Town of Port Hedland v Hodder (No 2)
[2012] WASCA 212
•26 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOWN OF PORT HEDLAND -v- REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER [No 2] [2012] WASCA 212
CORAM: MARTIN CJ
McLURE P
MURPHY JA
HEARD: 24-25 MAY 2012
DELIVERED : 26 OCTOBER 2012
FILE NO/S: CACV 123 of 2011
BETWEEN: TOWN OF PORT HEDLAND
Appellant
AND
REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER
First RespondentTHE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
FILE NO/S :CACV 127 of 2011
BETWEEN :REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER
Appellant
AND
TOWN OF PORT HEDLAND
First RespondentTHE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
Citation :HODDER by his next friend ELAINE GEORGINA HODDER -v- TOWN OF PORT HEDLAND [2011] WADC 145
File No :CIV 1316 of 2008
Catchwords:
Negligence - Personal injury - Contributory negligence - Standard of care expected of disabled plaintiff - Blind, deaf, intellectually disabled plaintiff who suffered from cerebral palsy - Civil Liability Act 2002 (WA), s 5K
Legislation:
Civil Liability Act 2002 (NSW), s 5R
Civil Liability Act 2002 (WA), s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4
Motor Accidents Act 1998 (NSW), s 74
Occupiers Liability Act 1985 (WA), s 6
Result:
CACV 123 of 2011 - appeal dismissed
CACV 127 of 2011 - appeal allowed in part
Category: A
Representation:
CACV 123 of 2011
Counsel:
Appellant: Mr S Walsh QC & Mr J Campbell
First Respondent : Dr A S Morrison QC & Mr G Droppert
Second Respondent : Mr D R Clyne
Solicitors:
Appellant: DLA Piper Australia
First Respondent : Donna Percy & Co
Second Respondent : SRB Legal
CACV 127 of 2011
Counsel:
Appellant: Dr A S Morrison QC & Mr G Droppert
First Respondent : Mr S Walsh QC & Mr J Campbell
Second Respondent : Mr D R Clyne
Solicitors:
Appellant: Donna Percy & Co
First Respondent : DLA Piper Australia
Second Respondent : SRB Legal
Case(s) referred to in judgment(s):
Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15; (1993) 177 CLR 485
Bourhill (Hay) v Young [1943] AC 92
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Button v Melray Investment Pty Ltd [2000] ACTSC 20
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Calvert v Stollznow [1982] 1 NSWLR 175
Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Cook v Cook [1986] HCA 73; (1986) 162 CLR 376
Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66
Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Daly v Liverpool Corporation [1939] 2 All ER 142
Davie v New Merton Board Mills Ltd [1959] AC 604
Donoghue v Stevenson [1932] AC 562
Doubleday v Kelly [2005] NSWCA 151
Dulieu v White & Sons [1901] 2 KB 669
Farah Constructions Pty Ltd v Say‑dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107
Gaffney v The Dublin United Tramways Co Ltd [1916] 2 IR 472
Gala v Preston [1991] HCA 18; (1991) 172 CLR 243
Glasgow Corporation v Taylor [1922] 1 AC 44
Gordon Martin Pty Ltd v State Rail Authority of New South Wales [2009] NSWCA 287; (2009) 53 MVR 474
Haley v London Electricity Board [1965] AC 778
Henderson v Public Transport Commission of New South Wales (1981) 37 ALR 29
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Joseph v Swallow & Ariell Pty Ltd [1933] HCA 47; (1933) 49 CLR 578
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22
Lynch v Nurdin [1841] 1 QB 29
Lyons v Nicholls [1958] NZLR 409
Mansfield v Weetabix Ltd [1997] PIQR P526 (CA); [1998] 1 WLR 1263
McHale v Watson [1964] HCA 64; (1964) 111 CLR 384
McHale v Watson [1966] HCA 13; (1966) 115 CLR 199
M'Kibbin v The Corporation of the City of Glasgow [1920] SC 590
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
Nettleship v Weston [1971] 2 QB 691
Nominal Defendant v Meakes [2012] NSWCA 66
Paris v Stepney Borough Council [1951] AC 367
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports 81‑949
Purcell v Watson (1979) 26 ALR 235
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R and W Paul (Ltd) v Great Eastern Railway Co (1920) 36 TLR 344
Rennie v The Great North of Scotland Railway Co (1905) 12 SLT 667
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Russell v Rail Infrastructure Corporation [2007] NSWSC 402
Shire of Gingin v Coombe [2009] WASCA 92; (2009) 169 LGERA 236
Smith v Browne (1891) 28 LRIr 1
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525
Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24
Taheer v Australian Associated Motor Insurers [2010] NSWCA 191
The Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563
The South Australian Ambulance Transport Inc v Wahlheim [1948] HCA 32; (1948) 77 CLR 215
The State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1
Thomson v Cremin [1956] 1 WLR 103
Tuff v Warman (1858) 2 CBNS 740; 5 CBNS 573
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wakelin v The London and South Western Railway Company (1886) 12 App Cas 41
Watson v George (1953) 89 CLR 409
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81‑818
Widdowson v Newgate Meat Corporation [1998] PIQR P138 (CA)
Wilsher v Essex Area Health Authority [1987] QB 730
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
MARTIN CJ:
Summary
The life of Reece Hodder has been replete with tragedy. He was born 14 weeks prematurely in January 1983. He weighed only 710 g at birth. He was born with cerebral palsy and an intellectual disability. Since birth he has been profoundly deaf, practically blind, virtually unable to speak, and suffered from spastic diplegia. He spent the first 22 months of his life in hospitals. He has been hospitalised on a number of occasions since then, including an occasion upon which he spent three months in a coma following an epileptic fit.
On 15 January 2006, he attended the Aquatic Centre in South Hedland. He was then nearly 23 years of age, although he was only 5 feet 2 inches tall (157.5 cm). He was in the company of family members not including his mother. He was left unattended. He mounted a diving block which was one of eight placed on the edge of the shallow end of the swimming pool. He entered the water head first, striking his head on the bottom of the pool and fracturing his cervical spine. The accident rendered him quadriplegic.
At the time of Mr Hodder's accident, the swimming pool was owned by the Town of Port Hedland (the Town), and managed by the Young Men's Christian Association of Perth (the YMCA) pursuant to an agreement between the Town and the YMCA. Mr Hodder commenced proceedings against each of the Town and the YMCA, claiming damages for personal injury allegedly caused by the negligence of the defendants. The Town claimed contribution and indemnity from the YMCA in respect of any damages it was ordered to pay Mr Hodder.
The trial judge found that the Town had breached its duty to Mr Hodder by failing to remove the diving blocks from the shallow end of the pool, as they were known to pose a danger to recreational users of the pool. He also found that the Town's breach of duty caused the injuries suffered by Mr Hodder as he would not have dived into the pool but for the presence of the diving blocks. The trial judge also found that the YMCA had breached the duty it owed to Mr Hodder in two respects - namely, by failing to have a lifeguard supervising on the deck by the main pool, and in failing to provide adequate signs, indicating to recreational users of the facility the dangers arising from use of the diving blocks situated at the shallow end of the pool. However, the trial judge concluded that neither of those breaches of duty made any material contribution to Mr Hodder's injuries. He dismissed Mr Hodder's claim against the YMCA, and the Town's claim for contribution and indemnity from the YMCA.
The trial judge concluded that he was bound by authority to assess whether Mr Hodder was contributory negligent by failing to take adequate care for his own safety on an entirely objective basis - that is, without regard to Mr Hodder's various disabilities. On that basis, he decided that responsibility for Mr Hodder's injuries should be apportioned 90% to the Town and 10% to Mr Hodder. He therefore ordered that the damages to be paid by the Town to Mr Hodder be reduced by 10%. It was ultimately agreed that the damages to which Mr Hodder would have been entitled, but for the finding of contributory negligence, were $6.5 million.
The Town appeals from the decision of the trial judge. It asserts that the trial judge was wrong to find the Town liable to Mr Hodder in negligence. It also asserts that the trial judge was wrong to conclude that the YMCA was not liable to Mr Hodder, and should have found that the YMCA was liable to contribute to the damages it was ordered to pay Mr Hodder, or alternatively to indemnify the Town in respect of those damages, pursuant to a provision in the contract between the Town and the YMCA. The Town also asserts that the trial judge was wrong to apportion liability on the basis that Mr Hodder's failure to take adequate care for his own safety contributed only 10% to the injuries which he suffered, and should have reduced the damages payable to Mr Hodder by a larger percentage.
Mr Hodder also appeals from the decision of the trial judge. Like the Town, he asserts that the trial judge was wrong to dismiss his claim against the YMCA, although for slightly different reasons to those advanced by the Town. Mr Hodder also asserts that the trial judge was wrong to assess his contributory negligence without regard to his various disabilities, and contends that when allowance is made for those disabilities, he should not have been found to have failed to take adequate care for his own safety.
For the reasons which follow, the Town's appeal should be dismissed in its entirety. I would also dismiss Mr Hodder's appeal, save for the grounds which assert that the trial judge erred in law by assessing Mr Hodder's contributory negligence on a purely objective basis - that is, without regard to his various disabilities. Grounds 7 and 8 should be upheld, and the issue of contributory negligence assessed taking into account at least Mr Hodder's physical disabilities, but disregarding his psychological and emotional characteristics. Assessed on that basis, it should be concluded that Mr Hodder did not fail to take adequate care for his own safety, and the trial judge's finding of contributory negligence should be set aside.
The facts
With one limited exception relating to the mechanical isolation of the diving blocks, no party asserts that the trial judge made any erroneous findings of fact, or omitted to make any findings of fact which he should have made. Accordingly, save for the limited exception to which I have referred, for the purposes of this appeal, the relevant facts can be taken entirely from the reasons of the trial judge. The factual narrative which follows is taken from those reasons, and all references are to the numbered paragraphs in his reasons.
The South Hedland Swimming Pool
The Town's swimming pool in South Hedland was constructed in 1979. It has a main pool which is suitable for competitive swimming and water polo. The main pool is approximately 50 m long, and 21 m wide over most of its length, although it is wider at the deeper end so as to accommodate a section of water with a depth of 3.5 m used for diving from boards placed at that end of the pool.
The pool has a masonry plinth around its border which raises the edge of the pool 31 cm above the water level. At the shallow end of the pool, where Mr Hodder suffered his accident, the depth of the water was 1.1 m. At the time of Mr Hodder's accident, there were eight diving blocks spaced evenly along each end of the pool. The blocks had a height of 66 cm. The top of each block was therefore 0.97 m above the water level.
Guidelines and standards
Fédération Internationale De Natation (FINA) is an international body which governs competitive swimming, diving and other water sports. There is an Australian organisation affiliated with FINA known as Swimming Australia. The Royal Life Saving Society Australia (RLSSA) is a voluntary organisation which promotes safe participation in water‑related activities. Each of these organisations is involved in the promulgation of guidelines and standards with respect to swimming pools.
