Uzabeaga v Town of Cottesloe - [2002] WADC 71

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: UZABEAGA -v- TOWN OF COTTESLOE [2002] WADC 71

CORAM: YEATS DCJ

HEARD: 3-13 DECEMBER 2001

DELIVERED : 12 APRIL 2002

FILE NO/S: CIV 359 of 1995

BETWEEN: LUIS ALBERTO UZABEAGA
Plaintiff
AND
TOWN OF COTTESLOE
Defendant

Catchwords:

Negligence - Occupier's liability - Adequacy of signs prohibiting diving from the groyne at Cottesloe Beach - Adequacy of supervision and enforcement of the diving prohibition - Whether the defendant breached its duty of care by failing to make a by-law prohibiting diving from the groyne - Whether the defendant breached its duty of care by failing to excavate the seabed - Whether the defendant breached its duty of care by failing to erect a barrier fence - Breach of duty of care because of inadequate signage - Breach did not cause or contribute to the plaintiff's injuries - No liability

Legislation:

Local Government Act 1960

Occupiers' Liability Act 1985

Result:

Liability not established

Representation:

Counsel:

Plaintiff: Mr T Lampropolous & Mr M E Herron
Defendant: Mr J Gilmour QC & Mr C C Rimmer

Solicitors:

Plaintiff: Gibson & Gibson
Defendant: Jackson McDonald

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

Aubrey v Carter [1962] WAR 51
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Chappel v Hart (1998) 195 CLR 232
Clark v Ryan (1960) 103 CLR 486
Commissioner for Railways (NSW) v Anderson (1990) 105 CLR 42
Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Curley v Fremantle Port Authority (1999) 21 SR (WA) 148
Executive Director of Health v Lily Creek International Pty Ltd & Ors (2000) 22 WAR 510
Farrell v R [1998] HCA 50
Gough v Thorne [1966] 1 WLR 1387
Inverell Municipal Council v Pennington (1993) A Tort Rep 81-234
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
Jones v Dunkel (1959) 101 CLR 298
Murphy v R (1989) 167 CLR 94
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Nominal Defendant v Owens (1978) 22 ALR 128
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Prast v Town of Cottesloe (2000) 22 WAR 474
Prast v Town of Cottesloe [1999] WADC 116
Pyrenees Shire Council v Day (1998) 192 CLR 330
R v Turner (1975) QB 834
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
SGIO v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Tonich v Macaw Nominees Pty Ltd, unreported, FCt SCt of WA; Library No 940119; 11 March 1994
Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139
Yachuk v Oliver Blais Co Ltd [1949] AC 386

Case(s) also cited:

Brodie & Anor v Singleton Shire Council (2001) 180 ALR 145
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Bus v Sydney County Council (189) 167 CLR 78
Indigo Shire Council v Pritchard [1999] VSCA 77
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Scarf v State of Queensland, unreported SCt of Qld; BC9805715; 30 October 1998
The Council of the Municipality of Waverley v Bloom (1999) A Tort Rep 81‑517
Western Australia v Dale & Anor (1996) 15 WAR 464
Western Australia v Watson [1990] WAR 248

INDEX

Cottesloe Beach and the groyne
The plaintiff
The accident

Signs

Incidence of jumping and diving from the groyne
Supervision and enforcement of the diving prohibition
Expert evidence

Professor Laurence Richard Hartley
Mr Geoffrey Keith McElroy
Dr Jennifer D Blitvich
Mr Bruce Leonard Prance

Findings on credibility
Admissibility and credibility of expert evidence
Duty of care
Standard of care
Findings of fact
Breach of duty of care
Diving from the dive rock
Adequacy of warning signs
Failure to adequately supervise and to make and enforce a by-law
Failure to excavate the seabed
Failure to erect a barrier fence

Causation
Volenti non fit injuria
Contributory negligence
Quantum of damages
Summary of decision

YEATS DCJ: The plaintiff claims damages for injuries suffered on 1 March 1993 when he dived from the groyne at Cottesloe Beach and as a consequence became a complete tetraplegic. The trial concerned the issue of liability as well as the quantum of damages but the parties have been able to agree quantum with the exception of one rather minor item. The primary issue at trial is the defendant's liability for the plaintiff's injuries.
This case differs from most diving cases because the defendant had posted signs prohibiting diving from the groyne and its beach inspectors and surf patrols regularly warned people not to dive. The plaintiff's principal contentions are that the signs were inadequate and the level of supervision was inadequate because of the number of young people who continued to dive from the groyne despite the prohibition.
The plaintiff brings his case in reliance on the Occupiers' Liability Act 1985 and in negligence. The defendant denied liability and pleads voluntary assumption of risk (volenti non fit injuria) and contributory negligence on the part of the plaintiff.

