Vairy v Wyong Shire Council, Mulligan v Coffs Harbour City Council & Ors

[2005] HCATrans 196

[2005] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S493 of 2004

B e t w e e n -

ERNEST VAIRY

Appellant

and

WYONG SHIRE COUNCIL

Respondent

Office of the Registry
  Sydney  No S502 of 2004

B e t w e e n -

GARRY SEAN MULLIGAN

Appellant

and

COFFS HARBOUR CITY COUNCIL

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

COFFS HARBOUR JETTY FORESHORE RESERVE TRUST

Third Respondent

MR WAL HAMBLEY

Fourth Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 APRIL 2005, AT 10.02 AM

(Continued from 7/4/05)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in a critical passage of her Honour’s reasoning found in volume 3 of the appeal book commencing relevantly at page 784, there are drawn together important factual matters to which I wish to make brief reference in supplement of our written submissions.  They are the supposedly distinctive nature of the location, they are the depth or perceived depth or lack of knowledge about depth and they are this phenomenon of littoral drift about which reference has been made.

At 784 in paragraph 157 a submission, which is still the position of my client, is recorded.  Immediately in paragraph 158, going over to page 785, the quotation from Justice Hayne’s reasons in Romeo is set out of a kind which her Honour then addresses, seeking to meet the requirements of principle adverted to there by Justice Hayne.  In paragraph 161 some of Mr Dawson’s evidence is referred to and it is referred to, with great respect, accurately:

twenty-seven kilometres of coastline.

Your Honours have already heard there are six patrolled beaches but they have headlands.  He described the coastline as:

“largely sandy beach, with intermittent prominent headland with rocky foreshores” –

a description typical to anybody who is familiar with the eastern coast of New South Wales – the coast of New South Wales in fact.  Then, of course, there is the Tuggerah Lakes system as well, covering an area of what ought to be understood to be approximately 25 square kilometres.  The circumference of that internal coastline or shores, I should say, was not able to be estimated, but, as the witness says, obviously large.

Then Mr Browne – he is the Warringah man – is said to have described the rock platform and the area of flat rock that adjoins Soldiers Beach as “most unusual”.  I am going to take your Honours to some of the evidence.  This touches on the contention point that is raised in our written submissions.  As I understand from discussion with my learned friend, there is no opposition to that contention being entertained in this Court.

We contend that there was nothing shown relevantly to be unusual or distinctive about this location which had anything to do whatever with the conduct of the appellant or the reasonableness of response by my client.  However, her Honour accepted the evidence of a man who said he did not know anything like this in Warringah and said it was:

a distinct and unusual natural formation – 

Your Honours will not find any detail about that except for the in shore channel that can be seen in some of the photographs, of which this can be said:  (a) anybody seeing the photographs will recognise that it is typical of a New South Wales rock platform; and (b) the channel was not where the boys were jumping.  They were jumping onto the ocean side.

In paragraph 162 her Honour refers to her acceptance that it is a “distinct and unusual natural formation” and that may evoke recollection of what one of the experts described as the attractiveness of a feature such as the Kiama Blowhole, but there is no evidence that people came, as it were, to see or admire something unusual, geologically or topographically. 

McHUGH J:   Mr Walker, why it is irrelevant to be talking about 27 kilometres of coastline and 25 kilometres of Tuggerah Lakes is because you have a known danger here. 

MR WALKER:   On 27 kilometres.

McHUGH J:   This spot must be in competition for one of the most dangerous places.  Its record is two quadriplegics or paraplegics in 15 years.  I doubt if there is any speedway, racetrack, stadium or football field in Australia that could boast as many paraplegic injuries as this area has in the space of 15 years.

MR WALKER:   Your Honour, before one were to ascribe some “black spot” status to this, you would need to have some statistics – there are none – and you would then need to ask how have the matters come about.  Just as with traffic “black spots”, you would need to know whether you were talking about somebody doing something quite outside the expectation of any traffic engineer or whether it is more or less ordinary traffic before you say that it is what the traffic engineers have done or not done which made this dangerous.  In other words, to pick two episodes and to say that concludes the issue that is raised by the considerations discussed by Justice Hayne in Romeo is impossible on the evidence in this case.  There was no attempt at any comparators at all, and your Honour certainly cannot call in aid references to boxing stadiums, football fields or anything.

McHUGH J:   No, but the onus is on you.  It can only go to what is a response and you say, “Well, we’ve got these other risks and we’ve got to deal with those as well and the expense of dealing with them all is so great that we can’t do more than what we happen to have done.”

MR WALKER:   It is more than expense, as your Honour knows from our argument, much more than just expense. 

McHUGH J:   I heard what you put about it.

MR WALKER:   I do not want to repeat what is in writing and what I have already said but your Honour appreciates it is by no means only expense, by no means only.

McHUGH J:   Yes.  You have to face up to this fact that you just cannot walk away.  There seems to be a rejection of the notion of paternalism.  Duties of care carry with them a notion of paternalism.  You have to take care of ‑ ‑ ‑

MR WALKER:   Your Honour, there is a reason why that word “paternalism”, depending on context, is also a derogatory term.  The reason is that it can be overdone.  It can call for too much either tolerance of those who are being paternalised and also too much on the part of the person in the paternal position, depending on context.

McHUGH J:   Yes, but the common law could have accepted the Darwinian view of nature – “nature red in tooth and claw” – done nothing, leave people to their own device and let them look after themselves.  The common law rejected that view.  It imposes duties of care and with that a requirement that some people in relationships have to look after other people, and one of them is an occupier of land.

MR WALKER:   Yes, and the whole jurisprudence has come from and is for a population of more or less free people and, in our submission, it is the freedom to run risks without having criminal offences created in order to satisfy the calls of one’s litigators is a very important freedom.  This is all about reasonableness and that balance of care for people who may be, either by foolhardiness, stupidity or inadvertence, on the one hand, does properly call to be balanced with the freedom, on the other hand, not to have, in particular, offences created as a matter of legal form in order to deflect liability.

As your Honour well knows, if the requirement, in effect, deduced by risk managers from a factual decision in accordance with the appellant’s case here were to fall out, that it required prohibition, creating criminal offences, the next step is “And you have to show that you are enforcing this by a staff of people who are, in effect, arresting – that is, using their power to remove people – and, furthermore, they are prosecuting so as to show that this is really serious”.  In our submission, that is unreasonable.

McHUGH J:   You do not have to do that.  Have you read Hudson v Venderheld overnight?

