theory of the relevant duty in this case was that there should have been a lookout for sandbanks and when they appeared the flags should be removed to a place where there was not a sandbar, is that correct?

MR MENZIES:   No.  There should have been a lookout for a circumstance where there was a sudden change in the depth of the water ‑ ‑ ‑

KIRBY J:   Because of sand.

MR MENZIES:   ‑ ‑ ‑ because of a channel or a sandbar, and one goes with the other.

GLEESON CJ:   But the existence of a sandbar is not the only consideration to be taken into account in deciding where to put the flags.  So you do not say that just because there is a sandbar you have to move the flags.  Your argument, as I understand it, is there was a sandbar and that was a hazard and in the circumstances there was an evidentiary onus on the other side to explain why they did not shift the flags.

MR MENZIES:   Indeed, and that there was the foreseeable risk of injury.

GLEESON CJ:   There might have been a good explanation.  Mr Nightingale, if asked, might have said, “Well, there was nowhere safer to put the flags because a bit to the south there was a rip and a bit to the north there was an even bigger channel”, or whatever the case may be.

MR MENZIES:   Of course the inference one draws is, the question not having been asked, there is nothing that Mr Nightingale would say which would have assisted.  At 208 Mr Williams was asked at 55 in cross‑examination:

Q.       And when it comes to assessing the appropriate place to place flags, the person on the spot has to make a judgment about the conditions on the day?
A.       Yes.

So clearly it was for the people who were there on the spot to make those decisions.

McHUGH J:   At 259 Mr Nightingale said at line 12:

I can give you a correct answer because I spend the time either observing the beach, walking the beach, or riding the ATV.  So I’m right up to what is happening every time while on the job.

MR MENZIES:   The jury were entitled to draw from that the inference that he knew it was there, he knew the conditions and he did nothing about them.

McHUGH J:   He said:

I watch the beach all day, mate.  That’s the thing.  That’s the job.

MR MENZIES:   He was not a witness to take on head‑on.  Finally, the Court of Appeal in a ‑ ‑ ‑

KIRBY J:   Just a matter that concerns me, and it may not be an answer to the existence of some evidence, but if this is a man who spends his whole life watching a beach and if it is the practice to put the flags near sandbars, then presumably this is a man who did not think there was any unsafety in leaving the flags where they were.

MR MENZIES:   It may be so, your Honour.  The jury did not accept it, and it is a jury question.

GUMMOW J:   Is there any causation question in the sequence of reasoning?

McHUGH J:   That is what I put to you earlier, as to whether or not there was evidence from which it could be inferred that this channel had been there for some time, and you said, well, you deduce it from the fact that all the evidence is that the conditions did not change throughout the day.

MR MENZIES:   Yes, and that is Mr Nightingale’s very emphatic evidence about that, coupled with the fact that he can tell, because of his expertise and his vantage point and the rest of it, by judging from the different colour of the water, what is underneath it.

GLEESON CJ:   The Civil Liability Act (NSW) is not an answer to a problem in other States about reaching a conclusion – of a kind which you do not have to support – that flags tell you that you cannot come to any harm in between them.

MR MENZIES:   We do not support that and the conclusion is not necessary.  It is a simple, quintessential jury question.  Was there some evidence?  Could it have been accepted?  Answer to both of those questions is yes.  This decision will say nothing, or need not, about the world generally or flags and beaches and what flows from them.  This was a jury that was told by the defendant it was a safe place to swim.  If you go between those flags, it is safe swimming.  Safe swimming includes diving.

GLEESON CJ:   “Safe” does not mean you cannot come to any harm.

MR MENZIES:   No, and we do not suggest that.  That is not our submission.

GLEESON CJ:   One of the most obvious forms of harm you can come to in between the flags is diving where the water is too shallow.

MR MENZIES:   Indeed.  If you are swimming in waist‑deep water and you cannot perceive that immediately in front of you, as it had to be, the water is dramatically shallower, then what the plaintiff was doing was not something particularly hazardous, even ‑ ‑ ‑

GLEESON CJ:   What was that reference you gave to a judgment of Sir Frederick Jordan’s earlier?

MR MENZIES:   De Gioia, your Honour.

McHUGH J:   42 SR.

MR MENZIES:   I think we have referred to the passage in our submissions.  It is De Gioia (1941) 42 SR (NSW) 1 at 3.

GUMMOW J:   Later referred to in Naxakis, I think.

MR MENZIES:   It is referred to in Naxakis.  Your Honour the Chief Justice points out that the test is the test specified by Chief Justice Jordan in De Gioia.