Cottesloe Beach and the groyne

The defendant is a body corporate pursuant to s 9 of the Local Government Act 1960. At all material times it was the occupier of the land described as Reserve Class A6896 pursuant to an order in Council published in the Government Gazette on 17 January 1936 vesting the land in the defendant pursuant to s 33 of the Land Act 1933 for the purpose of recreation.
Cottesloe Beach is part of that reserve. It comprises all land west of Marine Parade from Vlamingh Memorial in the south to the junction of Marine Parade and North Street to the north (Exhibit 32, p 2). The area is described as Perth's premier beach front (Exhibit 32, p 2). The defendant's care and control of the beach benefits not only Cottesloe residents but all West Australians as well as interstate and international visitors. In its 1978 "Cottesloe Beach Report" the defendant noted that Cottesloe Beach enjoyed year round popularity for swimmers, fishermen and strollers with ideal surf‑boarding conditions during winter storms. The defendant's reports on Cottesloe Beach in 1978 and 1995 show ever‑increasing popularity and usage of the beach.
Cottesloe Beach has been described as the most developed beach in the Perth metropolitan area. It has a very long history even prior to its vesting in the defendant. Mr Don Morrison (Exhibit 39), a long time Cottesloe resident who has been a member of the Cottesloe Surf Life Saving Club for over 60 years since 1938, described diving and jumping off a jetty which used to be at Cottesloe Beach and then catching waves back to shore. That jetty is long gone. In about 1960 a groyne was built at Cottesloe Beach. The groyne extended in a north westerly direction from Mudurup Rocks as depicted in the attachment to Exhibit 5 and in the photographs in Exhibits 1 and 2. The groyne consists of a pile of large rocks set on the sandy seabed. A concrete pathway has been built on the groyne to enable easy access. The defendant's reason for building the groyne was to conserve beach sand on its northern beaches, particularly Cottesloe Beach. The defendant's Draft Coastal Management Plan of May 1986 (Exhibit 21) states at p 23:
"Mudurup Rocks groyne was built in 1960 to collect sand during north‑west wave conditions. After 26 years it can be seen that conditions along beaches to the north have improved."
The groyne comprises the southern boundary of the main swimming area at Cottesloe Beach.
The defendant has encouraged the use of the beach and the groyne by constructing a bitumen and concrete path leading from the car park to the groyne and by constructing concrete steps leading from the beach to the groyne. It also maintains lighting on the groyne and other areas of Cottesloe Beach. The defendant has encouraged public use of the beach by constructing and maintaining change rooms, toilets, a children's swimming pool and shade houses. A beach volley-ball court and volley-ball are available to beach users.
The defendant first regulated activities on Cottesloe Beach by making By‑law No 3 relating to beaches and reserves published in the Government Gazette on 7 August 1963 (Exhibit 30). The by-law regulates conduct generally and specifically deals with public activities, dogs and livestock, fishing, boats, camping and bathing. The by-law is directed to the safety of swimmers and beach users and gives authority to beach patrols provided by the Cottesloe Surf Life Saving Club on weekends and public holidays during the warmer months between October and April. The by-law authorises the appointment of beach inspectors who patrol the beach generally from 6.00 am to 6.00 pm (or until dark) year round.
The 1963 by-laws were in force on the date of the accident but have since been revoked and replaced by the Town of Cottesloe Beaches and Beach Reserves Local Law No 3 published in the Government Gazette on 11 December 1998 which, in turn, was revoked and replaced by the Beaches and Beach Reserves Local Law No 3 published in the Government Gazette on 14 April 1999.
For the purposes of the trial the plaintiff arranged for Mr Frank Rodda, a licensed surveyor, to prepare a detailed survey of the surface of the north eastern side of the groyne from the beach to the end of the groyne. This involved measuring the shape and size and height of the rocks comprising the groyne. Mr Rodda was provided with the photographs (Exhibits 2 and 3) and, from those, concentrated on what has become known as the "dive rock" – a rock located on the north side of the groyne as depicted in the enlargement drawing in the groyne survey (Exhibit 3). The location of the dive rock was determined based on the photographs which show persons jumping and diving from the rock (Plaintiff's Book of Documents: Vol 1, pp 29 – 34).
Mr Rodda's survey was a land based survey conducted on 30 March 1995, some two years after the accident. The survey depicts the rocks as they were in 1995 and relies on the sea levels supplied to Mr Rodda by the Department of Transport based on Tide Datum for Fremantle and the Cottesloe Area on 1 March 1993 from 1200 to 1500 hours (Exhibit 4). Mr Rodda conceded in his evidence that groynes move and sand beds move. The sea level he depicts takes no account of waves or the swell. He did, however, believe the dive rock to have remained the same as was depicted in the photos (Exhibits 1 and 2). I note, of course, that those photos were not themselves taken at the time of the accident. Exhibit 1 was taken on 8 November 1993, some eight months after the accident, and Exhibit 2 was taken on 22 January 1994, some 10 months after the accident. Thus Mr Rodda's survey can, at best, only be relied upon as an approximation of the groyne and the sea level. The exact depth of the water at the time of the accident is not known. The evidence at trial established that the accident occurred closer to 1700 hours on 1 March 1993 and not between 1200 and 1500 hours as in the datum provided to Mr Rodda.
Nonetheless the survey is of some value, particularly given the assurance of Mr Rodda that the position of the dive rock remained the same from the 1993 photos to the time of the 1995 survey. That information assures me that Mr Rodda's survey at least shows the horizontal distance the diver must cover in order to clear the rocks before entering the water. Mr Rodda calculated that distance as 1.6 metres (T109).
Mr Rodda depicted the dive rock as 2.18 metres above the water at the time of the accident. He said the concrete path on the groyne was 3.7 metres wide and the dive rock was located 7.3 metres beyond the position of the light pole. Mr Rodda calculated the depth of sea at the dive rock as 1.74 metres based on the sea level datum provided to him and the sand seabed as it was in March 1995. At the northern‑most corner at the end of the groyne Mr Rodda measured the depth of the sea as 3.96 metres.

The plaintiff

The plaintiff was born on 29 March 1978 in Chile. He never knew his mother and lived with his godparents until he was 8 or 9 years old when he travelled to Australia to reside with his father and his father's then partner, Gemina, in Canberra. He remained in Canberra for several years, then came to Western Australia for a period of time before returning again to the eastern states. When he was 12 or 13 years of age in 1990 or 1991, he returned permanently to Western Australia with his father and his father's new partner, Ana. The family lived in South Fremantle and the plaintiff attended South Fremantle Senior High School in Years 8 and 9.
The plaintiff was a somewhat troubled youth while in South Fremantle and spent time as a street kid living away from his father's home. The plaintiff described street kids as kids "…kicked out of home whose parents don't want them any more because they are too much trouble…". The plaintiff's troubles included car stealing and breaking and entering offences. He had been involved in a number of car stealings, most recently on Australia Day in 1993 when he stole the keys to his friend Eduardo's car and used the car to drive a group of street kids to the Sky Show. The plaintiff admitted he knew it was against the law and that it was wrong to steal the car and to drive when he was only 14 years old. He said he did care that it was against the law but he did it anyway.
The plaintiff had no experience with swimming or with water activities while in Chile. He was a soccer player. He played soccer for Chile and was also chosen for State soccer. When the plaintiff moved from Chile to Canberra he attended swimming classes where he learned how to swim and float and to always jump into water feet first to check the depth of the water to see whether it was safe to dive.
In Western Australia the plaintiff and his friends played soccer during the soccer season from May to late November or early December. When the soccer season ended they went to the beach. The boys went with their families to Rockingham Beach once or twice each weekend. They visited Cottesloe Beach during the week ‑ sometimes as often as three times each week. They would generally spend five or six hours at Cottesloe Beach where they played soccer and volley-ball, swam and jumped and dived from the groyne. The plaintiff said the lifesavers provided a volley-ball for their use on the beach.
At Rockingham Beach the plaintiff visited the area near the second jetty. The plaintiff and his friends jumped and dived from that jetty and did "bombies" and back flips from the jetty. The plaintiff described "bombies" as "getting up on the pole and just diving like scrunched up and then the water would splash everywhere." Back flips involved standing on the jetty with his back to the water, diving backwards and doing a somersault so that he landed feet first in the water. The plaintiff described himself as a very good swimmer.
The plaintiff's first visit to Cottesloe Beach was with his family in 1990 or 1991. After that he visited with his friends. The plaintiff gave evidence that he saw people diving and jumping from the groyne "all the time" at Cottesloe Beach. He said they were mainly kids his age, teenagers and young adults about 13, 14 to 16 or 17. He was unable to recall when he first dived or jumped from the groyne but admitted he used to do it. Not wanting to feel like the odd one out he said he joined the rest of the kids. He thought he started jumping and diving from the groyne on about his second or third visit to the beach.
The plaintiff said he always jumped in feet first before diving to make sure there weren't any rocks under the water. He said he and his friends always jumped or dived from a smooth rock just after the light pole on the north side of the groyne. After jumping in and checking for rocks and sand the plaintiff would swim back to the groyne, climb up to the same smooth rock and dive. He said he always did a shallow dive with his hands over his head. He said he knew not to do a steep dive from the groyne. He did more of a shallow racing dive, coming up straight away. He said it would have been stupid to dive in a steep dive with his head down.
The plaintiff had swum out to the pylon or "Bell" located north of the groyne in the water off Cottesloe Beach's main swimming area. He found the pylon was too high and too scary to dive from but he jumped off it. The plaintiff said he only did that once. Otherwise all his jumping and diving was from the groyne at Cottesloe Beach.
The plaintiff admitted that he thought about the depth of the water he was jumping and diving into and he admitted that he talked to his mates about making sure the water was deep enough to dive into, but he said there was no particular reason for making sure the water was deep enough. The plaintiff denied it had ever occurred to him that if he dived into water that was too shallow he might injure himself. He said he had never thought of it.
The plaintiff agreed that after he jumped in the water he would only dive in if the water was up around his neck level. Otherwise he believed it would have been unsafe. He also checked underneath the water to make sure there were no rocks - that the seabed hadn't changed since the last time he dived.
In evidence and in his interrogatories (Exhibit 12) the plaintiff admitted that he had dived hundreds of times from the groyne prior to the accident on 1 March 1993. He also admitted in his interrogatories that one month prior to the accident he dived from a position on the groyne about 10 metres closer to the beach where the water was about 1.5 metres deep. On that occasion he struck part of his body on the seabed. The plaintiff was unable to recall that incident when he gave evidence at trial.

