Warren BY His Litigation Guardian Direlle Farr v District Council of the Lower Eyre Peninsula (No 3)
[2024] SADC 37
•11 April 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3)
[2024] SADC 37
Judgment of his Honour Judge Burnett
11 April 2024
LOCAL GOVERNMENT - LEGAL RELATIONSHIPS AND PROCEEDINGS - LIABILITY FOR TORTS - NEGLIGENCE - PARTICULAR CASES - AS OCCUPIER
TORTS - NEGLIGENCE - OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES - SIGNS
TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - CIVIL LIABILITY LEGISLATION
On 18 December 2013, the applicant, Mr Gregory Warren, suffered severe injuries when he fell 10 metres from a cliff onto rocks at a beach on Eyre Peninsula. The applicant had got out of a motor vehicle at the top of the cliffs and descended down an escarpment, towards the beach. Unknown to the applicant, the escarpment ended in a vertical cliff that could not be seen from the top of the escarpment. The applicant fell over that vertical cliff and onto rocks at the beach.
The applicant claims that the respondent, as the occupier of the land where the accident occurred, was negligent in failing to erect signs and barriers that would warn of the danger posed by the cliff and direct visitors to proceed to the beach by a safe route. The applicant also claims that the respondent ought to have conducted a risk assessment of the area. The applicant contended that the breach of the duty of care occurred where the respondent, by creating and maintaining the road to the accident site and having created and maintained the car park near the top of the escarpment, had encouraged visitors to the site.
The respondent denied that it breached its duty of care to the applicant. It contended that the escarpment was obviously steep and dangerous and the route to the beach was not visible. It referred to the remoteness of the site, the visible cliffs to the north of the site and the fact that there were over 700 kilometers of coastline in its area. It further relied on a number of statutory defences including: (1) pursuant to s 38 of the Civil Liability Act 1936 (SA) (CLA) the risk was obvious; (2) pursuant to s 37 of the CLA, the applicant voluntarily assumed the risk; (3) pursuant to s 244(1) of the Local Government Act 1999 (SA), it was not liable as the injuries sustained by the applicant were not a direct consequence of a wrongful act of the respondent; (4) pursuant to s 50 of the CLA, if the respondent was negligent, then the applicant was guilty of contributory negligence.
The trial was only in respect of liability.
Held:
1. The claim of the applicant is dismissed.
2. The Council, as the occupier of the land where the accident occurred, owed a duty to visitors, including the applicant, to take reasonable care to protect those persons from physical injury. What is required to discharge that duty depends on all the circumstances of the case: Vairy v Wyong Shire Council (2005) 223 CLR 422 applied.
3. There is no duty to warn per se. The relevant question is whether the standard of care required to discharge the respondent’s duty of care required the erection of warning signs or a barrier: Nagle v Rottnest Island Authority (1993) 177 CLR 423, Leichardt Municipal Council v Montgomery (2007) 230 CLR 22 applied.
4. The proper assessment of the alleged breach of duty depends on the correct identification of the risk of injury because only then can an assessment be made as to what is a reasonable response to that risk: Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454 applied. The risk must be assessed from the perspective of a reasonable person in the position of the applicant. The risk facing the applicant was that he would descend down the escarpment, believing it to be a path to the beach and through inadvertence, speed or accident would be unable to stop when he came to the vertical cliff.
5. It follows from that characterisation of the risk, that the risk was not obvious for the purposes of ss 36 and 38 of the CLA.
6. Sections 20 and 32 of the CLA codify the Shirt calculus and set out the standard of care to be exercised by the respondent, as the occupier of the land where the accident occurred: Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106 applied. The inquiry into risk, although performed after the accident, must be assessed prospectively and objectively: Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 applied.
7. The risk of harm was foreseeable for the purposes of ss 20(2)(e) and 32(1) of the CLA and was not insignificant.
8. The respondent is only negligent if it failed to take precautions against the risk of harm that a reasonable person in its position would have taken: ss 32(1)(c) and 32 of the CLA applied. The area was remote. The probability of the risk materialising, although foreseeable, was low. The burden of taking precautions was significant, particularly taking into account the whole of the Council area: Romeo v Conservation Council of the Northern Territory (1998) 192 CLR 431, Vairy v Wyong Shire Council (2005) 223 CLR 422 applied. There was no reason why a sign or barrier would be placed at the point of descent as distinct from other places on the edge of the car park and the escarpment. In the circumstances of this case, reasonableness did not require any response to the foreseeable risk.
9. Given the above findings, questions of causation, contributory negligence, volenti non fit injuria and s 244 of the Local Government Act do not strictly need to be considered.