MR WALKER:    Yes.

McHUGH J:   It shows that councils ‑ ‑ ‑

MR WALKER:    But, your Honour, that case is construing, for the purposes of a notice before action time limitation provision, the expressions with which this Court is very familiar in a number of contexts, be they judicial review statutes, be they statutes in relation to jurisdiction ‑ ‑ ‑

GUMMOW J: Section 580 of the old Local Government Act, is it not?

MR WALKER:    Quite, and Puntoriero comes to mind, and that preposition “under”.  In our submission, if there is one thing that is clear it is that one acts “under” the statutory provisions to which I drew attention in opening our response when one prohibits and creates offences.  Your Honour correctly then draws to attention, what about the possibility of warnings without criminal prohibition?  To which the answer is, when it comes to erecting signs on headlands, then that is precisely what these statutory provisions permit.

So we do not have to worry about the question considered in the decision to which your Honour has referred, namely, is there any call for implication – Mr Justice Kitto’s point in Ardouin’s Case – when it is already lawful to do something?  This is a case where there is express provision for the provision of warnings and the like, and/ furthermore, there is then set up a regime by which, if they are done in a certain fashion, criminal offences follow.

So, in our submission, that case says nothing about our main argument, which is that we have to be judged and the reasonableness of our response as people with general local government powers under the Local Government Act as well as the specific “care, control and management” public reserve powers and duties.  It is when you are considering that that the evidence in this case simply failed to show that this was a black spot.

May I remind your Honours that if one was to count incidents, then you cannot count the second one, because the calculus has been performed before it happened.

McHUGH J:   That can be accepted, but, if there is any argument about the danger, which to my mind there could not possibly be ‑ ‑ ‑

MR WALKER:    It was not an argument about danger ‑ ‑ ‑

McHUGH J:   No, I know that. 

MR WALKER:    ‑ ‑ ‑ and I am going to take your Honour to the evidence in a moment that embraces danger.

McHUGH J:   Yes. 

MR WALKER:    It is dangerous.  So is surfing in a steep swell dangerous, which notoriously makes people paraplegic. 

McHUGH J:   Apart from closing the beach, there is no practical alternative of dealing with it.  There is a practical alternative of dealing with this. 

MR WALKER:   Your Honours will recall that the evidence contains the raising and ready rejection, for reasons not completely articulated, of things which, we would submit, are self-evidently unreasonable.  One was demolishing the headland, taking explosives to the natural formation, presumably, and the other was fencing it off, presumably with razor wire at the top to stop boys from treating the fence as just another part of the thrill.  In our submission, when you think about this platform as a point of access for people who may want to be snorkelling, people who may want to be gathering pipis, people who may want to be getting into the break off the point on their surfboards, the variety of ways in which could be used carefully, not carefully, by the mature people, by immature people, in our submission, at the end of the day, this is a natural feature which, according to the evidence I am about to take you to, does not differ materially from what else is to be found whereby one cannot say, in the prospective position in which it all must be done, that this required something to be done in the nature of a warning just at this spot. 

Her Honour was well aware that was the difficulty and that is why the passage which I am halfway through concentrates on trying to say something special about this point, and it comes down to what is an immaterial reference to an unexplained unusualness and, as I say, the only evidence about the actual characteristic that rendered it unusual is this channel that has nothing to do with where they jump.  It is not the kind of a blowhole that people come to or postcards are printed about.  It is:

readily accessible to members of the public attending a popular surfing beach.

This is not the only popular surfing beach; there are at least six of them.  There is certainly no evidence to suggest that it is the only one that is readily accessible.  Headlands are in the nature of those things that embrace at the end of each beach and it is said at the foot of 785:

It provides an attractive and ready means of entering the ocean by diving, jumping or bombing.

That is true of every rock platform.

GLEESON CJ:   What, if any, significance was attached at trial to the evidence that the plaintiff regularly used this area, this platform, himself for snorkelling, that, although this was the first time he had ever dived in, he regularly, and indeed quite recently, eased himself into the water and snorkelled in the area.

MR WALKER:   And the day before had to rescue or salvage a bit of jewellery or something, yes.  The significance on the plaintiff’s case as to prior acquaintance was more or less confined or concentrated on the assurance to be gathered from having watched others dive.  The significance on the defendant’s case, of course, was much more general, namely that he did not have any sensible prospect of being put in a class of requiring special solicitude by reason of, for example, being a Japanese tourist, that he was familiar with the beach.  As your Honours know, we called in aid as well the special circumstances, in terms of his thinking about the risks, of his former uncle-in-law’s disaster.

GLEESON CJ:   But he had the day before gone down to the ocean bed off this platform.

MR WALKER:   Yes, off the platform and it has to be asked:  does his case really say that that should have been an offence?  Of course, that is so unreasonable that the question then is:  would a warning without prohibition be a reasonable response just in this spot?  Implicitly or perhaps explicitly in the passage that I am looking at at the moment in this part of her Honour’s reasons, it is accepted that it is a world of difference between saying just “signs here”.

Of course that expense is ridiculous to speak about in the context of this accident if it was just the “signs here”, or the whole exercise for the 27 kilometres, including invidious distinctions as to where you put and where you do not and the great importance of understanding that signs warning speak about two places at least.

McHUGH J:   What do you say about Lord Reid’s dictum in Wagon Mound (No 2) that a reasonable person would eliminate a risk that did not cause that person any cost or inconvenience?

MR WALKER:   The first thing we would say is that, like many generalisations in this area, it is dangerous and wrong to take it out of context or to treat it as a sure guide to a factual determination in any other case at all.  The second is that that is well illustrated by the entirely inapt use of the word “eliminate” with respect to all risks, it being I think accepted by the appellant here that this risk could never have been eliminated.  In our submission, a good thing too, because the risk is concomitant with that which provides pleasure, namely, being in the sea, being next to the seaside and, in our submission, it is a matter of no particular alarm at all that many ordinary activities end in disaster for certain individuals who are, to use my learned friend’s own expression yesterday, “occasionally just unlucky”. 

That does not mean that it called for in advance of such occasions a response which retrospectively can be seen on a causation theory likely to have produced a different result.  In our submission, dicta of that kind ought never be used as a gloss on the fundamental requirement that one prospectively asks once the foreseeability question has been answered favourably to the plaintiff, as it was obviously in this case, what was the reasonableness of the response, including doing nothing? 