Since at least 1996, the maximum height for starting blocks set by FINA and its Australian affiliates has been 0.75 m above water level. Until 2000, the minimum water depth required by the various competitive swimming bodies where starting blocks were used was 1.2 m. After 2000, the minimum stipulated depth where starting blocks were used was 1.35 m for competitive swimming.
In 1996, the RLSSA recommended that starting blocks should not be permanently located at the shallow end of the swimming pool where water is 1200 mm deep or less and should be removed for recreational swimming. The 2002 version of guidelines for safe pool operation issued by the RLSSA provided, consistently with the FINA guidelines, that the tops of starting blocks were to be no more than 750 mm above the water surface.
It will be apparent from the dimensions of the starting blocks and the water depth at the shallow end of the pool which I have set out above, that the Town's swimming pool in South Hedland did not comply with the relevant guidelines and standards at the time Mr Hodder suffered his injuries.
The danger posed by the height of the diving blocks at the shallow end of the pool was known to the Town. In a document prepared by an officer of the Town in April 2000, listing works proposed to be carried out at each of the two swimming pools owned by the Town over the next five years, one of the items of work proposed for each pool was the replacement of fixed blocks with removable blocks so as to '[a]id safety, ie jumping into shallow end of pool' [9]. During 2002, the Town removed the diving blocks from the shallow end of one of its swimming pools, but did not remove the diving blocks from the shallow end of the South Hedland pool.
The operational audit by the YMCA
In early 2003, the Town engaged the YMCA to carry out an operational audit of its two swimming pools. Following the audit, the YMCA reported to the Town on its findings. In the part of the report which related to the South Hedland pool, the YMCA recommended as a matter of 'immediate action' that because the depth at the shallow end of the pool did not meet guidelines issued by the RLSSA with respect to the provision of diving blocks:
[T]hese blocks should be removed so that inexperienced swimmers do not dive off these blocks and injure themselves. It is understood that the local swimming club requires access to diving blocks for competition swimming so the solution would be to remove the current diving blocks and provide temporary removable blocks for competition only. This ensures only advanced and experienced swimmers are allowed to dive from the blocks at the shallow end [28].
The engagement of the YMCA as manager
In July 2003, the Town invited the submission of tenders for the management of its aquatic centres. In the latter part of 2003, the YMCA was managing the South Hedland pool, and on 27 February 2004, a formal management agreement was entered into between the Town and the YMCA. By its express terms, the management agreement required the YMCA to 'do all acts and things necessary for the proper and efficient management, operation, promotion, maintenance and administration of' the pool [33]. The management agreement also required the YMCA to comply with all reasonable directions of the Town with respect to the management, maintenance and operation of the pool [34]. The management agreement also required the YMCA to work within a budget, and prohibited the YMCA from incurring any unbudgeted expense in an amount greater than $1,000 without the permission of the Town [34] ‑ [35].
The 2003 funding request
In October 2003, the Town sought funding from the Community Sporting and Recreation Facility Fund administered by the Ministry of Sport and Recreation to enable it to upgrade its swimming pools 'to a standard that would comply with basic public and industry standards' [36]. The funding application referred to the undertaking of works to enable disabled access. One of the items of work identified in the funding application was 'removal of current diving blocks in the shallow end to be replaced by temporary removable blocks for competition swimming only' [39]. The cost of that item of work was estimated at $40,000, which was a significant over‑estimate [39]. In January 2004, the Department of Sport and Recreation sought further advice with respect to the application for funding. In response, the Town's Director of Community Services provided a list of 16 items of work listed in order of priority and importance, to which the funding would be applied. The second item listed was 'diving block removal and replacement' [40].
The RLSSA audit in 2004
In May 2004, the RLSSA undertook an audit of the facilities of the South Hedland pool. Its report was provided to the Town in July 2004. It recommended that recreational swimmers should only be given the opportunity to undertake diving activities from the edge of the pool if the water depth was 1.8 m minimum, and from starting platforms of 360 mm in height, if the water had a minimum depth of 2 m. The report also recommended that starting blocks located over water less than 2 m should be removed when not in use for competitive swimming or isolated using barriers or signage so as to prevent recreational use.
The provision of funding
In October 2004, the Town made a further application to the 'Pilbara Fund' for capital projects, including an upgrade of the South Hedland pool.
In December 2004, the Minister responsible for the administration of the fund approved the provision of funding in an amount of $162,750. However, notwithstanding the priority previously given to the item of proposed capital expenditure relating to the removal of the diving blocks at the shallow end of the pool, this item was not mentioned in the October 2004 funding request, and the grant was not used to remove the blocks.
The YMCA Maintenance/Capital Works Plan
The YMCA prepared a 'Maintenance/Capital Works Plan' for the South Hedland pool in respect of the period between 1 July 2005 and 30 June 2006 [51]. It included an allowance for the removal of the diving blocks at the shallow end of the pool at a cost estimated at $1,000. The executive summary of the plan referred to 'removal of the shallow end diving blocks as they do not come close to meeting the current guidelines', as a 'main maintenance project' for 2005 ‑ 2006 at the pool.
In a more detailed description within the body of the document, it is said that 'the removal of the shallow end diving blocks is required as they do not come close to meeting the current RLLSA [sic] guidelines for diving blocks die [sic] to the depth of the shallow end' [52]. The document described the purpose of the work as being to 'make the shallow end of the pool safer by reducing the risk of injury from diving' [52]. The detailed portion of the document allowed an amount of $8,000 plus GST for the work, which the trial judge assumed included an allowance for the provision of demountable blocks [52]. The diving blocks were in fact removed from the shallow end of the pool in March or April 2006, some months after Mr Hodder's accident [56].
The failure of the blocks to comply with relevant guidelines is reinforced by a consideration of the terms of the 'Guidelines for Safe Pool Operation' issued by the RLSSA in November 2002. Those guidelines provided that in water depths between 1,000 mm and 1,200 mm, competitive dive starts would be permitted up to a maximum height above water of 400 mm. As the plinth took the height of the edge of the pool 31 cm above water level, any dive from a block more than 9 cm in height would have breached the guidelines. If these requirements were not met, the guidelines provided that competitive starts should take place from within the water. The guidelines also provided that in water depths of 1,200 mm or greater, competitive dive starts may be permitted from a maximum height of 750 mm above water level [58].
The guidelines also provided that starting blocks should only be made available for persons competent of executing a safe forward dive entry, and recommended that 'in pools where non-complementary activities are being conducted, starting blocks should be isolated from use and not used for competition or instruction' [59].
The 2005 funding application
In 2005, the Town made another application for funding to undertake works at the pool. In its application it noted that it had $40,000 'cash at bank' which could be applied to the project [64]. This would have been more than enough to carry out the work of removing the diving blocks at the shallow end of the pool, and replacing them with removable blocks. In 2006, the cost of purchasing removable blocks was less than $9,000 [65]. Some guide to the likely cost of removing the blocks at the shallow end of the pool in 2006 can be derived from the fact that the cost of removing similar blocks at the deep end of the pool in 2010 was less than $4,000 [65].
In summary, it is clear that the swimming pool did not comply with the standards and guidelines promulgated by reputable organisations with respect to the safe operation of swimming pools, in that, at least at the shallow end of the pool, the water was too shallow and the diving blocks were too high, creating a danger to users of the pool. This was known to the Town, which planned to remove the blocks at the shallow end of the pool and replace them with removable blocks to be used only when swimming competitions were taking place. The Town had the funds available to carry out this work but failed to do so prior to Mr Hodder's accident. No reason for the failure to carry out the work was provided in evidence.
Mr Hodder
I have referred in general terms to the various disabilities suffered by Mr Hodder from birth. In addition, at the age of 4 months, because of the weakness of the cartilage in his throat, Mr Hodder's windpipe collapsed, necessitating a tracheotomy. He lived with the tracheotomy for about the first seven years of his life, although his trachea was not finally repaired permanently until August 2005.
Mr Hodder's intellectual disability has been assessed as 'mild to moderate' [75]. It is difficult to test Mr Hodder's intelligence for a number of reasons, including his various handicaps and disabilities, and also because standardised intelligence tests commonly have a cultural bias, and Mr Hodder is of Aboriginal ethnicity [75]. However, when Mr Hodder was almost 13, his IQ was assessed as 67 on a scale that recognises 100 as normal or average. Although not specifically referred to by the trial judge, an IQ of less than 70 is generally recognised as indicative of intellectual disability. The trial judge found, having regard to all the evidence, that at the time of the accident, Mr Hodder's capacity and emotional development was at best that of a child between 10 and 12 years old [288].
However, intellectual disability was only a part of Mr Hodder's disability. He also has physical disabilities and psychological and emotional difficulties very likely prompted by such disabilities.
Without correction by glasses Mr Hodder's eyesight is so bad that he 'is legally blind beyond one to two metres' and his vision is blurred beyond 10 cm [78]. Glasses significantly correct Mr Hodder's sight, but as a result of his emotional and intellectual difficulties, he refused to wear glasses. He would take them off and break them. In any event, obviously Mr Hodder would not have been wearing glasses while swimming. During argument on the appeal, senior counsel for the Town accepted that Mr Hodder 'was for all intents and purposes blind without his glasses' (appeal ts 85).
The trial judge accepted the evidence of an optometrist to the effect that people with vision as limited as Mr Hodder's learn to 'interpret blur', in the sense that they can see and interpret blurred shapes and movement. However, Mr Hodder could not be expected to pick up any detail beyond a distance of 3 to 5 m without wearing glasses [80].
Mr Hodder is profoundly deaf. Somebody standing in a room behind Mr Hodder clapping loudly would fail to attract his attention [81]. As a consequence of his aural and other difficulties, Mr Hodder's vocabulary is limited to a few words. However, due to the energy of his mother, Mr Hodder was able to attend school, to learn how to 'sign' and to read and write simple words and sentences. He was able to look at a television, placing himself right next to the screen if he was not wearing glasses, and was also able to play some basic level computer games [82].
Mr Hodder was able to participate in limited physical activities, and was, from time to time, taken to swimming pools, swimming holes, the river, and the sea. In swimming pools or swimming holes, he would wade or sit in the water up to his chest, but could not swim because of his tracheotomy, which was not finally repaired until August 2005 - some months before his accident. When taken to the sea, Mr Hodder would not go beyond getting his feet wet, because he was terrified of the sea [83] ‑ [84]. Because of his various physical problems, especially his tracheotomy, Mr Hodder had no experience in diving, much less any training with respect to diving [289].
Prior to his accident in January 2006 Mr Hodder had from time to time undertaken simple part‑time unpaid jobs subject to very close supervision at all times [85].
Mr Hodder's mother had assumed primary responsibility for his care. She would not allow him to leave the house unaccompanied.
The accident
In January 2006 Mr Hodder went to South Hedland with his brother to stay with relatives for a couple of weeks. One of the purposes of the visit was to give Mr Hodder's mother some respite from his care [91].
On the morning of 15 January 2006 Mr Hodder went to the South Hedland pool with a group comprising a number of his relatives and their friends. The group included five children aged between 1 and 7. When they arrived at the pool, they paid their admission to the manager of the pool, Mr Christopher Retallack.