McHUGH J:   It used to be much used by plaintiffs and defendants; by plaintiffs to get them to the jury and by defendants to say that even though the case got to the jury, their evidence overwhelmed the prima facie ‑ ‑ ‑

MR MENZIES:   That leads me to come to a comment that your Honour Justice McHugh made in Naxakis, and that is the relatively circumscribed position that the trial judge is in, when one is dealing with the issue of evidence or not, existence of evidence or not, and whether a jury verdict is against the evidence and the weight of the evidence.  The trial judge’s duty is circumscribed.  He has to decide whether there was any evidence from which a jury could come to the appropriate conclusion in favour of negligence.  He cannot deal with weight.  That is something for the Court of Appeal.

The Court of Appeal in this case criticised the senior counsel then appearing for the defendant for not asking for the case to be taken away from the jury.  In our respectful submission, that criticism was misplaced. 

No application was made for the obvious reason that there was evidence sufficient then for a jury to consider.  Those are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Menzies.  Yes, Mr Sackar.

MR SACKAR:   As Justice McHugh has already remarked in this case, the issue is a very limited one.  Our primary submission which we elaborate upon in written submissions – and I shall not obviously take your Honours through our written material in any detail – is that the placement or position of the flags could not reasonably convey a representation about the precise point of entry that would be safer, nor the mode of entry that would be safer into the water.  This is not just a pedantic issue. 

The concept of swimming is for the person attending the beach to become submersed in the water.  Although Justice McHugh indicated that 90 per cent of people may approach the entry into the water in a particular way, it would be common knowledge that one is dealing with a very large cross‑section of people, some of whom are more confident than others, some of whom are more skilful than others, some of whom are infirm and some of whom will walk into the surf and submerge themselves simply – others will run, others will do something in between, some will dive, some will not.  Now, the reason in this case ‑ ‑ ‑

KIRBY J:   But most people in surfing do a little bit of diving.  I mean, it is ‑ ‑ ‑

MR SACKAR:   They might do a little bit, but what I am really putting is this:  the reason why these flags could not reasonably convey a representation as to a mode of entry into the water – say diving – is because one has to look at the flags not in a vacuum but in the facts of this case.  Two things emerge from the evidence, at least.  One is the plaintiff was quite familiar with the problems associated with swimming around sandbanks and the problems which gave rise in this case to this tragedy because of the irregular nature of the seabed.  I will come to that in the Chief Justice’s judgment in a moment.

The Chief Justice also referred to matters of notoriety such as the very sudden changes that might occur underfoot.  It is fairly obvious from the evidence in this case, supported in part by the plaintiff’s own expert, a Mr Williams, that there may well be changes underfoot which can happen from time to time and clearly and obviously are going to be perceived, probably only by the particular swimmer choosing a particular method of entry into the water or a point of entry between the flags and, indeed, then choosing for himself or herself the particular method of being submersed into the water. 

The three witnesses here who gave evidence starkly portray the natural occurrence of the irregularities.  Mr Swain, until he dived either towards or into an incoming wave, did not detect anything other than what he had usually detected, namely, the gradient of the sand moving downwards, as it were, and him becoming further immersed into the water.  He was about waist deep when he chose to confront the oncoming wave.  Not so for Mr Wilson and Ms Galvin, his friends.  They encountered their own peculiar difficulties with the seabed.  Those the Chief Justice considered in the context of whether a warning sign was necessary were perfectly usual things for any person to encounter on an Australian beach.

One thing is clear – and I will come back to who bore the onus on, if I may use the “preventability issue” phrase, we say the plaintiff did – one thing that Mr Williams did not do, although he was called by the plaintiffs, he was not asked to express any view, one way or the other, as to whether the flags ought or ought not to be placed where they were.  True it may be ‑ ‑ ‑

GLEESON CJ:   He would not know, would he?  He was not there on the day.

MR SACKAR:   That is entirely correct, but what was never put to him was any physical characteristics of a particular sandbar which had been experienced by any people, to ask him, for example, whether what was being encountered on the day was unusual or usual for the seabed.  Now, he is the one who says, at transcript 211, that it is commonplace to look for sandbars for the purposes of placing the flags. 

When your Honours get an opportunity to have a look at the large colour photograph, you will see from the aerial photograph – perhaps if I can hand it up to the Court – his evidence was, effectively, that the way in which the sand forms under the ocean is, roughly speaking:  a sandbank, a channel, a sandbank, a channel.  When you look at the beach from that photograph, you will see dark areas of water and yellowy areas of water.  What the lifesavers seek to do is to pick an area adjacent to a sandbar, principally, it appears, in order to avoid rips. 