Your Honours, page 786, paragraph 163 is where her Honour then answers the considerations required to be addressed for the reasons that Justice Hayne had pointed out in Romeo and the list of factors are:

The accessibility of the rock platform from the beach –

that is not unique or special -

the car park, and its known popularity for diving –

What that means is nothing more than the fact that it is known that people do this.  There has been one bad accident in the past.

McHUGH J:   There is evidence about dislocated shoulders, fractures, cuts.

MR WALKER:   Yes, indeed.  Volume 2 of the appeal book, page 703 between lines 30 and 35:

there has usually been one injury of some consequence . . . each year.

KIRBY J:   What page is that?

MR WALKER:   Page 703.  As I said yesterday, it defies credulity that there was less than one injury per year just from the surf.  There was no attempt on the plaintiff’s part to show that there was something special in relation to this rock platform, compared to all the other risks about which Mr Dawson did speak in the passages to which I am about to come.

This is simply not capable of having a black spot affixed by evidence of that kind at all.  The descriptions there are of injuries which anyone familiar with surf would know do not require the presence of a rocky headland, let alone jumping in or diving in.  In paragraph 163 one then sees that what her Honour has said, that the foreseeable risk raised questions about the reasonableness of response, different from considerations for the whole of the 27 kilometres – that completes, really, her reasoning, which is said to turn on this being a special spot which, without any retrospectivity, can be the only one there to be considered in relation to reasonableness of response.

That passage of reasoning – I do not wish to skip over it, but it is very important that it be understood that her reasoning then continues on to different factors up to the top of page 789 in paragraph 176.  At the foot of page 787 in paragraph 170 over to the top of the next page, and in paragraph 174 on page 788, there is the particularly important reference to the Council being armed with knowledge that the plaintiff did not have. 
Now, this is where there may or may not have been some use by her Honour, perhaps implicit, of the littoral drift material to which your Honours were referred yesterday, and our position on that is simply this.  Whether or not the plaintiff knew about the phenomenon of littoral drift was completely irrelevant to adjudging the disparity of knowledge or advantage as between plaintiff and defendant for the purposes of considering the reasonableness of response.

First, in this case, there is not any evidence at all, not a shred, to suggest that littoral drift had done anything to the bottom, the sandy bottom, which her Honour held, on the probabilities, was what the plaintiff had hit.  Littoral drift leads to what is called variable bottom seabed.  Variation can occur over time and space.  We are not talking about variation in space here.  There is no case saying that he had been misled into diving into a place which was not as deep as where the others were apparently safely diving, so it must be over time.  But there was no case here that littoral drift had raised the bottom so as to reduce the water depth between the last dive he saw safely executed and his dive.  That would be absurd – no one suggested that.  Littoral drift is a complete red herring, if you will forgive the expression.  Littoral drift describes why a sandy bottom undulates, fluctuates, changes, and therefore has an effect on water depth from time to time and place to place along the coastline.  It does not explain why he hit his head.

It is no more relevant to this case than somebody who suffers terrible injury because they go into the snow country and the weather changes and the temperature drops precipitously, it is no more relevant they knowing about snow, they knowing about weather, that the national parks service has a far more detailed meteorological and scientific understanding of why that happens than does the hiker.  In our submission, the whole littoral drift thing has been inserted into this case so as to find something, so as to identify something that the Council knew about that Mr Vairy did not, and yet there is no variability in this case which explains why he hit his head at all.

Littoral drift can both lower and raise the seabed.  There is no suggestion that anybody has any evidence in this case that it had either lowered or raised it from any date and point for comparison, and in particular that it was any higher or lower by reason of littoral drift or any other influence between the time of the accident and any antecedent time in the past that say Mr Vairy had observed people being safe or not.  He jumped in, he said, mostly that day because he saw other people jumping in that day.  Littoral drift has nothing ‑ ‑ ‑

KIRBY J:   It just seems as though you are making a bit light of the fact that such a profound injury as paraplegia or quadriplegia happened, and you have the power, you have the knowledge, you have the extra knowledge of a littoral drift and yet you do not do anything.

MR WALKER:    Your Honour, littoral drift cannot be shown to have done anything in this case at all.

KIRBY J:   You can dissect it and take little bits and pieces.  What I am looking at is the whole picture, which is what the primary judge did.  You have the power, you have statutory responsibilities and such a profound thing as this type of injury had happened.  Your officers knew of the risks, employees were trying to caution, and yet you did not even put a sign up.  It just does not seem reasonable to me.

MR WALKER:    Your Honour, a sign that attached to what I will call the littoral drift issue would have said something along the lines of, “The sandy bottom around the headland, and indeed all over the beach, may vary over time and space in an unpredictable fashion”.

McHUGH J:   These are debating points about terms of notice.  The real question is whether you prohibit people from diving or tell them not to dive.

MR WALKER:    That is right, your Honour.  Littoral drift, in our submission, has absolutely nothing to do with any of that.

KIRBY J:   Except that it is the reason why you might prohibit.  It is a reason why you might – the combination ‑ ‑ ‑

MR WALKER:    But littoral drift is a phenomenon along the whole coastline.  May I take your Honours ‑ ‑ ‑

KIRBY J:   Yes, but this is not the whole coastline.  This is not 27 kilometres.  This is a place where you know that people are jumping off in large numbers, and then at least you put it in their minds and then the responsibility is theirs.

MR WALKER:    Is your Honour asking me about littoral drift or depth of water?  The two are ‑ ‑ ‑

KIRBY J:   No.  The littoral drift is one of the reasons why, on occasion, the water is not deep enough.  Sometimes people can jump in and they are safe.  Sometimes they can jump in and they are not safe and, unless you know these things – for example, I did not know these things before this case.  I would never jump off a promontory but I did not know this phenomenon.  It was not in my mind, at least.

MR WALKER:    Your Honour, littoral drift is an explanation by hydrographers or geographers of which there is evidence in the papers, to which I will take you in a moment, which causes sandy bottoms to change.  They change, if one likes, relevantly up or down.  The depth of water, however, is not so much a function of littoral drift as a function of the position – the elevation, if one likes – of the sea bottom, the tide and the swell.

KIRBY J:   It is a bit like Swain ‑ ‑ ‑

McHUGH J:   Yes, but it explains why it might be safe just to dive in one day and not the next.

MR WALKER:   But it cannot be shown to have explained that in this case at all.

McHUGH J:   No, but it goes to the question of risk and what you have to guard against.

