Vairy v Wyong Shire Council

[2002] NSWSC 881

Reported Decision: (2002) 129 LGERA 10

New South Wales

Supreme Court

CITATION:	VAIRY v WYONG SHIRE COUNCIL [2002] NSWSC 881
FILE NUMBER(S):	SC 13576/93
HEARING DATE(S):	9/9/02, 10/9/02, 11/9/02, 12/9/02, 13/9/02, 16/9/02, 17/9/02, 18/9/02, 19/9/02, 23/9/02, 24/9/02, 26/9/02
JUDGMENT DATE:	20 December 2002
PARTIES :	Ernest Vairy (Plaintiff) Wyong Shire Council (Defendant)
JUDGMENT OF:	Bell J at 1

COUNSEL :	P. C. B. Semmler QC / L.T. Grey (Plaintiff) I.G. Harrison SC / D. F. Villa (Defendant)
SOLICITORS:	Carroll & O'Dea (Plaintiff) Minter Ellison (Defendant)
CATCHWORDS:	Negligence - public authority - diving from rock platform in public reserve - breach of duty - obviousness of danger
LEGISLATION CITED:	Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Law Reform (Miscellaneous Provisions) Act 1965 Local Government Act 1919 Local Government Act 1993 Public Trusts Act 1897 Stevedoring Industry Act 1956 (Cth)
CASES CITED:	Aiken v Kingborough Corporation (1939) 62 CLR 179 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Buttita v Strathfield Municipal Council [2001] NSWCA, 365 Caparo Industries Plc v Dickman [1990] 2 AC 605 Chappel v Hart (1998) 195 CLR 232 City of Rockingham v Curley [2000] WASCA 202; 112 LGERA 123 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Department of Natural Resources and Energy v Harper [2000] VSCA 36 Franklins Selfserve Pty Ltd v Bozinovska (unreported), NSWCA, 14 October 1998 Inverell Municipal Council v Pennington (1993) Aust Torts Rep 81-234 Hornberg v Horrobin [1998] QCA 283 Manly Municipal Council v Boylan (unreported) NSWCA, 26 April 1995 The Mountain Cattlemen's Association of Victoria Inc v Barron [1997] Aust Torts Rep 81-426 Nagle v Rottnest Island Authority (1989) Aust Torts Reports 80-298 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 Prast v Town of Cottesloe [2000] WASCA 274; 22 WAR 474 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; Saroukas v Sutherland Shire Council (1992) Aust Torts Rep 81-149 Scarf v State of Queensland [1998] QSC 233 Tame v State of New South Wales [2002] HCA 35; 76 ALJR 1348 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverly Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447; Western Australia v Dale (1996) 15 WAR 464 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Verdict and judgment for the plaintiff in the sum of $ 5,054,753.25; The defendant to pay the plaintiff's costs as agreed or assessed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 20 December 2002

13576/93 Ernest VAIRY v WYONG SHIRE COUNCIL

JUDGMENT

1 BELL J: The plaintiff sues the Wyong Shire Council (“the Council”) for damages arising out of injuries that he sustained on 24 January 1993 when he dived into the ocean from a rock platform located at the northern end of Soldiers Beach and hit his head on a sandbar. He suffered a burst fracture at C5 causing irreversible tetraplegia. He brings his claim in negligence contending that the rock platform was within a reserve over which the Council exercised care, control and management and particularising as negligent the Council’s failure to prohibit diving from it or to warn of the dangers of so doing.

2 The parties are agreed on the assessment of the plaintiff’s damages. The issue between them is as to the Council’s liability for the plaintiff’s injuries and, in the event that issue is determined adversely to the Council, whether it has established that the plaintiff’s own negligence contributed to his loss.

Soldiers Beach

3 At the northern end of Soldiers Beach there is a substantial rock outcrop that extends around the base of the headland to the southern end of Pebbly Beach. At the southern end of the rock outcrop is a finger like rock formation (“the rock platform”) separated by a small channel from an area of flat rock adjoining the sand of Soldiers Beach. The rock platform is a long expanse of rock of varying heights. Towards the northern end of it is an elevated section known as “the high rock”. The rock platform, the channel and the area of flat rock adjoining the beach are described in a plan, Exhibit “C”, and may be clearly seen in a series of photographs, Exhibit “D”, and in the films, Exhibit “G” & Exhibit “J”.

4 The plaintiff dived into the South Pacific Ocean from a position on the eastern side of the rock platform. At the commencement of the dive he was standing approximately in the position in which a young man wearing red board shorts can be seen in the photograph, Exhibit “D” (9) (“the dive location”).

5 Soldiers Beach is a popular surfing beach on the Central Coast located about eight kilometres north of the Entrance. As at January 1993 it was one of six patrolled beaches within the Shire of Wyong and it had a number of amenities. There was a substantial bituminised car park with marked car spaces on the northern headland surrounded by a post and rail fence (“the car park”). Access to the beach from the car park was down a set of concrete steps. Access to the rock platform from the car park was gained down a set of low wooden steps leading to a gravel path that went down to the rocks. Adjacent to the car park was a kiosk. There were two other car parks available to members of the public visiting Soldiers Beach. A substantial Surf Life Saving Association clubhouse occupied an elevated position towards the northern end of the beach and had an unobstructed view of the rock platform.

6 Malcolm Drummond, a registered surveyor, surveyed the rock platform on 29 April 1995. He determined spot levels at three points along the rock platform. In his report (“the Drummond Report”) at p 9 he says, “These levels are related to the Australian Height Datum (“AHD”) (Mean Sea Level) as defined by the State Survey Grid”. I take from this that the Australian Height Datum fixes the mean sea level as zero. The high rock, marked “A” on the survey is 5.27 metres AHD. Towards the middle of the rock platform, the position marked “BX” on the survey, is 3.03 metres AHD. Towards the southern end of the rock platform the point marked “C” on the survey plan is 1.91 metres AHD.

Care, control and management of the Reserve

7 The Council is a local government authority, constituted by gazettal dated 20 December 1946, under the provisions of the Local Government Act 1919 (“the Local Government Act”).

8 The Minister for Lands, by notice published in the Gazette on 3 September 1954, temporarily reserved from sale approximately fifty acres of land, including Soldiers Beach north from Pelican Point to a position north of Soldiers Point, for public recreation and camping pursuant to the provisions of the Crown Lands Consolidation Act 1913. This land was described as the Norah Head Recreation and Camping Reserve (“the Norah Head Reserve”).

9 The Council was appointed trustee of the Norah Head Reserve, pursuant to s 1(1) of the Public Trusts Act 1897, by gazettal on 29 October 1954.

10 The land comprised in the Norah Head Reserve was vested in the Council by gazettal published on 12 March 1969 pursuant to the provisions of s 3 of the Public Trusts Act. Neither of the parties contended that this fact materially altered the powers and responsibilities of the Council in respect of the Norah Head Reserve.

11 A substantial portion of the Norah Head Reserve was revoked by notice published in the Gazette on 22 May 1981. The revocation applied to that section of the reserve north of Pelican Point including the frontage on Soldiers Beach. It did not include the area known as Soldiers Point. The land the subject of the revocation was added to the North Entrance Peninsula Recreation Reserve. The Council had been appointed as trustee of this latter Reserve on 22 May 1981.

12 It was not in issue that as at 24 January 1993 the rock platform formed part of the Norah Head Reserve. The Norah Head Reserve extended to the mean high water mark along the rock platform. The same is marked on Appendix “D” of the Drummond Report.

13 I approach the matter upon the basis that the plaintiff dived from land within the Norah Head Reserve that was vested in the Council and over which it exercised care, control and management. When he struck the ocean floor he was on land outside the area of the Norah Head Reserve, which was vested in the Crown.

The Council’s powers under the Local Government Act

14 The Crown Lands Act 1989 (“Crown Lands Act”) repealed the Crown Lands Consolidation Act 1913 (“the repealed Act”). The transitional provisions of the Crown Lands Act provide that a reservation made under the repealed act is taken to be a reservation made under the Crown Lands Act (Sch 8 Pt I cl 1(1)).

15 Section 92(5) of the Crown Lands Act provides that a reserve trust is charged with the care, control and management of the reserve of which it is appointed trustee.

16 Section 98 of the Crown Lands Act provides that the council, as manager of a public reserve, has all the functions of a council under the Local Government Act in relation to public reserves.

17 The Local Government Act 1993 had not been enacted as at 24 January 1993. It is the provisions of the Local Government Act 1919 that are of relevance to these proceedings.

18 Section 344(1) of the Local Government Act provided:

“(1) The council shall have the care, control and management of -
(a) public reserves which are not under the care of or vested in any body or persons other than the council, and are not held by any person under lease from the Crown; and
(b) public reserves which the Governor by proclamation places under the care, control and management of the council.”

19 Part XIII of the Local Government Act conferred certain powers on councils in respect of public reserves and parks. Division 3 of Part XIII of the Local Government Act dealt with the subject matter of baths and bathing. Section 354 provided:

“354. (1) The council may control and regulate public bathing and the conduct and costume of bathers -
(a) in any public baths under the care, control and management of the council;
(b) in any private baths open to the public view;
(c) in any river, watercourse, or tidal or non-tidal water;
(d) in the sea adjacent to though outside the area; and
(e) in any public place or public reserve adjacent to any of the aforesaid places.
(2) The council may prohibit bathing in any specified locality by notices erected in the vicinity of such locality.”

20 Section 367 made provision for Ordinances to be made for the purpose of carrying into effect the provisions of Part XIII of the Local Government Act.

21 Ordinance 52 made under the Local Government Act, dealt with the topic of public baths and bathing and, relevantly, provided:

“8. A person shall not bathe in any public bathing reserve or in any part thereof in respect of which a warning has been given that it is dangerous to bathe therein. For the purposes of this Ordinance a warning may be given by an inspector, or by a flag, signal, or notice exhibited or given in the vicinity of the bathing reserve or part thereof.
…
21. The council may, by notices exhibited in or in the vicinity of a public bathing reserve, public baths or public swimming pool, regulate the lighting of fires, require animals and vehicles to be kept off places indicated, indicate where bathing shall be prohibited, regulate the vehicular and pedestrian traffic, regulate the conduct of persons, and generally regulate the use of the reserve, baths or swimming pool by the public.”
29. (a) Any person not complying with or offending against any of the provisions of this Ordinance or the terms of any notice, order, direction, warning, or signal exhibited, issued, or given thereunder shall be guilty of an offence, and shall where no other penalty is provided be liable for every such offence to a penalty not exceeding $20.
(b) Any person guilty of an offence may be forthwith removed from the bathing reserve or bath by a servant of the Council, or the lessee or caretaker of the bath or dressing sheds (as the case may be), or by an inspector, or by a constable or officer of police, without affecting his liability to be subsequently prosecuted for such an offence.”

Credit Issues

22 Before turning to the facts I record that I accepted each of the witnesses who gave oral evidence as a person who was doing his, or her, best to tell the truth. In two respects that I will refer to below, I do not accept the plaintiff’s recall of the events immediately preceding his dive as accurate. This did not lead me to consider that the plaintiff was not a truthful witness. I am satisfied that he was.