GLEESON CJ:   I may have misunderstood the Court of Appeal’s reasons, but they seem to distinguish between sandbanks and sandbars. 

MR SACKAR:   They did.

GLEESON CJ:   Not a distinction I have ever encountered before.

MR SACKAR:   I have to say, with great respect, Mr Williams himself was asked the question and he said he drew no distinction between the two. 

KIRBY J:   Who said that?  Mr Williams?

MR SACKAR:   Yes.  I will give your Honour the reference to that.

McHUGH J:   I think it is at 210, Mr Sackar.

MR SACKAR:   Yes, he drew no distinction at all.  What the majority appear to be drawing a distinction about is that part of the sand which is on the seaward side of the bank, but it seems, at least to us, that nothing turns on that distinction.  It may well be accurate as a factual matter, but it does not seem to turn on anything here.

GLEESON CJ:   Is one of the reasons they look for a sandbank because that is a convenient place for toddlers to go?

MR SACKAR:   Yes.  One of the reasons is that it is anticipated that the water will be shallower, and therefore their principal concern, or so it seems, is to do two things:  certainly, to find a place which is safer for the great majority of people who might go to the beach, and therefore they look for something which does not have dangerous currents.  As it turns out, that will more often than not be to either side of a sandbar or sandbank, and will more often than not be found in the deeper channel of water. 

Now, it is also true the word “guttering” has been used.  It is also true that at the front of a sandbar sometimes you can have deeper water, but it seems that that deeper water there, although it may present its own hazard, generally speaking, will not – generally again – be a place where one finds rips.  His evidence was that the beach was – at 200, I think – a series of sandbars with channels intersecting them.  On the question of what the usual position would be, if I can take your Honours briefly to 211 of the book.  Mr Taylor asked him at about line 22 or 23:

Q.       People generally concerned, such as you, with beach safety take the view that generally bathing on sandbanks is the safest place to bathe?
A.       Generally flags are erected and placed on sandbanks.
 . . . 
Q.       What do you mean [by] “adjacent to”? 

Then he goes on and explains it.  Then at 45:

Q.       On the sandbank, the water tends to be more shallow?
A.       Yes.

So what was done here was not unusual at all.  Indeed, on one view it conformed with the practice that the plaintiff’s expert had come along to talk about.  He was never asked, as he could have been arguably asked by way of assumption, anything about the particular characteristics of this particular sandbar drawing upon the observations or perceptions of either Messrs Wilson, Swain or Galvin in order to suggest that what was being encountered under the water here was unusual in some way.

So the evidence, quite frankly, from the plaintiff’s point of view on that issue was that what occurred was more or less in accordance with standard practice and the rationale for it being:  (a) avoid the rips; (b) itemise some shallower water where, although there will be no guarantee of safety, there are at least two things occurring.  It is safer because of the reasons I have just stated and, secondly, the Council will concentrate its resources between those flags.

KIRBY J:   I understand that and I can very well understand how that argument would be put very powerfully to a judge sitting alone but, as I understand it, the plaintiff’s case was that it was appropriate to look at the safety for people who dive through waves, and for those people it is safer to pick a place where there is no sandbank or sandbar.

MR SACKAR:   There are two things to say.  First of all ‑ ‑ ‑

KIRBY J:   Was it not open to the jury to accept that?

MR SACKAR:   No, because ‑ ‑ ‑

KIRBY J:   It may be that you and I would not have accepted it, but was that not a view of the facts that was open to them to accept?

MR SACKAR:   With respect, no.  In the way in which this case is now put, namely, that the flags reasonably could be understood by the jury as a representation that a person, in particular in this instance the plaintiff, was having said to him that it was reasonably safe to execute the dive he executed.  What I said a little earlier – and I am going to come to it in a moment – is that that is not open reasonably.  Therefore, the jury would never have been entitled, we say, acting reasonably to have taken the flags as an indication along those lines.

The Chief Justice in paragraphs 129 and 130 makes those assertions.  What he did, which we say with great respect to him is quite inconsistent, is when he viewed the question of the warning case, he went through the evidence, in particular, what the plaintiff already knew and what he was aware of and why.  He also imported matters of notoriety, but he also must have relied upon some things which Mr Williams had said.  The sum total of that, with great respect, was then not translated, in our respectful submission, into the analysis on the flag case.

McHUGH J:   Yes, but there are sandbanks and sandbanks.

MR SACKAR:   But this was not an unusual one.  There is no evidence at all that this sandbank was unusual or that it changed during the course of the day – I accept that.