Local Government Act 1999 (SA) ss 3, 39, 244(1); Civil Liability Act 1936 (SA) ss 3, 19, 20, 31, 32, 36, 37, 38, 44 50; Road Traffic Act 1961 (SA) ; Civil Liability Act 2002 (NSW) ss 5B, 5F, 5L, 43; Wrongs Act 1958 (Vic) s 84; Civil Law (Wrongs) Act 2002 (ACT) s 111(2); Civil Liability Act 2002 (Tas) s 40(2); Civil Liability Act 2002 (WA) s 5Y(2), referred to.
Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87; Jones v Dunkel (1959) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1; Smith v Samuels (1976) 12 SASR 573; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASC 458; Peter Steven Benic v State of New South Wales [2010] NSWSC 1039; Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479; Vairy v Wyong Shire Council (2005) 223 CLR 422; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Brodie v Singleton Shire Council (2001) 206 CLR 512; Department of Housing and Works v Smith (No 2) [2010] WASCA 25; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Sydney City Council v Dell’Oro (1974) 132 CLR 97; Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; Ballina Shire Council v Moore [2023] NSWCA 155; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; Chapman v Hearse (1961) 106 CLR 112; Rosenberg v Percival (2001) 205 CLR 434; State of Queensland v Kelly (2015) 1 Qd R 577; Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128; Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; Collins v Clarence Valley Council (2015) 91 NSWLR 128; Fallas v Mourlas (2006) 65 NSWLR 418; Wyong Shire Council v Shirt (1980) 146 CLR 40; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217; State of New South Wales v Fahy (2007) 232 CLR 486; Morris v Redland City Council [2016] 1 Qd R 339; Tame v State of New South Wales (2002) 211 CLR 317; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Wilson v Nilepac Pty Ltd trading as Vision Personal Training (Crows Nest) [2011] NSWCA 63; Burwood Council v Byrnes [2002] NSWCA 343; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Chappel v Hart (1998) 195 CLR 232; Queen Elizabeth Hospital v Curtis [2008] SASC 344; Betts v Whittingslowe (1945) 71 CLR 637; Naxakis v West General Hospital (1999) 197 CLR 269; Imbree v McNeilly (2008) 236 CLR 510; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Chotiputhsilpa (by his tutor Chotiputhsilpa) v Waterhouse [2005] NSWCA 295; McHale v Watson (1966) 115 CLR 1099; Schuller v SJ Webb Nominees Pty Ltd [2015] SASCFC 162; Roggenkamp v Bennett (1950) 80 CLR 292; Woods v Multi Sports Holdings Pty Ltd (2002) 208 CLR 460; Stovin v Wise [1996] AC 923; Taylor v The Owners -Strata Plan No 11564 (2014) 253 CLR 531; Weiss v the Queen (2005) 224 CLR 300; SAS Trustee Corporation v Miles (2018) 265 CLR 137; Puntoriero v Water Administration Ministerial Corporation (1999) 1999 CLR 575; Edwards v Virgin Blue International Pty Ltd (2020) 136 SASR 551; Scala v Mammolitti (1965) 114 CLR 153; Macmahon Mining Services v Cobar Management [2014] NSWSC 731; Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 386; Allianz v Waterbrook [2009] NSWCA 224; Alstom v Yokogawa Australia (No 7) [2012] SASC 49; Valentine Falls Estate Pty Ltd v SMEC Australia Pty Ltd [2010] WASC 319; SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138; Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2) [2013] WASC 356; Saint Line Ltd v Richardson, Westgarth & Co Ltd [1940] 2 KB 99, considered.
WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3)
[2024] SADC 37Contents
Introduction
The trial
The accident site
Findings as to the Accident Site
Travel to the accident site
Findings as to travel to the accident site
Arrival at the accident site
Was the area a car park or a turnaround area?
Maintenance of the Car Park
Creation of the Car Park
Creation and maintenance of Greenly Beach Road to the Car Park
Findings as to the creation and maintenance of Greenly Beach Road
Arrival at the Car Park and view on arrival
Findings as to arrival at the Car Park and the view
Actions of the group and in particular the applicant on arrival at the Car Park
Findings as to actions on the arrival at the Car Park
Risk and view from the top of the escarpment
Lay witnesses’ evidence on the escarpment issues
Expert psychological evidence on the perception of the escarpment from the point of descent-Professor Coyle and Professor Alais
Expert evidence of Ms Mellen
Submissions on the escarpment issues
Findings on the escarpment issues
Descent of the escarpment by Gregory and Mr Burk
Submissions on the descent of the escarpment
Findings on the descent of the escarpment
Events following Gregory landing on the rocks
Council allocation of funds
Expert evidence
Ms Mellen-road related area and buffer zone
Mr Verco - causes of the accident and the response of the Council
Professor Coyle and violations and the responding report of Professor Alais
Civil Liability Act
General duty of care and scope of duty
Duty to warn
Characterisation of the risk of harm
Obvious risk
Breach of duty
Foreseeability
Significance of the risk
Reasonable response to the risk
(i) General principles
(ii) Probability of harm
(iii) Likely seriousness of harm
(iv) Burden of taking precautions
Other sites
(v) Social utility
(vi) Evaluative exercise
(vii) Failure to inspect and assess
(viii) Draft Coastal Management Plan and Plan entitled “Coastline. Developing a management strategy for coastal cliff erosion hazards in South Australia”
Coastal Management Plan
Causation
Contributory negligence
Volenti non fit injuria
Section 244 of the Local Government Act
Wrongful act
Direct consequence
Conclusion
WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3)
[2024] SADC 37CIVIL
Introduction
On Wednesday 18 December 2013, the applicant, Mr Gregory Warren (the applicant or Gregory), suffered very severe injuries, including a traumatic injury to the brain as well as significant physical injuries, when he fell about 10 metres from a cliff onto rocks on a beach about two kilometres north of Greenly Beach on Eyre Peninsula. The applicant had got out of a motor vehicle at the top of the cliffs near the beach and descended down, what I will neutrally refer to as an escarpment, towards the beach. Unknown to the applicant, the escarpment ended in an abrupt and vertical cliff. The vertical cliff could not be seen from the top of the escarpment. The applicant fell over that vertical cliff and onto rocks at the beach.