MR WALKER:   Your Honour, if one is talking about the variability of the sea bottom, there is no evidence whatever in this case to show – and I am going to go to the figures in one moment – to show any particular relation between littoral drift and the entering in, from time to time, of periods where it was too shallow to jump off, dive off, from this part of the platform.  No evidence at all.  It is a red herring, because the depth of water involves the tide, involves the wave, and also the absolute elevation of the particular bottom.

McHUGH J:   Exactly.

MR WALKER:   And, if people are diving in safely, one inference is, the bottom is far enough below the surface of the water for that to have been accomplished safely.  Unfortunately, according to the finding on the probabilities that he hit his head on the sandy bottom, unfortunately, that was not so for the plaintiff.  That does not mean that littoral drift had on that occasion, or on any of the occasions in the past, operated so as to elevate the sea bottom more on that day than it had been the week before, the month before, or for most of the year before.  There is no evidence of that kind at all.

Now what one does have, is what I will call the Australian Height Datum evidence, that is, which actually puts figures on things.  If one goes to volume 2 of the appeal book, pages 584 and following, you have at the foot of 584 Mr Miller’s expert evidence:

Variations in water depths at the site are the result of changes in water level, principally due to tidal variations, as well as possible changes in sea bed level due to sand movements.

That is brought about by littoral drift.  Your Honours will see that discussed on 586 under the heading “General Coastal Process Mechanisms”.  But on page 585 about line 40 under the heading “Variations in Sea Bed Level and Water Depth”:

The results indicate that the sea bed at the site of the diving accident is varying by at least 1.6m –

that is the information you were given by my friend –

from around RL -0.9m down to approximately RL -2.5m AHD.

that is, elevations or depressions below a fixed reference point.  So the variation there you get is the 1.6 by a subtraction.

During the period of record, water depths –

water depths are different, they are the height between the water surface, they are the distance between the water surface and the sea bed wherever the sea bed is –

varied from a minimum of 0.5m up to a maximum of around 2.9m.

We do not know, her Honour tells us – we do not know what the water depth was on the particular occasion, we do not know what the water depth was on any of the other occasions.  We do know that people were apparently successfully diving.

HEYDON J:   When the plaintiff was observed to have been injured, did not the rescuers find the water coming up to about here on their bodies?

MR WALKER:   Yes.

HEYDON J:   Well, does that not show what the water depth was?

MR WALKER:   Yes, but could I take you to that passage that your Honour correctly recalled, page 749 in volume 3, paragraphs 49 and following.  The particular passage Justice Heydon has referred to is in paragraph 51 about line 40 or thereabouts:

thought that the water was probably around 1.5 metres deep at that point.

now, that would make it, of course, towards the deepest end of the range that the expert found –

The water was around the height of their nipples.

That is the reference in question.  But one finds in paragraph 49, second sentence on page 749:

It is not possible to identify the depth of the water adjacent –

The point where the men were observed standing with that level of immersion is described at about line 38 on 749 as being “some metres to the south of the dive location”.

GLEESON CJ:   Was the plaintiff questioned in cross-examination about his own observations of the ocean floor and depth when he had been snorkelling the previous day?

MR WALKER:   He was asked about his observations – or non‑observations – just before he dived.  He was not asked in relation to depth from the snorkelling exercise, so that there was no evidence revealed that he had formed an assessment of depth from the snorkelling exercise.

GLEESON CJ:   Those photographs we looked at yesterday show that at least on the day when the photographs were taken, apparently the normal method of exiting from this locality after having dived into it was to walk out.

MR WALKER:   To stand up and climb out, yes.  Given those facts concerning depth, in our submission, it is not possible to say that knowledge about littoral drift added anything which affects the reasonableness of a response concerning people who do not know how deep it is, diving into water, they knowing they do not know how deep it is and drawing conclusions from what others have done.

McHUGH J:   I just do not know how you can rationally say that, Mr Walker.  It goes to the question of risk.  It goes to the question as to whether the Council would know that the depth would vary from time to time.

MR WALKER:   But, your Honour, there was no variation from time to time in this case caused by littoral drift even suggested, let alone demonstrated.

McHUGH J:   We are talking about what the Council is going to do.  We are not fixing on what the Council was going to do the moment this man dived.  We are looking at what they are doing, looking at the question of risk, the chance of it occurring, the nature of the injury that might suffer and what would be a reasonable response to those possibilities. 

MR WALKER:   Your Honour, they are not looking at only that point.  Can I go to the evidence of Mr Dawson to which reference was made yesterday, in volume 1, page 391.  He was being cross-examined, in effect, about the content of the duty of care.  Your Honours have already had a reference to the foot of page 391, lines 40 and following.  He refers to beach fishing, surfing on unpatrolled beaches, then at page 393 he is asked about concealed risks.  He says at 20:

There’s a concealed risk right along our waterfront for non swimmers.

Lines 25 and following:

The water depth changes several times a day.

That is called tides.

The sand moves.

Caused by littoral drift, but people know that sand moves -

That’s a risk that any swimmer takes when they go into the water.

Could I take your Honours then to page 403 at the foot of that page about line 35, asked about an obligation to warn concerning rocky outcrop:

A.       No, I don’t concede that at all.  You are referring specifically to rocky outcrop, and you are referring specifically to that location.  And I do not concede that at all . . . 

A.       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 27 kilometres of coastline, all of which is dangerous –

danger was conceded –

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 sun bathing if you like . . . it is a physical impossibility for anyone to signpost 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 of beaches which are patrolled in the major swimming seasons.

So, if you want to swim in the water, swim between the flags.

McHUGH J:   Yes, but that does not eliminate your need to deal with particular situations.  Risks are inherent when they cannot be eliminated by the exercise of reasonable care.  Talk about 27 kilometres seems to me as irrelevant as saying, “I own eight blocks of flats.  If I had to do this in respect of one, I’d be put to expense in respect of the other eight”.

MR WALKER:   Your Honour, can I take you then to 384, 385 in the same evidence.  The coastline in question is described there in passages your Honour is already familiar with, at the foot of 384:

A.       It’s largely sandy beach with intermittent prominent headland with rocky foreshores.

Q.       Is the rocky area to the north of Soldiers Beach an example of that configuration?
A.       I believe so, yes.

Your Honours, this is not the private rentier with eight blocks of flats.  These are people with statutory authority and powers in relation to, among other things, controlling the recreation of free people in the natural environment.