The accident

The plaintiff and two of his friends who were at the beach with him that day, Cristian Araya and Osman Alvarez, gave evidence about the accident. The plaintiff conceded that as a result of the injuries he suffered in the accident his memory has been affected, including his memory of events prior to the accident. The plaintiff could not recall what time he went to the beach on 1 March 1993. He remembered that Eduardo Jorquera drove to the beach that day and invited him to come along. Besides the plaintiff and Eduardo, Eduardo's brother, Jamie Jorquera, Ivan Diaz, Cristian Araya, Osman Alvarez and Rodrigo Cortes came along. They parked on Marine Parade and walked down the stairs and followed the path to the groyne. The plaintiff's recollection is that they went directly to the groyne and did not play soccer or volley-ball. The plaintiff recalled they arrived in the afternoon but could not recall the time. 1 March 1993 was a Monday and was the Labour Day holiday for the long weekend.
The plaintiff gave evidence that he and his friends were wearing shorts so they did not need to change. They followed the path and walked up onto the groyne and just removed their shoes, socks and shirts. They walked to a position past the light pole a few metres and the plaintiff climbed down to a smooth flat rock about half a metre to a metre above the water. It was the same flat rock he always jumped and dived from.
The plaintiff was unable to recall at trial conditions on the day of the accident. He was not sure if the water was clear or not. He thought there were a few waves but he did not think they were very high. The plaintiff was reminded of what he had told Mr John Hymas, a loss assessor instructed by the plaintiff's solicitors near the time of the accident. Mr Hymas interviewed the plaintiff in hospital in late 1993 or early 1994 and, at that time, the plaintiff told Mr Hymas the water was very clear, the sandy bottom could be seen quite easily and there were no rocks or projections on the bottom of the ocean. The plaintiff was unable to recall any of those matters at trial.
The plaintiff gave evidence that he jumped in feet first as he always did to check the depth of the water. He could not touch anything. He remembered that the water was about shoulder or neck high and when a wave came past it pulled him up and he couldn't touch the sand. The plaintiff had told Mr Hymas in 1993 or 1994 that the water was just over head high but he could no longer remember that at trial. The plaintiff gave evidence that he went under water to see if there were any rocks or if he could touch the sand. He said he couldn't touch the sand and he didn't find any rocks. He then swam back to the groyne, climbed up and dived again from the same rock. The plaintiff said he did a shallow dive with his hands over his head "after the waves were coming" (T125). When he went back to take another dive he remembered Jamie being there to his left, sitting on a rock at the groyne. The plaintiff dived again from the same rock and all he remembered is leaving the rock. He woke up in Princess Margaret Hospital.

Under cross‑examination the plaintiff admitted that it would have been really dangerous and stupid to ever do a steep dive from the dive rock with his head down and he was conscious of that all the times he dived from the rock.
Cristian Araya gave evidence that 1 March 1993 was a hot day, with a temperature of 38 to 40 degrees Celsius and the beach was very crowded. Mr Araya said they went directly to the groyne when they arrived that day arriving at about 1.00 pm. They sat down at the groyne and, according to Mr Araya, only the plaintiff and Rodrigo jumped in first and then did a few dives before the accident happened. Mr Araya said the plaintiff dived the second time and started going down. His friends thought at first he was joking but then realised something was wrong. They jumped in and pulled him out and took him back to shore. Cristian Araya did not see the plaintiff dive but he heard Jamie Jorquera say in Spanish, "Look at that dive. He's dived too steep".
Osman Alvarez gave evidence that on 1 March 1993 he was with the group of friends when they went to Cottesloe Beach. He remembered they arrived at 11.00 am or 12 o'clock and played soccer for one or two hours before going to the groyne to swim. Mr Alvarez said they followed the pathway onto the groyne and moved about halfway along, past the light pole, where they climbed down a few rocks. Mr Alvarez said he dived four or five times before the plaintiff's accident. He said the water he was diving into was higher than he was. He said he could not stand after diving and had to swim back to the rocks. Mr Alvarez said he dived before the plaintiff, just before the accident. When he was swimming back the plaintiff dived and when Mr Alvarez climbed back up the rocks he saw the plaintiff floating on the water. Mr Alvarez thought the plaintiff was joking around at first but then realised he was in trouble and dived in and assisted to bring him to shore.
As it developed during the trial neither Mr Araya nor Mr Alvarez was correct about the time of the accident. Mr Wayne Spindler, a long time member of the Cottesloe Surf Life Saving Club who was patrol captain from 4.45 pm to 5.00 pm on the day of the accident, referred to the patrol log (the Plaintiff's Book of Documents Vol 1, p 176). The patrol log indicates that the Surf Life Saving patrol was notified of the accident at 4.58 pm. The plaintiff was resuscitated by members of the patrol and taken by ambulance from the beach at 5.20 pm.
Mr Spindler recalled the water near the groyne at around the time of the accident was reasonably flat and calm. Earlier that day Mr Tim Plester had been on duty as beach inspector from 6.00 am to 1.30 pm. His daily log indicated a fine day with light north easterly winds in the morning and light south westerly winds in the afternoon. The crowds were described as huge in the afternoon (Plaintiff's Book of Documents Vol 2, p 470). The beach ranger's daily log for 1 March 1993 showed that Sam Knowles was the beach inspector on duty at the time of the accident. The defendant did not call Mr Knowles to give evidence.