Ms Kimberley Cooper was one of the three other qualified life-guards working at the pool that day. Immediately prior to the arrival of the group which included Mr Hodder, she had been on duty at the main pool, maintaining a position on the side of the pool midway along its length. To the best of her recollection, there was nobody in the main pool immediately prior to the arrival of the group which included Mr Hodder. She took the opportunity to return to the office/kiosk to fill up her water bottle.
Ms Cooper was in the kiosk when the group arrived. She noticed Mr Hodder, who stood out from the group because he was making strange noises. She observed the scar on his throat from the tracheotomy. She concluded that while he looked to be about 18 years old, he was behaving like an 8‑year‑old. She could see that he was somehow disabled and described him as making 'squealy almost grunty noises', bobbing up and down like he was 'really excited to be there' [98].
Ms Cooper remained in the office when the group which included Mr Hodder moved to the barbeque area and began unpacking their things. She saw Mr Hodder run from that area to the shallow end of the pool, where he descended a couple of the steps on the side of the pool until the water reached his thighs. Given that the depth of the pool was 1.1 m plainly he would not have reached the bottom of the pool. He then turned, climbed back up the steps and ran from that point past the first diving block, and then pulled himself up onto the next diving block until he was standing on it. As soon as he stood up he pushed himself off the block with his hands loosely or awkwardly at his sides, jumping head first into the pool at an angle of about 45 degrees [117]. Only about five seconds elapsed between the time when Mr Hodder left the pool, and the time when he jumped from the block [118]. The distance from the stairs to the block from which Mr Hodder dived is in the order of 6 ‑ 8 m [119].
As soon as Ms Cooper saw Mr Hodder dive into the pool she ran out of the office and yelled 'spinal' to Mr Retallack. She ran to where Mr Hodder was and jumped into the pool. She was joined by another life-guard and Mr Retallack. They removed Mr Hodder from the pool. He was observed to be bleeding from a cut towards the top of his head. There is no doubt that the fracture of his spine was caused by the top of his head striking the bottom of the pool [121].
Mr Retallack gave evidence of what he observed about Mr Hodder, and what he said to members of Mr Hodder's group prior to the accident. However, the trial judge rejected that evidence [128]. No party challenges that finding.
Reasons of the trial judge
A number of issues were agitated at trial which have not been re‑agitated on appeal. I will set out only those parts of the reasons of the trial judge which are germane to the issues raised in the appeals.
The common law, the Occupiers' Liability Act, and the Civil Liability Act
The trial judge noted that the trial had been conducted by all parties on the basis that there was no difference between the principles of the common law and the provisions of the Occupiers' Liability Act 1985 (WA) (the OLA) and the Civil Liability Act 2002 (WA) (the CLA) which would lead to any different outcome on the issues of duty of care, standard of care or causation. The parties only referred to the statutory provisions in relation to certain statutory defences (which are not pursued on appeal) and contributory negligence. On the subject of contributory negligence, it was common ground that the principles to be applied were those specified by s 5K of the CLA, although submissions with respect to the proper construction of that section were supported by reference to authorities setting out the principles applicable at common law.
The parties have taken the same approach on appeal. Neither at trial nor on appeal have the parties directed submissions to the interrelationship between the common law and the two statutes, or as between the two statutes themselves, given that they cover, to some extent, the same field. Because this court lacks the benefit of submissions or argument on these important issues, this case does not provide an appropriate vehicle for their resolution. This is regrettable. It seems that much tort litigation in this State is being conducted as if the legislation had never been passed, on the basis, as here, that the application of the legislation would make no material difference to the outcome. This has meant that important issues with respect to the interrelationship between the common law and the legislative provisions and as between the particular legislative provisions remain unresolved.
Duty of care
The trial judge found that both the Town and the YMCA were occupiers of the South Hedland pool. Under the Management Agreement between the Town and the YMCA, the Town retained ultimate control and possession of the premises. He noted that the Town exercised the right of control in a variety of ways, including through its approval of the budget, which limited the YMCA's powers of expenditure, in that the YMCA was not permitted to incur expenditure greater than $1,000 in respect of any item not within the budget. Management of the pool from day to day was vested in the YMCA, which under the Management Agreement had the power to make recommendations to the Town with respect to issues relating to the pool. However, the ultimate power of direction and control with respect to the management, maintenance and operation of the pool remained with the Town [172]. An officer of the Town inspected the pool monthly in order to assess the YMCA's compliance with the Management Agreement [172].
Foreseeability of harm
The trial judge noted that the YMCA 'expressly', and the Town 'at least tacitly' accepted that the diving blocks at the shallow end of the pool presented a foreseeable risk of harm [181] ‑ [182]. However, both submitted that the risk of harm was not materially different to the risk posed by a dive from the edge of the pool. In addressing that submission, the trial judge set out the conclusions which he had drawn from the expert evidence, and which he regarded as uncontroversial, in the following terms [189]:
1.there is a risk of spinal cord injury by striking the bottom when diving into water that shallow;
2.the steeper the angle of the dive, the greater the risk of striking the bottom;
3.all other things being equal, the greater the velocity of the diver at the point of contact with the water, the greater the likelihood of contact with the bottom;
4.the greater the velocity of the diver at the time of impact with the bottom of the pool, the greater the likelihood of injury;
5.the likelihood of injury by contact with the bottom is decreased if the diver has their arms extended and hands locked together in;
6.all other things being equal, the rate of any deceleration after a diver contacts the water is a function of the amount of drag created by the size, shape and posture of the diver as well as the angle of impact. Depending on those variables, the diver may actually continue to accelerate after initial contact with the water before the momentum from the dive is lost and deceleration begins;
7.if the posture of the diver and the angle of the dive bring the diver's face into contact with the pool bottom, depending on the force of impact, the cartilage and facial bones may absorb the energy from the impact, dissipating that energy and reducing the likelihood of a spinal cord injury;
8.if on the other hand the diver strikes the bottom with the bony part of the skull, the impact is transferred fairly directly to the spinal cord;
9.accepted academic research suggests that an impact velocity of approximately 3.05 m per second is sufficient to cause compression fractures of the cervical spine, particularly at the level of C5;
10.a person about the height and weight of the plaintiff diving into the pool from the plinth or edge of the pool (26 cm above water level) would reach a vertical velocity of about 4.16 m per second by the time he struck the water surface;
11.similarly, a person the size of the plaintiff who dived from the top of a diving block 87 ‑ 97 cm above water level would strike the water at a speed in the order of 5.86 m a second, that is, a vertical velocity of about 40% greater than the dive from the plinth (5.86 ‑ 4.16 = 1.7, 170 ÷ 4.16 = 40.8).
The matters established by the expert evidence led the trial judge to conclude:
As might be expected as a matter of common sense, all other things being equal a person the size of the plaintiff jumping from the blocks will strike the water surface at a vertical speed greater than if diving from the plinth. Even a dive from the plinth could cause the person to strike the bottom at a speed 25% greater than that which might cause spinal injury if the initial vertical speed was maintained towards the bottom. However, the vertical speed or velocity coming off the blocks is nearly double that of the velocity known to potentially cause spinal cord injury, materially increasing the potential velocity of impact with the bottom and the risk of spinal cord injury [190].
The trial judge went on to refer to the evidence of Professor Blitvich, Associate Professor for Human Movement and Sport Sciences at the University of Ballarat, who has special expertise in the relationship between shallow water diving and spinal cord injury. Her evidence was to the effect that the higher the point from which a dive commences, the steeper the likely angle of entry to the water, and thus the greater the velocity of the diver through the water. The trial judge also accepted the evidence of Professor Blitvich to the effect that diving blocks invite people to dive, and noted that this observation was corroborated by the evidence of Ms Cooper and Mr Retallack as to the behaviour of patrons at the pool. The trial judge noted the submission by the Town and the YMCA to the effect that there was no evidence that anyone had in fact suffered injury diving from the blocks at the shallow end of the pool since the pool was built in 1979, with the exception of a girl participating in events associated with a swimming club who dived into the shallow end of the pool and suffered a bloody nose [181].
The trial judge summarised his conclusions with respect to foreseeability of harm in the following terms:
The nature of the risk posed to the untrained or incompetent by the continued presence of the diving blocks at the shallow end of the pool was threefold. First, it gave the appearance to inexperienced people untrained in safe diving techniques that the pool owner or operator not merely sanctioned but invited jumping or diving into the pool from the blocks, and by extension from the plinth. Second, it materially increased the speed and trajectory that could cause a diver to strike the bottom of the pool by comparison with the risk from a dive from the plinth at the pool edge. Third, it materially increased the potential velocity of any impact between the diver's head and the bottom, well past the kind of velocity known to cause spinal injury. Despite the fact that historically no such accident seems to have occurred, the chances of an accident of that kind could not be described as farfetched. So much seems apparent from the records of the first defendant, including the audits conducted by the second defendant and the RLSSA. In the event of such an accident occurring, it would have been obvious that there was a high risk of a catastrophic spinal injury. That is the foreseeable risk of harm which should in my view fix a duty of care on an occupier of this public swimming facility [197].
None of these findings made by the trial judge, or his conclusions relating to foreseeability of risk of harm, have been challenged on appeal.
A particular duty to Mr Hodder?
On behalf of Mr Hodder it was submitted that each of the Town and the YMCA owed a particular duty to Mr Hodder, as a member of a general class of disabled persons known to use the pool. The trial judge accepted that each of the Town and the YMCA were aware that the pool was regularly used by disabled persons, and that it was frequently used by children. He concluded that the general duty of care owed by each was shaped by the range of persons known to use the facility.
However, the trial judge rejected the proposition that a special duty was owed to Mr Hodder because of an awareness of his particular disabilities. In this context, he recorded his acceptance of Ms Cooper's evidence to the effect that Mr Hodder was seen to be a person with physical and intellectual disabilities. He rejected Mr Retallack's evidence as to his views and statements made at the time Mr Hodder arrived at the pool. He noted that there was no evidence identifying any practical means by which the particular risks of injury posed by the presence of people with particular kinds of disabilities might be reduced, and rejected the proposition that some particular duty of care was owed either to Mr Hodder, or to disabled persons as a class.
The standard of care and breach - the Town
The Town contended at trial, and again on appeal, that it had discharged its duty of care by appointing the YMCA to manage the pool, as the YMCA was an experienced and competent manager of public swimming pools. The Town endeavours to overcome the fact that the YMCA lacked the power or the authority to remove the diving blocks with the submission that the Town was entitled to assume that the YMCA would isolate the blocks from the public, seizing on language in some of the published standards and guidelines to which I have referred, which the Town submits could be read as suggesting that isolation of diving blocks was an adequate alternative to their removal. In the context of this submission the word 'isolate' has been used to describe any means of preventing members of the public from using the diving blocks, including supervision by staff, signage, physical isolation by fencing off access to the blocks generally, or by placing obstacles on the blocks so as to prevent their use.
The trial judge found that no attempt had been made to mechanically isolate the diving blocks at the South Hedland pool nor, on the day Mr Hodder suffered his injury, were there any signs to discourage patrons from diving from the diving blocks. Further, as I have noted, at the time Mr Hodder entered the pool, there was nobody supervising that area of the pool complex.