The facts

23 The plaintiff was aged thirty-three years at the date of his accident. He is one of ten children. He left school at the age of fifteen years to take up employment with his brother, a fencing contractor. Thereafter he worked in a variety of jobs until starting up his own fencing business. He was self-employed at the date of his accident. In 1989 he moved to San Remo, which is located close to Soldiers Beach, following the breakdown of his marriage.

24 Prior to his accident the plaintiff enjoyed an active life participating in a variety of sports, including water and snow skiing, snorkelling, fishing, swimming, jogging and tennis. In the four years before his accident he frequently visited Soldiers Beach during the summer months. He swam, snorkelled and fished there. It was his practice to park his car in the car park. He commonly saw people walking on the gravel path that led to the rock platform. He saw people diving and jumping from the rock platform into the ocean.

25 The plaintiff had not dived from the rock platform prior to the date of his accident.

26 On some of the occasions when he went snorkelling the plaintiff would sit on the edge of the rock platform and roll backwards from it into the water. He would then swim out to a rocky shelf located a little distance from the rock platform where he “dogged around” in his snorkelling gear looking for octopus and the like.

27 The plaintiff did not make an assessment of the depth of the water adjacent to the rock platform at the dive location on any occasion when he entered the water from the rock platform to go snorkelling. On the day before his accident the plaintiff was snorkelling on the western side of the southern tip of the rock platform. He duck-dived down in an attempt to pick up an object that he took to be a necklace. He was not able to say how deep the water was in this location beyond saying that it was “a fair way down”.

28 The plaintiff’s sister, Maryanne Kotkis, her husband, Gregory, and their two children, Crystal and Rachel, were staying with the plaintiff during the January 1993 holidays. Also forming part of the family group was the plaintiff’s niece, Stevie Jackson, who was then aged eleven years.

29 Maryanne Kotkis visited Soldiers Beach on a number of occasions during the January 1993 holidays. On some of these occasions she walked over to the rocks at the northern end of the beach. In all she might have walked to the rock platform on six occasions prior to 24 January 1993. She saw people of various ages jumping and diving into the ocean from the rock platform.

30 On the morning of Sunday, 24 January 1993 the plaintiff and the Kotkis family decided to go to Soldiers Beach. It was a hot summers day. They travelled in separate vehicles. The plaintiff parked his car in the car park and made his way down to the northern end of the beach where he had arranged to meet the others. A surf carnival was being held at the southern end of Soldiers Beach and large numbers of people were at the beach.

31 Shortly after they arrived the plaintiff and Gregory Kotkis went for a swim. Maryanne Kotkis joined them taking her baby, Rachel, with her. She left the water first. Stevie approached her asking if she could go over to the rocks. Mrs Kotkis told Stevie to ask the plaintiff or her husband to take her. When the plaintiff came out of the water Stevie asked him to do so. Stevie had been to Soldiers Beach on an occasion prior to 24 January 1993. She had seen people jumping and diving and “bombing” from the rock platform and it looked appealing.

32 The plaintiff agreed to take Stevie over to the rocks. He had seen people jumping and diving from the rock platform when he looked across at it from the beach. As he walked towards the rocks with Stevie he had it in mind to dive into the water from the rock platform.

33 There were a number of people on the rock platform when the plaintiff and Stevie arrived there. They stood watching people entering the water from the dive location for about five minutes. The plaintiff said of these people that, “they were diving in, bombing and jumping” (T60). In evidence in chief he was asked how many people he had observed diving from this location during the five minute interval before he dived:

“A. I couldn’t really, I couldn’t really recall how many people I seen diving in there.
Q. Was it more than one?
A. Probably two or three.
Q. What about people jumping and bombing?
A. Yeah, seen that as well.
Q. Looking at jumping, bombing and diving as a group, how many in that group did you see over that period?
A. I couldn’t really say. I mean, I couldn’t say. I was more interested in, like, where I was walking, like, watching. I was looking over there and watching where I was walking.
Q. In any event, while you were standing there over those five minutes you saw some people doing these things?
A. Yes.
Q. Did you see anybody dive while you were standing there?
A. Yes. Like I seen two, three people diving there.” (T61).

34 In cross-examination the plaintiff’s attention was directed to the question of how many people he had seen diving from the rock platform before he dived from it on the day of his accident:

“Q. I just want to make this clear, if at all possible. We
know we've seen the video of people jumping and diving and
you gave evidence yesterday of yourself having seen people
jump and dive, on the occasion when you in fact dived did
anybody that you observed who went into the water before
you also dive or did they only jump or what do you recall?

A. The person who dived in before me or went in before
me, no, I can't recall.

Q. By that do you mean you can't recall whether or not
anybody who you saw going in before you dived or jumped?

A. I've seen people diving and jumping and bombing in
there before and, as the video showed, after.

Q. All I wanted to be clear about is if you would take
yourself back to the five minutes or so you spent
observing the location before you dived - do you follow
me?

A. I was - before the five minutes, yes, I did.

Q. Did you see other people enter the water in the five
minutes you stood there observing?

A. Yes, I did, yes.

Q. Were other people who entered the water diving and
jumping or only jumping or only diving or what do you
recall?

A. I don't remember. I can't remember (T 133-134).”

35 Stevie said that she saw people bombing, jumping and diving off the rock platform in the period before the plaintiff dived off it. She was not challenged as to the assertion that others had dived from the rock platform before the plaintiff dived. I accept that in the period of approximately five minutes during which the plaintiff stood on the rock platform before he dived he saw other people dive into the water from it. The evidence does not establish the age or build of the other divers.

36 The people who dived and jumped into the water swam back and climbed up onto the rock platform and lined up in order to jump or dive in to the water again. The plaintiff saw nothing during this period to suggest that any person had sustained injury as the result of these activities.

37 The plaintiff said the water level on the day of his accident was higher than the water level depicted in the photograph, Exhibit “D(9)”. He said the water was lapping over the rock platform at the dive location. It will be necessary to return to the question of the water level.

38 The rock platform was flat at the dive location. The plaintiff was able to see the water. He said that he could not see the bottom. I will return to this aspect of his evidence.

39 The plaintiff did not take any steps to assess the depth of the water adjacent to the rock platform before he dived. He assumed that it was safe to dive from the rock platform because he saw people on that day diving and jumping from it and coming back to have another turn. I am satisfied that he also assumed it to be safe to dive from this location because he had frequently seen people doing so on other occasions. In the course of explaining why he considered it was safe to dive from this location he said that it was “a known thing”. He went on to say:

“Well, that’s, like, what people were – that’s where I’d always seen people and that was the spot. That’s the place. … That’s the place to go, to dive in or to jump in or whatever. It’s safe” (T62).

40 The plaintiff noticed that the surface of the rock immediately in front of him looked wet and slippery. He took three steps back in order to avoid striking his feet on the slippery edge of the rock as he dived. He dived into the water at a forty-five degree angle with his arms stretched out in front of him. As he passed through the water he felt a bump on the top of his head and within a short interval he floated to the surface. He described the sensation at the time of the bump as being as though he had hit a soft pillow. As he floated to the top he noticed that his arms and legs were limp and hanging down. He was not able to lift his head. He thought that he had broken his neck and he believed that he was dying. He started to breathe in the water. He was conscious of hearing noises, including the voice of his niece calling out to him. He appears to have lost consciousness for a time thereafter. The next thing he recalled was coming to on the flat surface of the rock. A lifesaver was saying to him “it’s okay”. He was taken by helicopter to the Intensive Care Unit at the Royal North Shore Hospital.

The cause of the plaintiff’s injury

41 By his further amended statement of claim the plaintiff pleads that he struck his head on a sandbar. The Council submitted that the evidence does not establish that the plaintiff suffered injury as the result of impact with the ocean floor. In the defendant’s submission it is difficult to see how the plaintiff’s head might have hit the ocean floor given that his arms were outstretched in a conventional dive. The plaintiff’s description of the impact (as if being hit by a soft pillow) is said to be inconsistent with that which might be expected had the plaintiff struck his head on the ocean floor. It was submitted that the plaintiff’s account is more suggestive of a collision with another person.

42 The plaintiff did not suffer abrasions or bruising to his head or forehead as the result of the accident. He believed that his head hit the sand because of the amount of sand in his hair. He recalled Dr Yeo or one of the other specialists at the Royal North Shore Hospital commenting on the amount of sand in his hair.

43 The plaintiff had a vivid recall of the moments after the impact. He remembered the content of his thoughts in the moments that he understood to be the process of dying. While not able to say as a matter of certainty what it was that his head had struck, the plaintiff was conscious at the moment of impact and he remained alert as he floated to the surface. The only things he described seeing were small fish. He denied that he had collided with another person.

44 I am not persuaded that the plaintiff’s injuries were sustained as the result of a collision with another person in the water. Had that happened I think it likely that the plaintiff would have been aware of it. I accept him when he says that he did not. I also think it probable that had the plaintiff collided with another person with sufficient force to sustain the injuries that he did, the incident would have been notable not only to him, but also to the other person and to those viewing the scene. Stevie Jackson watched the plaintiff dive and then she jumped into the water immediately after him. As he floated to the water he could hear Stevie’s voice calling out to him. It was not suggested to Stevie that the plaintiff had collided with another person.

45 I do not find the description of experiencing a sensation like being hit with a soft pillow to be suggestive of impact with another person as distinct from impact with the sandy bed of the ocean floor.

46 I consider that the probabilities strongly favour the view that the plaintiff sustained his injuries because his head hit the ocean floor.

47 There was no evidence as to the plaintiff’s height. I am able to draw no more from my observations of him in his wheelchair (and the photographs of him taken prior to the accident) than to find that at the date of the accident he was an adult male who was neither notably short nor tall.

48 It was not suggested that the plaintiff executed a vertical or otherwise inherently dangerous “skylarking” style of dive. The plaintiff hit the ocean floor because the water was not sufficiently deep to admit of a dive at a forty-five degree angle being safely executed by an adult male of his height.

The depth of the water

49 The level of the ocean floor changes as the result of the movement of sand along the coast generated by currents and wind activity. It is not possible to identify the depth of the water adjacent to the rock platform on 24 January 1993 at the time of the plaintiff’s accident.

50 Stephen Callaghan was a lifesaver on duty at Soldiers Beach on the day of the plaintiff’s accident. He was very familiar with the beach and with the rock platform. The shallowest that he had seen the water at the dive location was around 1 metre perhaps even less. The deepest that he had observed the water to be in that location was around 3 metres.

51 Mr Callaghan was approached by a woman who told him that a person had been injured over by the rocks. He proceeded to the rock platform, taking his first aid kit with him. When he arrived at the scene the plaintiff was still in the water. Two men were assisting him. They were next to the rock wall. Mr Callaghan marked the location on Exhibit 4. This is a point some metres to the south of the dive location. Mr Callaghan thought that the water was probably around 1.5 metres deep at that point. He thought that the two men assisting the plaintiff were probably standing on the ocean floor. The water was around the height of their nipples. Mr Callaghan remembered that they assisted him in removing the plaintiff from the water. He was conscious that the plaintiff may have suffered spinal injury and because of this he endeavoured to stabilise him while carrying him out of the water (as distinct from pulling him up and out of the water by his arms). The two men assisting him in this operation were firmly anchored. I think that the likelihood is that they were standing on the ocean floor and that at that location the depth of the water was approximately 1.5 metres. This is not to say that the water adjacent to the dive location was of that depth.