McHUGH J:   But what you will not face up to is the likelihood of the risk occurring.

MR WALKER:   That is foreseeability, your Honour.

McHUGH J:   When you have a thousand people congregating at one spot the risk is a thousand times greater than one person diving in somewhere along the 27 kilometres of coastline.

MR WALKER:   Mr Dawson addressed that as well, page 441, lines 25 and following:

Q.       Would you agree that the variations which can take place in the sea‑bed adjacent to the rocks at the northern end . . . could constitute a risk…
A.       That is a risk that prevails along the 27 kilometres of our coastline.

McHUGH J:   Yes, but not the number of people who were exposing themselves to the risk.  The more people that expose themselves to the risk the greater chance that the damage or the injury will occur, and that calls on you.

MR WALKER:   And reasonableness of response involves that as well as all the other matters, including, “Why would I select here of other places but if I do it here, where else must I do it and what risks do I warn of?”  One does not construct that retrospectively by reference to the accident which occurred to the plaintiff.

McHUGH J:   Of course you do not, but if you are the occupier of land you have to do it and the ‑ ‑ ‑

MR WALKER:   And so in this case the question is:  would you prohibit people entering the water at all from this rock shelf?  Our submission is, for reasons I do not wish to repeat but have put ‑ ‑ ‑

McHUGH J:   That argument may or may not be right but it does not seem to me that you can just simply say there are 27 kilometres.

MR WALKER:   We do not just say ‑ ‑ ‑

McHUGH J:   You have to look at the frequency with which the activity occurs.  What is required of the suburban dweller who has 10 visitors a weekend is quite different from what is required of the grazier who has 100 square miles of property that nobody may ever go in certain parts of it and some person might go every 10 years.  That is the question of the likelihood of the risk occurring that has to be taken into account in the calculus and here you have this what I will call an allurement.  People are queuing up to dive.

MR WALKER:    People queue up to enter the surf, as it were.  That is, there are serried ranks of people walking into the surf.

McHUGH J:   Yes, but the risks that are involved there, subject to Swain, cannot be practically eliminated.

MR WALKER:    Nor can one even begin to dream of eliminating people wanting to enter the water from a vantage point like a rock platform.  It is not true that people need to be told that the bottom of the sea cannot have its depth safely gauged and changes from time to time, because it is not true that people need to be told about tides, and tides, we know, are the major determinant of the depth of water.  In our submission, what happened in this case could have just as easily be put down to the tide – the height of the tide – as the bottom.  There is no evidence about the bottom.  There is some evidence, not very satisfactory, suggesting the tide might have been quite high on this day, which makes the whole thing even more difficult to sheet home to the defendant, in our submission, but the risk of lots of people queuing up to dive off a place where the tides will make it too shallow or too deep cannot possibly result in the response being that Council has to put up a sign, “Beware, tidal variation of depth”, in our submission.

He has been going to the beach, he knows that the water is sometimes higher and sometimes lower against that rock shelf, or, if he did not, it is not reasonable for the Council to have taken into account the mentation of somebody familiar with the beach, not knowing about tidal variation of water level.  In our submission, there is really no satisfactory answer to the tidal influence in whatever may have occurred to cause the head of this diver to hit the bottom compared to so‑called littoral drift.

It is utterly irrelevant to indicate that some people will know more than others about the scientific explanations of phenomena that everybody, nonetheless, understands.  Most people do not understand why the sky is blue or why rain falls when it does, but it does not mean that they do not know both things well and truly, and they certainly do not need to be given a scientific explanation by a person who does have the scientific explanation when rain brings about a risk.

Now, bearing in mind the time, if your Honours just forgive me, I will try and shorten this.  Perhaps I should conclude simply by taking your Honours to some of the plaintiff’s evidence, or, I should say, to references to the plaintiff’s evidence.  At 746 in volume 3 her Honour records – with respect, accurately – the effect of evidence given by the plaintiff about his conduct immediately before his dive.  Paragraph 38:

The plaintiff was able to see the water.  He said that he could not see the bottom. 

Paragraph 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. 

And then she refers to other occasions as well.  Then over to page 749, if I can go and refer to paragraph 49 – cannot ascertain the depth – and then over to 755 paragraph 73.  Her Honour says:

I think it likely that the plaintiff could have seen the ocean floor had he looked . . . The plaintiff indicated that they had stood –

he and his niece –

had stood on the rock platform in a position somewhat to the rear (west) of the dive location.  I accept –

as the plaintiff had said –

that from this position the water appeared to the plaintiff to be quite dark blue.

Now, in relation to those matters, which are critical to a decision whether you will “take the risk” – a phrase that he briefly entertained before rejecting in cross-examination – of diving in, there can be no sensible suggestion that he appreciated something considerably less than the Council appreciated about the safety of the manoeuvre he was about to perform.  Everybody, Council, plaintiff, all the other people doing the same thing knew that you could not assess the depth by looking at it.  In our submission, nothing in the Council’s appreciation of that matter concerning geographical explanations for one of the not major explanations for that, produces the result that there had to be a sign.

One cannot avoid, in this case, the question of what the sign should have said, if one steps back from the criminalising option.  Once one discards the criminalising option, one just has a warning.  One is left with, in our submission, the danger of fatuity entering, namely, pointing out the reasons why water depth may differ.

GLEESON CJ:   Mr Walker, an impression I got from reading the evidence, but perhaps a false impression, was that on the day in question, and, indeed, usually, most of the people who went into the water jumped rather than dived.

MR WALKER:   I do not think I am able to suggest any numerically reliable evidence for that.

GLEESON CJ:   No.  That was just an impression I got from the plaintiff’s description of what was going on that day. 

MR WALKER:   We would certainly accept, we are bound to accept, that he saw people diving.

GLEESON CJ:   Yes, I thought the evidence was that he saw some people diving, but most of them jumping or bombing.

MR WALKER:   Your Honours will ‑ ‑ ‑

GUMMOW J:   Page 746, paragraph 39, it does say:

he saw people on that day diving and jumping ‑ ‑ ‑

MR WALKER:   Yes, there is a ‑ ‑ ‑

GUMMOW J:   That is an account of his evidence ‑ ‑ ‑

MR WALKER:   The reference turned up, there is also a colourful description by the plaintiff, his word is “yahooing”.  That is presumably a variety of manoeuvres. 

GLEESON CJ:   A lot of the discussion has proceeded on an assumption that safety is an absolute concept.

MR WALKER:    Yes.