Signs

There were two signs prohibiting diving in place on and near the groyne at the time of the accident. In answers to interrogatories 4 and 5 tendered by the plaintiff (Exhibit 42) the defendant said that the signs prohibiting diving were erected in about April 1990. There was other evidence to support this contention. The defendant said the signs were erected in response to a New South Wales Supreme Court decision dated 15 December 1989 reported in the Australian Local Government Reporter. The signs were there from the time they were erected in April 1990 and were there on the day of the accident. The signs contain the words "Diving Prohibited" in large black letters below a red circle enclosing the graphic depiction of a diver crossed with a red line. It is the standard Diving Prohibited sign, depicted as sign No 213 in the Australian Standard (Exhibit 36). The signs were placed on two light poles. One was on a light pole about half way along the groyne. Its position is depicted in the photographs (Exhibit 1). The sign was placed at the height of 7 feet on the light pole and faced south. That light pole and the dive rock are depicted on the survey, (Exhibit 3). It is necessary to walk directly past this sign to reach the dive rock when approaching along the groyne as the plaintiff and his friends did on 1 March 1993 and on all of the other occasions when they visited the beach and went onto the groyne.
The second sign prohibiting diving was on a light pole on the beach just north of the path or walkway leading to the groyne and in the vicinity of the children's wading pool. This sign was also at the height of 7 feet on the light pole and faced south. Its position is clearly shown in a photograph in Exhibit 1. Anyone approaching the groyne on the pathway as the plaintiff and his friends did on the day of the accident would walk directly past this sign.
The plaintiff denied ever seeing the signs prohibiting diving from the groyne. He denied ever being warned that it was dangerous to dive from the rocks and denied ever seeing or hearing anybody else being told not to dive from the groyne. The plaintiff was cross‑examined about an answer he gave to the defendant's interrogatories dated 15 November 1995. He was asked for the precise location of the rock on the groyne from which the dive was executed. His sworn answer was: "Approximately 4.5 metres west of the second signpost along the groyne." Under cross‑examination the plaintiff said he did not know why he called the light pole a signpost. He was unable to recall whether it was because there was a sign on it. He was unable to explain why he had called the light pole a signpost (T153 – 154).
During his examination‑in‑chief he said, (T127):
"Had somebody told you 'Don't dive from the rocks because it's dangerous' what would you have done?---Probably thought about it. I don't know. Maybe not jump at all if I knew I was going to break my neck.
If you had seen a sign showing a person diving into water and hitting their head on rocks in the water on the bottom of the ocean what would you have done?---I would have not dived.
Why not?---Its pretty obvious what the sign says."
Under cross‑examination the plaintiff admitted that he could read and could understand the signs that were posted at Cottesloe Beach prohibiting diving. He then changed his evidence from what he had said during his examination‑in‑chief when he denied even seeing the signs. Under cross‑examination he said that the signs were not there – "I know for a fact there weren't any signs" (T148). Under cross‑examination the plaintiff gave these answers: (T159 – 160)
"If you had seen a sign, Mr Uzabeaga, saying 'Diving Prohibited' at the groyne you would have ignored it, wouldn't you?---Possibly.
Possibly. Do you say possibly because you made your own investigations as to whether it was safe to dive?---Yes.
Your assessment after jumping in and all the things you said about that was that it was safe to dive?---Yes, it was.
And would it be fair to say, Mr Uzabeaga, that in your case when you were – what, 14 at the time of the accident?---Yes, I was 14 at the time.---You didn't always do what you were told?‑‑‑No.
And sometimes you disobeyed your parents?---Yes, I did.
…
So just because someone told you not to dive off the groyne doesn't mean you'd obey that does it?---No.
And if someone had come up to you and said to stop diving off the groyne, you might have ignored them as well ‑ ‑ ‑?‑‑‑Possibly, yes.‑‑‑Because you thought you knew better?---Yes."
Cristian Araya gave evidence that when he went to Cottesloe Beach he would always see a few people, like five sometimes, diving and jumping off the groyne. Cristian Araya was shown the photographs of the signs prohibiting diving and was asked if he had seen those any time he went to the beach between 1990 and 1993. He said he couldn't remember but he may have seen a sign saying "No Diving", but he couldn't really recall it. When he was asked even if there was a sign there saying "No Diving" would he have dived anyway his answer was that he didn't know. He couldn't say because he takes care of himself a lot, "I make sure everything's safe". He admitted he would make his own decision and make up his own mind. Mr Araya said he would decide for himself to jump or not to jump even if he saw a sign.
Under cross‑examination Mr Araya denied telling Mr Hymas that he believed he had seen the sign on the day and on previous occasions but he did admit that he was unwilling to put that information in a statement for Mr Hymas. Later Mr Araya contradicted himself on a number of occasions about the number of times he had been back to the beach and tried to explain seeing the sign as a "flash back". Eventually, Mr Araya admitted that he told Mr Hymas, "I think I saw the sign on the pole" and that that was the truth. Later Mr Araya admitted that he thought he saw the sign but doesn't remember what the sign said.
Osman Alvarez said in his evidence‑in‑chief that he never noticed anything really in relation to signs prohibiting diving from the groyne. Under cross‑examination, Mr Alvarez admitted that he may have seen the sign on the day but he can't really recall it. He admitted that if he had seen the sign at the age of 14 it probably would not have stopped him diving. That was because he can judge from jumping in feet first to check the depth of the water and always did a shallow dive out with his body parallel to the sea. He considered that safe and had done that hundreds of times. He had also seen the plaintiff do it. Mr Alvarez was older than the plaintiff. He said he had been diving at Cottesloe Beach from the groyne for about five years prior to the accident. He also had gone back to Cottesloe Beach four or five years ago on two occasions and dived from the rocks to lose his fear. He said he dived from the same spot and he did so because he checked it and concluded that it was safe to do so. Mr Alvarez agreed that he and his group of friends had dived off the groyne hundreds of times before 1 March 1993 and had never injured themselves.
The plaintiff, Mr Araya and Mr Alvarez admitted that during the same period when they were visiting Cottesloe Beach they also visited Rockingham Beach. Their visits to Rockingham Beach were generally on the weekend with their families where they had a Chilean picnic. At Rockingham Beach the boys swam, jumped and dived from the second jetty. Mr Keith Ashfield, a security administrator for the City of Rockingham, gave evidence that he took three photographs of the second jetty at Rockingham Beach on 10 January 1992 (Exhibit 13) for reasons unrelated to this trial. The plaintiff, Mr Araya and Mr Alvarez each admitted the jetty depicted in those photographs was the one they swam, jumped and dived from. The photographs clearly show signs posted on the jetty "Swimming Prohibited" and "Diving Prohibited". These signs are standard signs of the same kind as those used at Cottesloe Beach.
The plaintiff denied seeing any signs prohibiting diving at Rockingham Beach. He said he made his own decision about diving after he had determined it was safe. When Mr Araya was shown the photographs (Exhibit 13) and asked if he had ever seen the sign prohibiting diving, he gave a rather stumbling, disjointed reply before saying he could not remember seeing the signs. Under cross‑examination Mr Araya admitted that even if he had seen the signs he would make up his own mind about diving after determining whether it was safe or not. If he thought it was safe he would dive (T172, 176).
Mr Alvarez was older than the plaintiff and had been visiting Rockingham Beach and the second jetty pictured in Exhibit 13 since about 1988. He said he first jumped in to check the depth. Then he knew the depth so he dived from the top of the jetty. Mr Alvarez could not recall if he had seen the signs prohibiting swimming and diving. He admitted that it would not have made any difference if he'd seen the signs. He would probably have jumped and dived off the jetty anyway.
Mr Thomas Locke, who had been a member of the Cottesloe Surf Live Saving Club since 1966, gave evidence that he had walked on the groyne but he had never especially noticed the signs prohibiting diving although he had a feeling the signs were there. It was not a sign he had ever read. Mr Tim Plester, who now teaches at the Bunbury Grammar School, was a member of the Cottesloe Surf Live Saving Club and had been engaged in beach patrols with the club between 1979 and 1999. He also worked as a casual beach inspector between 1991 and 1994 and during the third year he was a senior beach inspector. Mr Plester gave evidence that he did not recall seeing any signs on the groyne before he commenced his employment with the defendant in 1991 as a beach inspector. During the time that he was a member of the Cottesloe Surf Life Saving Club he did not notice the signs but he did stop people jumping or diving off the groyne because of the danger of it. Mr Plester only became aware of the signs when it was part of his duties as a beach inspector to check signs for vandalism. Mr Plester looked at the photographs, particularly the bottom photograph on p 22 of the Plaintiff's Book of Documents, and admitted that from that angle you could not read the sign. That photograph was taken from a position at the commencement of the groyne so that the person would be well east of the sign and would not be able to see it as it faces south.
There was evidence that the defendant added further signs to the signposts between 8 November 1993 when the photographs in Exhibit 1 (except the bottom photograph on p 24) and 22 January 1994 when the photographs in Exhibit 2 were taken. The defendant added four signs to the light pole in pairs, two facing east and two facing west. In each pair of signs the first sign prohibits fishing in the bay and the second sign is another standard sign prohibiting diving.