52 Mr Drummond assumed that the plaintiff dived from the position marked “BX” on the survey, Appendix “D” of the Drummond Report. I am satisfied that he was mistaken in this assumption. Appendices “F” & “G to his report are photographs on which the positions “A”, “BX” and “C” are marked. The position “BX” marks a rock considerably higher than the dive location. Close-up photographs of the dive location are seen in Exhibit “D(13)” & “D(14)”. It is a relatively low point on the rock platform. The dive location does not appear to correspond with the position marked “C” on the survey. So much is apparent when regard is had to Appendices “F” & “G” of the Drummond Report. A comparison of those photographs with the film of the rock platform in Exhibit “G” and Exhibit “J” and the photographs in Exhibit “D” confirms my view that the position marked “C” does not represent the dive location.

53 The position marked “C” is the lowest of the three levels of the rock platform surveyed by Mr Drummond. I am satisfied that the dive location was no higher than that marked “C”. After reviewing the film of the scene and the photographic exhibits I consider that the dive location to be probably somewhat lower than the position marked “C” in the survey.

54 The plaintiff believed that his accident took place at about 11:00 am. The evidence does not disclose the precise time of the accident however I am satisfied that it occurred later than 11:00 am. The significance of the time of the accident relates to the level of the tide and to the distance, if any, between the rock platform and the top of the water at the dive location.

55 Ambulance records establish that initial contact was made with that Service at 12:44 pm. It is not clear that any person contacted any of the emergency services before the plaintiff was removed from the water and placed on the rock surface. Making allowance for a number of minutes before the contact was made, I approach the matter upon the basis that the plaintiff sustained his injury at about 12:30 pm.

56 Attached to the Drummond Report is a chart plotting the movements of the tide on 24 January 1993 by reference to the Fort Denison Tide Gauge. There is only a minor difference in height between the tides recorded at Fort Denison and the tides recorded at other points along the coast. Thus, the difference in height between the Sydney and Newcastle tides varies by only a few centimetres. High tide on 24 January 1993 was at 10:25 am daylight saving time. Low tide that afternoon was at 4:40 pm daylight saving time. The plaintiff’s accident occurred at a time when the tide was going out, but well before low tide. Making an adjustment to reflect that it was daylight saving time on 24 January 1993 the tide height was 1.2 metres at the time of the plaintiff’s accident. Upon the assumption that there was no swell or surge in the water adjacent to the rock platform this would mean that the distance from position “C” on the Drummond survey to the top water level at 12:30 pm was 1.6 metres. Again on the assumption that there was no swell or surge, I take the distance from the dive location to the top water level to be somewhat less than 1.6 metres at the time of the plaintiff’s accident (upon my view that the dive location is somewhat lower than the position marked “C”).

57 In light of the evidence as to the level of the tide the Council submitted that I should reject the plaintiff’s account that the water was lapping over the top of the rock platform at the dive location.

58 Mr Semmler QC, who with Mr Grey appeared on behalf of the plaintiff, submitted that it introduces an element of unreality to attempt to determine the level of the water relative to the rock platform at any given time by reference to the tide survey. In his submission the ocean is dynamic and account needs to be taken of phenomena including swell or surge. To illustrate this proposition he pointed to two photographs, Exhibit “R” (1) & (2), that were taken within seconds of one another on the day of the view.

In “R” (1) the water level is above the rock platform at the dive location. In “R” (2) the water level is more than a metre below the surface of the rock platform at this location.

59 Section 54 of the Evidence Act 1995 permits me to draw any reasonable inference from what I saw, heard or noticed during the view. However, the evidence does not establish that the conditions on the day of the view (13 September 2002) were comparable to the conditions on 24 January 1993 at the time of the plaintiff’s accident. It seems to me that the observations that I made during the view (and the record of those observations contained in Exhibit “R”) do not usefully assist me in determining the level of the water relative to the surface of the rock platform at the time of the accident.

60 A number of witnesses gave evidence concerning the appearance of the ocean on the day of the accident and the water level relative to the rock platform.

61 The plaintiff said that the water that day had been “pretty calm, fairly calm”. The ocean was not as rough on the date of his accident as it appears in Exhibit “G” on 16 January 1994 at 12:50 pm. Exhibit “G” also contains film of the scene taken on 23 January 1994. The plaintiff said that the ocean on the day of his accident was, “still a bit calmer” than it appears in the film taken on 23 January 1994 at 2:50 pm.

62 Maryanne Kotkis joined her husband and the plaintiff in the water on 24 January 1993 taking Rachel with her. The child was fearful of the surf. This is consistent with the view that the sea was calm on the day of the plaintiff’s accident.

63 Gregory Kotkis gave evidence of the water conditions on the date of the accident:

“Q. What kind of water conditions were there?
A. Oh, it was quite calm, bit of surge. There was surge there.
Q. What’s a surge?
A. The water goes up and down. It’s not a swell, it’s just the water goes up and down.
Q. It’s not waves, I take it?
A. No.
Q. It’s just the movement of the water in the broad sweep?
A. Yeah, that’s right, yeah” (T162).

64 Mr Kotkis recalled that the water level was below the point from which he understood the plaintiff to have dived. His impression was that there was a 1 - 2 metre drop from the dive location to the water. He formed this impression by looking across to the dive location from a little distance.

65 Maryanne Kotkis went over to the rock platform after learning that the plaintiff had suffered an accident. She recalled the water level as being just about level with the rocks. Mrs Kotkis was distraught on learning of her brother’s accident. Her husband stopped her from approaching too close to the scene where others were attempting to revive the plaintiff. She described looking at the water and having Stevie point out the dive location to her when she was in the car park after the plaintiff had been removed from the scene by helicopter. Mrs Kotkis’ impression was that the water level on the day of the plaintiff’s accident had been a lot higher than the water level shown in the photograph Exhibit “D”(9). In cross-examination she was not able to give an account of the extent to which it had been higher. She said that she did not have a distinct recollection.

66 Stephen Callaghan said that there was a drop from the rock platform to the water that he estimated to be as much as 4 metres. I consider that Mr Callaghan was mistaken in his estimate of the extent of any drop. I am satisfied that there was not a drop of as much as four metres. However, it remains significant that Mr Callaghan’s impression was of a noticeable drop. Mr Callaghan described the day as a sunny one with no swell.

67 Stevie Jackson remembered that the day had been a calm one. She was not able to recall how high the water was relative to the rock platform.

68 It is not possible to determine the level of the water relative to the rock platform at any given moment by reference to the tide survey. However, I am satisfied that 24 January 1993 was a calm day and that the tide survey provides a reliable measure for assessing the approximate level of the water relative to the rock platform. I take into account Mr Kotkis’ evidence that there was some surge in the water. I accept that there may have been occasions when, as the result of the surge, water came up to the level of the rock platform on which the plaintiff was standing. However I do not think it likely that the water was at the level of the rock platform throughout the period during which the plaintiff stood on it waiting to dive. I am satisfied that generally the water level around the time of the accident was below the level of the rock platform at the dive location by an amount greater than 1 metre and more likely by as much as 1.5 metres.

69 The plaintiff said that he could not see the ocean floor. He agreed that the day had been a sunny one and that the water had not been covered in weed or foam. He recalled that the water was quite dark blue and that it “looked deep” (T 128).

70 Gregory Kotkis said that one could see the bottom but not judge the depth. He described the water as being fairly clear. It was dark with rock shelfs here and there (T 163). He was not able to estimate the depth of the water in the vicinity of the spot where the plaintiff was lying after he was removed from the water.

71 Stephen Callaghan said that it was a clear, flat day and that one could see the bottom looking down from a position on the rock platform.

72 Ian Walker, who gave evidence of his familiarity with Soldiers Beach over many years, said that on a clear sunny day when there was no weed one could see the ocean floor from the dive location. He went on to say, “you wouldn’t be able to estimate the actual depth, but you would possibly see it”.

“Q. So, in your experience, without being able to estimate the depth when the water was that high, I assume you would have formed the view it was too dangerous to dive?
A. Depending. Maybe if other people had gone into the water before me, I would assume from that.”

73 Taking into account the evidence of Gregory Kotkis, Stephen Callaghan and Ian Walker, and given that the day was a calm one with no weed, I think it likely that the plaintiff could have seen the ocean floor had he looked. In the five minutes that he spent standing on the rock platform watching others jumping and diving into the water he described himself and Stevie as being “just back from the rocks” (T 60). The plaintiff indicated that they had stood on the rock platform in a position somewhat to the rear (west) of the dive location. I accept that from this position the water appeared to the plaintiff to be quite dark blue.

The Council’s knowledge of dangers associated with diving from the rock platform

74 On 15 January 1978 Errol von Sanden, who was aged around twenty-three years, dived from the high rock and struck the ocean floor. He suffered spinal injury involving irreversible tetraplegia.

75 John Edwards, a beach inspector, employed by the Council rescued Errol von Sanden from the water. Mr Edwards grew up on the Central Coast and was a regular visitor to Soldiers Beach from his childhood in the 1950’s until the present time. He said that the rock platform was a popular spot for people to jump off. He had seen people jumping and diving off various points along the rock platform regularly over the years. He had himself dived from the rock platform.

76 On the day of Errol von Sanden’s accident Mr Edwards was in the Clubhouse when a person came into report that a man had dived off the high rock and not surfaced. Mr Edwards ran towards the high rock. He saw that there were a couple of people in the water. He dived in to the water from a position on the rock platform to the north of the high rock. He pulled Errol von Sanden onto the rocks with the assistance of two members of the public and commenced resuscitation.

77 “The Advocate”, a local Central Coast newspaper published an article on 18 January 1978 under the heading “Action call after injury”:

“The Soldiers Beach Inspector will recommend that Wyong Shire Council be asked to place a ‘Danger: No Diving’ sign at Soldiers Point following a weekend accident in which a young man was seriously injured.”
The article appeared on the same page of the newspaper as one quoting the President of the Council on the topic of trends for future rapid growth in the Wyong Shire.

78 Mr Edwards was not able to recall speaking with the journalist who wrote the article but he accepted that he might have done so. He said that he had felt strongly about the matter and that he had discussed it with a number of people at the Surf Club. It was a serious accident and at the time Mr Edwards considered that it would have been appropriate to place warning signs. When asked what danger he perceived as calling for a warning sign he said this:

“There were obvious dangers of diving off a rock into water, but the thing that concerned me most is probably the hidden danger of the fact that the water can vary in depth with sand movement. There are rocks below the surface. I think there are issues there that if you just walked up and looked over the edge of the high rock, there are things there that you may not necessarily be aware of unless you went and tested the water first”.

Mr Edwards considered the dangers to which he referred to extend along the length of the rock platform.

79 Mr Edwards was not able to recall whether he had caused any specific action to be taken relating to the erection of warning signs following Errol von Sanden’s accident. He thought that he had asked the Surf Club Management Committee to write a letter raising the issue to the Central Coast Branch of the Association or to the Council. He did not know whether this had been done.

80 At the time of his accident Errol von Sanden was a member of the Wyong Rugby League team. He was well known in the local community in this connection. The Wyong Rugby League Club held a series of fundraising benefits in order to raise funds to build a modified home for him. The accident and the associated fundraising campaign generated considerable publicity in the local media. The publicity surrounding Errol von Sanden and his accident lasted for over two years.

