Uzabeaga v Town of Cottesloe - [2004] WASCA 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: UZABEAGA -v- TOWN OF COTTESLOE [2004] WASCA 57

CORAM: MURRAY ACJ
STEYTLER J
MCKECHNIE J

HEARD: 3 SEPTEMBER 2003

DELIVERED : 31 MARCH 2004

FILE NO/S: FUL 73 of 2002

BETWEEN: LUIS ALBERTO UZABEAGA
Appellant
AND
TOWN OF COTTESLOE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :YEATS DCJ
File Number            :  CIV 359 of 1995

Catchwords:

Negligence - Occupier's liability - Plaintiff injured when diving from groyne at Cottesloe Beach - Signs prohibited diving - Adequacy of signs - Adequacy of supervision and enforcement of diving prohibition - Whether by-law prohibiting diving was required - Whether a physical barrier to groyne was required - Whether rocks of groyne required modification to prevent diving - Causation considered - Contributory negligence

Evidence - Failure to call beach inspector - Whether rule in Jones v Dunkel to be applied

Legislation:

Occupiers Liability Act 1985 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M J Buss QC & Mr M E Herron
Respondent: Mr J Gilmour QC & Mr C C Rimmer

Solicitors:

Appellant: Gibson & Gibson
Respondent: Jarman McKenna

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

Fox v Percy (2003) 197 ALR 201
Jones v Bartlett (2000) 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 77 ALJR 1233
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
Schellenberg v Tunnel Holdings (2000) 200 CLR 121
Tomlinson v Congleton Borough Council [2004] 1 AC 46
Warren v Coombes (1979) 142 CLR 531
Waverley Municipal Council v Swain (2003) A Tort Rep 81‑694
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Booth v Bosworth (2001) 117 LGERA 168
Brandi v Mingot (1976) 12 ALR 551
Chappel v Hart (1998) 195 CLR 232
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Curley v Fremantle Port Authority (1999) 21 SR(WA) 148
Ho v Powell (2001) 51 NSWLR 572
McHale v Watson (1964) 111 CLR 384
McLean v Tedman (1984) 155 CLR 306
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Parker v Paton (1941) 41 SR (NSW) 237
Payne v Parker [1976] 1 NSWLR 191
Phillis v Daly (1988) 15 NSWLR 65
Prast v Town of Cottesloe (2000) 22 WAR 474
Pyrenees Shire Council v Day (1998) 192 CLR 330
Rottnest Island Authority v Nagle, unreported; FCt SCt of WA; Library No 960162; 27 March 1996
The Council of the Municipality of Waverley v Bloom (1999) A Tort Rep 81517
Vairy v Wyong Shire Council [2002] NSWSC 881
Water Board v Moustakas (1988) 180 CLR 491
Waverley Municipal Council v Swain [2003] NSWCA 61
West v Government Insurance Office (NSW) (1981) 148 CLR 62