GLEESON CJ:   I have some difficulty with that.

MR WALKER:    Yes.  That is why ‑ ‑ ‑

GLEESON CJ:   I should have thought that safety is a relative thing and that there are aspects of entering any water – and certainly aspects of entering this water at this place – that would involve some kind of risk to some kind of people.  There was a tragedy on Bondi Beach about two weeks ago which indicates the relativity of the concept of safety when you are dealing with water.

MR WALKER:    Yes.  That is why, in our respectful submission, I am ‑ ‑ ‑

GLEESON CJ:   What does it mean to say it is safe to dive?

MR WALKER:    It does not mean that no risk attends the activity.  It is a shorthand way of summing up a complex decision-making process which would paralyse activity if it had to be entirely rational and fully thought out and articulated, but it is a statement, in effect – assuming it is a tolerably acceptably accurate statement – about a balance between the nature of an adverse outcome, the likelihood of the adverse outcome, the expectation of the competence or proficiency of the manoeuvre to be carried out and the chances.

GLEESON CJ:   This may be part of the significance of the difference between a prohibition and a warning. It may be that what I will call safety considerations mean that in a particular place there should be a prohibition against a particular kind of activity.

MR WALKER:    And may we interpolate, that might only be out of paternalism for the person wanting to run the risk.  It may be another form perhaps of paternalism but of social theory that denies the reasonableness of subjecting emergency personnel to the risks of trying to save people, for example.

GLEESON CJ:   Or it might be concerned to protect the ratepayers from the risks of litigation.

MR WALKER:    Yes.

GLEESON CJ:   There might be a number of subjective considerations going to it, but putting to one side for the moment a prohibition which may be absolute or limited, “No diving” or “No entering the water from this point”, or something in between, put that to one side, when you have a form of activity of which bathing is one example and skiing is another example that involves degrees of risk and degrees of safety, do you warn people about the objective facts, if any, that make this an unusually risky place or do you warn in general terms by saying, “This is a risky activity”?

MR WALKER:    Neither, in our submission.  Both become a form of tokenism or lip service to the notion of a reasonable response to the accepted perceived risk.  For example, if one were to treat this particular spot, contrary to all our argument, as justifying a spotlight approach, would it have been appropriate to say of all the people on a warning, in effect – of all the people who had dived from this spot only one has suffered a fatal accident?  Surely not, because that would be to encourage presumably

rather than deter people from running the risk, but it would have been accurate.

GLEESON CJ:   Would a prohibition on diving be a prohibition on jumping?

MR WALKER:   That then suggests the possibility of devising warnings that say, “Don’t dive head first”, which of course amounts to a very invidious judgment as to the differential possibilities of spinal injuries depending upon whether you strike first with one end of your body rather than the other.

McHUGH J:   Yes, but Mr Walker, in every swimming pool associated with every hotel in Australia and every public baths, you will see a sign, “No diving at this end”.  It is not a prohibition about jumping in; everybody understands what it means.

MR WALKER:   But, your Honour, very few of those hotel pools are tidal and very few of them have got natural sea bottoms and very few of them are part and parcel of a completely non-artificial coastline.

CALLINAN J:   Mr Walker, every physical recreational activity, even ballroom dancing, carries some risk.

MR WALKER:   Your Honour devastates me.

CALLINAN J:   There is no doubt about it.  We are talking about recreational activity.  People are testing themselves against the elements or against other people.  I do not think there has been enough emphasis placed upon the fact that this is recreational, frankly.  We all know the risks associated with extending your body in any way.

MR WALKER:   Yes, your Honour.  I hope the, as it were, word count of my use of “recreation” and a free citizenry makes it clear that we very much adopt, with respect, the observation your Honour has made.  Your Honours, I am conscious of the time.  The other matters are contained in our written submissions.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  What was the agreement, Mr Semmler, that you would have a reply?

MR SEMMLER:   It was, your Honour, yes.

GLEESON CJ:   Go ahead.

MR SEMMLER:   Thank you, your Honour.  Can I deal with the matter raised by Justice Callinan.  We accept that many recreational activities, not necessarily ballroom dancing, although perhaps it does, involve some risk.  Obviously, that is apparent.  But the difference is that some risks are inherent in the recreational activity in question such as there is a risk, for instance, in the Woods v Multi-Sport context that if you are playing cricket in a confined space you may be hit by the ball.  That is a risk inherent in the activity voluntarily undertaken, in the words of Lord Hoffmann in Tomlinson, and, as Justice McHugh said, in certain circumstances such as risks on the beach of being dumped by a wave, there is not a way in which the exercise of reasonable care will eliminate that risk.

So a decision in favour of the plaintiff in this case does not carry implications for that situation.  We accept that, but we are dealing with a different situation here.  We are dealing with a risk not inherent in the activity of diving.  We are dealing with a risk inherent in the state of the land adjacent to the rocky platform, which was controlled and occupied, in a sense, by the Council.  That is the difference.  The difference was made by Justice Ipp in the case of Prast v Town of Cottesloe.  He decided, just as Justice McHugh has said, that the risks of surfing are inherent risks.  They are different, in Justice Ipp’s view – and we respectfully adopt it – they are different from the risks inherent in the state of the land, when the occupier well knows of a specific problem that affects a particular part, not the whole coastline, this is focused on the headlands.  This is where littoral drift has its greatest effect, the occupier is aware of a particular problem that confronts people that would not otherwise confront divers who are diving.

CALLINAN J:   But does not the seabed move all the time?  Particularly on and close to beaches?

MR SEMMLER:   It does, your Honour.

CALLINAN J:   Sandbanks develop and go away.

MR SEMMLER:   It does, but we are not dealing with just a movement, we are dealing with at least 1.6 metres of differential, at least on a carefully conducted study over 64 days in the year following this accident.  And we are dealing with a phenomenon that is – even Mr Dawson, the general manager of the Council, he knew about littoral drift.  He thought, “Oh, it is probably less around the headlands because they are protected”.  He was wrong, just like the reasonable members of the public, who know nothing about it, might be wrong in believing that there would be a lesser movement of sand around the headland. 

So that that is the difference, and that is an answer to most of my learned friend’s submissions, when yesterday he was invoking this spectre of in effect, if this Court decides that the Court of Appeal did not err in overturning the trial judge’s decision, and upholds the decision for the plaintiff, that carries implications for people playing volleyball or engaging in other activities along the beach.  In effect, that will be a problem for that kind of culturally acknowledged recreational activity in this country.  It does not.  It carries no implication for those things, because the things those people are doing are, like the activities in Woods v Multi-Sport, things that carry risks inherent as part of the activity and not as part of the land which you are doing the activity on.