81 Harry Moore was a member of the Council in the period 1974 to 1983. He was also an active member of the Wyong Rugby League Club. In an affidavit Mr Moore said that he knew that Errol von Sanden had been rendered quadriplegic after diving from the rocks at the northern end of Soldiers Beach in early 1978. Mr Moore was aware of the fundraising activities held to assist the von Sanden family.

The Council’s evidence

82 Mr Dawson, the General Manager of the Council, gave evidence on its behalf. He has been the Council’s chief executive officer since 1972. He was the Shire Clerk throughout the period of the litigation in Wyong Shire Council v Shirt (1980) 146 CLR 40 and at the time of Errol von Sanden’s accident. In 1993 his title changed to that of “General Manager” however, his duties have remained substantially the same.

83 Mr Dawson became aware of Errol von Sanden’s accident around the time of its occurrence through publicity in the local media. He understood that Errol von Sanden’s injuries were occasioned as the result of him diving from the rocks at the northern end of Soldiers Beach. The matter was common knowledge within the Council.

84 Mr Dawson was not able to recall what action, if any, had been taken by the Council arising out of Errol von Sanden’s accident. The fact that a person had suffered serious injury diving from the rocks was a matter of concern. At the time the Council would have given consideration to any implications that the accident may have for it. Mr Dawson thought that it was possible that the Council had notified its insurers in connection with the von Sanden accident.

85 In 1978 the Council did not employ a risk manager. Mr Dawson believed that a Council officer would have carried out a form of risk assessment following Errol von Sanden’s accident. Such an assessment was likely to have been carried out by the Shire Engineer or the Chief Health Surveyor. Mr Dawson was inclined to think that responsibility for beaches at the time resided with the Shire Engineer. In 1978 the Council would not have necessarily minuted or made any record of any such assessment conducted by the Chief Engineer.

86 I consider that it is probable that the Council gave some consideration to the implications for it arising from Errol von Sanden’s accident in the months following the accident. Whatever the nature of any assessment by the Shire Engineer or the Chief Health Surveyor there is no indication that it involved interviewing Mr Edwards or that the erection of warning signs was considered. There are no records of any action taken by the Council arising out of this matter. The Council took no steps to either prohibit people from diving from any part of the rock platform or to warn of the dangers of so doing.

87 I think it likely that the President of the Council and other councillors would have shown a keen interest in publicity concerning the activities of the Council and of matters touching on its interests in the local press. It is probable that one or more members of the Council read the article in which the lifeguard was quoted as calling for the placement of warning signs at Soldiers Beach.

88 There is no evidence of any request made to the Council by the Surf Life Saving Association (or any other person or body) for the erection of warning signs in the vicinity of the rock platform following Errol von Sanden’s accident.

89 Mr Edwards had dived off the high rock on many occasions in the past. He had stopped diving from it some time prior to Errol von Sanden’s accident. The adjacent water had been quite deep in the early 1970’s, but from the mid-1970’s onwards Mr Edwards observed that a lot of sand had filled the area around the high rock and it had ceased to be as deep as it had been in his youth. He observed that, “I certainly wouldn’t dive off there now”.

90 Mr Edwards considered that it had been unsafe to dive, at least from the high rock, from the late 1970’s onwards. It is to be noted that the evidence points to people regularly diving off the high rock and other parts of the rock platform in the years between then and the time of the plaintiff’s accident.

91 Errol von Sanden died in 1981 as the result of complications associated with his condition. His brother, Ivan von Sanden, gave evidence of the account given to him by Errol of his accident. Errol von Sanden said that it was common for him to go to the rock platform after football training. Generally, he was the first to dive into the water. The depth of the water was usually fifteen or sixteen feet. He had dived from the same spot previously on many occasions and he had never touched the bottom. On the occasion of his accident he said that sand had washed in, changing the level of the ocean floor. The water was only around five feet deep. He had not checked the depth of the water on the day of his accident because of his experience on previous occasions.

92 As a child Ian Walker visited Soldiers Beach regularly during the summer. His earliest recollection of it was when he was aged six or seven years. He is now aged forty years. Mr Walker recalled swimming and climbing around the rock platform. He had jumped into the water from a prominent rock at the northern end of the beach. He remembered seeing others jumping and diving off the rock platform. On most occasions when he visited Soldiers Beach as a child he saw activity of this kind. Mr Walker said that the activities of the youths depicted in the photograph, Exhibit “D”(9), are consistent with the activities that he recalled seeing when he visited Soldiers Beach as a youth.

93 Ian Walker dived from the rock platform both as a child and as a teenager. On these occasions he had observed that the sand may be either “[d]eeper or shallower. There might be a build up of sand or the sand may be lower”. He had not been able to determine the depth of the water by looking because it could be “very deceptive”.

94 On the occasions when Mr Walker dived from the rock platform he believed that it was safe to do so. He dived from the prominent rock that is to the left of the dive position. This is a part of the rock platform that is considerably lower than the high rock but not as low as the dive location.

95 On occasions Mr Walker found the water to have been too shallow for diving. He assessed the safety of diving from the rock platform by a consideration of whether other people were diving from it and by reference to the level of the water relative to the rock. He gauged this by looking at whether the water was breaking around the base of the rock.

96 Mr Walker did not agree that he would assume it would always be safe to dive when the water was as high as the feet of the young man depicted in photograph D (9). His experience of the rock platform made him aware that sand might have built up adjacent to it making it unsafe for diving.

97 Ian Walker stopped diving from the rock platform in the late 1970’s as the result of learning of Errol von Sanden’s accident.

98 A statement made by Maxwell Jones was in evidence in the plaintiff’s case. Mr Jones has been involved with the Soldiers Beach Surf Life Saving Club for twenty years. He was aware of Errol von Sanden’s accident: it occurred before his involvement with the Club commenced. In his statement Mr Jones said that there always had been people (usually youths and young men in the thirteen to early twenties age range) jumping, and occasionally diving, from the rocks. On a good day in the summer holidays there could be from one to thirty in a group on the rocks jumping into the water. Mr Jones observed that this situation had continued to the present despite warnings being given to the public by Club members (the statement is undated but was taken sometime after the plaintiff’s accident).

99 On occasions when Mr Jones was on patrol he travelled out to the rocks in a rubber duckie and warned intending jumpers, saying:

“A young man jumped off here and became a paraplegic you don’t want that to happen to yourself. Don’t jump.”

In Mr Jones’ experience the response to warnings of this nature had been negative. The youths tended to say:

“Bugger off. We’ll be alright.”

Mr Jones went on to say:

“To my knowledge these warnings have been given consistently over the years as there has usually been one injury of some consequence sustained by the jumpers each year. They have come to the Club House for treatment. These injuries have been dislocated shoulders and other joints, cuts and minor fractures.”

100 Mr Jones observed that the water depth at the base of the rocks varied considerably depending on sand build-up and tides. He described the range as being from “nil to about ten feet”.

101 Exhibit “G” comprises film of the scene at the rock platform taken on 16, 24 and 30 January 1994. On each of those dates at various times people can be seen both diving and jumping from the rock platform. On occasions quite large numbers of people are on the rock platform. Predominantly one sees youths jumping into the water and, less frequently, diving into the water. On occasions persons who appear to be adult can be seen diving into the water. The plaintiff said that the pattern of activity that can be seen in Exhibit “G” is consistent with that which he saw on the day of his accident and with his observations over the four years prior to it. I accept that to be the case.

102 As at 24 January 1993, and for many years prior to that date, the rock platform was a popular place for people to congregate during the summer months. It was common for people of various ages to jump and to dive into the ocean from the rock platform. I am satisfied that the Council was aware of these activities. Soldiers Beach was a patrolled beach. The lifeguards employed by the Council were aware that people both jumped and dived from the rock platform.

103 In an answer to interrogatories the Council admitted that it was aware that people dived off the rocks at the northern end of the beach.

The Expert Evidence

104 The plaintiff relied upon the reports of two civil engineers, Lindsey Browne and Warwick Kiernan, as to the danger of diving from the rock platform and the means available to lessen that danger.

105 Mr Browne has extensive experience as an engineer working in local government for councils with coastal boundaries. He had worked as an engineer with the Flinders Shire Council in Victoria. This Council includes the Mornington Peninsula. He was the Chief Engineer of the Warringah Shire Council between 1978 and 1986. The Warringah Shire encompasses all of the northern beaches (save for Manly). He was responsible for identifying and assessing risks created by the state of the Council’s land and infrastructure and for taking steps to reduce or eliminate those risks. He had responsibility for ensuring that appropriate warning signs were erected on land over which the Council exercised control. Mr Browne is familiar with the Australian Standard for water safety signs.

106 Mr Browne inspected the accident site on 2 December 2001. In his report he expressed the opinion:

“The nature of the northern end of the beach with its rock platforms and variable depths of water would lead to the conclusion that there were inherent dangers at this location particularly related to diving, jumping and bombing.”

107 In the course of his oral evidence Mr Browne was invited to expand upon this opinion. He said:

“[A]s the Chief Engineer I would have been knowing that this activity was taking place and, knowing about the phenomena of littoral drift, I would conclude, and I believe quite reasonably so, that the seabed would be changing and there would be a variable depth. And accordingly, if there’s a variable depth and people are diving, then I would consider that to be a foreseeable risk which would require me to take some action to ensure that these people were prohibited from undertaking these activities or, alternatively, warning them of the danger.”

108 The water adjacent to the rock platform would be of variable depth (apart from tidal movements) because of changes in the level of the ocean floor caused by littoral drift. This phenomenon refers to the movement of sand associated with current and wind activity. The sand forming the ocean floor is constantly moving. The ocean floor along the eastern coast of Australia is very fluid and active. Shoals and channels are formed with the movement in the sand. The greatest amount of activity in this respect is found around rocky headlands because the sand is restrained, builds up and then moves on again.

109 Mr Browne considered that most civil engineers, particularly those working in municipalities with coastal boundaries, would be aware of littoral drift. It is a well-recorded phenomenon. I accept that to be the case.

110 Mr Browne was shown the film, Exhibit “G”. He expressed the opinion that the activity depicted in that film was a cause for alarm. In his view there were very significant dangers associated with people jumping and diving from the rock platform. He identified two. The first was that people might slip and fall onto the lower rocks. The second was that people diving might strike their heads on the ocean floor because of the difficulty of estimating the depth of the water. The variations in the depth of the water made this risk the greater. I will return to this aspect of Mr Browne’s opinion.

111 Mr Browne considered that the best means of reducing or eliminating the risk of injury was the erection of signs in accordance with the Australian Standard AS 2416-1985 (i) No 213 “Diving is prohibited” and (ii) 228 “Beware of shallow water when diving” in the vicinity of the rock platform. He did not consider that the risk of injury to members of the public as the result of diving from the rock platform could be eliminated altogether. One could only do that by demolishing the rock platform and he considered that was not a practical option. He was also inclined to dismiss any suggestion that the rock platform might be fenced off to members of the public. Among the various matters that he took into account in expressing the latter view was that such a solution would be extremely visually intrusive. The plaintiff did not particularise either the failure to demolish the rock platform or to fence it off from the public as negligent.