MURRAY ACJ: On 1 March 1993 the appellant dived into the ocean from the groyne at Cottesloe Beach. He struck something, perhaps the bottom of the ocean. He suffered injuries which caused him to become a complete tetraplegic. He sued the respondent in the District Court for damages for negligence. The quantum of damages was substantially agreed except for one matter in respect of which the trial Judge found against the appellant. That matter is an allowance for the cost of modifications to the home of the appellant's father (with whom the appellant does not live) so that the appellant may visit his father and siblings in relative comfort. One of the grounds of appeal challenges the decision of the trial Judge on this point.
However, the appellant did not succeed before the trial Judge in establishing the respondent's liability for negligence or, what amounts to the same thing in the circumstances of this case, the breach of its duty under the Occupiers Liability Act 1985 (WA). The appellant's claim was dismissed with costs and he now appeals to this Court. The respondent seeks to support the decision of the trial Judge on grounds other than those relied upon by her Honour. The matters identified are set out in the respondent's notice of contention.
Having regard to the way in which the notices of appeal and contention are framed, the primary facts of the case may be taken to be those found by the trial Judge, having regard to her Honour's findings about credibility and omitting, for present purposes, those findings with respect to issues raised at trial which appear no longer to be live between the parties.
The appellant's case as pleaded, amendments being made to the statement of claim during the trial, was that the respondent was negligent by failing to provide any or any adequate warning that the groyne was unsafe for diving. Specifically, it was alleged that there was a failure to erect signs warning of the dangers of diving and prohibiting diving from the groyne. The respondent pleaded that such signs had been erected. It described them in providing further particulars of that defence. As so described, signs of a dimension of about 2 feet by 1 foot were said to have been erected on light poles about 7 feet above the top surface of the groyne, one at the commencement of the groyne at the beach and one about halfway along the groyne. They said that diving was prohibited.
The existence of these signs was relied upon by the respondent as adequately discharging its duty of care. I shall return to this issue in a little more detail. It is sufficient to note that the trial Judge found that the respondent was in breach of its duty of care by failing to erect signs adequately warning of the dangers of diving from the groyne, but her Honour found that this breach of duty was not causally relevant to the occurrence of the accident and the receipt of the appellant's injuries.
The respondent, by its notice of contention, challenges the conclusion that in respect of the warnings it gave the respondent was in breach of its duty of care. The contention is that the trial Judge should have concluded, in view of her findings of fact on this issue, that so far as they might have been causally relevant, the signs which were in existence were adequate and reasonable. The respondent, however, does not, of course, challenge the finding of lack of causation and nor, by his grounds of appeal, does the appellant make any such challenge. Further, this is not a case where there was a failure to warn, but a case where there were signs prohibiting diving from the groyne. In addition, a further attempt was made to enforce the diving prohibition by having the beach inspector on duty warn and seek to prevent any diving from the groyne which was observed.
The real question therefore was whether the combination of measures taken were adequate to discharge the duty of care. Were they a reasonable response to the foreseeable danger of injury which diving from the groyne presented? In those circumstances it seems to me that the real question at this stage, the signs which were in place not having been effective to prevent the accident, is whether the respondent was causatively negligent in not having otherwise taken reasonable steps directed to its prevention.
As to that, the appellant pleaded two allegations which are presently relevant. It was pleaded that the respondent was negligent in that it:
"failed to supervise recreational activities at or from the groyne by not adequately policing the ban on diving activities of the groyne in that its inspectors/rangers did not always verbally warn persons engaged in such activities about the dangers of such activities and did not always direct such persons not to engage in such activities whenever they were occurring and if the inspectors/rangers did so warn/direct and such warnings/directions were being ignored, by not passing and enforcing a by‑law making it an offence to engage in diving activities off the groyne."
Two things will be noted about this particular of negligence, which was amended at the trial. It was not the appellant's contention specifically that there were inadequate numbers of beach inspectors or rangers on duty at the relevant time, but it appears that the allegation was accepted as including that proposition and, as will be seen, it is that contention upon which the appellant now primarily relies. The second matter to be noticed is the reference to the making of a by‑law making it an offence to dive off the groyne. The pleading was that it was negligent not to have such a by‑law in case the warnings and directions given by inspectors were ignored.
There was a pleading that the respondent was negligent in not excavating the area of the seabed over which the appellant dived from the groyne to sufficient depth to enable diving to be safely undertaken, but this was found not to have been established and it is not pursued. However, it was also pleaded that the respondent was negligent in that it "failed to fence the concrete footpath of the groyne so as to prevent persons diving from the groyne." Again, this was not found to be established, but it is pursued by the appellant on the appeal.
Given that the appeal raises no question that the trial Judge ought to have concluded that on the ground of insufficiency of warning signs the appellant should have had judgment at first instance, I think that, except as a matter of fact relevant to the question of the discharge of the respondent's duty of care generally, the adequacy of warning signs falls away as a separate issue on this appeal.
Further, as will be apparent from what I have already written, it is clear that neither at trial nor on appeal does any question arise that the respondent owed the class of persons of whom the appellant was one; those using the reserve, the beach and specifically the groyne for recreational purposes, a duty of care. That duty might be expressed simply in traditional terms as being the duty to take reasonable care and precautions to protect the appellant from a reasonably foreseeable risk of harm. The scope of the duty, its measure, will not exceed that of reasonable care. This is the type of case where it is useful to refer to the general observation by Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [123]:
"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."
As has been seen, there was no contest below about these matters. The question was whether the duty of care was breached by the defendant's failure to take reasonable steps directed to eliminate the risk of harm, which was found by the trial Judge to be relatively remote, although reasonably foreseeable, having regard not only to the magnitude of the risk, but also to the expense, difficulty and inconvenience of taking alleviating action: Wyong Shire Council v Shirt (1980) 146 CLR 40, per Mason J at 47‑8 and Romeo, per Hayne J, at 488‑9 [156]‑[157]. There is no suggestion raised by any ground of appeal or contention of the respondent that the trial Judge in any way erred in her approach to the case as a matter of law.
Specifically, it may be said in the context of this case that the reliance by the appellant, in addition to pleading negligence at common law upon the provisions of s 5 of the Occupiers Liability Act 1985 (WA) added no additional dimension of law to the legal framework in which the case fell to be decided. The appellant pleaded as particulars of the breach of statutory duty the particulars of negligence previously pleaded. This was the basis upon which the trial Judge approached the matter and, in my respectful opinion, rightly so: cf Jones v Bartlett (2000) 205 CLR 166.
The grounds of appeal and the notice of contention are verbose. They do not attempt to express succinctly the issues to which the appeal is said to give rise. I do not propose to set them out. The issues I would distil from them are as follows –
1.The appellant contends that the respondent was negligent or breached its statutory duty by a failure to adequately supervise. The contention emerging from the grounds of appeal is not that expressly particularised in the statement of claim, but may be taken to be encompassed within it. Grounds of appeal 2 and 5 effectively assert that, during daylight hours on "busier days and weekends and public holidays in the warmer months" there should have been a degree of supervision sufficient "to strictly enforce the ban on diving" and, in particular, a second beach inspector should have been on duty. It is contended that the trial Judge should have so found. On the other hand, by its notice of contention, the respondent suggests that, given her Honour's findings, particularly that the appellant would not have stopped diving from the groyne on the day of the accident had he been warned not to do so, her Honour erred in holding that the full‑time supervision of recreational activities on the groyne would have prevented the appellant from diving.