Incidence of jumping and diving from the groyne

There was evidence that almost from the time the groyne was built it was used by swimmers for jumping and sometimes for diving into the adjacent waters. A beach inspector's monthly report dated 10 January 1964 (Plaintiff's Book of Documents Vol 2, p 363) states: "I would like to see climbing on the side of the groyne and diving off groyne stopped." On 12 December 1966 the beach inspector reported:
"Large numbers of children dive off the groyne rocks and because of the depth of water, I do not consider this to be particularly dangerous, but since the publicity given to this practice have attempted to warn them not to do so. The person in question was skylarking and I feel that the unfortunate accident was entirely his own fault."
That entry seems to indicate that in 1966 there was some sort of accident when a person was skylarking, there was publicity and that the beach inspector attempts now to warn children off. At that time the beach inspector did not consider it to be particularly dangerous to dive off the groyne because of the depth of the water. In December 1983 the beach ranger reported that of the 38 first aid cases that month the majority were for cuts and stubbed toes caused by running and jumping off the groyne and pylon.
John Hymas visited the groyne on two occasions. On 8 November 1993, when he took the photographs in Exhibit 1, he saw folks on the groyne fishing, walking and sitting but no‑one jumping or diving. When he returned in January 1994 he saw people sight‑seeing, jumping and diving from the groyne. Photographs of those activities are recorded in Exhibit 2 (Plaintiff's Book of Documents Vol 1, pp 30, 31 and 32). Frank Rodda, the licensed surveyor, conducted his survey on 30 March 1995 and saw no evidence of anyone diving or jumping from the groyne. The plaintiff, Cristian Araya and Osman Alvarez all gave evidence of people diving and jumping off the groyne all the time.
Mr Bruce Prance, a cartographer and diving coach, visited the groyne on 4 April 2001 and saw a young man diving from the groyne from the same rock that has been called the dive rock. Mr Prance told him not to do so and the young man laughed. Professor Hartley visited the groyne but saw no‑one diving. The expert witnesses, Mr Geoffrey McElroy and Dr Jennifer Blitvich, visited the groyne on 22 and 23 December 2000 and on both visits saw members of the public entering the water from the groyne. Photographs were taken showing diving from the groyne at a time when that area of Cottesloe Beach was within the flags designating the area patrolled by the surf patrol (Exhibit 35, photos 2, 3, 4).
Both Thomas Locke and Donald Morrison, long time users of Cottesloe Beach and long time members of the Cottesloe Surf Life Saving Club, recall that until five or six years ago the annual Cottesloe Surf Life Saving Club marathon involved participants running along the beach, out along the groyne and plunging off the groyne into the water to commence the swimming leg of the race. That use of the groyne was stopped five or six years ago.
Mr Timothy Plester, who had served with beach patrols for the 20 years from 1979 to 1999 and worked as a beach inspector between 1991 and 1994, said that at the start of school holidays there were often teenage boys and girls jumping and diving off the groyne. They were generally in the 13 to 16‑year‑old category and often in groups showing off and diving, doing "bombies", crawling up the rocks and mucking around. He gave evidence that he always stopped them. He told them it was dangerous and to stop being silly and directed them to the signs. He did not notice any particular change when the signs went up. Mr Plester considered it an ongoing problem but he did not believe that diving off the groyne had become a culture. He knew people were still jumping and diving off the groyne despite the signs but did not know how many people had stopped once the signs went up. Mr Plester's experience was that once he warned jumpers and divers of the danger they didn't do it again. Mr Plester said on a given day there could be up to 10 people jumping or diving but then there might be no‑one doing it for a week.
Mr Wayne Spindler had commenced as a junior patrol member with the Cottesloe Surf Life Saving Club in 1975 and became a surf patrol captain in 1979 and 1980. Mr Spindler reported that if anyone was jumping from the groyne people were sent to warn them of the danger and advise them not to do it and ask them to stop. He said most people stopped when they were warned and that jumping was the most prevalent activity particularly doing "bombies" off the groyne. Mr Spindler said that there were people jumping and diving during every patrol, that it was an attraction and that everyone did it. The majority of those who jumped and dived were young people.

Supervision and enforcement of the diving prohibition

The defendant called two witnesses, Mr Timothy Plester and Mr Wayne Spindler to give evidence of the supervision of swimmers on Cottesloe Beach and the defendant's enforcement of the diving prohibition.
Mr Plester had been a member of Cottesloe Surf Life Saving Club since 1976 and had been involved in beach patrols for 20 years from 1979 to 1999. In 1999 he moved to Busselton where he lives and works as a teacher at the Bunbury Grammar School. Mr Plester said that the Cottesloe Surf Life Saving Club provided surf patrols on Cottesloe Beach commencing on the first Sunday in October and then every weekend until the last Sunday of April. During that period he personally was involved about every two weeks. Mr Plester said that the surf patrol was concerned about safety issues. They looked at taking preventative actions to keep swimmers safe such as the prohibition on hard surf boards in the swimming area and the prohibition on jumping off the rocks at the groyne. They used flags so that while they were on duty they marked the safe swimming area for beach users. They also provided first aid for persons injured on the beach.