McHUGH J:   Why could the jury not infer that there was something unusual ‑ ‑ ‑

MR SACKAR:   For this reason, your Honour, that ‑ ‑ ‑

McHUGH J:   ‑ ‑ ‑ about this, having regard to the fact that this man dives into a wall of sand.

MR SACKAR:   For this reason and simply for this reason:  Mr Menzies said this is not a matter of technical evidence.  It clearly is because that is what geomorphologists talk about.  But the plaintiff actually went to the trouble of calling an expert, Mr Williams, and he was not asked to address the issue:  how can some sandbanks be unusual?  If they arise, what are the peculiar features of unusual sandbanks?

KIRBY J:   Was he asked about any practice in other beaches than Bondi Beach?

MR SACKAR:   I am not sure, but the evidence he gave at 211 was of a general nature, that is, of identifying a sandbank for the purpose of placing the flags.  He did not say that that was something peculiar to Bondi.  Indeed, he had not had much experience of Bondi at all.  His main experience was from the Sutherland Shire and beaches in that area, principally, I think, Cronulla.  So what he was saying by identifying the sandbar, it seems on the basis of the evidence, was just a uniform practice.

McHUGH J:   Yes, but surely jurors are entitled to take into account this much of their common knowledge, that you go to the beach one day and the flags are 15 metres apart, you go another day and they are 50 metres apart.  That suggests something, does it not?  Why can jurors not take ‑ ‑ ‑

MR SACKAR:   For this reason, your Honour.  I accept that if we are talking about matters of common knowledge a jury may well be able to bring its common sense to bear on whether or not a particular danger might be unusual.  In a case like this, that there be sandbanks per se or rips or channels, that there be any number of them, that some are bigger than others, may be about as far as any person could go, but that would be pure speculation because everybody’s experience would be limited by recollections of what one has encountered from time to time when you walk into the sea – nothing more – and it is necessarily idiosyncratic.  So it could not really provide a foundation, absent technical evidence and particularly absent a plaintiff who was not prepared to describe what was manifesting itself here as unusual, and he could have done so.

It could simply have said to Mr Williams, “Would you assume swimmer A had this experience and moved into the water at this level.  Would you assume swimmer B had this experience?”  As far as we read the transcript, Mr Williams was never invited to express a view as to anything other than sandbanks can be hazardous.  There was no issue at the trial that that would be so or could be so.  Equally, guttering could provide hazards.  Troughs could be hazardous, rips, undoubtedly.  But apart from the generic, there was no attempt to do any more than describe the matters generally.

We say the authorities, on the question of this preventability issue, not only suggest that the plaintiff must bear and discharge the burden, but it is not absolved, that is, the plaintiff is not absolved, where technical material will be necessary for a jury to be informed in order to consider that issue of calling such technical material.  Can I just give your Honours three references, Bressington v Commissioner v Commissioner of Railways (NSW) (1947) 75 CLR 348, and that is on the issue of when a juror can or cannot answer this question. I will not take your Honours to particular passages, I am just going to give your Honours the references. Vozza v Tooth [1964] 112 CLR 316, especially at 319; Neill v NSW Fresh Food and Ice [1962] 108 CLR 362, especially the judgment of Justice Kitto, 365 to 369, and the joint judgment of Justices Taylor and Owen at 368 and 370.

GLEESON CJ:   Were you going to give us a particular reference to Bressington?

MR SACKAR:   I gave your Honour the page, I meant by way of particular reference, 348.  At 348, Chief Justice Latham discusses there, whether in the circumstances of that case, a jury could have come to its own view or whether it needed some ‑ ‑ ‑

McHUGH J:   It was about shunting operations.

MR SACKAR:   It was shunting operations, yes.  But here, to merely describe this as a beach is an oversimplification of the manifestation of currents and movements of sand.  Mr Williams gave evidence about all those things, but at a very general level.  I do not criticise his expertise, but he was what the plaintiff calls an “expert”.

KIRBY J:   You did not move for a verdict, did you?

MR SACKAR:   No, not at the trial. 

KIRBY J:   That was a rather belated conceptualisation of the case by the time it got to the Court of Appeal.

McHUGH J:   More than that.  Your original notice of appeal did not raise the ground.  You amended it.

MR SACKAR:   As counsel standing here today, I take full responsibility from my predecessors.  The answer to that is no, and your Honours are both right about that.  Belated though it may be, if there was no evidence, there is no evidence.

McHUGH J:   Ever since Hampton Court v Crooks you are entitled to take ‑ ‑ ‑

MR SACKAR:   Yes, if your Honour pleases, they are our submissions.