2.Associated with that issue is an evidentiary point presented by appeal ground 8, that the trial Judge erred in not finding that the beach inspector who was on duty at the time of the accident had seen the appellant and his group diving from the groyne, but had taken no action, in light of her Honour's view that the respondent's failure to call the inspector allowed her to draw the inference based on the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298, that the evidence of the inspector would not have assisted the respondent's case on the issue of supervision.
3.A further related ground, appeal ground 9, asserts the proposition that in view of her Honour's decision that in respect of the erection of warning signs, the respondent breached its duty of care, her Honour erred in not finding a breach of duty in respect of supervision. As I understand it, the point being made here is that her Honour concluded that effective signs would have been enough and further supervision was not required, a conclusion which the appellant argues was precluded by the finding that the signs were inadequate to discharge the duty. This ground seems to me to involve circularity of reasoning. I should deal with it in discussing the question of supervision generally.
4.Ground 11 pursues the contention that the respondent was negligent by failing to make and enforce a by‑law making it an offence to dive or jump from the groyne.
5.Ground 12 pursues the contention that the trial Judge erred in failing to conclude that the respondent was negligent by failing to erect a barrier fence on the groyne. I remind myself of the type of fence which was pleaded in the particulars of negligence.
6.Ground 12 also advances an apparently unpleaded allegation that the trial Judge erred by failing to conclude that the respondent was negligent "in not modifying the rocks on the groyne so as to make them difficult to be used as a diving platform".
7.The next proposition emerging from ground 17 is not truly a matter for the grounds of appeal at all. The ground puts the assertion that the trial Judge erred in failing to conclude that the matters about which it is previously asserted she has erred caused or contributed to the accident. Her Honour did not fail to draw any such conclusion. Indeed, it is clear that had her Honour been of the view that there was a breach of duty in any respect which could be seen to be causally relevant, her Honour would have so found. The question of causation may need to be dealt with when the merits of the substantive grounds of appeal focusing on questions of breach of duty have been dealt with.
8.It is contended that her Honour erred in her conclusion that the appellant was guilty of contributory negligence in view of his age, what he thought was the depth of the water, the absence of adequate warning signs and the prevalence of the practice of diving from the groyne.
9.Finally, there is the damages issue concerned with the modification of the house of the appellant's father so as to enable him to visit his father and siblings.
The facts which are relevant to the issues raised in the appeal are those found by her Honour the trial Judge and set out in her comprehensive and carefully compiled reasons for judgment. I repeat those which are presently relevant, hereunder:
"1. The plaintiff and his friends almost invariably jumped and dived from the same rock, a smooth, flat rock marked as the dive rock on the plan (Exhibit 3). On the day of the accident the plaintiff jumped from the dive rock and then dived twice from it.
2.The dive rock is positioned 7.3 metres past the light pole located near the middle of the groyne. It is approximately 1.6 metres horizontally from the water so that a diver must dive out, away from the rocks of the groyne to reach the water.
3.The dive rock is a feature of the groyne which occurred randomly when the groyne was built in around 1960. This one rock ended up in the pile of rocks which comprised the groyne in a position where it exposed a flat, smooth surface which has come to be used by swimmers as a platform from which to dive or jump.
4.The depth of the water adjacent to the dive rock on the day of the accident cannot be precisely determined ... I find that the water the plaintiff dived into was approximately 180 cm to 190 cm deep at the time of the accident.
5.The depth of the water was further increased by the plaintiff diving "after the waves were coming" (TI25). I take this to mean that he dived into the height of a wave or swell the same as Mr Alvarez reported doing (T208). This would not have had any significant effect on the depth of the water that day because the sea was reasonably calm and smooth. But it does mean that, if anything, the water was deeper than 1.8 to 1.9 metres at the place the plaintiff dived. He did not dive into the trough in front of or behind the wave.
6.The depth of the water affects the vertical distance of the dive rock above the water at the time of the accident. Mr Rodda calculated that distance as 2.18 metres. Based on my findings as to the depth '- of the water on the day the dive rock would have been less than 2.18 metres above the water, probably closer to two metres.
7.The plaintiff knew exactly what the depth of the water was on the day of the accident because before diving he jumped in feet first to test it.
8.Conditions on the day of the accident were mild. It was hot with light south west winds but the sea on the north side of the groyne was reasonably calm and smooth in the area the plaintiff dived into.
9.The plaintiff had on hundreds of previous occasions dived into the ocean from the dive rock without injury. So had his friends and a considerable number of other young people who had dived from the groyne, probably from the same dive rock, over the years as far back as the 1960's. On no previous occasion has any person ever suffered a serious spinal injury while diving from the groyne at Cottesloe Beach.
10.The plaintiff successfully completed one dive from the dive rock. He did a shallow dive as he usually did, propelling himself out away from the dive rock and entering the water clear of the rocks comprising the groyne.
11.The second dive which resulted in the plaintiffs serious spinal injuries must not have been a shallow dive. He did not suffer any cuts or bruises so he must have dived out far enough to clear the rocks of the groyne, a distance of 1.6 metres ... There is no direct evidence of how the plaintiff suffered serious spinal injuries. On the evidence before me the only reasonable inference is that the plaintiff must have done a steep dive and come into contact with the sand of the seabed with his head without protecting his neck with his hands or arms.
12.The plaintiff knew that if he dived into water that was too shallow or where there were rocks under water he could be seriously injured. I make that finding because it is the only reasonable inference open given his invariable practice of jumping in feet first and checking the depth and checking for rocks before he dived.
13.The plaintiff knew that it would be really dangerous and stupid to do a steep dive from the dive rock. He knew that when he made the fateful dive. There is no explanation why he did a steep dive on this occasion.
14.Swimmers have jumped and dived from the groyne since it was built in 1960. More jumping takes place than diving. Persons involved in jumping and diving are usually teenagers.
15.In 1990 the defendant placed standard signs on and near the groyne prohibiting diving. Those signs were in place during the years the plaintiff visited Cottesloe Beach beginning in 1990 or 1991.
16.I do not accept the plaintiff's evidence that he did not see the signs prohibiting diving from the groyne.
17.The plaintiff falls into the third category described by Professor Hartley. He made up his own mind whether or not it was safe to dive, irrespective of whether there were signs prohibiting diving. That was amply demonstrated in his continual diving from the groyne and from the Rockingham Jetty despite signs prohibiting diving at each location.
18.The defendant was aware teenagers regularly jumped and dived from the groyne.
19.The defendant knew diving from the groyne was dangerous. There was a risk of serious spinal injury and of slipping on the rocks and breaking an arm, twisting an ankle or cutting oneself.
20.It was part of the duties of the defendant's beach inspectors to warn anyone diving or jumping from the groyne of the danger. Once warned swimmers stopped diving and jumping.
21.The surf patrols warned anyone seen jumping or diving from the groyne of the danger. Once warned swimmers stopped jumping and diving.
22.The defendant does not ensure that a beach inspector or the surf patrol are on duty watching the groyne at all times. Beach inspectors are on duty from 6.00 am until 6.00 pm most days but are out of sight of the groyne for at least one half hour every hour attending to other duties. The surf patrol is on duty from 9.00 am until 5.00 pm on weekends and public holidays from October to April. By 4.30 pm the surf patrol begins bringing in its equipment.
23.The plaintiff and his friends usually visited Cottesloe Beach during the week and visited Rockingham Beach on weekends.
24.The plaintiff dived and injured himself at about 4.50 pm on 1 March 1993, a public holiday. (Her Honour elsewhere found that the appellant was involved in this activity for 5 to 10 minutes before he was injured.) The surf patrol was on duty and had begun putting away its equipment but the flags had not yet been brought in.
25.On the day of the accident the plaintiff and Osman Alvarez each jumped off the groyne and Osman Alvarez dived four or five times before the accident. No-one warned them of the dangers of jumping or diving from the groyne during that period."