On the subject of mechanical isolation of the blocks, the trial judge made these observations:
There was little evidence in any event as to some reasonable and practicable mechanical means of effectively preventing the use of the diving blocks short of removing them. The high water mark in that regard was a suggestion arising from the evidence of Professor Blitvich to the effect that at some point she had seen a picture in a book somewhere of some sort of pyramid structure on top of a permanent diving block. No witness gave evidence that such devices were readily available or practicable to manufacture at a reasonable cost.
In some cases a means of removing or reducing a risk is a matter of common sense. In those cases it does not require expert opinion evidence to establish that that method of removing the risk is a reasonable one in the sense that it is not only feasible but economical and capable of being done without compromising safety in some other respect. That is not the case here. Various suggestions were made by senior counsel for the first defendant about barriers or other ways of preventing access to the diving blocks short of actually removing them. Putting aside the fact that the first defendant was or should have been aware that no such thing was taking place it cannot be said that dealing with the risk presented by the diving blocks by some mechanical means has been shown to be feasible and reasonable. Most importantly here would be a very real concern on the part of lifeguards at the pool to ensure that there was at all times clear views of each part of the pool from all angles and that there was nothing that impeded access to the pool at its ends in case of an emergency [234] ‑ [235].
In relation to supervision or signage, the trial judge found that the Town knew or ought to have known that there was no signage warning of the dangers posed by diving from the blocks, and should also have known that while supervision might mitigate the risk posed by the blocks to some extent, it could not eliminate that risk. Because of the grounds of appeal, it will be necessary to return to the meaning connoted by the trial judge by his reference to elimination of risk in this context, but it is significant that in the relevant portion of his reasons, the trial judge compared the reasonableness and practicability of the obvious and costed engineering solution of removing the blocks, with the less effective and likely more expensive alternative of ongoing supervision to keep swimmers off the diving blocks. In that regard, the trial judge observed:
I have already observed that the risk here was that an entrant to the SHAC, in a moment of impetuosity or misjudgement, might accept the apparent invitation to jump or dive from the blocks. The risk of injury, which was a risk of catastrophic head or spinal cord injuries materially greater than that generated by a dive from pool side, had only a slight chance of eventuating. It is not correct to suggest, however, as the first defendant does, that that 'danger was eliminated if the blocks were appropriately isolated by the YMCA'. I am not satisfied that there was any reasonable or practical engineering solution to isolate the blocks, short of removing them. Isolation by 'signage and supervision' might mitigate the risk to some extent but could not, as the first defendant submits, eliminate the risk.
So long as the blocks remained in place those responsible for the supervision of the pool had a specific safety issue that they would continually have to address to the prejudice of the general supervision of the pool. On the other hand, the cost of removing the blocks and of replacing them with blocks satisfactory to Swimming Australia was trivial in the scheme of the renovations proposed for the SHAC and funded on more than one occasion. The choice was effectively to continue to limp or take the stone from one's shoe [253] ‑ [254].
The trial judge concluded that the Town's duty to exercise reasonable care required removal of the diving blocks at the shallow end of the pool [258]. Because the YMCA lacked the power or authority to remove the blocks, and as other forms of 'isolation' such as supervision and isolation by mechanical means were an inadequate response to the risk posed by the presence of the blocks, the trial judge rejected the submission that the Town had adequately discharged its duty of care by delegating its responsibilities to the YMCA.
Standard of care and breach - the YMCA
A number of breaches of duty were alleged against the YMCA. The trial judge found that the YMCA was in breach of the duty of care it owed to Mr Hodder in two respects:
(a)failing to provide appropriate signs warning of the risk of danger from the diving blocks; and
(b)failing to adequately supervise the swimming pool at the time Mr Hodder entered the water.
Although the trial judge did not deal specifically with the issue of failure to use mechanical means to isolate the diving blocks in the portion of his reasons dealing with the liability of the YMCA, it is to be inferred from the findings he made and the conclusions he expressed on that topic in the portion of his reasons dealing with the liability of the Town that he rejected the contention that the YMCA was in breach of duty by failing to physically isolate the blocks either by fencing them off or by placing obstacles upon them to prevent their use, as he had found that the evidence did not establish any feasible or practical means of mechanically isolating the diving blocks.
Causation
The Town contended that its breach of duty in failing to remove the diving blocks from the shallow end of the pool did not cause Mr Hodder's injuries, because he would in any event have dived from the side of the pool and injured himself to the same extent. The trial judge rejected this submission. He considered it significant that Mr Hodder had shown no interest in diving until he apparently recognised the shape of the diving blocks and left the water hastily so as to climb to the top of one of the blocks. As the trial judge noted, Mr Hodder had little or no experience of diving, as for much of his life his tracheotomy had prevented him from fully submerging in water. The trial judge coupled the evidence specific to Mr Hodder with the evidence given by Professor Blitvich to conclude that the presence of the diving blocks was an invitation to dive or jump. He concluded that but for the diving blocks, Mr Hodder would not have dived into the water at all. That conclusion has not been challenged on appeal.
In relation to the breaches of duty by the YMCA, the trial judge recorded the obvious observation that the presence of signage at the pool would have made no difference to Mr Hodder, as he would not have been able to read the signs, and he was not being supervised by members of his group who were capable of reading the signs.
On the subject of supervision, the trial judge concluded that discharge of the duty of reasonable care would have required the YMCA to ensure that there was one life-guard supervising activities in the main pool, positioned near the middle of the pool although perhaps towards the shallow end. However, the trial judge concluded that even if a life-guard had been in that position, he or she would not have been able to avert the incident which gave rise to Mr Hodder's injuries. As the trial judge observed, Mr Hodder's entry into the pool using the pool's stairs would not have given rise to any cause for concern. It was only when Mr Hodder left the pool and ran to the diving block and mounted it that there would have been any cause for concern, or any need for action. In the view of the trial judge, unless the life-guard was so close to Mr Hodder as to be in a position to physically intervene to stop him from mounting the diving block and diving as he did, no other action by the life-guard would have averted his injury. That is because shouting or waving at Mr Hodder would plainly have made no difference because Mr Hodder is profoundly deaf, and without his glasses, his eyesight was limited to a range of 1 ‑ 2 m.
Accordingly, the trial judge concluded that the YMCA's breaches of duty did not cause or materially contribute to Mr Hodder's injuries.
Contributory negligence
The trial judge cited Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 for the proposition that at common law contributory negligence was assessed on an objective basis, except in the case where the plaintiff was a child or, perhaps, particularly old. However, the trial judge concluded that common law principles were displaced by s 5K of the CLA, which provides:
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
After reviewing various authorities, the trial judge concluded that s 5K required him to assess the issue of contributory negligence objectively - that is, by reference to the position of a reasonable adult without any of Mr Hodder's disabilities. On that basis, the trial judge concluded that a reasonable adult, aware of the shallowness of the water, would have recognised the imprudence of diving from the blocks without some prior training or experience [339]. It followed that he concluded that Mr Hodder failed to take adequate care for his own safety [355].
The trial judge made these observations with respect to the plaintiff's disabilities and personality characteristics, had he been able to take them into account on the question of contributory negligence:
In this case there is relatively little psychiatric or psychological evidence that would allow me to determine the respective contributions of the plaintiff's intellectual handicap as against his personality and emotional problems in his failure to take care for his own safety. In particular, there is very little recent evidence of that kind. I intend no criticism in saying this. It is hardly surprising given the host of problems that the plaintiff had to endure even prior to his accident that it might be thought that little was to be gained by comprehensive psychiatric and psychological testing. A consequence of that however is that it is not possible on the evidence available to me to determine whether or not the plaintiff's intellectual disability alone was the cause of his failure to take care for his own safety.
...
Were I able to take into account the combination of intellectual, psychological, and emotional difficulties of the plaintiff I would not find that he was contributory negligent. I am satisfied that the combined effect of his intellectual handicap and his developmental and emotional problems meant that he was effectively a child in a man's body. On all of the evidence as set out earlier in these reasons he was left with a level of overall functioning that was probably no greater than that of a 12 year old. In particular, his ability to perceive danger was in my view no greater than that of a 12 year old boy. I am satisfied that he lacked any real insight into the question of danger and needed the oversight and supervision of a carer like his mother [354], [356].
In order to assess the extent to which the liability of the Town should be reduced by reason of Mr Hodder's contributory negligence, it was necessary for the trial judge to assess the relative contribution which the negligence of each made to the accident, and the relative culpability of each.
On the subject of causation, the trial judge observed that Mr Hodder's contributory negligence in diving from the block was the most immediate cause of his injury. On the other hand, he noted his finding to the effect that Mr Hodder would not have dived at all, but for the presence of the blocks.
On the subject of culpability, the trial judge observed that removal of the diving blocks was easy and relatively inexpensive, and that the Town had been warned a number of times of the dangers posed by the continued presence of the blocks at the shallow end of the pool. He also noted that no reason had been proffered for the Town's procrastination in removing the diving blocks. By contrast, the appellant was the model of the person placed at risk by the presence of the diving blocks. He characterised Mr Hodder's decision to jump into the water as impetuous, but noted that it was the kind of impetuous act that frequently occurred on hot summer days at the South Hedland pool, according to the evidence led at trial [361]. Somewhat inconsistently with his conclusion that he was required to assess the matter objectively, the trial judge also took account of the fact that Mr Hodder had never dived before and had no knowledge, training or ability that would allow him to dive in a safe manner.
In the result the trial judge apportioned 10% of the liability for Mr Hodder's injuries to his contributory negligence, and 90% to the negligence of the Town.
Contribution and indemnity
As the appellant's claim against the YMCA was dismissed, no question of contribution by the YMCA to the damages for which the Town was liable arose. However, the Town claimed indemnity from the YMCA under cl 8.17 of the management agreement, which is in the following terms:
1.The Manager shall indemnify, defend and hold harmless the Town, its employees, agents, successors and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of any of the following:
(a)the Manager's breach of this Agreement;
(b)any negligent or otherwise wrongful act or omission by the Manager or its employees or agents, including any negligent miss-statement or representation made to a user of the centres;
(c)any failure by the manager to comply with any law.
The Town submitted that it was entitled to indemnity under this clause if the YMCA was in breach of the agreement, for example, by reason of negligence in its conduct of operations of the pool, even if the negligence did not cause the damages for which indemnity was sought. The Town submitted that failure to isolate the blocks by supervision or mechanical barriers was a breach of the management agreement, and Mr Hodder's claim against the Town was sufficiently connected with that breach to come within the scope of the indemnity provision, whether or not the YMCA's breaches had caused his injuries.
The trial judge rejected this submission, holding that the losses that were to be the subject of indemnity had to be connected in a causative sense to a wrongful act by the YMCA, having one or other of the characteristics identified in the clause - namely, being in breach of the agreement, negligent, or in breach of another law. As the YMCA's negligence had not caused Mr Hodder's injuries, in the view of the trial judge the indemnity clause did not apply even if the breach of duty was a breach of the management agreement and the Town's claim for indemnity was dismissed. Applying this line of reasoning, it was unnecessary for the trial judge to determine whether or not the YMCA had breached the management agreement, and he made no finding on that issue.