Mr Plester said that the surf patrols would always stop people jumping off the rocks. The issue had priority as a safety issue. They stopped them before they injured themselves. When he was on duty he would either stop them himself or send someone to warn them. According to Mr Plester the prohibition on jumping and diving from the groyne was at the top of the safety issues because it was dangerous.
Under cross‑examination Mr Plester was asked in what respect the jumping and diving from the groyne was dangerous. He replied: (T484)
"You can't judge – depending on the conditions, you wouldn't be able to judge the depth of the water. If there was a slight swell even the sand would be moving and also the danger of slipping off the rocks as well, because I've treated first aid cases where people have slipped on the rocks at the groyne.
Mr Plester was then cross‑examined about the factors that might affect the depth along the groyne.
"Is it fair to say that the depth at a particular point along the groyne varied really from minute to minute?---Depending on the conditions, if you had a northerly swell or a southerly swell, the depth would change.
So swell obviously affected the depth, the tide affected the depth. Any other factors affected the depth?---I guess if there was a wave, because if the wave came around the groyne, it would affect the depth of the water because a wave has a front and a back and then it has a peak in the middle of it, so there's a trough at the front and the back.
It's fair to say that the depth is changing continuously?‑‑‑Yes.
Quite apart from that it's difficult to judge the depth at any particular time in any event?‑‑‑Depending on where you are on the groyne, yes.
All right, and the danger you were obviously concerned about is someone diving in and striking their head on the bottom‑‑‑Yes." (T484 – 485)
His experience was that when people were asked to stop diving or jumping they would comply. The surf patrols were on duty from 9.00 am until about 5.00 pm, depending on the weather and conditions.
Mr Plester also worked between 1991 and 1994 as a casual beach inspector and during the third year was a senior beach inspector. He usually did the morning shift from 6.00 am until around 2.00 in the afternoon. The other shift was done by a beach inspector who commenced at 12.00 midday and worked until 5.00 or 6.00 in the evening. The beach ranger's office is on the southern corner of the bathing pavilion now under the Indiana Tea Rooms. The beach inspector has a chair outside the office and when sitting in that chair has a clear view looking directly across to the groyne.
Mr Plester said, however, that the beach inspector did not always remain on Cottesloe Beach. He had a small four‑wheel drive vehicle and used it to check the beach, to check signs for damage and vandalism. He would do a foot patrol on the groyne to look for broken glass or dead fish. He would drive slowly up to North Street and drive back again. In any given hour the beach inspector would be away from Cottesloe Beach out of view of the groyne for 30 minutes on the move. The patrols up to North Street and back were conducted about every hour. Also he was involved sometimes in rescues as a result of rips or drownings. The beach inspector also had duties in the morning in particular to deal with the rubbish on the beach. In the afternoon there was less tidying up and the beach inspector could focus more on the beach itself. Mr Plester said that the beach inspector liaised with the beach patrol. Generally it was the patrol captain who would send someone to stop diving from the groyne. If they did not stop then the beach inspector would intervene and eventually the police would be called.
On the day of the accident Mr Plester admitted being on duty from 6.00 am until about 1.30 or 2.00 pm. He learned about the accident after it had happened. Mr Plester said that when he commenced employment Mr Trevor Ratcliffe, a beach inspector, had told him to stop people jumping off the groyne because it was dangerous. He knew there was a ban on doing that. He was aware some people continued to dive off the groyne despite the signs prohibiting it and that he had to warn those people. He didn't remember seeing the same people as repeat offenders. Once warned people generally did not come back.
Mr Wayne Spindler was a member of the Cottesloe Surf Life Saving Club from 1975 to 1998 and was involved in surf patrols as a surf patrol captain in 1979 and 1980. He now lives in Manjimup and is a teacher at Kearnan College. Mr Spindler did up to 20 patrols each year and said a patrol was four hours long either from 9.00 am to 1.00 pm or from 1.00 to 5.00 pm. The patrol in the morning would choose the safe swimming area. While on duty the patrol kept the beach under observation, provided first aid and looked after such problems as lost children. The patrol had an observation point on the promenade and one member of the patrol sat there for 30 minutes at a time. The observation point was in front of what is now the Indiana Tea Rooms on the promenade, a two metre raised platform. The patrol officer on lookout looked for swimmers and sharks and also kept an eye on groups who might get in trouble on the beach. Sometimes on a hot day the patrol would wake up people who lay asleep for several hours in the hot sun. They also were concerned about people jumping off the groyne and for children in small craft.
Mr Spindler said that the patrols periodically sent two people on foot patrol with a radio and a rescue tube. He said that generally the flags were packed up by about 4.50 pm. So far as prohibiting diving from the groyne Mr Spindler said that if people jumped off the groyne the patrol always sent people down to warn of the dangers. It was a preventative action. Jumping off the rocks was dangerous and they were aware of the danger and they warned people.
Mr Spindler was cross‑examined about factors that affected the depth of the water. He conceded that the height of the wave could affect the depth of the water and then went on to say:
"So it depends on the height of the wave, it depends on the swell conditions?---Yes, but you don't usually get swell going into that part of the beach.
You do on occasions?‑‑‑On a rare occasion you would, yes.
The depth is also affected by the stage of the tide?‑‑‑Yes.
It was affected by wind conditions?‑‑‑Not usually, no.
What about the direction of the wind and the strength of the wind? Does that have any effect?‑‑‑Well, it does but the wind usually blows across the groyne and that area is quite sheltered.
If it blows from another direction it can affect the depth obviously?‑‑‑It could because if you've read what I think you've read then you will know that that creates waves and, therefore changes the water depth.
Of course tidal conditions change at different times of the year, is that the case?‑‑‑Well, I think we have a tidal change of about a metre, don't we, in Western Australia at this particular point? So I don't think it actually makes the depth all that much different.
There are movements – if you don't know you can say you don't know but there are also movements in the seabed with these conditions, are there not?‑‑‑Yes, there are.
From your point of view you were concerned to warn persons against engaging in this activity because obviously it's fraught with danger, is it not?‑‑‑Yes.
You know that as an experienced surf life saver?‑‑‑I knew that when I was in year 3 but, yes.
And the danger of course is the risk of breaking your neck if you hit the bottom?‑‑‑Well, that is one of the dangers. You can also slip and break your arm. There are a number of things that could go wrong jumping off a rock.
What other things?‑‑‑Well, you could fall, break your arm, you could twist your ankle, you could just cut yourself." (T529 – 530)
Mr Spindler said the surf patrols liaised with the beach inspector and on occasion if people did not accept the surf patrol authority the beach inspector was called in. Beach inspectors worked from 6.00 am to 6.00 pm but they spent about half their time away from the beach. Mr Spindler confirmed that people usually jumped in about halfway along the groyne.
Under cross‑examination Mr Spindler admitted he did not know if there was any verbal or written direction from the Town of Cottesloe to strictly enforce the diving ban. He had done it himself on several dozen occasions. Mostly it was young people diving.
Mr Spindler identified his signature on the patrol log at the time of the accident (Plaintiff's Book of Documents Vol 1, p 176) and on the Resuscitation Report Form (Plaintiff's Documents Vol 1, p 182). Mr Spindler commenced patrol at 4.45 and finished at 5.00 pm on the day of the accident. Mr Scott Gathercole was the patrol captain before him and was in the ambulance that took the plaintiff to hospital. Mr Spindler could not recall the beach inspector Mr Sam Knowles being there but thought he must have been.

Expert evidence

The plaintiff called a number of expert witnesses.