The following further matters should be noted. The appellant was a teenager, a month short of his fifteenth birthday, when on 1 March 1993, he suffered the injuries in respect of which he sued the respondent. The groyne is a substantial construction which has a concrete pathway built on top of it, apparently for no other purpose than to provide access to people to walk out along the groyne, but the purpose of the groyne was to conserve sand, having regard to prevalent wave conditions at Cottesloe Beach. In that regard, it has been successful.
At the relevant time there were by‑laws generally giving beach inspectors appointed by the respondent authority to control the activities of members of the public on the beach reserve. The by‑laws did not expressly refer to diving from the groyne, but they were expressed in terms which would enable the enforcement of a prohibition of diving. That prohibition had existed since April 1990, some 3 years prior to the date of the accident.
There were two standard "diving prohibited" signs. They were perfectly clear, the prohibition being reinforced by the depiction of a diver crossed with a red line. They were in the form of the relevant Australian Standard. They were on two light poles about 7 feet above the paving of the groyne. The appellant and his friends must have walked past both signs to reach the dive rock from the beach reserve, as they did on the occasion in question. In any event, as has been seen, her Honour found that the appellant was well aware of the signs and the prohibition, but was the sort of person who would make his own decision whether or not to dive, irrespective of such a prohibition.
The respondent did not rely entirely upon the signs which it had in place. Hence the unreality, in my view, of the argument raised for the respondent by the first and third clauses of the notice of contention, that her Honour erred by failing to hold that the respondent discharged its duty of care merely by the placement of the signs prohibiting diving. In fact, members of the surf patrol and beach inspectors on duty who saw people either diving or jumping from the groyne would stop either of those activities in just the same way that they would stop board surfers using the water in close proximity to swimmers. The effective prohibition so far as the groyne was concerned was not restricted merely to diving, but to jumping off the groyne into the water from any position.
Apart from the surf patrol, there was always, on a day such as that in question here, at least one beach inspector on duty. From a position outside the inspectors' office the duty inspector had a clear view across the beach to the groyne, but as her Honour found, that officer had other duties which might take him off the beach and involve him in activities elsewhere on the reserve, with the result that for substantial periods of time the inspectors could not have the groyne under their observation. However, if people were seen to be jumping or diving off the groyne they would be stopped, if necessary with police assistance.
Having reviewed the facts, her Honour conveniently summarised her approach to the question of breach of duty by giving her view about the magnitude of the risk with which, by the measures I have described, the respondent had sought to deal. In her judgment at [2002] WADC 71 at [165], her Honour said:
"In this case the defendant bears a special responsibility. It built the groyne for a legitimate purpose but in doing so it created the dive rock, a hazard which presented young beachgoers with an opportunity for fun which was dangerous and carried the risk of seriously injuring them. Numerous young people have enjoyed diving from the dive rock since 1960. While the risk of serious spinal injury was real it was remote and unlikely to occur. In these circumstances I am satisfied the magnitude of the risk of diving from the dive rock was slight but the numbers of young people who were involved in this activity is a factor which must be considered when I consider the response of a reasonable defendant in the position of the Town of Cottesloe."
I see no reason, with respect, to dissent from that formulation of the nature of this case.
Having regard to the way in which the grounds of appeal are formulated and to the issues they raise, the Court should approach the determination of the appeal in the manner approved by the High Court in Warren v Coombes (1979) 142 CLR 531 at 551 where the majority said:
" … an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."
That statement has been endorsed and applied many times since, eg, recently in Fox v Percy (2003) 197 ALR 201.
I turn then to the issues raised by the appeal. As to the question of breach of duty and the erection of signs prohibiting diving it is noteworthy that although the signs were in the form of the relevant Australian Standard, her Honour held that the respondent breached its duty of care because in the circumstances signs "merely prohibiting diving" were insufficient to discharge the duty of care. Her Honour concluded that, "the signs should have specified the danger and alerted beachgoers to the possible consequence of breaching the prohibition." That is, in her Honour's view, the signs should have specified the danger that a diver might strike a rock or the bottom of the ocean with such force as to suffer serious injury, indeed injury of the kind suffered by the appellant.
For myself, I would not have been inclined to take that view. It must have been very apparent to a user of the beach and the groyne, even a youthful beachgoer such as the appellant, that the reason why diving was prohibited from the groyne was the very danger of which, in her Honour's view, the beachgoer should have been specifically warned. But in any event the issue falls away, as I have observed, because of the unchallenged conclusion to which her Honour came, that the appellant not only knew of the prohibition and that the reason for it was the danger of the kind described, but also that he was a young person who would make up his own mind whether he could dive safely, regardless of the prohibition. The adequacy of the warning given therefore had no causal relationship to the harm suffered.
As to the question of supervision, it is convenient first to deal with ground 8. The beach inspector on duty at the time in question was not called. Her Honour accepted the submission for the appellant, relying upon Jones v Dunkel, that she should draw the inference that the inspector's evidence would not have assisted the respondent's case on the issue of supervision. Later, her Honour thought it proper to draw a similar inference in relation to the appellant's failure to call three witnesses, companions of the appellant. But in neither case, having drawn that inference, does her Honour appear to have carried that forward to provide any assistance in relation to proof of the party's case. It will be recalled that the appellant's contention by ground 8 is that the trial Judge should have concluded that the beach inspector in fact observed the appellant and his group diving from the groyne, but took no action to stop them.
If a Jones v Dunkel approach is to be taken by the finder of fact, it is clear that the purpose of so doing is to assist the Court to a conclusion of fact on the balance of probabilities. Jones v Dunkel was an action in negligence arising out of a collision between motor vehicles. The question was whether the vehicles came into collision as a result of the negligent driving of the defendant. The driver of the other vehicle was the plaintiff's husband. He had been killed in the accident. The defendant did not give evidence and none was called for the defence.
The headnote accurately summarises the decision of the majority, that the trial Judge's directions to the jury were incomplete in that:
" … the jury should have been told that any inference favourable to the plaintiff, for which there was ground in the evidence, might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied upon as the ground for the inference, has not been called as a witness by the defendant and the evidence provides no explanation for his absence."
As Kitto J put it, at 308:
"The jury should at least have been told that it would be proper for them to conclude that if Hegedus (the defendant) had gone into the witness‑box his evidence would not have assisted the defendant by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence."
The matter was made clear by Menzies J at 312:
"In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."
Of course, as I have already mentioned, all of that is qualified by there being no sufficient explanation for the failure to call the evidence in question.
In Schellenberg v Tunnel Holdings (2000) 200 CLR 121, the High Court, in discussing the suggested application of Jones v Dunkel to that case, made it clear that the rule could only be applied where the evidence given by the other side required explanation or contradiction. Otherwise there was a danger that the rule might be applied so as to impermissibly make up for a deficiency in the evidence: see per Gleeson CJ and McHugh J at 143 [51] – [53].
In my opinion, the argument for the appellant involves that error. There was no explanation given by the respondent, as I understand it, for the failure to call the beach inspector, but there was no evidence of the facts asserted in the ground and it was not the appellant's case that the respondent was vicariously liable for the negligence of its beach inspector in observing breaches, by a group including the appellant, of the diving prohibition and taking no action to stop this activity. What the appellant seeks by ground 8 was to have the trial Judge use Jones v Dunkel impermissibly to provide evidence to make a case against the respondent for which there was no evidence.
The appellant's case was and is that there was a failure adequately to supervise recreational activities, including diving from the groyne, effectively by having the groyne under constant observation at least at times such as on the occasion of this accident when many people were at the beach. If necessary, it is contended, a second beach inspector should have been on duty with the obligation to constantly supervise activities on and near the groyne. As to that, her Honour concluded, at [208]:
"Given the depth of the water and the unlikelihood of such accidents occurring and taking account of the somewhat higher duty of care because the defendant knew teenagers were involved in diving, I do not find that the law required the defendant to supervise at any higher standard than it did at the time of this accident. There are many risks and dangers to persons visiting the beach besides the risks associated with diving from the groyne. These include sharks, rips and submerged rocks. The defendant, through its beach inspector, was responsible to warn about all sorts of risks. Once the defendant prohibited diving from the groyne by putting up signs and supplemented that prohibition with some regular enforcement by beach inspectors and surf patrols among their other duties, it seems to me the defendant met its duty to take reasonable care to avoid the foreseeable risk of injury from diving from the groyne. The defendant was not an insurer. Its duty was to take reasonable care. It was not a duty to prevent any and all reasonably foreseeable injuries (Romeo's case at [55]). It was not a duty to stop every person from diving from the groyne. The defendant was entitled to expect beach users to take reasonable care for their own safety and to obey signs prohibiting diving. The duty did not extend to physically stopping every person who might decide to dive from the groyne despite the prohibition."
For my part, taking to the approach to the issue settled by the High Court in Warren v Coombes, I can see no appellable error in this reasoning process. Of course, the respondent could have ensured that an accident of the kind that occurred in this case did not happen by having somebody constantly on duty to physically prevent, if necessary, the activity of diving from the groyne. But that would be truly to require the respondent to act as an insurer against the risk and it would have to undertake the measures at least during daylight hours. Such measures would only be effective if they were undertaken at all times during daylight hours because the magnitude of the risk did not change having regard to whether the day was one when many used the beach or whether only a few were doing so. People like the appellant were quite as likely to flout the prohibition of diving whether or not it was a day when many people were using the beach.
It is not to the point that supervision of the intensity which the appellant asserts was reasonably necessary would no doubt have stopped the plaintiff from executing the dive which caused his injuries. It did not become legally relevant, but in my view the conclusion of the trial Judge that, "While the plaintiff, on his own admission, may well have ignored one warning, I believe the full‑time attention of a beach inspector would have stopped him …", was well open on the evidence.
I move on to the question whether the respondent was negligent by failing to make and enforce a by‑law making it an offence to dive or jump from the groyne. I have noted that there were by‑laws giving beach inspectors appointed by the respondent, authority to control the activity of members of the public on the beach reserve. Although they did not specifically refer to a prohibition of diving or jumping from the groyne it was found that they could have been used as part of a process of enforcing that prohibition. The trial judge found that the making of a by‑law specifically prohibiting diving or jumping from the groyne and making it an offence to do so was not reasonably required of the respondent. In any event, her Honour said she was not persuaded that the making and enforcement of such a by‑law would have prevented the accident. The appellant, her Honour said, would have ignored it, and so she considered that the failure to make and enforce such a by‑law did not cause or contribute to the appellant's accident.
As I understand the appellant's argument, however, the point is a simple one. It is directed not so much to making a different by‑law from those already in force, but to the proposition that if the appellant declined to obey a warning or instruction by a beach inspector not to dive, then the by‑laws conferred a power of arrest without warrant and a power to remove from the beach reserve persons who breached the by‑laws. Reasonable force could be used. That would undoubtedly have prevented the accident, but in my opinion the point is irrelevant.
This was not a case where, although the appellant was warned not to dive by a beach inspector, he made his dive contrary to that warning or instruction. The case was not one where it was contended that the appellant's injuries were caused because a servant or agent of the respondent negligently failed to use reasonable force in the enforcement of the by‑laws to prevent the dive taking place. There is, in any event, in my view, nothing to suggest that a different conclusion to that reached by her Honour, that it was not negligent to fail to make and enforce a by‑law in the terms pleaded, should be reached.
As to the issue of the barrier fence, it will be recalled that the appellant's pleading was one of negligence in the failure to fence the concrete footpath on top of the groyne so as to prevent persons diving from it, rather than to seek to prevent all access to the groyne. The proposal was that a fence, which is erected at the start of the groyne, ought to have been extended out on either side and to enclose the walkway on the top of the groyne. The fence which was there was constructed of steel uprights holding two horizontal bars, the top one of which appears to be at about waist height for an adult.
As her Honour found, those who wished to jump or dive off the rocks of the groyne would easily be able to climb through or over such a fence and, of course, it would provide no barrier to swimmers climbing onto the rocks of the groyne from the water. In evidence it was put that such as fence would be a symbolic rather than a physical barrier. It would indicate to people that while they were permitted on the walkway, they were not permitted on the rocks. Her Honour found that the erection of such a fence was not reasonably required and, given the attitude of the appellant, her Honour was not satisfied that the failure to erect such a fence was causally relevant. Both conclusions appear to me, with respect, to be unassailable.
I have mentioned that ground 12 also asserts that the trial Judge erred in not finding that the respondent breached its duty of care by "not modifying the rocks on the groyne so as to make them difficult to be used as a diving platform". This was not a pleaded particular of negligence. There was evidence, and the trial Judge found, that the rock from which the appellant and his friends dived was one which they almost invariably used. It was identified on the plan as the "dive rock", but I do not understand that there was evidence that that was what it was called by those who used the groyne to dive or jump into the water.
There was evidence that this rock, which was flat and formed a platform, might have been physically changed to remove those characteristics, but of course there were numerous rocks in the groyne from which persons could jump or dive into the water and no-one suggested in evidence that a measure of this kind might seriously be considered as a means of preventing persons using the rocks of the groyne as platforms from which to jump or dive into the water.
As I understand the position, it was not a proposition opened by the appellant or debated by counsel in closing. The trial Judge does not deal with this argument and in my view it is quite inappropriate that it is now suggested that her Honour erred by not finding the respondent to have been negligent in this regard. In any event, I consider that there is no basis of fact to support the view that this was a reasonable measure which the respondent ought to have taken in the discharge of its duty of care.
There is no need, in view of what I have written, to deal with the question of causation. As I have said, the trial Judge found that the failure to make and enforce a by‑law and the failure to erect a barrier fence were not matters causally relevant to the occurrence of the accident had they, together or either of them, constituted a breach of the duty of care. Her Honour is not said to have approached the issue of causation wrongly as a matter of law and I have found no error in her approach. Of course, the issue was hypothetical and, as I have said, I do not doubt that had her Honour found a breach of the duty of care in respect of the issue of supervision or, if she had been asked to deal with it, the issue of modification of rocks of the groyne, the question of causation would have been answered affirmatively from the point of view of the appellant. In the circumstances, however, I need say no more about it.