In the result, as I have noted, Mr Hodder's claim against the Town succeeded, but his claim against the YMCA failed. The damages awarded against the Town were reduced by 10% by reason of Mr Hodder's contributory negligence.
The grounds of appeal
It is convenient to consider the grounds of appeal in each appeal together grouped by reference to the issues to which they relate. The liability of the Town is addressed by ground 1 in the Town's appeal. The liability of the YMCA to Mr Hodder is addressed by grounds 1 and 2 in Mr Hodder's appeal, and by grounds 3 and 4 in the Town's appeal. The Town's claim for contractual indemnity from the YMCA is addressed by ground 2 in the Town's appeal. Issues concerning Mr Hodder's contributory negligence are addressed by grounds 3 - 8 in Mr Hodder's appeal, and by ground 5 in the Town's appeal.
The liability of the Town - ground 1 in the Town's appeal
Ground 1 of the Town's appeal is in the following terms:
1.The learned trial judge erred in law in holding:
1.1that reasonable care on the part of the appellant for the safety of entrants to the aquatic centre required the removal of the shallow end starting blocks (par 258);
1.2that there was no merit in the appointment of the second respondent as a reasonable response to the risk posed (par 267);
1.3in effect that the duty imposed an obligation to eliminate the risk (par 253);
1.4that there was not any reasonable or practical engineering solution to isolate the starting blocks, short of removing them (par 253).
Removal of the diving blocks
The Town submits that the trial judge was wrong to conclude that the Town's duty of reasonable care required it to remove the diving blocks at the shallow end of the pool, relying upon the following facts and considerations:
(a)the pool had been constructed in 1979 and there appeared to have been only one minor injury suffered by someone diving from the diving blocks at the shallow end of the pool in the 27 years between the opening of the pool and Mr Hodder's accident;
(b)many people dived from the blocks over the years without incident, including trained competitive swimmers;
(c)the risk of diving into the shallow end of the pool from the starting blocks was obvious, given that the water was clear and the floor of the pool could be seen, and there were depth markers on the side of the pool (albeit the marker erroneously stated the depth to be 1.2 m, when in fact it was 1.1 m);
(d)the starting blocks served a useful purpose when competitive swimming was taking place;
(e)relevant standards and guidelines contemplated isolating diving blocks when not in use for competitive swimming;
(f)the Town had engaged an experienced and apparently competent provider of management services for recreation facilities to manage the pool, namely, the YMCA; and
(g)at no time prior to Mr Hodder's accident did the YMCA advise the Town that it was not able to adequately isolate the diving blocks when not in use for competitive swimming.
Conversely, on behalf of Mr Hodder, the following facts and considerations are relied upon to sustain the trial judge's finding:
(a)the placement of the diving blocks at the shallow end of the pool infringed a number of aspects of the standards and guidelines issued by the RLSSA and FINA;
(b)relevantly, the RLSSA guidelines stipulated that for competitive swimming (which could be assumed to involve swimmers trained in shallow diving entry techniques), in respect of water depths between 1,000 and 1,200 mm, diving was only to be permitted from a maximum height above water of 400 mm, whereas the top of the diving blocks at the shallow end of the pool were around 970 mm above the surface of the water;
(c)the Town was aware of the fact that the diving blocks did not comply with relevant standards and guidelines, and of the risk which they posed to users of the pool;
(d)the Town was repeatedly advised of the risk and of the need to remove the diving blocks;
(e)funding was sought in order to remove the diving blocks;
(f)the Town had the funds available to undertake the work necessary to remove the diving blocks and replace them with blocks which could be mounted temporarily for use in swimming competitions but inexplicably failed to carry out the work prior to Mr Hodder's accident;
(g)the trial judge found that the risks posed by the continued presence of the blocks included:
(i)that they presented an invitation to jump or dive from the blocks;
(ii)that a dive from the blocks as compared to a dive from the edge of the pool steepened the likely angle of entry and increased the speed of the diver, increasing the likelihood that the diver would strike the bottom of the pool; and
(iii)that a dive from the blocks increased the potential velocity of any impact with the bottom of the pool, and thus the risk of serious spinal injury;
(h)the relevant standards and guidelines, properly construed, do not propose that physical isolation of the blocks is an adequate permanent response to the presence of blocks which do not comply with the relevant standards - rather, isolation is proposed as a temporary response pending removal, or as a means of protecting recreational users from the hazards posed by diving blocks which comply with the standards and guidelines when not in use by competitive swimmers;
(i)the trial judge found that while supervision could mitigate the risk posed by the diving blocks, removal of the blocks was a more effective means of addressing the risk posed by their presence;
(j)the trial judge found that the evidence did not establish any practical or feasible means of mechanically isolating the diving blocks;
(k)the trial judge also found that while signage could reduce the risks posed by the presence of the blocks, removal of the blocks was a more effective means of addressing the risk;
(l)the Town inspected the pool monthly, and knew or ought to have known that there was no signage in place, nor any mechanical means used to isolate the blocks when not in use for competitive swimming, and of the methods of supervision used by the YMCA; and
(m)the Town was aware that many of the users of the pool were children, and that the pool was used from time to time by disabled persons, and encouraged the use of the pool by such patrons.
The Town was under a duty to take reasonable care to provide premises which were safe for use by the range of visitors reasonably expected to use the pool, including children and the disabled. It was obliged to take account of the fact that recreational swimming, of its very nature, involves various risks and dangers. One of those risks known to the Town was the risk posed by the danger of diving or jumping into shallow water. The fact that this risk was, as the trial judge found, obvious to a reasonable adult of full faculties and normal intelligence, with some experience of swimming and diving does not lead to the conclusion that the Town had no duty to mitigate the risk, given that not all users of the pool would have such attributes, including most particularly children who were, on the evidence, the most frequent users of the pool. While the Town could reasonably expect that children would generally be supervised by an adult, the Town was not entitled to expect that all such children would be supervised all the time by responsible adults, and would or should have been aware that the YMCA had developed systems to respond to the risk of inadequate supervision.
The evidence established, and the trial judge noted, that the risk of someone suffering injury by striking their head on the bottom of the pool was relatively low, given that there seems to have been only one such incident in 27 years of operation of the pool. However, the risk was known and had been recognised. Further, while the risk of incident may have been low, the consequences of the risk eventuating were potentially catastrophic, as in fact occurred in Mr Hodder's case.
The risk which the presence of the diving blocks posed to inexperienced, disabled or immature users of the pool could be, and eventually was, cheaply and effectively removed entirely by the removal of the blocks from the shallow end of the pool. The YMCA had recommended this action, but this recommendation had not been acted upon by the Town. The YMCA lacked the capacity to take that action of its own initiative, and the alternative means of mitigating the risk available to the YMCA were, as the trial judge found, significantly less effective.
Assessment of the relevant facts and considerations compels the conclusion that the trial judge was correct to conclude that for the Town to discharge its duty of care it needed to remove the diving blocks, and that the Town was in breach of duty by failing to remove the blocks prior to Mr Hodder's accident.
Did the engagement of the YMCA discharge the Town's duty of care?
The Town submits that it discharged its duty of care to entrants to the swimming pool by engaging the YMCA to manage the pool, as the YMCA was an experienced and competent manager of public recreation facilities including swimming pools. Although the submission was not expressly put in terms of delegation of duty, that is the substance of the submission.
Under the common law of England, the standard of care owed by an occupier of premises to entrants upon those premises was determined by reference to categorisation of different classes of entrants, such as licensees, invitees, trespassers, and so on. In Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, the High Court declared that the common law of Australia did not define the content of the duty of care owed by an occupier of land to entrants by reference to the legal classification of entrants developed under English common law.
Prior to the decision in Safeway Stores, in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 686 Mason J expressed the tentative view that an occupier's duty to an invitee was non‑delegable, in the sense that the duty could not be discharged by the engagement of a competent independent contractor, relying upon the earlier decision of the House of Lords in Thomson v Cremin [1956] 1 WLR 103, 106 ‑ 110. However, Mason J acknowledged that there was authority to the contrary, citing Voli v Inglewood Shire Council (1963) 110 CLR 74, 98; Davie v New Merton Board Mills Ltd [1959] AC 604, 644, and Lyons v Nicholls [1958] NZLR 409.
Following the abandonment of the identification of the content of the duty owed by occupiers to entrants by reference to the legal classification of entrants, in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the majority (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) referred to various categories of relationship in which the duty to take reasonable care was non-delegable in the sense that the person who owed the duty could not divest responsibility for its discharge by engaging a third person to fulfil the duty, so that the person upon whom the duty was imposed remained liable for the consequences of the duty not being fulfilled. The categories identified included master and servant, hospital and patient, and school and pupil. The category of occupier and invitee was described as 'arguably' being one of the categories of non‑delegable duty (550). However, more recently, in Leichardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22, Hayne J posed a question as to whether Mason J's identification of the duty owed by an occupier to an invitee as a non‑delegable duty survived the decision in Safeway Stores, although it was not necessary to resolve that question for the purposes of the case then at hand.
There is also authority for the proposition that contractual entrants, such as those who pay to enter premises (like Mr Hodder), can rely upon a warranty implied into the contract with the occupier to the effect that reasonable care has been taken to ensure that the premises are safe for their intended use - see Watson v George (1953) 89 CLR 409; Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 38, Voli v Inglewood Shire Council, 92 ‑ 93; Calvert v Stollznow [1982] 1 NSWLR 175, 180. In that class of case, because the basis of liability is contractual, the obligation falls upon the contracting party, usually the occupier, and the nature of the relationships between the occupier and others upon whom the occupier may have relied to discharge the contractual responsibility would be irrelevant. Although the statement of claim refers to Mr Hodder purchasing a ticket of entry to the pool, his claim does not appear to have been advanced on the basis of an implied warranty in the contract of entry, and the question of whether the contract was between Mr Hodder and the Town, or Mr Hodder and the YMCA does not seem to have been explored at trial, although on the face of it, it would seem that the relevant contract was with the Town, given that all entrance money received by the YMCA was deposited into a bank account on trust for the Town.
In this State, an occupier's common law duties have been modified by s 6 of the OLA which provides that:
Negligence of independent contractor
(1)An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if -
(a)the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b)it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
(2)Subsection (1) does not operate to abrogate or restrict the liability of an occupier for the negligence of his independent contractor imposed by any other Act.
In Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298, Malcolm CJ (Murray and Parker JJ concurring) referred to s 6 of the OLA in these terms:
The starting point in relation to s 6 is that, at common law, an occupier of premises owed a non-delegable duty of care to persons lawfully on the premises: Kondis v State Transport Authority (1984) 154 CLR 672 at 686, per Mason J. The effect of s 6 of the [OLA] is that while the occupier has a non-delegable duty, it is not liable for the negligence of an independent contractor engaged by the occupier where there has been no direct breach of duty by the occupier [59].