Professor Laurence Richard Hartley

Professor Hartley is a professor of psychology at Murdoch University. He earned his Doctorate at the University of London and is a Fellow of the Australian Psychological Society. His relevant experience and a list of the occasions when he has previously given expert testimony are included in Exhibit 15. The bulk of Professor Hartley's experience is in road safety. He has over the years worked on issues concerning compliance with signage in the road safety context. He has no direct experience of diving.
In his report (Exhibit 16), Professor Hartley notes that there are many factors which determine what impact a sign will have. He noted that even if a warning is understood it may not be complied with if it does not fit with people's attitudes and values. He considered this to be relevant to the plaintiff in terms of his perception of risk. Professor Hartley reviewed the literature concerning research on the effectiveness of consumer product warnings and noted that compliance rates vary between 0 per cent and 100 per cent. He initially said after reviewing Wogalter and Young "Behavioural Compliance to Voice and Print Warnings" (Exhibit 17) that when there was no warning 20 per cent of people avoided the dangerous area but that figure rose to 42 per cent when there was a visible printed warning. From that he concluded that an additional 20 per cent more people heeded a printed warning over those who simply avoided a danger. Under cross-examination, however, he conceded it could be that all 42 per cent were influenced by the sign as they were different people from the 20 per cent who avoided the danger without a warning sign.
Professor Hartley also conceded that the 28 per cent shown in his summary at the bottom of p 2 of his report (Exhibit 16) was wrong and that he had been selective and that he was unable to say with assurance how he arrived at this figure.
Professor Hartley spent a good deal of time discussing and analysing a learned article by Goldhaber and deTurck "Effectiveness of Warning Signs: 'Familiarity Effects'" (Exhibit 18). This 1988 study by the two authors involved highly conspicuous no diving signs placed at the shallow end of a middle school diving pool for four weeks. The signs contained bold letters "Danger" and under that "Shallow Water" with an exclamation point and under that "No Diving" with an exclamation point and under that "You Can Be Paralysed" with an exclamation point. The signs also contained a red circle with a line through it with a graphic depiction of a person diving and striking his head on the bottom of the pool. Within the circle was the depiction of a wheelchair. After leaving the signs in position for four weeks the authors questioned students at the school that had the signs and then checked these results against another school that had a pool without warning signs. The authors found that among those who would dive into the shallow end of the pool 28 per cent saw the signs when the signs were present while 26 per cent thought they saw a sign when no sign was present. Later in their discussion of the research the authors said this at p 296 of their published report:
"Unlike most warning studies where people are exposed to a warning message for only a brief period of time, students in the current study were exposed to the NO DIVING signs for a month. It is doubtful that students in the school with the NO DIVING signs did not see the sign since all of the students use the pool. It is possible, however, that students did not consciously process the content of the NO DIVING signs. People often process information automatically without being aware of the information … . Students may have processed the information from the NO DIVING signs without being aware of the fact that they were doing so.
Although students may have processed the NO DIVING signs without being aware of them, it is possible that the signs affected their judgments about danger and intentions to dive. Information that is not processed at a conscious level can still exert considerable influence on memory and judgments … .
That the NO DIVING signs did not affect students' perceptions of diving into shallow water as dangerous, or their intention to dive into the shallow water, supports previous research indicating that NO DIVING signs do not deter swimmers from intending to dive into shallow water … A NO DIVING sign is only one element of information affecting swimmers' decisions to dive into shallow water. If swimmers dove (sic) into shallow water in the past without injuring themselves, they feel more certain and more confident that they know how to dive into shallow water without hurting themselves. In fact, the current results suggest that a NO DIVING sign may serve only to make people with a history of diving into shallow water … feel that diving into shallow water is not as dangerous as people who never dove (sic) into shallow water think and, as a result, increase the likelihood that they would dive into shallow water."
Professor Hartley conceded that it was not correct to say "When a sign was present 28 per cent of students reported seeing a sign. 72 per cent were unaware of the signs." Professor Hartley conceded that the work of Goldhaber and deTurck concluded otherwise. Professor Hartley agreed that the authors conclusion was that it was doubtful any students did not see the sign but they processed the information automatically and subconsciously.
Professor Hartley's research in road safety found that without compulsory legislation compliance is typically 25 per cent to 30 per cent. In Australia where seat belts are compulsory compliance is in the order of 98 per cent or 99 per cent. Professor Hartley concluded that a sign stating a prohibition which is not enforced will generally not be complied with.
Professor Hartley spoke of the hierarchy of hazard control in safety literature which evaluated the effectiveness of various means of controlling a hazard. Professor Hartley said the most effective is simply designing out the potential for the hazard. In road safety, for example, separating carriageways or removing unforgiving obstacles from the side of the road are both effective means of designing out collisions. In the case of the groyne it was Professor Hartley's opinion that whoever built the groyne really designed in a hazard. Professor Hartley suggested having built the groyne the council should have erected fencing at the very least and possibly deepened the water level by removing some of the sand.
The next level down from designing out a hazard was engineering or guarding against the hazard. In road safety terms he referred to air bags, seat belts, crumple zones and the like as solutions to the hazard of a crash. Signage is looked on as the third level supplement to the two primary measures of getting rid of the hazard.
Professor Hartley conceded that he had no direct experience of diving and that all of his experience was with compliance in terms of road safety. He did believe that where there is an obvious danger and an obvious means of minimising or extinguishing the danger that 25 per cent to 30 per cent of people will look out for their own safety. This means that in terms of wearing seat belts or not drink driving or not driving at dangerous speeds that a significant section of the community who would not do those things would also not dive into shallow water for the same safety reasons. However Professor Hartley emphasised that young people are not good at risk assessment.
Professor Hartley was asked whether signs saying no diving would be unlikely to have an impact on someone who by attitude, personality or disposition was anti-authoritarian. He conceded the impact may be less than the impact on someone who is very compliant. He conceded that even verbal warnings are not always successful with children and agreed that that could extend to a 14‑year‑old child.
Professor Hartley however would not concede that there was any connection between someone who occasionally engaged in stealing cars and someone who might dive when diving was prohibited. The connection would really be, in Professor Hartley's view, with that person's level of risk perception. A person who stole cars might have very well developed risk perception and good survival skills. However, Professor Hartley said that if swimmers were used to disobeying no diving signs when swimming in Rockingham then they were people quite likely to disobey no diving signs at other places.
Under cross-examination Professor Hartley gave evidence that in the general population there are some people who won't do something that appears dangerous even if there are no signs warning or prohibiting the activity. And then there are some people who might do something that was dangerous if they were not warned but if they are warned would obey the sign. Professor Hartley agreed, however, there is a third group who irrespective of whether there's a sign or not will make up their own minds. Finally, there is another group who, if there's a sign, will do the very thing the sign prohibits. Professor Hartley agreed a small proportion of persons fall into the last category.
Professor Hartley agreed that if people had done something when it was prohibited and they have done it safely on a number of occasions that signs will not be effective. Those people will make up their own minds about the risk. Professor Hartley said such persons have a better understanding of the risk if they have done it many times successfully in the past and watched other people do it successfully.
Professor Hartley conceded that his suggestion of deepening the area of sand around the groyne was not in his report and that he had got that idea from reading the expert evidence of the witnesses Dr Blitvich and Mr McElroy. Professor Hartley's ultimate conclusion was that on the basis of available research one would not expect the "No Diving Signs" to be effective in preventing diving as indeed they did not appear to be. Effective steps to prevent the hazard of diving from the groyne would have included, as a minimum, restricting access to the groyne by erecting some sort of barrier fence or providing a beach patrol to enforce the ban on diving.