Nor need I deal with the question of contributory negligence, but it may be convenient to deal briefly with it in case I should be in error in relation to the respondent's liability.
The test for the establishment of contributory negligence has recently been considered by the High Court in Joslyn v Berryman (2003) 77 ALJR 1233. It is convenient to cite passages from the judgment of McHugh J, firstly at 1236[16].
"At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered."
Relative to this case, at 1240[32], his Honour added the observation:
"The test of contributory negligence is an objective one. Contributory negligence, 'eliminates the personal equation and is independent of the idiosyncracies of the particular person whose conduct is in question.' One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child. It may be the law that, in the case of an aged plaintiff, the standard of care is also tailored to the age of the plaintiff."
The trial Judge had regard to the appellant's age in considering the question of contributory negligence. The relevant ground asserts an error of law, but in argument no challenge was mounted to her Honour's approach to the issue of contributory negligence as a matter of law. The contention is that on the evidence, her Honour erred in fact in finding the appellant guilty of contributory negligence. A large number of matters were mentioned in argument. I think I need not reiterate them here. Her Honour's conclusion is shortly expressed in par [233] – [235] of her judgment:
"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."
In my opinion, there is nothing more to be said on the topic. Her Honour's conclusion on this issue is again, in my respectful opinion, unassailable.
The remaining issue is that concerned with the question of damages – whether an allowance ought to be made in any assessment for the cost of modifications to the house of the appellant's father (not the appellant's place of residence) so that he might, in reasonable comfort, visit his father and siblings. Again, in light of my view as to the respondent's liability, there is strictly no need for me to deal with this issue, but, again, in case I am in error in relation to the question of liability, it is convenient to deal briefly with it.
The question does not arise in relation to the provision of appropriate accommodation for the appellant and a full‑time carer who looks after him. The appellant apparently wished to continue to live independently and he proposed to reside in Fremantle. However, he wanted to be able to visit his father, perhaps monthly, with his carer, and he wished to be able to spend a few days at his father's house when he made such a visit. Her Honour accepted that the house was not suitable for such overnight stays. Originally, the appellant wished, by that means, to have regular contact with siblings, who were in fact half brothers and sisters, but before trial his father and stepmother had parted company and she had taken up residence in Mount Lawley with six of her seven children, leaving one only, an 18‑year‑old stepbrother, at home with the appellant's father.
The trial judge noted that the question whether an allowance should be made in any award of damages for the cost of modifications to the house of the appellant's father was to be determined by considering that the award of damages by way of compensation for negligence was for the purpose of restoring the appellant to substantially the position he was in before he was injured, so far as it was possible to achieve that end by an award of damages.
The foundation of the award is always the application of this compensatory principle, which involves the Court in making an assessment of the monetary value of the plaintiff's loss or damage which, relative to this issue, will often involve not only compensation for the physical or mental harm caused or for capacity lost or impaired, but also the making of an award to meet a need created by the injury suffered. It is the latter aspect upon which, I would think, the appellant relies in relation to this particular head of claim.
In Nominal Defendant v Gardikiotis (1996) 186 CLR 49, at 54, McHugh J stated the general principle in these terms:
"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, "in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation". Consequently, when a plaintiff asserts that, but for the defendant's negligence, he or she would not have incurred a particular expense, questions of causation and