With respect, this observation is somewhat enigmatic, as the essence of a non‑delegable duty, in the sense in which that term is used in the authorities, is that it cannot be discharged merely by the engagement of an independent contractor, and the party upon whom the duty is imposed is liable for the failure of any such contractor to discharge the relevant duty. It is therefore difficult to see how the duty can be properly described as non‑delegable if the occupier is not liable for the negligence of an independent contractor.
It can thus be seen that the Town's submission to the effect that it adequately discharged its duty of reasonable care by engaging the YMCA potentially raises at least three interesting questions:
(a)whether the Town's duty as occupier was non‑delegable;
(b)whether the Town was liable to Mr Hodder as a contractual entrant, under the principles enunciated in Watson v George and subsequent cases; and
(c)the operation and effect of s 6 of the OLA.
It seems that none of these interesting issues were addressed by the parties at any length at trial, and they were certainly not addressed at any length on appeal, although reference was made to Kondis. This may be because the Town's submission can be shortly disposed of, having regard to the basis upon which it was found liable for breach of duty.
The Town was found liable to Mr Hodder for failing to exercise reasonable care by failing to remove the diving blocks at the shallow end of the pool which it knew created an unacceptable risk to users of the swimming pool. Under the management agreement with the YMCA, the Town had not delegated responsibility for decisions with respect to the performance of capital works. The authority of the YMCA was limited to the performance of minor works up to a value of $1,000. The YMCA had no power or authority to remove the diving blocks. Any contention to the effect that the Town had delegated that duty to the YMCA fails on the uncontested facts.
Arguably, the Town had delegated duties with respect to supervision of swimmers and the placement of signage at the pool to the YMCA. However, the Town was not found liable for breach of those duties, and the trial judge held that the YMCA's breach of those duties had not caused or materially contributed to Mr Hodder's accident.
It follows that the Town's submission to the effect that it had adequately discharged its duty of reasonable care by engaging the YMCA must fail, irrespective of the answer to the interesting legal issues to which I have referred.
Elimination of the risk
The Town complains that the trial judge imposed too high a duty upon the Town by requiring the Town to eliminate the risk. The Town relies upon various observations by members of the High Court in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 and in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330, and my observations in Shire of Gingin v Coombe [2009] WASCA 92; (2009) 169 LGERA 236, [48] ‑ [56], to the effect that the relevant duty is a duty to take reasonable care in response to a foreseeable risk, not an absolute duty to prevent all harm.
The correctness of the dicta to which the Town refers cannot be doubted. The real question is whether the trial judge imposed any different duty upon the Town by referring to the elimination of risk in the parts of his reasons to which the Town refers.
At the risk of repetition, the starting point for an analysis of that question is the observation that the trial judge found the Town liable for failing to remove the diving blocks which it knew posed an unacceptable risk to users of the swimming pool. The Town was not found liable because of any failure to guard against the general risk that swimmers might dive from the edge of the pool into shallow water and strike their head on the bottom of the pool, but only because of its failure to remove the diving blocks which posed a particular risk. I have already set out the passage in the reasons of the trial judge in which he identified the risks posed by the presence of the blocks, including the implicit invitation to dive from the blocks, the steepening of the likely angle of entry into the water, and the increase in the diver's velocity which in turn increased the risk of striking the bottom and the risk of injury in the event that the diver did strike the bottom of the pool.
It is therefore clear that when the trial judge refers in his reasons to the elimination of risk, he is referring to the elimination of the risk posed by the presence of the diving blocks, not to the elimination of all risk of harm arising from diving into the pool. This view is reinforced by the particular passages in which reference is made to the elimination of risk.
The first such reference is in par 236 of the reasons. That paragraph is concerned with the Town's submission that 'isolation' of the diving blocks by supervision, signage or mechanical means was an adequate response to the risk posed by the presence of the diving blocks. In that context, the trial judge observed:
It also would have been obvious as a matter of observation and common sense that supervision might mitigate the risk posed by the blocks to some extent but could not eliminate it.
In other words, the trial judge was there concerned with an evaluation of the various suggested means by which the risk posed by the presence of the diving blocks could be mitigated. He was making the obvious point that the various means of 'isolating' the diving blocks were necessarily less effective than removal of the diving blocks. Obviously if the blocks were removed, the various risks which the trial judge had identified as arising from the presence of the blocks were eliminated.
The next occasion upon which the trial judge referred to the elimination of the risks created by the presence of the blocks was at par 239 where he observed:
The removal of the blocks and the replacement with demountable blocks is one of those rare instances in which a particular risk can be eliminated at a modest cost.
Here also it is clear that the trial judge was referring to the 'elimination' of the risk created by the presence of the blocks, and the obvious fact those risks would be completely removed if the blocks were removed.
The trial judge also referred to the elimination of risk in pars 252 and 253 of his reasons. In par 252, he recites part of a submission of the Town which included the proposition that 'the danger was eliminated if the blocks were appropriately isolated by YMCA'.
The Town's submission in those terms was again repeated in par 253 of the reasons. In response to the Town's suggestion that isolation would eliminate the risk, the trial judge observed:
I am not satisfied that there was any reasonable or practical engineering solution to isolate the blocks, short of removing them. Isolation by 'signage and supervision' might mitigate the risk to some extent but could not, as the first defendant submits, eliminate the risk.
Here it is clear that the trial judge referred to the elimination of risk because that was the expression used by the Town in its submission. Whatever the source of the expression, it is clear from the context in which it is used that the trial judge was referring to the relative efficacy of the method of reducing risk proposed by the Town - namely, 'isolation' of the diving blocks, and the submission advanced on behalf of Mr Hodder to the effect that the duty of reasonable care required removal of the blocks because that was the most effective means of removing the risk posed by the presence of the blocks.
Viewed in their context, the references by the trial judge to the elimination of the risks posed by the presence of the diving blocks by their removal does not give rise to any inference or conclusion to the effect that he imposed any duty upon the Town other than the duty to take reasonable care in response to the foreseeable risk posed by the presence of the blocks, and of which the Town was aware. The Town's submission to the contrary must be rejected.
'Isolation' of the diving blocks
The Town submits that the trial judge erred by finding that there was no reasonable or practical engineering solution to the isolate the diving blocks. Although characterised in ground 1 of the Town's appeal as an error of law, it is clear from the written and oral submissions advanced in support of the proposition that this is the one error of fact which the trial judge is said to have made.
Lord Salvesen, in his judgment, explained the reasoning behind the directions he gave at trial. His Lordship also added (597):
When you come to the case of a blind or nearly blind person who is in the habit of using the streets, it is impossible, as it seems to me, to suggest a defence of contributory negligence. This hole in the pavement may be described as a trap which would certainly catch a blind person who was negotiating the pavement in his accustomed manner. It was a trap to an ordinary person, but the ordinary person had the advantage of a fairly prominent warning to keep him out of it. I think the case of Rennie v Great North of Scotland Railway Co (1905) 12 SLT 667 is an authority for the proposition that, on a question of contributory negligence, you are entitled to take into account the defective eyesight or other infirmity of a person who meets with an accident. If the case of Rennie had been brought by a person of normal eyesight, one would almost have been disposed, even at the discussion on the relevancy - it being admitted that the accident happened in broad daylight - to have held that it could not have occurred without want of care on the part of the person who allowed himself to drop down to the ground when he could see for himself that there was an unusual drop. But in the case of a blind person there was, in the judgment of Lord Low in that case, an averment sufficient to infer negligence against the railway company in inviting passengers to descend, when two of the carriages had not reached the platform and when the passengers could not descend with the same safety as they would have been able to do if the train for all its length had been along the platform. Therefore that case seems to me to be really a judgment upon contributory negligence, and the defective condition of the pursuer's sight was taken into account in negativing the view that he had been guilty of contributory negligence in the circumstances of that case. I think very much the same consideration applies here.
Lord Justice‑Clerk and Lord Dundas did not address this point. Their observations concerned the nature of the directions sought by the council at trial, and the question of the council's negligence. Lord Justice‑Clerk said, with respect to negligence (594):
I think the public authorities in a burgh or city such as Glasgow are bound to have the streets in an ordinarily safe condition for those who are using them, and I confess I demur to the view that blind people are not entitled to walk about the streets unless accompanied by some person in charge of them. I do not think that is the law. I think it is proved in this case that the Corporation recognised that there were blind people to an appreciable extent who were rightfully using the streets of the city, and we have it in evidence that there are several hundreds of blind people in Glasgow who regularly walk about the streets, and the Corporation themselves, from the most kindly of motives, recognise that by providing that the Corporation tramways shall carry them free of charge.
Accordingly, this pursuer was entitled to be on the street; and was entitled, in my judgment, to assume that the street was reasonably safe for her.
…
The averments of the pursuer were that the condition of the hydrant was a danger to the ordinary public, and the issue which was allowed was the ordinary issue - whether the pursuer had been injured in her person by the fault of the defenders. There was evidence to the effect that even to ordinary passengers this was a danger - no doubt much less likely to result in accident to an ordinary passenger than to a blind person; but I think it is impossible to say, dealing with the question of whether the verdict was contrary to evidence, that there was no evidence on which the jury were entitled to come to the conclusion that this hole should not have been left open with nothing but the swan neck and the turncock to give notice to those using the street. Witnesses gave evidence to that effect; and, if that were accepted by the jury, it would justify them in coming to the conclusion that there was negligence on the part of the defenders in leaving in a public street this open space without taking sufficient care to prevent it from being dangerous to anybody who was using the street and might inadvertently fall into the hole so left open. Therefore, I cannot come to the conclusion that the defenders have shown any sufficient ground for setting aside the verdict upon the ground that it was contrary to evidence.
As to the directions, Lord Justice‑Clerk said (595):
When a defender or one of the parties asks that some special affirmative direction should be given to the jury, it requires to be scrutinised very carefully, and I confess that I do not think this direction is one which, under any circumstances, a Judge would be in safety to give. It asks a direction to the effect that the defenders, being a corporation entrusted with seeing that the streets are safe to members of the public, are required to provide only for the members of the public who are normal in mind and body. I do not think that is a proposition which is sound in law at all. I think it is far too wide.
Then the direction goes on to say that a special duty to the blind does not arise, unless the special infirmity is brought directly to the defenders' notice in the individual instance. I do not suggest that there is any special duty to the blind of the city so far as the condition of the streets is concerned, but I think that public authorities have imposed upon them such a duty as requires them to see that the streets, and the pavements particularly, have not open holes in them into which either blind people or seeing people may stumble and fall, without fault on their part and merely in the ordinary course of passing along the street.
Lord Dundas agreed with Lord Justice‑Clerk and also observed (596):
But I may add that I also agree that the direction which he was asked to lay down was too widely stated and would require modification. It would not be easy to lay down in a sentence or a couple of sentences the whole law applicable to the subject; something must always depend upon the facts to which you are going to apply the law. I think in each case the jury would have to consider, with regard to a blind person, whether that blind person was, in the circumstances, fairly and reasonably treated by the Corporation or other defenders - whether he had or had not been duly warned and reasonably guarded. As I have said, I think it was unnecessary, and would have been unwise, for the judge to lay down any general proposition of that sort; and I see no reason why we should now lay down any general proposition further than the remarks which your lordship has made, in which I concur.