112 Mr Browne expressed his preference for a prohibition sign and a sign warning of the danger of shallow water to be displayed together on the one pole. As I understood him the warning sign explained the reason for the prohibition and tended to reinforce it. Mr Browne suggested that warning signs be placed at the bottom of the gravel track that gives direct access to the rock platform and on the platform itself in a position he marked on

Exhibit “C”. Members of the public approaching the rock platform from the beach would see this sign.

113 Mr Browne’s opinion, that signs in conformity with the Australian Standard sign Nos 213 and 228 should have been erected at points of access to the rock platform, was based upon his view that diving from the rock platform was dangerous (in that it carried the risk of causing serious injury) and because of the numbers of people engaging in this pursuit.

114 Warwick Kiernan is a consulting engineer with many years experience in local government. His experience includes the management, construction and maintenance of parks, reserves, coastal baths and beach bathing facilities within the Warringah Shire Council. He was overseas at the date of the hearing and was not available for cross-examination. In a report dated 7 December 2001, Mr Kiernan expressed the following opinion:

“The unknown danger that existed was the height of the dive or jump in relation to the changing seabed level and the depth of water. Some of the photographs show persons standing on the seabed which is probably a shallow rocky outcrop, whereas the diving location may have been into deeper sandy bed areas. However, these areas are subject to water depth variations and would be hazardous to jumpers and divers at various times [7.0].
…
Where a public safety hazard has been reported, the excepted process is to either provide a physical barrier to the hazard or to warn persons of the hazard. In general, remote or natural areas do not require action by authorities. The rock platform at this location is part of the natural rock formation in the area and under normal circumstances would not attract any need for specific warnings or restriction of access by rock walkers.
The exception to the need for warnings and physical barriers in natural environment areas is where persons are attracted to a physical feature, eg, the Kiama Blowhole on the south coast of NSW. At this location tourists and others are guided to safe viewing areas connected by paths and physical barriers are erected where necessary.
Another reason for management action in natural areas is antisocial or dangerous human activity. This would be usually activated by a complaint from the public to council or the activity could be observed by a council employee. If this jumping and diving activity was known to council officers and was clearly dangerous, action by council was required [10.0]”.

115 In Mr Kiernan’s opinion it would have been relatively inexpensive for the Council to have erected “No diving” signs both at the end of the gravel track and on an approach to the rock platform from the beach. The enforcement of such a sign could have been carried out by a council officer attending the site at appropriate times. Mr Kiernan recommended that the wording of the sign should contain the message:

“No diving, no jumping and shallow water [11.0].
…
Physical measures to control the use of the rock platform for diving and jumping are limited because of its location beyond the headland and within the tidal zone. Thus it is not considered practical to place physical barriers to prevent access to the rock platform.
Diving at typical unsafe locations, eg, rivers, water holes, creeks and similar recreational areas, is a problem faced by local government authorities. The prohibition of diving for safety reasons is usually one of the key behavioural messages displayed at the entrance to these recreational areas. And the message is reinforced by signage at significant locations where persons enter the water.

The erection of regulation and prohibition warning signage also requires enforcement. It has been common practice for local government to have trained officers to enforce compliance with council’s regulations and the control of behaviour at water based recreational areas.

In my opinion, the appropriate action would have been to observe the area at appropriate times and report any activity to council together with estimates of the observed diving heights and water depths. Based on the surveys carried out, this would have shown the danger of this practice [12.0].”

116 Christopher Miller, a civil engineer, prepared a report relating to the variation in seabed level and the water depths immediately offshore from the rock platform. Mr Miller took into account measurements of the seabed level collected by J & M Bacon & Associates over the period 12 February - 22 May 1994. Measurements were taken on sixty-four days during this period. The seabed level was measured as the depth (using a weighted graduated nylon cord) below a rigid horizontal pole placed at a fixed point on the rock platform approximating the dive location.

117 Mr Miller reported that the seabed at the site varied by at least 1.6 metres from around reduced level (“RL”) RL –0.9m AHD to approximately RL –2.5m AHD. Water depths during the period recorded varied from a minimum of 0.5m up to a maximum of around 2.9m. Mr Miller stated:

“In summary, these observations indicate that significant sand movements are occurring within the embayment formed by the rock platform shoreline on its western side and the small rock islet and isthmus to the north known as Soldiers Point. When the current is flowing in a generally south-westerly direction, sand is removed from the embayment and the isthmus and deposited in a sandbar approximately 100 m to the south of the rock platform. Alternatively, when the current flows in the opposite direction, generally north-east, sand is taken from this sand bar and returned to the embayment and the isthmus.”

The Council’s policy

118 The Council’s policy relating to the erection of warning signs in 1993 was explained by Mr Dawson in these terms:

“In broad terms the Council placed warning signs where it had created a hazard. For example, if it dredged the Entrance channel; or where there was an activity that of itself didn’t present risks but there may have existed at that particular location a risk that would not be evident to someone using the area.”

119 On occasions the Council erected a sign in response to requests from the community.

120 In 1993 the Council employed a Risk Manager. The focus of the Risk Manager’s role was the assessment of Council activities and not risks associated with land over which it exercised care, control and management. With respect to the latter Mr Dawson explained the Council’s approach in 1993 in this way:

“Our approach was one of where if the risk was evident to the user then it was not – Council was not derelict in its duty of care by not erecting signs. For example, beach fishing; everyone knows there are risks inherent in beach fishing. Surfing on unpatrolled beaches. There are numerous others. They are activities that take place on a daily basis up and down our coastline, and they are frequently on Council property or property vested in the Council, but are risks where the person concerned would be able to detect that there was that risk, there was that hazard and danger. And that’s the distinction I’m attempting to draw”.

121 The Council promoted tourism. Mr Dawson agreed that it had been Council’s policy prior to 1993 to encourage members of the public to visit the patrolled beaches within the shire. He was not able to recall whether Soldiers Beach had been formally publicised by the Council. In this connection he said, “we wouldn’t have lost an opportunity to tell people about it, no”. He agreed that by providing facilities such as the Clubhouse people were encouraged to use Soldiers Beach. Mr Dawson acknowledged that the construction of the car park served to encourage members of the public to attend Soldiers Beach. He was aware that as at 1993 members used the car park to enable them to more readily access a number of points along the coastline, including the rock platform.

122 Mr Dawson was aware that people of all ages visited the rock platform. He understood that on weekends young people would jump and dive off the rock platform. He had seen groups of ten to fifteen or perhaps more young people engaging in these activities.

123 Mr Dawson acted under a wide delegation of power from the Council. In cross-examination he explained why the Council did not erect warning signs at natural locations such as Soldiers Point :

“It comes back to the Council’s duty of care. You have to draw the line somewhere because it is a physical impossibility for the Council to warn every user. We have twenty-seven kilometres of coastline, all of which is dangerous, all of which is accessible to the public, and all of which contains specific dangers from sand moving, to rips, to sharks, to blue bottles, to sunbathing if you like. The Council – it is a physical impossibility for anyone to sign post all of those risks, because most of them ought to be evident to the user, and Council attempts to deal with that issue by having a number of beaches which are patrolled in the major swimming seasons”.

124 In 1993 the Council’s budget was of the order of $100 million. There was no suggestion that the erection of warning signs would be a drain on the financial resources of the Council. Mr Dawson was concerned with the practicality of erecting warning signs (as to a variety of dangers) along the length of the coastline controlled by the Council.

125 It was apparent that in Mr Dawson’s view there were no dangers associated with diving from the rock platform that would not have been obvious to a member of the public engaging in that activity. I note that Mr Dawson understood that variations in the level of the seabed were likely to be less noticeable in areas adjacent to rock headlands because these locations are more sheltered. I am satisfied that his understanding in this respect is wrong. I accept Mr Browne’s evidence that the movements in sand along the coast are pronounced around rock headlands such as the rock platform.

The duty of care

126 The plaintiff submitted that the Council had the care, control and management of the Norah Head Reserve and that it provided facilities designed to encourage the public to make use of it and accordingly that it owed to him a common law duty of care. In written submissions it was characterised as a duty to take reasonable care for the safety of visitors. The plaintiff relied on the joint judgment in Nagle v Rottnest Island Authority (1993) 177 CLR 423.

127 In its written submissions the Council accepted that, “in its capacity as manager of the reserve trust, and having the care, management and control of the Reserve, it owed certain duties to entrants upon the Reserve”. It contended that it was important to distinguish between an occupier of private land and a local government authority charged with statutory powers and responsibilities in respect of public land particularly in considering the scope of the duty. In the Council’s submission, having regard to the powers and responsibilities conferred on it by the Local Government Act, it did not owe a duty to warn the plaintiff of obvious risks of injury.

128 In Nagle Brennan J, in a dissenting judgment, favoured the test formulated by Dixon J in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 210 with respect to the duty imposed on public authorities having the control and management of land to persons lawfully entering the land. In his Honour’s view the question of whether the Board was under a duty to the appellant to erect a warning sign depended upon a consideration of whether the danger of diving off the wave platform was apparent and not to be avoided by the exercise of ordinary care; Nagle at 440.

129 In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Brennan CJ again expressed the duty in terms consistent with Dixon J’s formulation in Aiken v Kingborough Corporation. The majority in Romeo declined to overrule Nagle; Toohey and Gummow JJ at 453-454 [49]; Gaudron J at 458-459 [65] – [67]; McHugh J at 460 [74] – [76]; per Kirby J at 472 [107] & 474 – 475 [113] – [114]; per Hayne J at 486 – 487 [145] – [149] & 488 [155] & 489 [158].

130 I approach the matter upon the basis that the Council owed to the plaintiff, as a visitor lawfully entering the reserve, a duty to take reasonable care to avoid foreseeable risk of injury being occasioned to him; Nagle and Romeo.

131 As I understood the Council’s submission referred to at [127] above, the real issue is the scope of the admitted duty that it owed to lawful entrants upon the Norah Head Reserve. In this respect Mr Harrison SC, who with Mr Villa appeared on behalf of the Council, referred me to the observations of Kirby J in Romeo at 478 [122]. His Honour held that where the statutory duties of a public authority are stated in general and permissive terms the scope of the duty is that of reasonable care and that it is neither reasonable nor just to require an occupier to warn of a risk that is obvious to a person exercising reasonable care for his or her own safety [123]. His Honour’s analysis of the existence and scope of the duty of care was undertaken by reference to the three step test (for the determination of the existence of a duty of care) enunciated in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618. His Honour’s preference for the Caparo test in determining the existence of a duty did not command the support of the majority in Romeo. I deal with the consideration of the obviousness of the risk (or otherwise) in determining the content of the reasonable response of the Council to the foreseeable risk of injury below.

Breach of the duty of care

132 The test for determining whether there has been a breach of the duty of care remains that enunciated by Mason J in Wyong Shire Council v Shirt at 47-48:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

133 I am satisfied that the danger of a person sustaining severe injury as the result of diving from the rock platform was foreseeable. It was neither far-fetched nor fanciful to consider that a person diving from the rock platform might sustain severe injury. The Council did not contend the contrary. The erection of signs prohibiting diving or, at least, warning of the dangers of diving from the rock platform would have occasioned relatively little expense to the Council. These two conclusions do not dispose of the matter.

134 A critical issue in these proceedings is the question posed by McHugh J in Tame v State of New South Wales [2002] HCA 35; 76 ALJR 1348 at [99], namely did the Council’s failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff?