reasonable foreseeability arise. Is the particular expense causally connected to the defendant's negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred?"

There are, of course, qualifications to the application of the compensatory principle. A basic one is the notion that compensation should be fair and reasonable and the Court is not to seek for perfect compensation, whether in respect of pecuniary or non‑pecuniary loss: see, eg, Sharman v Evans (1977) 138 CLR 563 per Gibbs and Stephen JJ at 584-5. This question may be put, as her Honour the trial Judge did, by asking whether the claimed expense should reasonably be laid at the door of the defendant.
A related consideration is the policy rule which may characterise a particular claim as being for damages which are too remote from the negligence of the defendant, although they may be regarded as causally connected to the defendant's negligent conduct. In this regard, it is sufficient to bear in mind, as was made clear by the High Court in Gardikiotis, that causation is a question of fact to which are to be applied notions of robust commonsense rather than concepts presented as legal principles; a process described by McHugh J in Gardikiotis at 55 as "the common law theory of commonsense causation". There are many cases dealing with the question of causation. The leading authority is no doubt March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 and then there is a line of cases, to perhaps most recently, Rosenberg v Percival (2001) 205 CLR 434.
The appellant's point is a short one. He argues that it is reasonable that he should be able to live as independently as possible, given his present age, and yet he should be in a position to visit his father and other members of his family, stepbrothers and stepsisters, at his father's house. He should, if he wishes, be able to stay overnight, he argues. A proper and fair award of damages, he submits, would therefore include an amount to provide for the necessary modifications to his father's house.
The trial Judge concluded:
"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."