The case of Rennie v The Great North of Scotland Railway Co (1905) 12 SLT 667, to which Lord Salvesen had referred, involved, in effect, a strike‑out application on the basis that the plaintiff's claim was bound to fail by reason of the doctrine of contributory negligence. The plaintiff, who was blind, alleged that he was travelling on a train and that as the train approached the station, the carriage in which he was travelling did not pull up against the platform. Nevertheless, the name of the station was called out, and the plaintiff heard the carriage doors being opened and shut and it was open to him to infer that he was invited to alight. This the plaintiff did, dropping some distance on to the track and injuring himself. The question was, assuming those facts, could the matter be left to the jury? Lord Low said that it could.
Reference was also made to the English decision of Mansfield v Weetabix Ltd [1998] 1 WLR 1263. In that case a vehicle ran into the plaintiff's liquor shop. The driver, unbeknownst to him, had a malignant insulinoma, which led to a hypoglycaemic state, in which the brain was starved of glucose. He had an impaired degree of consciousness because of the malfunction in his brain, caused by the glucose deficiency (1266). It was this state which caused the accident (1265). The Court of Appeal overturned the judge's finding that the driver was negligent. Leggatt LJ said (1267):
A person with [the driver's] very rare condition commonly does not appreciate that his ability is impaired, and he was no exception. Although by the time of trial [the driver] was dead, and there was no direct evidence of his actual state of awareness, the judge held that he 'would not have continued to drive if he had appreciated and was conscious that his ability was impaired.' Of course, if he had known that it was, he would have been negligent in continuing to drive despite his knowledge of his disability. So also if he ought to have known that he was subject to a condition that rendered him unfit to drive: Waugh v James K Allan Ltd [1964] 2 Lloyd's Rep 1.
Aldous LJ agreed and said:
The standard of care that [the driver] was obliged to show was that which is expected of a reasonably competent driver. He did not know and could not reasonably have known of his infirmity which was the cause of the accident. Therefore he was not at fault. His actions did not fall below the standard of care required.
Sir Patrick Russell agreed with Leggatt and Aldous LJJ.
This was a case in which the impaired consciousness supervened to create the risk of damage or injury in carrying out the activity in which the defendant was already engaged. It does not seem to me to warrant any departure from the conclusions reached in [345] to [346] above.
It remains to consider, however, the position under the Civil Liability Act 2002 (WA).
The Civil Liability Act 2002 (WA)
Section 5K of the Civil Liability Act 2002 (WA) (the Act) provides:
5K.Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The principles 'applicable in determining whether a person is liable for harm caused by the fault of the person', include those in s 5B of the Act: see Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [27]. Section 5B of the Act provides:
5B.General principles
(1)A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
The question posed by s 5K(1) is, in effect, whether the plaintiff who has suffered harm has been contributorily negligent 'in failing to take precautions against the risk of that harm'. For the purpose of determining that question, the plaintiff is, in effect, required to meet the standard of a 'reasonable person' in the position of the plaintiff and the matter is to be determined on the basis of what the plaintiff knew, or ought to have known at the time: s 5K(2). Section 5K(1) provides that a different standard does not apply as between the plaintiff and defendant when considering the respective questions of negligence and contributory negligence. In this regard, s 5K(1) appears to me to preclude the application of different standards referred to by Menzies J in McHale v Watson (223, 224). The words 'a reasonable person in the position of that person' in s 5K(2) are, in my view, to be read as a whole. The words 'in the position of that person' are not to be read as separately conveying that a subjective standard is to be applied in determining questions of contributory negligence.
That construction appears to me to be consistent with authority.
With reference to cognate legislation in New South Wales (in which the provision concerning contributory negligence appears in s 5R of the Civil Liability Act 2002 (NSW)), in Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81‑818 [85] ‑ [87], Ipp JA (Spigelman CJ & Tobias JA agreeing) said:
In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 I pointed out that s 5R reflects the concept expressed by Callinan and Heydon JJ in Vairy v Wyong Shire Council [2005] HCA 62 at [220], namely, that the duty to take reasonable care for one’s own safety does not 'disregard the burden, by way of social security and other obligations that a civilised and democratic society will assume towards [a plaintiff] if he is injured'. I also noted that it embodies the expectation, expressed in the Negligence Review at para 8.10, that 'people will take as much care for themselves as they expect others to take for them'.
These concepts, however, have to be tempered where the plaintiff is a child: see the discussion by Bryson JA in Doubleday v Kelly at [24] to [26]. I respectfully agree with Bryson JA that the characteristics of a reasonable person in the position of 'that person' in s 5R(2)(a) include the characteristics of being a child (where the plaintiff is a child).
Section 5R is in accord with Recommendation 30 of the Negligence Review and the words 'reasonable person in the position of that person' are equivalent to the words 'a reasonable person in the plaintiff's position' in Recommendation 30(a). In para 8.12 of the Negligence Review the following was said:
It is important to note that applying the same standard of care to contributory negligence as to negligence does not entail ignoring the identity of the plaintiff or the nature of the relationship between the plaintiff and the defendant. If, for instance, the defendant was an adult and the plaintiff was a child, applying the same standard of care to the plaintiff as to the defendant would not entail treating the plaintiff as an adult (any more than it would entail treating the defendant as a child). Again, if the defendant was a teacher and the plaintiff was a pupil … it would be perfectly consistent with applying the same standard of care to both parties to take account of the fact (for instance) that there is a relationship of authority between teacher and child … The requirement to apply the same standard of care in dealing with the issue of contributory negligence as is applied in dealing with that of negligence means only that the plaintiff should not be treated differently from the defendant merely because the plaintiff is the person who has suffered harm.
The remarks of Bryson JA are in accord with these observations.
The 'Negligence Review' in this passage is a reference to the 'Review of the Law of Negligence Final Report' dated 30 September 2002, delivered to the Commonwealth Minister for Revenue and Assistant Treasurer by the Hon David Ipp, Professor Peter Cane, Associate Professor Don Sheldon and Mr Ian McIntosh.
Those observations have, in effect, been applied in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports 81‑949 [14], where McColl JA (Mason P & Beazley JA agreeing) said:
The words 'reasonable person in the position of that person' in s 5R are equivalent to the words 'a reasonable person in the plaintiff's position': Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81‑818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects 'the expectation that, in general, people will take as much care for themselves as they expect others to take for them': Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81‑815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).
Also, with reference to s 5R of the New South Wales statute, in Nominal Defendant v Meakes [2012] NSWCA 66 [80], Sackville AJA (McColl JA agreeing) said:
The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; 38 MVR 41; [2003] HCA 34 at [32], [34], [38] per McHugh J; CL Act, s 5R(2).
The references in the above passage to McHugh J's judgment in Joslyn v Berryman included his Honour's observations (at [34]) to the effect that the statements by Jordan CJ in Cotton v Commissioner for Road Transport and Stable J in Daly v Liverpool Corporation did not represent the law and that '[n]o‑one would now suggest that the standard of care expected of a defendant is that which the defendant "is in fact capable of"'.
In Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525, Meagher JA, with whom Tobias AJA agreed, referred, at [20], to the passage from Nominal Defendant v Meakes, quoted above, but at [22] stated that the reference to 'a reasonable person in the position of that person' within the meaning of s 5R(2)(a) of the New South Wales Act 'reflects the position under the common law as stated by McHugh J in Joslyn at [32] and [33]'. It is to be noted that at [32] ‑ [33] of McHugh J's judgment, McHugh J referred to the statements by Stable J in Daly v Liverpool Corporation and Jordan CJ in Cotton v Commissioner for Road Transport before indicating, in effect, that he did not regard them as good law. Accordingly, Meagher JA made no reference to the passage in [34] of the reasons of McHugh J in Joslyn to the effect that the statements in those cases did not represent the current state of the law in Australia. Insofar as Smith v Zhang suggests that s 5K is to be read in conformity with Menzies J's statement in McHale v Watson of the common law position with respect to contributory negligence, it seems to me, with respect, to be a departure from the statutory test as construed in the authorities referred to earlier.
For these reasons, in my view, s 5K requires the application of an objective test to Mr Hodder's conduct in diving into the swimming pool in this case.
Disposition
The judge found that Mr Hodder subjectively 'lacked any real insight into the question of danger' posed by his dive into the pool (reasons [356]). His Honour nevertheless, held that contributory negligence was required to be determined by reference to an objective standard (reasons [329], [350]). For the reasons given earlier, in my view, his Honour was correct in that regard. His Honour found that Mr Hodder was negligent. The negligence was not in the execution of the dive in an inept manner, but in diving when he knew, or ought to have known, that he could not do so safely, having regard to the height of the block, the ascertainable depth of the water and his own inexperience and lack of skill (reasons [339], [342], [354] ‑ [355]). In my view, his Honour was correct so to find.
For the purposes of apportionment, the judge also found, in effect that (reasons [359] ‑ [361]) :
(a)Mr Hodder would not have dived as he did, but for the provision of the blocks by the Town;
(b)the Town had had 'years of forewarning' of the risk, and in particular the risk posed to recreational swimmers untrained and inexperienced in proper diving techniques, and had done nothing about it (thereby finding, in effect, that the Town's departure from the standard of care was very substantial);
(c)the removal of the risks would have been easily achieved and relatively inexpensive;
(d)Mr Hodder's decision to dive was careless, but was, in the circumstances, the very sort of thing that was commonly done;
(e)it was a kind of impetuous behaviour which was common amongst users of the pool in the hot summertime in this far northwest town; and
(f)it was important, in assessing the level of apportionment, that Mr Hodder did not endanger the Town or anyone else.
His Honour had earlier found, at [311] and [342], that the diving blocks had constituted an invitation to dive, which Mr Hodder had accepted. His Honour also took into account (reasons [361]) in apportioning responsibility, the fact that the appellant had not been subjectively aware of the risk he was undertaking. There does not seem to me to be any error in that regard. His Honour was not applying a different standard to Mr Hodder in determining whether he was negligent, but was, in effect, comparing the Town's years of knowledge of the risk with Mr Hodder's absence of actual knowledge, and bringing those factors into account in apportionment.
In respect of the Town's appeal, the Town contended that the judge's assessment of the plaintiff's contributory negligence was manifestly inadequate (ground 5). The Town challenges the finding at [342] that regard should not be had to the manner in which Mr Hodder dived into pool, but only the fact that he decided to, and did dive. The Town contends that Mr Hodder's negligence was 'extreme' in that he dived from a height, into water with a depth marked at 1.2 m, headfirst with his hands by his sides, and at an angle of 45 degrees. It is said that all of this made it 'practically inevitable' that Mr Hodder would suffer spinal injury.