135 As I have noted, the plaintiff placed reliance on the decision of the High Court in Nagle. The majority found that the failure to erect signs at the Basin, a natural swimming hole, warning of the dangers of diving from the rock ledge to be a breach of the Rottnest Island Board’s duty of care to the appellant. In their joint judgment Mason CJ, Deane, Dawson & Gaudron JJ said at 429-430:

“The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve. As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.”

136 The Council submitted that this case differed from Nagle in two respects. Firstly, the extent of the Board’s encouragement of members of the public to swim at the Basin was said to have been significantly greater than any encouragement by the Council of members of the public to make use of the rock platform at Soldiers Beach. Mr Harrison drew my attention to the judgment at first instance in Nagle v Rottnest Island Authority (1989) Aust Torts Reports ¶ 80-298 at 69,231 which details the extent of the encouragement in that case. Nicholson J observed that the plaintiff pleaded that the Board promoted the use of the Basin as a venue for swimming and associated past-times in tourist literature and by signs. It constructed a bituminised path leading to the Basin and it erected signs directing members of the public to the Basin. There were change-rooms, toilets and other facilities in the immediate vicinity of the Basin. Steps were constructed from the change-rooms down to a small beach and the natural rock ledge immediately adjacent to the swimming area. Signs were erected warning swimmers of dangerous rips. The Board denied that it encouraged members of the public to use the Basin, but otherwise admitted the pleading.

137 I am satisfied that the Council as part of its promotion of tourism encouraged members of the public to visit patrolled beaches within the Wyong Shire, including Soldiers Beach. The development of the car park was designed to facilitate access by members of the public to Soldiers Beach and its surrounds. Access was provided from the car park directly to the rock platform. The provision of the kiosk, toilets and the Clubhouse amounted to encouragement to members of the public to visit Soldiers Beach. The rock platform was an attractive natural formation adjoining the beach that was popular for sunbaking and as a platform for jumping and diving into the ocean. The Council was aware of the use of the rock platform in this way. I consider that the facilities provided by the Council encouraged members of the public to make use of the rock platform as well as the beach. I do not consider that these proceedings should be distinguished from Nagle on the basis that the Council did not encourage members of the public to visit Soldiers Beach or the rock platform.

138 The principal distinction which Mr Harrison identified between the plaintiff’s claim and that in Nagle was that in the latter case the submerged rock was a hazard that was not obvious to a person diving from the rock ledge. In Nagle the trial judge’s findings in this respect are set out in the joint judgment at 427 - 428:

“But the trial judge found that members of the public would assume the ledge, as a natural platform, was suitable for the purpose of diving. The trial judge accepted that an observer looking at the sea in the direction of the sun might well see a sun glint or glitter pattern as a consequence of the reflection of the rays of the sun. His Honour found that, when the appellant dived into the water of the Basin, the glitter effect would have been visible to him and would have obscured his vision to some extent. However, the rock which his head struck would not have been totally obscured and he could have avoided any glitter pattern by moving his head.”

139 The Council contends that the only danger in this case was that the water was too shallow to admit of diving safely into it. To my mind this submission pays insufficient regards to the evidence of Mr Edwards set out at [78], [89] & [90] or that of Mr Walker set out at [93] – [97]. Both Mr Edwards and Mr Walker were persons with a considerable knowledge of Soldiers Beach and the rock platform dating back over many years. I accept what they had to say.

140 The Council acknowledged that it is required to take account of the possibility of inadvertent or negligent conduct on the part of members of the public visiting the reserve but submitted that it is generally entitled to assume that most will take reasonable care for their own safety. In the Council’s submission, to dive into the ocean from a rock is an obvious and inherently dangerous activity. Members of the public taking reasonable care for their own safety might be expected to assess the depth of water before they dive.

141 Mr Harrison relied on passages in the judgments of those in the majority in Romeo as to the significance of obvious dangers. Toohey and Gummow JJ at [50] said:

“Whether there was a breach of the duty of care owed by the respondent to those who came onto the Reserve depended on ‘the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed’ ( Nagle at 431). An assessment of that action must be on the footing that the respondent had to take into account ‘the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety’ ( Nagle at 431). But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger.”

142 Kirby J at [132]:

“Given the prominence of the danger, past usage of the site and accident experience it was not reasonable to expect the defendant to anticipate the inadvertence of the plaintiff in this case.
…
The perceived magnitude of risk, the remote possibility that an accident would occur, the expense, difficulty and inconvenience of alleviating conduct and the other proper priorities of the Commission confirm the conclusion that breach of the Commission's duty of care to the appellant was not established. The Commission's failure to provide protection against the risk that occurred was not unreasonable.”

143 The Council relied on the observations of Heydon JA in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] for the proposition that it was entitled to assume that each normal adult human acting autonomously and voluntarily would not incur unnecessary and blatantly obvious risks. Van Der Sluice involved a claim by an independent contractor engaged to install Christmas decorations under a contract with the defendant for damages arising out of injuries suffered by him when he fell from a ladder. The claim was pleaded in negligence and contract. With respect to the claim in negligence the plaintiff contended that the defendant had placed him in a position of working at a height such as to pose an obvious risk of falling. Heydon JA observed at [66]:

164 In written submissions the Council accepted that it was foreseeable given that members of the public jumped and dived from the rock platform into the ocean that eventually someone may be severely injured. Indeed, the Council noted that if the Court were to accept the plaintiff’s evidence it would flow that his accident was a preventable one. These two considerations were not said to be sufficient to have made it unreasonable for it to have taken no steps to prevent such an accident. In determining the content of the reasonable response to foreseeable harm the Council pointed to considerations such as that while a single sign may be relatively cheap and innocuous, once they become larger in order to account for a range of risks, and more numerous, in order to account for additional locations of risk, it is necessary to take into account the effect on the amenity of places that are attractive because they are in a natural, or near natural state; Waverly Council v Lodge at [35] - [36]. This is a consideration that Kirby J discusses in Romeo at [130] in the context of the balancing exercise that is to be undertaken in applying the test enunciated by Mason J in Wyong Shire Council v Shirt.

165 The above consideration has greater force if the content of the reasonable response of the Council required the erection of signs along the length of the coastline the subject of its control. I do not find that to be the case. I do not consider that the erection of warning signs at the two suggested access points to the rock platform to constitute such an intrusion upon the natural amenity of the setting as to make it reasonable for the council to have determined not to do so on aesthetic grounds.

166 In the Council’s submission in considering the obviousness of risk to persons diving from the rock platform the evidence as to the variable depth of water (whether occasioned by littoral drift or otherwise) is not to the point. What matters to the diver on any given day is the depth of the water. This is not a case in which it is the plaintiff’s claim that he had dived from the rock platform on other occasions and found the water to be deeper than it was on the day of his accident. Unlike Errol von Sanden it could not be said that the plaintiff was misled by a view that he had formed concerning the likely depth of water.

167 People including adults of the height and weight of the plaintiff have dived from the rock platform over the years without incident. Nonetheless I am satisfied that diving from any position along the rock platform was dangerous in that it was attended by a real risk that the diver would strike the ocean floor and thereby suffer severe injury. That risk for a person diving was greater on some days than on others by reason of the movement of sand leading to significant variations in the depth of the ocean floor.

168 I accept the evidence that, although the ocean floor is generally visible, it is not possible to accurately gauge the depth of the water from the rock platform. The risk that the water on any given occasion was not sufficiently deep to make diving safe was not necessarily apparent to a person standing on the rock platform at the dive location and looking into the water.

169 The fact that it was common for people to dive from the rock platform was likely to lead others to consider that it is safe to do so. On some occasions it would be safe to do so and on other occasions it would not be.

170 I am satisfied that the Council knew or ought to have known that the ocean floor adjacent to the rock platform varies in depth as the result of the significant movements in sand along the eastern coast. The Council knew or ought to have known of the danger that the variations in the level of the seabed posed for persons diving from the rock platform. The danger that I identify (in addition to the general difficulty of estimating the depth of the water) is (i) that persons who have previously dived with safety may be misled by the belief that the depth of water will be sufficient to allow of safe diving and (ii) persons such as the plaintiff who have observed people diving safely on other occasions may be misled into thinking the water is sufficiently deep to dive safely when it is not.

171 The plaintiff dived from this location because he had seen others diving from it on many occasions in the past and in the minutes before he dived. He concluded from these observations that it was safe to do so. The plaintiff was sober. The assumption that he made involved the same process of reasoning that led Ian Walker to assume that it was safe to dive from the rock platform on occasions.

172 The fact that is was relatively common for people to dive from the rock platform seems to me to detract from the contention that the risks of doing so were apparent such that it was reasonable for the Council to take no action to warn the public of them.

173 I do not consider the risk of sustaining severe injury by diving from the rock platform to have been of such an obvious nature that the reasonable response of the Council was to take no step to warn of it.

174 The Council was armed with knowledge that the plaintiff did not have concerning the danger of diving from the rock platform. The Council knew or ought to have known that there could be significant variations in the depth of the water adjacent to the rock platform meaning that a dive might safely be executed on one day but not the next.

175 The Council knew of the risk of catastrophic injury as the result of diving from the rock platform. It was a risk that had eventuated.

176 The rock platform was located at one end of a popular beach which the Council encouraged members of the public to visit. The Council was aware that members of the public commonly dived from the rock platform and that this activity was a dangerous one.

The plaintiff’s particulars of negligence

177 The plaintiff pleaded thirteen particulars of negligence. There is a measure of overlap between a number of them. Particulars (a), (b) and (l) are directed to the Council’s failure to prohibit diving from the rock platform. The plaintiff also particularised a failure to warn him of the significant variations in the water depth adjacent to the rocky area and of the risk of shallow water.

178 The failure to ensure that the foreshore area was adequately patrolled, the failure to warn persons against diving from the rock platform and the failure to enforce a prohibition on diving or jumping from the rock platform by the use of regular patrols, were also particularised as negligent.

179 There was a difference of opinion between the expert witnesses on whom the plaintiff relied with respect to the enforcement of a prohibition on diving by the use of regular patrols. Mr Kiernan favoured the latter. Mr Browne did not consider that enforcement action beyond the erection of warning signs to be a practical option available to the Council. He acknowledged that rangers might warn members of the public against engaging in a prohibited activity. This is different to the proposition that the Council fell short of the standard of care that it owed to the plaintiff by failing to have in place a system of patrols in order to warn persons of the dangers of diving from the rock platform (or the failure to enforce a prohibition on diving by regular patrols).

180 I am not persuaded that the plaintiff has established that the response of the reasonable council required that it ensure that the foreshore area was adequately patrolled to warn persons such as him of the dangers of diving from the rock platform (particular (c)) or to enforce a prohibition on diving or jumping from the rock platform by the use of regular patrols of that area (particular (l)). The evidence did not address by whom the same might be conducted. The Council employs both rangers and lifeguards. The latter are employed on weekdays to patrol Soldiers Beach. On the weekends the volunteer lifesavers assume responsibility for patrolling of the beach. Signs operate twenty-four hours a day. It might be thought that for patrols to be effective they would need to be conducted throughout daylight hours on each day of the week. Apart from the contents of Mr Keirnan’s report to which I have referred there is no evidence concerning the cost or practicality of an effective regime of patrols.