I respectfully agree. If an award was to be made it would be part of the process of compensating the appellant for his physical disabilities, but to my mind it is a dubious proposition that there is a need to expend money to make modifications to the house of the appellant's father which, in a commonsense way, may be said to be caused by the injuries and disabilities suffered by the appellant. Putting it another way, the expense may be regarded as too remote because the appellant's very reasonable desire to be able to maintain contact with other members of his family may be met without making the expenditure in issue. I respectfully agree with her Honour. Such an award would go beyond the limits of just and fair compensation for the harm and damage suffered by the appellant.
I would dismiss the appeal.
STEYTLER J: I have had the advantage of reading the judgment of Murray ACJ. I agree with it and with the conclusion that no error has been shown in the reasoning of the trial Judge.
I would add only the comment that there has, in recent times, been a greater emphasis, in the law of negligence, on the acceptance by individuals of a personal responsibility for their own conduct than may previously have been the case. This was said, expressly, by Spigelman CJ in Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 at 48 [26], where his Honour said:
"In many respects the tort of negligence is the last outpost of the welfare state. There have been changes over recent decades in the expectations within Australian society about persons accepting responsibility for their own actions. Such changes in social attitudes must be reflected in the identification of duty of care for purposes of the law of negligence. The recent authoritative statements in Perre v Apand Pty Ltd [(1999) 198 CLR 180] and Agar v Hyde [(2000) 201 CLR 552] give greater emphasis, in the development of the law of negligence, to the acceptance by individuals of a personal responsibility for their own conduct, than may have been given in the past."
Similarly, in Waverley Municipal Council v Swain (2003) A Tort Rep 81‑694 at 63, 778 Spigelman CJ said:
"… Bus v Sydney County Council [(1989) 167 CLR 78] identified a change in the law, between Dell'Oro [(1974) 132 CLR 97] in 1972 and 1986, to the effect that the law has 'progressed' by giving greater weight to the possibility of