Mr Geoffrey Keith McElroy

Mr McElroy is a Research Associate in Aquatics at the University of Ballarat. His qualifications include a Bachelor of Arts (majoring in history, geography and psychology), an undergraduate physical education qualification, a Diploma of Teaching and a Master of Education from the University of Western Australia. His CV was tendered as Exhibit 34.
Mr McElroy has been associated with the Royal Life Saving Society since his teenage years and has had full time experience in employment with responsibility for researching and revising all of the Society's teaching programmes and award schemes. As part of that work he became quite familiar with the Australian Standards Association, particularly standards for signs for aquatic safety. He has worked both in Australia and in Canada. He represented Australia at Commonwealth Technical Conferences in London and in Canada and he has also been involved in the Western Australian Amateur Swimming Association and continues to be an active swim coach. He is now retired from his formal academic position which was that of Senior Lecturer at the University of Ballarat but he has been appointed for a three year period as a Research Associate to continue his research work in the aquatics area. He remains the head coach of the Swimming and Lifesaving Club at the University of Ballarat.

Section 5(2) of the Occupiers' Liability Act provides that the duty of care owed by an occupier does not apply in respect of "risks willingly assumed by the person entering on the premises". I have been referred to no authorities where any meaning has been given to s 5(2) distinguishing the statutory provision from the provisions of the common law. Therefore I will determine this issue based upon the common law principles as set out in Hitchcock's case.
I have found that the plaintiff knew that if he dived into water that was too shallow he could be seriously injured, that he knew the depth of the water on the day of the accident, and that he knew that it would be really dangerous and stupid to do a steep dive from the dive rock. I have not accepted his evidence that he did not see the "Diving Prohibited" signs.
Assumption of risk presupposes knowledge of the risk. "One cannot be volens without sciens." ("Fleming: The Law of Torts": 9th ed p 337). But knowledge alone is not sufficient (Hitchcock's case). The plaintiff must be shown to have accepted the risk with a full appreciation of the danger involved (Commissioner for Railways (NSW) v Anderson (1990) 105 CLR 42).
My findings satisfy me that the plaintiff was fully aware of the risks associated with diving from the groyne. But I am not satisfied that he chose to accept the risks. Although I do not accept his evidence that he did not see the "No Diving" signs I am not satisfied that he saw and consciously ignored them. He may have subconsciously processed the information on the signs. In these circumstances it would not be appropriate to find that the plaintiff has voluntarily assumed the risk of diving from the dive rock with a full appreciation of the danger involved (Anderson's case). Therefore the defence of volenti non fit injuria fails.

Contributory negligence

Because I have not found the defendant liable for the injuries suffered by the plaintiff any final apportionment of liability based on contributory negligence is not possible as it would involve a comparison of culpability (i.e. the degree of departure from the requisite standard of care) and the relative importance of the acts of the parties in causing the damage (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494):
"… the standard of care in contributory negligence like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury (Commissioner for Railways v Ruprecht (1979) 142 CLR 563 at 570; Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37).
In this case the plaintiff's age of 14, almost 15 years, needs to be considered. In considering whether a child was guilty of contributory negligence it is necessary to consider the particular danger from which the injury arose and to what extent the child could be expected to foresee and guard against the danger (Aubrey v Carter [1962] WAR 51 per Hale J at 53; Yachuk v Oliver Blais Co Ltd [1949] AC 386). A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her (Gough v Thorne [1966] 1 WLR 1387 per Denning MR at 1390).
In this case I am satisfied this plaintiff at almost 15 years of age could be expected to foresee and guard against the dangers of diving from the groyne and could be expected to take precautions for his own safety. He was well aware of the risks of diving and normally took appropriate precautions. On the day of the accident he acted contrary to what he knew was necessary to look out for himself when diving from the dive rock. He must have dived steeply despite knowing it was really dangerous and stupid to do so. He was an intelligent person well able to look after himself.
I accept that the plaintiff may not have been as good at assessing risk as a mature person might have been. Otherwise I have no concerns about his ability to look after himself and take precautions for his own safety when diving from the dive rock.
Based on the evidence that he dived in an area where diving was prohibited and that he dived steeply when he knew it would be dangerous and stupid to do so I would have found the plaintiff guilty of contributory negligence by his actions in exposing himself to risk of serious injury.

Quantum of damages

Damages have been agreed between the plaintiff and the defendant with one exception. The issue which requires my determination changed in the course of the trial. Initially the issue was the plaintiff's claim for the costs of accommodation for the carer in a separate granny flat not part of the plaintiff's house. Mr John Christopher Keen, an architect with expertise in assessment of architectural needs for persons with severe disabilities, was called by the plaintiff and provided a report (Exhibit 38) detailing the costs of the two options. Mr Keen concluded that the costing of each option was much the same and, as a result, that issue fell away during the trial.
The remaining issue is the plaintiff's claim for modifications to his father's residence to enable himself and his carer to visit his father and spend a few days with him each month. This claim is made in addition to the claim for modifications to a house for the plaintiff with accommodation for the carer. The plaintiff gave evidence that he has seven half‑brothers and sisters. Since the accident he has lived apart from the family in hospital and later at the Shenton Park Rehabilitation Centre. Now he would like to be able to spend time with his family occasionally as they are growing up. There was evidence his youngest half‑sister is only aged 7 years.
The plaintiff plans to live in Fremantle. His father now lives in Kwinana and I accept that his father's house is not suitable for the plaintiff to remain for overnight visits. The bathroom is too small, the doorways will not accommodate a wheelchair and his father's lot is sloping and sandy. The plaintiff gave evidence that his stepmother Ana recently moved to Mt Lawley. She and the plaintiff's father remain married but now live separately. That has occurred within the last few months. Of the seven step‑siblings only Richard, who is 18 years of age, now lives with his father. The other six younger siblings live with Ana in Mt Lawley.
In assessing this claim I bear in mind that the plaintiff should be awarded such sums of money as will restore him as far as money can do to the position he would have been in if there had been no negligence. The issue is whether it is reasonable to allow the costs of modifications to the plaintiff's father's house in addition to architectural modifications for his own home and for accommodation for his carer. As the facts have emerged in this case this claim should not be allowed. The basis of the plaintiff's claim is his desire to spend time with his family as his step‑siblings are growing up. Yet the evidence shows that six out of seven of the step‑siblings do not live with his father in Kwinana. Expending funds to modify that house to accommodate the plaintiff and his carer will not provide the plaintiff with the opportunity he seeks. In the separated circumstances of his family it would not be reasonable to allow these additional costs.
For these reasons there should be no award for modifications to the plaintiff's father's house.

Summary of decision

I have found that:
•The defendant breached its duty of care by failing to erect signs warning of the dangers of diving from the groyne, but I have found that this breach of the defendant's duty of care did not cause or contribute to the plaintiff's injuries.
•The defendant was not otherwise in breach of its duty of care.
•The defence of volenti non fit injuria fails.
•If liability had been established the plaintiff would have been guilty of contributory negligence by his actions in exposing himself to risk of serious injury.
•There should be no award for modifications to the plaintiff's father's house.
For these reasons the defendant is not liable to compensate the plaintiff for the serious spinal injuries he suffered while diving from the groyne at Cottesloe Beach.