181 Particular (f) complained of the Council’s failure to undertake any investigation to ascertain the existence and extent of variations in the depth of water adjacent to the rock platform and particular (g) complained of the failure to investigate the effect of dredging work conducted at the Entrance upon seabed levels along the adjacent coastline. I do not consider that the plaintiff has established that the Council was in breach of the duty of care that it owed to him by reason of either of these particulars. I accept that the Council knew or ought to have known that the water adjacent to the rock platform was of variable depth by reason of the movement of sand along the eastern seaboard. The evidence did not point to the need for a reasonable council to carry out any particular investigation to ascertain that fact. The evidence did not establish that any dredging work conducted at the Entrance had an impact upon the seabed level adjacent to the rock platform.

182 On the plaintiff’s behalf the case was conducted principally on the basis that the Council was negligent by its failure to erect signs prohibiting diving reinforced by signs warning of the dangers of diving by reason of the depth of the water. The plaintiff was asked questions in chief concerning what effect a sign prohibiting diving would have had on him. His attention was not addressed to the question of what, if any, effect a sign warning him of the risk of shallow water and variable water depths would have had upon him.

183 In the Council’s submission its power to regulate diving was provided under the Local Government Act and the Ordinances made thereunder as follows:

(a) The erection of a notice prohibiting bathing pursuant to
s 354(2);
(b) the erection of a notice prohibiting bathing pursuant to
cl 8 of Ordinance 52; or
(c) the erection of a notice regulating the conduct of persons pursuant to cl 22 of Ordinance 52.

184 With respect to the erection of notices pursuant to s 345 or cl 8 of Ordinance 52 the Council submitted that its power was to prohibit bathing. It accepted that “bathing” may be interpreted so as to include diving and jumping into the ocean, but submitted that the power did not extend to preventing only one of the activities that constitute “bathing”. Accordingly its power was to prohibit “bathing” in all its manifestations and did not admit of the prohibition of diving alone.

185 The powers by which the Council might prohibit diving were characterised by Mr Harrison as “quasi-legislative”. In his submission the Council could not be in breach of a duty of care owed to the plaintiff by reason of failure to exercise quasi-legislative powers; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 per Gaudron J at [32]; McHugh J (with whom Gleeson CJ agreed) at [93]; Gummow J at [170]; Kirby J at [238] and Hayne J at [288] – [297].

186 In Crimmins the High Court was concerned with the question of the circumstances in which a statutory body will be subject to a common law duty to exercise its statutory powers. The question was whether the Stevedoring Industry Finance Committee (the successor in liabilities to the Australian Stevedoring Industry Authority) owed a duty of care to the appellant, a waterside worker. The appellant was diagnosed as suffering from mesothelioma caused as the result of inhaling asbestos fibres. He had been required over a number of years to unload asbestos for different stevedoring companies. He was not employed by the Authority. However, the functions of the Authority included the encouragement of safe-working practices in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers and, where necessary, the provision of waterside workers with articles and equipment designed for that purpose (s 17(1)(o) of the Stevedoring Industry Act 1956 (Cth) (“the Stevedoring Industry Act”)).

187 The majority in Crimmins held that the Authority owed the appellant a common law duty to take reasonable care to protect him from reasonably foreseeable risks of injury arising from his employment.

188 The Council’s submissions are based upon the approach taken in each of the judgments to that part of the appellant’s claim which contended that the Authority was negligent by its failure to make orders pursuant to s 18 of the Stevedoring Industry Act restricting his exposure to asbestos or obliging his employers or the owners of vessels upon which he worked to take steps to eliminate the risk to his health posed by exposure to asbestos.

189 Section 18(1) of the Stevedoring Industry Act conferred power on the Authority to make orders which by virtue of s 20(1)(c) of the Act were given the force of law. Their Honours were unanimous in finding that the Authority was not under any common law duty to exercise its quasi-legislative order-making powers.

190 McHugh J (in a judgment with which Gleeson CJ agreed) observed at [131]:

“Section 20 of the Act declared that any orders made by the Authority had the ‘force of law’. This section indicates that orders made by the Authority were part of the exercise of a ‘quasi-legislative’ function and beyond the scope of any duty of care. This, however, does not exhaust the Authority's powers, even within s 18(1) itself. The Authority still retained sufficient powers to ameliorate the risk of injury to the waterside workers and those powers do not fall within the definition of ‘core policy-making’. The ‘policy/operational’ distinction has certain difficulties that attend it, but the nature of the other powers and functions exercised by the Authority with respect to safety clearly fall closer to the ‘operational’ end of the spectrum. Although they involve considerations of convenience, discretion and budgetary allocation, they are matters appropriately considered as part of the breach question.

191 Hayne J considered that the fundamental reason telling against the imposition of a duty in negligence in relation to the exercise of quasi-legislative functions was that the latter have a public as distinct from private or individual focus [292]. His Honour went on to observe at [296]:

“The present case is even clearer. The appellant's complaint is that the Authority made no order. It did not exercise its quasi-legislative power. If the appellant is to succeed then, it is necessary to show that the Authority, exercising reasonable care, was duty bound to exercise its power to make a general order and to exercise that power in a particular way. What I have called the distortion of focus is greater if a common law duty to exercise the power (as opposed to a common law duty affecting how the power is exercised) is found to exist. It is greater because the imposition on the Authority of a duty owed to individuals means that the Authority would have been bound to consider the position of those individuals and to do so regardless of what other subjects may have properly required its time and attention in performing the functions given to it by the Act. The Authority's focus would shift from the good of the industry to protection of the Authority from suit.”

192 The present case falls within a recognised category of cases where a duty exists by reason of the relationship between the parties. The plaintiff was lawfully present upon land the subject of the Council’s care, control and management. The Council was under a common law duty to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve.

193 In Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 the majority held that public authorities with statutory powers to construct, design, repair and maintain public roads owe a duty to take reasonable care to ensure that the exercise, or the failure to exercise, those powers does not create a foreseeable risk of harm to users of the road. In this context Gaudron, McHugh and Gummow JJ said at [150] and [162]:

“Where the state of a roadway, whether from design, construction, work or non-repair poses a risk to that class of persons, then, to discharge its duty of care an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk.
…
It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question”.

194 In Brodie the majority considered that a public authority may breach the duty of care it owes to road users by the failure to restrict access to a public road or in an extreme case by the failure to close it. No question arose that so to hold would be to impose a duty to exercise quasi-legislative powers in a manner inconsistent with the decision in Crimmins.

195 Ordinance 52 is concerned with public baths and bathing. Clause 21 of the Ordinance confers a broad power on a council to regulate the use of a reserve by members of the public by the use of notices. It is directed to notices that may be exhibited in, or in the vicinity of, public bathing reserves, baths or swimming pools. It provides in terms for notices indicating where bathing shall be prohibited. However, the powers with respect to the provision of notices are broadly expressed and include the regulation of the conduct of persons and the use of the reserve by members of the public. I consider that the Council was possessed of the power in January 1993 to prohibit diving per se within reserves under its care, control and management.

196 In a case such as this where the relationship between the parties gives rise to a duty of care the court is concerned with the reasonable response of the Council to the foreseeable risk of injury. If the Council has the power to prohibit members of the public from engaging in a dangerous activity, such as diving from a rock platform located in a reserve the subject of its care, control and management and to prohibit that activity does not occasion undue expense, difficulty or inconvenience, then it seems to me that its failure to do so may show a want of reasonable care for the safety of visitors to the reserve. To say this does not seem to me to trench on the core policy-making functions of the Council.

197 In Nagle the appellant’s particulars of negligence included the Board’s failure to give a warning that the ledge was unsafe for diving. The majority said at 431-432:

“In our view, the giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed. True it is that the particulars might have been more specific by stating the form of notice, for example, ‘Diving from anywhere in this area is prohibited’, with or without a reference to the presence of dangerous rocks and by identifying the place or places where the notice might be located. But the particulars sufficiently drew to the respondent’s attention the relevant omission which constituted the alleged negligence, that is, the failure to warn of the danger of diving at the place where the accident occurred. A notice prohibiting diving is but one form of notice – perhaps the most effective form of notice – warning of the danger of diving.”

198 I am not persuaded that the plaintiff’s claim, to the extent that it propounds a case that the Council was in breach of the duty that it owed to him, by failing to erect signs prohibiting diving from the rock platform, must fail by reason of the decision of the High Court in Crimmins.

199 I consider that the plaintiff has made good his claim that the Council breached the duty of care that it owed to him by its failure to take steps to eliminate or reduce the risk that members of the public such as the plaintiff lawfully entering the Norah Head Reserve would suffer serious injury as the result of diving from the rock platform. I am mindful of Mr Browne’s acknowledgement in cross-examination that he knew of no natural rock formation on which a local council had erected a warning sign. However, given the considerations to which I have referred in [157] and [158] above I have concluded that the reasonable response of the Council to a risk of this magnitude required that it take steps to eliminate or reduce the danger by erecting signs at the access points identified by Mr Browne prohibiting diving from the rock platform.

200 If I am wrong in my conclusion that the Council was in breach of the duty it owed to the plaintiff by its failure to erect signs prohibiting diving from the rock platform, I would be of the view that it was, at the least, required to erect signs warning of the danger of diving from the rock platform. Such a conclusion seems to me to be consonant with the decision of the High Court in Nagle.

Causation

201 The next question to be addressed is whether the plaintiff has established that his injuries would have been prevented had the Council erected signs prohibiting diving and or warning of the dangers of diving in the locations suggested by Mr Browne and Mr Kiernan. The question of causation is to be determined subjectively; Chappel v Hart (1998) 195 CLR 232 per McHugh J at 247. In answering the question of whether the plaintiff would have avoided the injury he suffered had he been warned of the risk it is relevant to consider his evidence on that topic. Equally it is important to keep in mind the observations of McHugh J in Chappel v Hart at 246:

“Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff’s evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff’s evidence. It may be a ground for rejecting the plaintiff’s evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred.”

202 The plaintiff said that had he seen a sign in the vicinity of the rocky outcrop before he dived, either on the day of his accident or on the preceding days or weeks, which said “Diving prohibited” or which contained a pictogram symbol of a person diving with a red line across it, indicating that diving was not allowed, he would not have dived from the rock platform. He said he would have understood that the person placing the sign was aware that it was dangerous to dive from that location and, accordingly, that he would not do so. I accept that the plaintiff honestly believes that to be the case.

203 The plaintiff was a healthy thirty-three year old man who engaged in a variety of sports. Generally, he described himself as a person who did not take risks and who was safety conscious. I accept his evidence that he was not a person in the habit of disobeying warning signs. He did not have a recollection of any occasion upon which he had failed to follow a specific warning sign in a public place. His evidence concerning snow skiing and water skiing was consistent with a view that he was not a person inclined to take risks associated with his participation in those sports beyond those which must accompany participation in the sport.

204 Conscious of the considerations to which McHugh J referred in Chappel v Hart, I move to a consideration of whether to accept that evidence by reference to the evidence that touches on the attitude and conduct of the plaintiff around the time of his accident.