inappropriate conduct on the part of others. It now appears possible to identify a change in the law in the other direction, ie greater weight is being given to the proposition that people will take reasonable care for their own safety."

Similar statements have been made in England. A striking example is provided by the judgment of Lord Hoffmann in Tomlinson v Congleton Borough Council [2004] 1 AC 46 (a case which involved a man who had broken his neck after diving into a shallow lake in which swimming was prohibited) at 85 where his Lordship said (at [46]):
"My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ … [[2003] 2 WLR 1120, 1135] para 45, that it is 'only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability'. A duty to protect against obvious risks or self‑inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360."
See also D A Ipp: "Policy and the Swing of the Negligence Pendulum" (2003) 77 ALJ 732 at 741 ‑ 743 and Fitzgerald and Harrison: "Law of the Surf" (2003) 77 ALJ 109 at 116.
This was a tragic case, by any measure. Much as one is bound to sympathise with the appellant, he chose to run a risk, understanding full well the nature of that risk and its possible consequences. I agree with the opinion of the trial Judge (expressed at par 208 of her reasons) that the respondent was entitled to expect beach users to take reasonable care for their own safety and to obey signs prohibiting diving. I agree also with

her comments (ibid) that the respondent was not an insurer and that its duty to take reasonable care did not extend to physically stopping every person who might decide to dive from the groyne despite the prohibition.

MCKECHNIE J: I agree with the reasons of Murray ACJ and with his conclusion that the appeal should be dismissed. The trial Judge made detailed findings of fact which were open. She concluded that although the respondent had breached its duty of care, the breach was not causative of the appellant's injuries.
In my respectful view, her reasoning to that conclusion is not only open but very persuasive. It does not disclose error.