GLEESON CJ:   Thank you, Mr Sackar.

MR SACKAR:   I am so sorry, could I just, without doing any more than this – and I gave a copy of this to Mr Menzies this morning.  There are

some paragraphs of the Chief Justice’s judgment where he makes some references to the plaintiff’s evidence.  One I started taking your Honours to at paragraph 30 of the Chief Justice.  We have simply gone through some of them and collected the transcript references in the evidence where the plaintiff, Mr Williams and Mr Nightingale addressed various matters.  I will not say any more than that, it is self‑explanatory, but could I hand up the usual copies of that.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Sackar.  Yes, Mr Menzies.

MR MENZIES:   If your Honours please.  The hazard in this case was hidden.  That is our case, that there was a hidden hazard not apparent to the plaintiff which was or ought to have been apparent to the defendant.  Most of the rest of which my learned friend goes to are really jury questions for the jury to decide, not, as the Court of Appeal did, with respect to them, to usurp the jury’s functions.

KIRBY J:   Yes, but Mr Sackar does come back to the point that I put to you.  He says this:  the case your expert presented was that, far from keeping an eye on sandbanks, yellow or otherwise, in order to put flags in a way that avoids them, your expert said sandbanks are good.  Sandbanks are protective of toddlers and, therefore, you put the flags near the sandbank.  If that is the case you present, is there any evidence that a reasonable council, through its lifeguards, would have put the flags somewhere else if that is contrary to the case you present?

MR MENZIES:   Your Honour, can I deal with it this way.  At 201 Mr Williams dealt with the hazards created by a sandbar and at line 25 he was asked:

Q.       And what’s the hazard that’s presented by the trough that’s created?
A.       Well, the circumstance is that it’s a variable depth and people aren’t familiar with that circumstance.

This is a case where there was a hazard which was hidden.

GUMMOW J:   That was in cross‑examination.

MR MENZIES:   Yes, your Honour.

McHUGH J:   Is not your case not so much concerned with a sandbank, but more concerned with the existence of a channel?

MR MENZIES:   Yes, your Honour, the channel, the edge of which is a steep wall.

McHUGH J:   It is the degree of depth of the channel that creates the hazard.

MR MENZIES:   Yes.

KIRBY J:   So he should not have been looking out for yellowy at all; he should have been looking out for greeny?

MR MENZIES:   Both of those things, your Honour.

KIRBY J:   That does not seem to be the way you presented the case though.

McHUGH J:   But it is the green in front of the yellow that indicates the hazard.

MR MENZIES:   What this plaintiff was confronted with, which he could not see, was a wall, which he regrettably slammed into.  Even if conventionally you placed the flags where Mr Williams says, it does not follow from that that you place them in a position which gives rise to the very problem that the plaintiff confronted in circumstances where that problem was not apparent to him and would have been apparent to Mr Nightingale.  It really matters not that it was placed conventionally or otherwise.  Secondly, of course again, this is a matter for the jury.  It is a jury question.  It is for the jury to determine what they made of all of the evidence, including the evidence of the plaintiff.

McHUGH J:   Is not the true nature of the case, whether for or against you, in the answer of Mr William’s cross-examination at the bottom of page 213 when it was put to him:

Q.       And it’s all a matter of judgment for the person on the spot as to what the degree of depth of the channels or gutters is as to whether or not they are safe or not?
A.       Yes.

That is what creates the trap.

MR MENZIES:   Yes, and it is open to the jury to have concluded that Mr Nightingale in those circumstances, he being the man on the spot, erred in his judgment.

McHUGH J:   What do you say about the argument about preventability, that there is no evidence that without closing the beach that it was

reasonably practicable to move the signs to another place which would have eliminated this sort of hazard?

MR MENZIES:   We, with respect, take it as far as we can and are entitled to succeed if we can demonstrate that it is apparent that by a simple manoeuvre, that is, moving the flags, the problem may be resolved.  We get that out of the same decision my learned friends refer to, but particularly in Neill v New South Wales Fresh Food and Ice Pty Ltd, in the joint judgment of Justices Taylor and Owen at 368, the relevant passage:

No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it.

It is then, as I say, for the respondent to deal with that by coming along and saying, “Could not do it”, and that did not happen.

As to the analysis and the criticisms of Chief Justice Spigelman’s decision, we can put the Chief Justice aside because the consideration is only was there evidence from which a jury could come to that conclusion?  His analysis of it – and I do not wish to deal with my learned friend’s response to it – is neither here or there.  Those are our submissions.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter, and we will adjourn until 9.15 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 12.09 PM THE MATTER WAS ADJOURNED