In my view the judge was correct in the approach that he took. The diving blocks presented an invitation to all pool users to dive into the pool at that depth of water. The invitation was extended to the skilled and unskilled. Reasonable people, both skilled and unskilled in diving, would have checked the depth before deciding whether to dive. People skilled in diving acting reasonably, having checked the depth, would then have tailored their dive accordingly. People unskilled in diving acting reasonably, having checked the depth, would not have dived at all. Mr Hodder was negligent in the latter respect, and not in an 'extreme' lack of care in his execution of the dive. Even if, contrary to the above, Mr Hodder's negligence consisted in his improper execution of the dive, the judge's apportionment was still open. The judge appeared to accept the evidence of Professor Blitvich to the effect that, based on various studies, the angle of entry of divers from a diving block (that was lower than the diving block in this case) ranged from 34 degrees to 60 degrees (reasons [193]). His Honour also appeared to accept Professor Blitvich's evidence to the effect that it was not uncommon for people of university age to leave their head exposed, as Mr Hodder's head was, at the deepest part of their dive (reasons [341]). It was open to conclude that in the circumstances of this case, for the purposes of apportionment, whilst Mr Hodder's dive may have been inept, its angle and the exposure of his head at the deepest part of the dive were not so egregious as to warrant a higher discount.
In respect of Mr Hodder's appeal, it was contended in effect, that the trial judge ought to have found that the reasonable person for present purposes was a reasonable person within the class of person disabled by physical and/or mental impairments (ground 3) and that the judge erred in applying an objective test for contributory negligence contrary to s 5K of the Act (ground 7). For the reasons given earlier, I would reject these grounds.
Mr Hodder also contended that the judge erred in applying an objective test for contributory negligence when Ms Cooper, who was (allegedly) acting as an agent for the Town, had actual knowledge of Mr Hodder's apparent physical and mental disabilities (ground 5), and erred in assessing contributory negligence by not taking into account that Ms Cooper, who should have been, but was not supervising the pool, had actual knowledge of his apparent physical and mental disabilities (ground 4). In respect of these contentions, I agree with the Chief Justice's reasons as to the limited scope of Ms Cooper's knowledge of Mr Hodder's particular disabilities. In any event, Ms Cooper was the agent of the YMCA, not the Town. No adequate basis has been shown by Mr Hodder for attributing knowledge to the Town. Moreover, as noted above, the primary judge did not err in applying an objective test.
Mr Hodder also contended that the judge erred in fact in failing to find that Mr Hodder's actions in diving from the block did not constitute a lack of care for his own safety, but resulted from the invitation to dive from the block which he was entitled to consider was safe (ground 6). In this respect, it was submitted that Mr Hodder was entitled to rely on the Town having fulfilled its duty (citing Astley [30]) and that he was not required to investigate whether the water was deep enough to allow him to dive safely. In my view, no error is shown. The judge found that the diving blocks constituted an invitation to dive, which was accepted. However, there was no special duty owed to Mr Hodder. Diving carries with it inherent risks, and notoriously, risks of injury to the head and neck, and thereby spinal injury. Those risks must be taken to be known by reasonable persons using the pool, whether the users of the pool were in fact locals in Port Hedland, or visitors or new residents to the area from other parts of this State such as Perth, or other parts of Australia such as Sydney or Melbourne. In the application of the objective standard, in my view, a reasonable user of the pool would have checked its depth before taking the decision to dive. Accordingly, I would dismiss ground 6 of Mr Hodder's appeal. Ground 8 of Mr Hodder's appeal was a 'wrap up' ground and does not require separate attention.
His Honour ultimately apportioned 90% to the Town and 10% to Mr Hodder. The apportionment is undoubtedly at the lower end of a proper range for contributory negligence, but in my view it cannot be said to fall outside a proper exercise of the evaluative judgment required in this context.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOWN OF PORT HEDLAND -v- REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER [No 2] [2012] WASCA 212 (S)
CORAM: MARTIN CJ
McLURE P
MURPHY JA
HEARD: ON THE PAPERS
DELIVERED : 19 DECEMBER 2012
FILE NO/S: CACV 123 of 2011
BETWEEN: TOWN OF PORT HEDLAND
Appellant
AND
REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER
First RespondentTHE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
FILE NO/S :CACV 127 of 2011
BETWEEN :REECE WILLIAM HODDER BY NEXT FRIEND ELAINE GEORGINA HODDER
Appellant
AND
TOWN OF PORT HEDLAND
First RespondentTHE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
Citation :HODDER by his next friend ELAINE GEORGINA HODDER -v- TOWN OF PORT HEDLAND [2011] WADC 145
File No :CIV 1316 of 2008
Catchwords:
Costs - Special costs orders - Counsel fees
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Supreme Court Act 1935 (WA), s 37(1)
Result:
Application for special costs order dismissed
Category: B
Representation:
CACV 123 of 2011
Counsel:
Appellant: Mr S Walsh QC & Mr J Campbell
First Respondent : Dr A S Morrison QC & Mr G Droppert
Second Respondent : Mr D R Clyne
Solicitors:
Appellant: DLA Piper Australia
First Respondent : Donna Percy & Co
Second Respondent : SRB Legal
CACV 127 of 2011
Counsel:
Appellant: Dr A S Morrison QC & Mr G Droppert
First Respondent : Mr S Walsh QC & Mr J Campbell
Second Respondent : Mr D R Clyne
Solicitors:
Appellant: Donna Percy & Co
First Respondent : DLA Piper Australia
Second Respondent : SRB Legal
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
JUDGMENT OF THE COURT:
Introduction
These reasons are concerned only with one aspect of the costs orders following from the resolution of these appeals, for reasons which were published as Town of Port Hedland v Hodder [No 2] [2012] WASCA 212. These short reasons should be read with those reasons, which describe the appeals, the issues which arose in the appeals, and their resolution.
The appeals
Put shortly, Mr Hodder brought proceedings claiming damages for personal injuries which he suffered while using a swimming pool owned by the Town of Port Hedland and managed on behalf of the Town by the YMCA. Mr Hodder claimed damages against both, and the Town claimed contribution and indemnity from the YMCA. The trial judge found that the Town was liable, but the YMCA was not, and accordingly Mr Hodder's claim against the YMCA, and the Town's claim against the YMCA for contribution and indemnity were each dismissed. The damages awarded against the Town were reduced by 10% because of the finding of contributory negligence made by the trial judge.
There were two appeals from that decision. The Town asserted that the trial judge was wrong to find the Town liable to Mr Hodder in negligence and to dismiss its claim for contribution and indemnity against the YMCA. The Town also asserted that the deduction made for contributory negligence was inadequate.
Mr Hodder also appealed. Like the Town, he challenged the conclusion of the trial judge to the effect that the YMCA was not liable. He also challenged the finding of contributory negligence.
The court unanimously dismissed the Town's appeal in its entirety, and Mr Hodder's appeal insofar as it challenged the finding that the YMCA were not liable to him. However, by a majority, Mr Hodder's appeal against the finding of contributory negligence was upheld (for differing reasons).
The costs orders made
When our reasons were published, orders were made by consent in each appeal to the effect that the Town pay the costs of the other parties to be taxed, if not agreed, in one bill. Liberty to apply for any special costs orders governing the taxation was reserved.
The orders sought
Orders are sought on behalf of Mr Hodder to enable his costs to be taxed without regard to the limits imposed by items 23(g) and (h) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) which impose limits upon the amounts which may be awarded in respect of counsel fees on an appeal. These are the only orders sought.
The evidence
The application is supported by an affidavit sworn by the solicitor acting on behalf of Mr Hodder. She deposes that senior counsel rendered an account for services related to the appeal calculated on the basis of 8.5 days of preparation and two days of hearing, at a daily rate of $7,700 inclusive of GST. In addition, an amount has been charged for expenses incurred during time spent in Perth, given that senior counsel is not normally resident in Perth.
Junior counsel has rendered an account on the basis of four days of preparation and one day's attendance at the hearing of the appeal at the rate of $3,410 per day inclusive of GST.
The solicitor's affidavit also annexes a report dealing with the importance of the need for high quality care for Mr Hodder over the balance of his life.
The scale
The maximum amount allowable for senior counsel under item 23(h) of the scale is $18,150 plus $6,050 for the second day of the hearing of the appeal pursuant to item 23(j). The maximum amount allowable under item 23(g) of the scale for junior counsel is $10,230 plus $3,410 for the second day of hearing of the appeal pursuant to item 23(i). It is apparent that the scale items covering preparation and the first day of hearing of the appeal have been stipulated on the basis of an allowance of two days preparation and the first day of hearing at rates of $6,050 per day for senior counsel, and $3,410 per day for junior counsel. In all cases, the rates in the scale are inclusive of GST.
It is therefore apparent that in the case of the limit applicable to senior counsel, the application is brought on the basis that the limit should be lifted to enable the taxing officer to consider whether an amount should be allowed which reflects additional time in preparation, and a higher rate than that contemplated by the scale limit. In the case of junior counsel, given the concession by the Town to which I will shortly refer, there is no need to increase the limit imposed by the scale to enable the taxing officer to allow the fees charged by junior counsel in full.
The Town's position
The Town opposes the application. However, by its written submissions, it accepts that because there were two appeals, the limits applied in items 23(g) and (h) should be doubled, notwithstanding the order to the effect that the costs be taxed in one bill. Although that proposition might be contentious, the concession is clearly and unequivocally made, and would no doubt bind the Town in any taxation. Given that concession, the question becomes whether special orders should be made to enable the taxing officer to allow counsel fees greater than those which would be assessed on the basis of four days of preparation and two days of hearing at the maximum daily rate implicit within the scale limit. In the case of junior counsel, the answer to that question is apparent, as the fees actually charged by junior counsel are less than the limit calculated in accordance with the Town's concession.
The principles to be applied
The relevant principles to be applied in resolving this question are not contentious. Special costs orders can be made either pursuant to s 280(2) of the Legal Profession Act 2008 (WA), or pursuant to s 37(1) of the Supreme Court Act 1935 (WA). In either case, before the power will be exercised, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination (see Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) [11]). If that threshold is crossed, under s 280(2) other questions arise for determination. However, until that threshold is crossed, the power will not ordinarily be exercised.
Issues of the kind which arise when special costs orders are sought are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.
The application of the principles in this case
Having regard to the concession made by the Town, on taxation the taxing officer will have the power to allow amounts for each of senior and junior counsel up to a maximum calculated on the basis of four days of preparation and two days of hearing at the maximum daily rate implicit in the scale. In our view, there is no reason to suppose that more than four days preparation was required for these appeals on the part of either counsel given that the bulk of the issues in the appeals involved the application of conventional principles of law to facts found by the trial judge which were not contentious. The issue of contributory negligence was more complex, but the relevant authorities were not overwhelmingly extensive, and the issues could have been readily researched and prepared within the time for preparation allowed by the scale. The appeal itself occupied less than two days of hearing.
So far as the daily rate of senior counsel is concerned, there is no evidence to the effect that appropriate counsel could not have been obtained at the maximum daily rate implicit in the scale.
So far as travel expenses are concerned, the choice of senior counsel resident in another State, gives rise to costs properly borne by the party engaging such counsel, and should not be included within party and party costs on taxation.
For these reasons, having regard to the concession made by the Town, the maximum amounts allowable in respect of counsel fees under the applicable scale are adequate, and the application for special costs orders should be dismissed. The Town should have its costs of responding to that application, to be taxed if not agreed.
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