CALLINAN J:   Do you agree that if you do not make that out, you must fail?

MR SEMMLER:   No, we do not accept that, your Honour, but that is one of the answers to your Honour’s inquiry.  We do not accept that because, ultimately, it is not a question of just having some broad‑brush approach to it and saying, well, it will have implications for this or that.  The law of negligence has implications in every case, but it deals with them on the merits, on the evidence, as to what is reasonable and what is not.  It cannot be that with all the decades of development of the law of negligence, that we get to a spot where we say, “Well, look, that has implications for this, this and this, and therefore, on the facts of this case, they were entitled to do nothing”. 

It is all a question of reasonableness.  That is what the Shirt calculus is all about.  And for my learned friend to come along and say, well, it was all too difficult because Mr Dawson made a reference – and those were the only references he made in my learned friend’s submissions this morning – he made a reference to some other problems, the bluebottles and sharks – therefore, this Court is, in effect, prohibited, there is some kind of immunity that should be given to a council with these diverse responsibilities in respect of 27 kilometres.

It should be prohibited from looking at the facts of this case and should somehow or other assume that there was evidence to support this assertion, and that is all it was, that the risks in relation to those matters such as bluebottles, sharks, sunbathing, that those risks were, under the Wyong Shire Council v Shirt calculus, of the same magnitude and had the same prospect of occurrence.  There was no evidence of that.  My learned friend cannot say there is no evidence, therefore the plaintiff loses.  The reality is the reverse. 

There is no obligation on a plaintiff in a case such as this, having adduced the evidence that was adduced in this case, to discharge an evidentiary burden that falls on the defendant as to whether something is too difficult or inconvenient to achieve, given the circumstances.  We did not carry that onus, the defendant did, and the defendant failed to discharge it and the trial judge was entitled, having been there, having seen it, having heard the evidence not just of Mr Dawson but of Mr Browne as well who said, “Look, you don’t have to put up signs all along the coastline.  When I was Warringah Shire Council chief engineer I took it upon myself to walk across the whole of the territory occupied by the Warringah Shire Council.”

He went to every beach, to every headland on the northern beaches of Sydney, except Manly, which was not under the Warringah Shire Council.  He said, “I did it.  It took me six months but I wanted to make sure that I was familiar with what was going on throughout the shire.”  He did it and he said that was what was reasonable.  That was what was required.  He was not cross‑examined on that.  It is our submission that it is just insufficient for a defendant in a case of this magnitude to come along and say to this Court, “Well, all we need to do to defeat the Court looking at the question of what was reasonable is to invoke this spectre of lots of other accidents in different kinds of activities like volleyball or different parts of the 27 kilometres” when first of all we do not know that they owed a similar duty in respect of those 27 kilometres.  The evidence is silent on that.  The only evidence about duty – we know there was a duty and that arose from their control as trust manager of the Norah Head Trust.  This Court knows nothing about the duty or the powers or anything else in relation to the other 27 kilometres. 

Secondly, we do not know anything about the facts of the risks.  In Romeo Justice Kirby indicated that the inquiry looks at risks of a similar kind related to equivalent activity, and the implication of that would be perhaps in this case that you do not have to look at bluebottles and sunbathing, you look at diving.  You look at diving in the context of whether there are other similar locations in this case as there were, for instance, in Romeo where Justice Hayne pointed out that the photographs themselves showed that the headland was not unique.  The part of the headland from which Ms Romeo fell was not unique.  There were other parts. 

Now, there is not that evidence in this case.  All that Mr Dawson said was he thought that this was an example of other headlands.  We have no evidence as to how popular they were, what was the means of access.  Had the Council, in effect, encouraged people to go to some unidentified allegedly similar spot where there were people every day lining up to jump off?  There is no evidence of that.  In our submission, that is the answer to all of my learned friend’s submissions on the question of the difficulty, inconvenience and expense of a public authority having to take steps in relation to other dangers of a similar or dissimilar kind.

It is notable, your Honours, that in Mr Walker’s very skilful submissions, I do not recall one word being addressed to the errors that we identified in our submissions, both written and oral, errors of principle which we say were committed by the majority in the Court of Appeal on the question of how one should approach the balancing exercise and the paramountcy or otherwise that should be afforded the principle of obviousness.

Mr Walker did touch upon the case of Nagle and seemed, from my understanding of what he said, to be suggesting that somehow or other it might be appropriate to adopt the approach taken in Aiken in this case rather than the approach taken by the other four judges in Nagle.  First of all, that is contrary to the authority of Nagle, to the ratio decidendi, and, secondly, it is contrary to what this Court said in Romeo when it reviewed the differing approaches taken by Justice Brennan and the majority in Nagle and when Justices Toohey and Gummow at paragraph 49, Justice Gaudron at page 458, your Honour Justice McHugh at page 460, Justice Kirby at 474 to 475 and Justice Hayne at 489 all rejected the proposition that the approach taken by Justice Dixon in Aiken, that is, that when one is dealing with a public authority, all you need to do is take reasonable care to ensure there are not any dangers in respect to people taking reasonable care for their own safety which are not apparent.  All of those passages, all of those judgments, rejected that approach.

HAYNE J:   Mr Semmler, does your argument in the end hinge about these propositions:  the Council knew or ought to have known that the area, the headland, was popularly used, knew or ought to have known that in the past it had sometimes been used without a safe outcome, therefore, the Council had to warn or prohibit the use of the kind that had produced adverse results?

MR SEMMLER:   The circumstances that your Honour identified certainly go to that conclusion but they are not the reason necessarily for the conclusion.  They are part of it but, as we know, the balancing exercise is just that.  It is a balancing exercise, and the conclusion does not simply follow that because there was a foreseeable risk, therefore there was a breach of the duty, but the conclusion in this case was - the trial judge took great care in her judgment to weigh up the competing considerations.  She did not do what, with respect, Justice Tobias did, which is to pull out one item in the balancing exercise and elevate that, and say this was so obvious, that is the end of it. 

She carried out the balancing exercise required by Shirt and she reached a conclusion.  The balancing exercise, we would agree, takes into account that the defendant was a public authority.  It had conflicting responsibilities, but for reasons I have indicated, it is not enough just to invoke the spectre of these responsibilities.  There should be some evidence, and in any event, even if there were evidence, that is not determinative either.  It is a question of what reasonable care dictates.