205 The plaintiff’s brother-in-law, Gregory Kotkis, had been on water skiing trips with the plaintiff. Mr Kotkis and others of his associates liked to ski fast on one ski. Mr Kotkis said that the plaintiff would not engage in any conduct that was a bit daring. The plaintiff persisted in skiing with two skis and did not appear keen to advance to the single ski technique. Mr Kotkis did not observe the plaintiff on any occasion to contravene signs on the Georges River notifying speed zones and areas where skiing was prohibited. In this respect Mr Kotkis volunteered that one would get caught if breaking the rules, since there was a substantial water police presence on the river at any time.

206 The plaintiff’s sister, Margaret Jackson, gave evidence of his lack of disposition for risk taking. She was the seventh of the ten children in the Vairy household. The plaintiff was the eighth. They were close in childhood. Mrs Jackson’s impression was that the older children were the risk takers, whereas she and the plaintiff had tended to be the sort of children who would stand back and observe. Mrs Jackson did not consider it likely that the plaintiff would ignore a warning sign. More importantly in the approach I take to this issue was Mrs Jackson’s evidence concerning the plaintiff’s responsible attitude to the supervision of her children. Mrs Jackson impressed me as a precise and careful individual. She had a high regard for the plaintiff and because of that he frequently acted as babysitter for her children. They loved him and he had a lot of contact with them. The plaintiff was a stickler for ensuring that the children obeyed the “Don’t Walk” and the “Walk” signs on the road.

207 Maryanne Kotkis gave evidence consistent with that given by Margaret Jackson as to the responsible manner in which the plaintiff looked after her daughter, Crystal. He had taught Mrs Kotkis to drive and impressed on her the need to comply with road signs and to drive safely.

208 In the event that the Council had erected warning signs, such as those recommended by Mr Browne and Mr Kiernan, I think it reasonable to assume that a number of people would have been deterred from diving. Although I expect that some people would have ignored signs, the pattern of activity on the rock platform would have been different. Fewer people would have been observed jumping and diving from the rocks on 24 January 1993. Had the signs been in place for some time prior to that date I would expect that fewer people on any given day would be seen jumping and diving from the rocks by a visitor to the beach, such as the plaintiff.

209 The plaintiff’s former wife’s uncle, Chris (“Uncle Chris”), had suffered severe spinal injury as the result of a diving accident in the Nepean River. This incident occurred some years before the plaintiff and his wife married. The plaintiff was aware of it and it made him conscious of the risk of severe injury associated with diving.

210 There were no signs to suggest that there were any dangers associated with diving from the rock platform. People were either jumping or diving from the rock platform on the morning of 24 January 1993. On this day the plaintiff visited Soldiers Beach as part of a family group. He went to the rock platform not because he had formed any intention to dive off it. In the four years that he had regularly visited Soldiers Beach he had never done so. He went to the rock platform because his niece asked him to take her. Her aunt would not allow her to go without an adult to supervise her. As he and she walked over the platform I am satisfied that it was in his mind to dive off it. However, I do not consider that he was so intent on diving off the rock platform that he was unlikely to have been deterred by a warning sign. Indeed, to my mind the evidence points persuasively to the contrary conclusion. I think it unlikely that the plaintiff would have dived from the rock platform contrary to the terms of a warning sign in the presence of his eleven-year-old niece.

211 In the event that signs prohibiting diving had been erected in the vicinity of the rock platform I am satisfied that it is likely that the plaintiff would not have dived from it.

212 In the event that signs warning of the danger of diving (by reason of the variable depth of the water or by reason of shallow water) had been erected in the vicinity of the rock platform I am satisfied that it is likely that the plaintiff would not have dived from it. The plaintiff was particularly conscious of the risk of spinal injury associated with diving because of Uncle Chris’ accident. A warning that served to bring the risk of diving from the rock platform to his attention I think would probably have led him not to run that risk.

Contributory negligence

213 The Council contended that, in the event it was to be found liable to the plaintiff, I would find that the plaintiff’s own negligence contributed to his loss. In the Council’s submission any damages awarded ought be reduced by an amount between seventy percent and eighty percent pursuant to s 9 of the Law Reform (Miscellaneous Provisions) Act 1965.

214 In deciding whether the Council has established that the plaintiff’s negligence contributed to his damages and, if so, in apportioning responsibility as between it and the plaintiff, I am guided by the principles enunciated in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ at 494:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

215 In the Council’s submission an assessment both of the culpability of the parties and of the relative importance of their respective acts in causing the plaintiff’s damage ought to dictate a very substantial reduction in the award of damages to the plaintiff. It was submitted that the plaintiff had been extraordinarily careless. He acknowledged in the course of his evidence that he did not know how deep the water was, nor did he form a view as to its depth. He conceded that in diving into the water without being able to see the bottom he “took the risk” that the water was not deep enough. The Council pointed to the evidence concerning Uncle Chris’s accident and submitted that the plaintiff was armed with knowledge of the grave consequences that might befall a person who dives into unknown water without first investigating its depth.

216 On the plaintiff’s behalf it was put that when regard was had to the whole of the circumstances I would not find that the Council had established the plaintiff to have departed from the conduct of a reasonable person. It was submitted that the plaintiff had as a matter of practical reality checked that it was safe to dive from the rock platform. He did so by reference to observing the conduct of others. This was not a case where the plaintiff had impulsively dived off the rock platform without satisfying himself that others had done so without apparent injury. Although the plaintiff had not previously dived from the rock platform he had seen many people doing so over the previous four years. As far as he was aware there was no risk to persons engaging in this activity. He stood on the platform watching the conduct of others for a matter of minutes before making his dive.

217 The plaintiff referred me to the decisions in Boylan and Western Australia v Dale (1996) 15 WAR 464 in support of his submission that it was appropriate to reject the Council’s claim of contributory negligence in this case. In Boylan the plaintiff was aware of the dangers of diving into shallow water and of the dangers of diving into murky water. The trial judge came to the conclusion that a reasonable person armed with the plaintiff’s knowledge was entitled to think that, after wading out until the water reached to the middle of his thighs, it had been safe to assume that there were no concealed rocks in his path. This finding was not disturbed on appeal.

218 I do not accept that submission that the facts in Boylan are comparable to the facts of the plaintiff’s claim. It is sufficient in this respect to refer to the summary of the facts in Boylan set out in the judgment of Gleeson CJ which is in part extracted at [148] above.

219 In Dale the plaintiff was a sixteen-year-old youth. He dived from a rock outcrop known as “the mound” into a popular swimming hole. He struck the water bed and suffered severe spinal injury. The trial judge accepted his evidence that he had seen two persons dive into the water from the mound without incident before he dived and that he had inspected the water to ensure that there were no obstacles. He noted the water was dark blue in colour which suggested to him that it was deep. The trial judge rejected the defendants’ claim that the plaintiff’s negligence contributed to his damages. This determination among others was the subject of the appeal to the Court of Appeal.

220 In Dale Kennedy J (in a judgment with which Rowland and Franklyn JJ agreed) said:

“The evidence accepted by the trial judge was that Mr Dale checked for danger before diving. He saw other people diving and he looked over the edge of the mound for obstructions. He saw what he perceived to be deep water by reason of its dark blue colour, and only then did he dive. There has been no appeal from her Honour’s finding as to the deceptive nature of the swimming hole, which had been made worse by the lower than normal level of the water at the time of the accident. In evaluating the evidence, consideration must also be given to the age of the first respondent, he being just over sixteen years of age.
Kitto J, on this question, said in McHale v Watson (1966) 115 CLR 199 at 213:
‘The standard of care being objective, it is no answer for [a child], any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow witted, quick tempered, absent minded or inexperienced. But it does not follow that he cannot rely on his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.’
(See also Menzies J at 219 and Owen J at 229).
…
Whilst it is true that Mr Dale did not get into the water and ensure that the depth was sufficient, he did make a number of visual checks, to which I have referred, before diving into the water hole which was, as her Honour held, of a deceptive nature. Having regard to her Honour’s findings, I do not consider that Mr Dale failed to exercise reasonable care for his own safety, and there should not, in my opinion, be any apportionment against Mr Dale for contributory negligence. The responsibility for Mr Dale’s injuries should rest upon the appellant alone.”

221 In this case I am satisfied that the plaintiff who was a mature adult did not make any independent assessment of the depth of the water before diving. His only assessment depended upon the inferences that he drew from seeing other persons jumping and diving from the platform in the minutes before he dived and his observations of people jumping and diving from the rock platform over the previous four years.

222 It seems to me that the plaintiff failed to take reasonable care for his own safety by not making any independent assessment of the depth of the water before he dived. The fact that he had frequently seen people diving on other occasions and that he saw some persons diving from it on this day I do not consider to relieve him of responsibility, as a person taking reasonable care for his own safety, for ensuring that the depth of the water was sufficient to make diving on this occasion safe for a person of his height.

223 I do not accept the Council’s submission that the plaintiff’s culpability as between it and him was by far the greater nor that the proximate and significant cause of his injury was his own carelessness. I consider the appropriate reduction in the award of damages on account of the plaintiff’s own negligence to be one of twenty-five percent.

Damages

224 As I have noted, the parties were agreed as to damages. I set out below the parties’ agreement in this respect.

CALCULATION OF DAMAGES

PLAINTIFF: ERNEST VAIRY DATE: 20-Sep-02

Date of accident: 24-Jan-93
Plaintiff’s date of birth: 06-Jun-59
Plaintiff’s age: 43.3
Nominal retirement age: 65
Years remaining in workforce: 22
Years since accident: 9.656
Actuarial Table: 3%
Discount for vicissitudes of life: 15%
Life Expectancy: Discounted by 15%: 30

GENERAL DAMAGES: $325,000

INTEREST ON GENERAL DAMAGES: $22,000

PAST ECONOMIC LOSS: $229,190

INTEREST ON PAST ECONOMIC LOSS: $111,157

FUTURE ECONOMIC LOSS: $419,772

LOST EMPLOYER-FUNDED SUPERANNUATION BENEFITS: $121,472

HOME CARE SERVICES: $1,054,925

(a) Past:

Paid care: $631,154
Gratuitous care: $423,771

(b) Future: $2,250,000

FUTURE GARDENER/HANDYMAN ASSISTANCE: $74,550

HOUSING: $250,000

ENVIRONMENTAL CONTROL SYSTEM: $30,000

MOTOR VEHICLE: $154,003

COMPUTER: $80,000

HOLIDAY EXPENSES: $432,455

MEDICAL AND TREATMENT EXPENSES:

Past: $131,322
Future medical and treatment expenses: $250,000
Future nursing care: $500,000
Future equipment needs: $300,000
Occupational therapy assistance: $3,825

TOTAL DAMAGES: $6,739,671

225 For these reasons there will be judgment for the plaintiff in the amount agreed by the parties reduced by twenty-five per cent representing the extent to which the plaintiff’s own negligence contributed to his damages.

226 In written submissions Mr Harrison noted that in the event that the plaintiff succeeded in his claim but that his damages were significantly reduced by reason of his own negligence, the Council would wish to be heard on the question of costs. This submission was made in the context of the Council’s submission that an appropriate reduction was in the range of seventy per cent to eighty per cent. In the light of my view that the appropriate reduction is twenty-five per cent I see no reason to depart from the usual order as to costs.

1. Verdict and judgment for the plaintiff in the sum of $ 5,054,753.25.

2. The defendant is to pay the plaintiff’s costs as agreed or assessed.

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Last Modified: 01/06/2003