My learned friend emphasised in this matrix of considerations – he referred to the dilemma of public authorities dealing with public funds.  We would accept that that is a factor.  Expenditure, the cost of doing something is a factor.  It was not a big cost.  Mr Dawson recognised that it was cheap and easy to put up signs and, with respect, what about the bigger picture cost.  What about the bigger picture cost when the Council knows that just one accident like this can cause perhaps not just the ratepayers but the public at large an enormous amount of expenditure on health care and attendant care.  In those circumstances, the very question of cost of doing something or not doing something may well militate in favour of taking steps to ensure that someone else does not suffer what Mr von Sanden suffered.  Leave aside all the personal consequences.  On a purely economic basis, that kind of consideration should have been brought to bear.

But in this case we had not one shred of evidence as to how the decision-making process went.  What considerations were taken into account?  Mr Dawson was the only person called - he was the general manager - in effect to explain the Council’s response.  There was a risk manager in 1993, Mr Booth; he was not called.  There were people who Mr Dawson said would have looked at the von Sanden accident and would have deliberated and made a decision as to whether something needed to be done.  Mr Dawson could not give us the answer as to why that decision was made.  He said he assumed that the decision was made that nothing needed to be done, given the fact that a man had just become a quadriplegic at that point.

Your Honours, my learned friend made this submission.  There is not one iota of comparison, in terms of injuries suffered, between the injuries suffered from diving from the rocks and these were his words:

what happened with people playing tip football on the grass, playing beach volleyball . . . braving the breakers.

He said there is not one iota of comparison.  We would say, how do we know that and if we need to know it, who has the obligation of telling us?

My learned friend also said that this Court should not encourage the approach of taking token precautions - in effect, we took some precaution, that was better than doing nothing and therefore that is a defence - or pay lip service to the need to do something.  But we are talking here with risks of possible catastrophic consequence.  This is not a question of lip service or token gestures.  The judge found that a warning would have prevented the paralysis that Mr Vairy now suffers from.  It would have done it.  He was careful for his own safety and for the safety of the little girl that he had with him who had asked him to go up there in the first place.  It is simply inappropriate, we would suggest, to talk about lip service and tokenism in those circumstances.

GLEESON CJ:   What about a sign that said, “Dive at your own risk”?

MR SEMMLER:   Probably, with respect, a different situation. 

GLEESON CJ:   But why might that be an appropriate response, “Dive at your own risk”?

MR SEMMLER:   No, it would not, your Honour, not on the evidence in this case.  Mr Browne made quite clear, from his extensive experience, not only, I might say, in Warringah but on the Mornington Peninsula in Victoria, that if you want something to be effective, something more, in effect, than a token I suppose, if you are going to prohibit the activity you have to explain why.

GLEESON CJ:   I understand that but suppose somebody from the Council had said – and I know it is not this case – “We are not minded to criminalise risky recreational activities but we want to force people, before they engage in these activities, to bring their minds to bear on the fact that they are taking a risk and we want to produce the result that if they desire in the exercise of their free choice as citizens to take that risk, they’ll do it without any legal recourse to us, so what we’ll put up is a sign saying, ‘If you choose to dive, it is at your own risk’.”  Would that be a reasonable response?

HAYNE J:   Paragraph 219 line 40, “more probably than not it was a bedform which the plaintiff struck”.  Paragraph 221:

The totality of this evidence . . . supports the probability that the plaintiff’s head struck a sand dune beneath the water, that is, a transient bedform –

Paragraph 223, last sentence:

consistent with his having struck his head on a moderately elevated sand dune.

MR REYNOLDS:   We do not disagree with that, your Honour.  Your Honours, can I give you one more reference, before I sit down, on the

issue of knowledge.  It is a reference to Nagle 177 CLR 423, in particular at page 436, where Justice Brennan deals with the defendant in that case being taken to have had full knowledge of the topography of the area and of the circumstances which might affect the safety of the public using it. If your Honours please, those are my submissions.

GLEESON CJ:   Thank you, Mr Reynolds.

KIRBY J:   Mr Reynolds, just one small question.  Have you, in your researches, looked at all of the Supreme Court of Ireland?  Have they had any diving case ‑ ‑ ‑

MR REYNOLDS:   No, we have not looked at the ‑ ‑ ‑

KIRBY J:   We share the common law with Ireland, probably a bit closer to them than to the United States in these matters.

MR REYNOLDS:   Possibly.  If your Honour would like, I can conduct some research ‑ ‑ ‑

KIRBY J:   I do not want to add to your burdens, but I will have a look at that, and I do not want anybody subsequently to say that you were not on notice.

MR REYNOLDS:   If your Honour pleases.

GLEESON CJ:   Thank you, Mr Reynolds.

MR MACONACHIE:   I can help your Honour with that.  There is a judgment of the Supreme Court of Ireland, decided on 25 January 2005 by Justice Hugh Geoghegan in the Supreme Court.  It does have something to say about the common law position, but they do have an Occupiers’ Liability Act there.  I thought it to be of marginal interest, but I can give your Honours to it.  Indeed, we might even ‑ ‑ ‑

GLEESON CJ:   Well, you can make it available to our associates.

MR MACONACHIE:   It is upstairs.  I will make it available to your Honours this afternoon, I hope.

GLEESON CJ:   Thank you.

MR REYNOLDS:   Your Honour, there is one matter I forgot to raise, which I did raise but I then forget about, which is the provision to your Honours of all of Mr Murray’s oral and written submissions which I have.

GLEESON CJ:   That can be made available to our associates also. 

GLEESON CJ:   We are not likely to be looking at it overnight.

MR REYNOLDS:   I am sorry, your Honour?

GLEESON CJ:   We are not likely to be looking at it tonight.

MR REYNOLDS:   Thank you, your Honour.  The only other thing is, I raised with your Honours whether your Honours would like some assistance with some references to particular pages in this collection, which we are happy to provide, or otherwise to leave to your Honours.

GLEESON CJ:   Give us a note about that within seven days.

MR REYNOLDS:   Thank you, your Honour.

GLEESON CJ:   Thank you, Mr Reynolds.  We will reserve our decision in this matter, and we will adjourn until 10.15 on Tuesday, 19 April in Canberra.

AT 3.58 PM THE MATTERS WERE ADJOURNED