As a result of his injuries, the applicant’s mother, Ms Direlle Farr, has been appointed as his litigation guardian for the purpose of carrying on these proceedings.
The applicant claims damages from the respondent, the District Council of the Lower Eyre Peninsula (the Council), arising from the personal injuries he sustained when falling from the cliff. The applicant claims that the Council, as the occupier of the land where the accident occurred, breached the duty of care that it owed to members of the public who were visiting the area, including the applicant, by failing to place signs and barriers that would warn a visitor of the danger posed by the cliff and direct them to proceed to the beach by a safe route and further by failing to conduct a risk assessment of the area which would have led to mitigation measures being taken such as a warning sign or barrier being erected. The applicant did not submit that the guards or barriers would have prevented any form of access to the beach by way of the escarpment, rather they would have acted as an appropriate warning.
The applicant claims that the Council, having created and maintained a road to a car park from which he descended towards the beach and having created and maintained that car park, breached its duty of care by failing to take the actions to which I have referred. The applicant contends that, having created and graded Greenly Beach Road down to the car park, the Council was encouraging visitors to travel to the car park area and the beach as there was only a bush track to the north of the car park area. Having created the road and the car park, situated above a beach, the applicant submitted that the duty to erect a warning sign or barrier or to conduct a risk assessment of the area was engaged. The applicant submitted that the visitors who came to the accident site included persons in the class of the applicant, namely teenagers, who might not appreciate the dangers of descending the escarpment.
The applicant contended that the risk could not be characterised as an obvious risk as the vertical cliff could not be seen from the top of the escarpment.
The creation and maintenance of the road and the car park by the Council (and whether the area was properly called a car park) were in contention and the subject of expert evidence and some lay evidence. For purposes of convenience, I will refer to the area neutrally as the Car Park as that is the most convenient label to describe the area.
The Council denied that it owed a duty of care to the applicant or that it breached any duty if one was owed. The Council referred to the remoteness of the place where the accident occurred (the Accident Site). It said that the escarpment constituted an obvious risk to any reasonable person in the position of the applicant and also referred to the line of cliffs to the north that were clearly visible from the Car Park. The Council said that its area was vast and included over 700 kilometres of coastline and there was no duty to place warning signs or barriers at every cliff location. The Council also relied upon a number of statutory defences including:
1. Pursuant to s 244(1) of the Local Government Act 1999 (SA), it was not liable as the occupier of the community land upon which the accident occurred, as the injury was not a direct consequence of a wrongful act on the part of the Council;
2. The risk was an obvious risk and the applicant voluntarily assumed that risk, relying on the presumption created by s 37 of the Civil Liability Act 1936 (SA)(the Civil Liability Act);
3. Pursuant to s 38 of the Civil Liability Act, any duty owed by the applicant did not extend to warning the applicant of an obvious risk; and
4. If the Council was negligent, then, pursuant to s 50 of the Civil Liability Act, the applicant was contributory negligent such that any damages awarded to him should be reduced to nil.
The trial only dealt with the issue of liability. The Court had earlier made an order for separate trials of liability and quantum.[1]
[1] Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87.
The trial
After hearing part of the opening, the Court and the parties travelled to Port Lincoln and over a period of two days conducted a view of the Accident Site and its surrounds, including Greenly Beach Road, which was the road leading to the Accident Site. The view also included visiting some other sites within the Council area that involved access to a beach from a cliff top area and observing what safety measures the Council had put in place at those sites.
What was observed and said on the view is of course not evidence. The view assists the Court to understand the evidence that is given about the various locations that were visited on the view. The Council made some written submissions as to what happened on the view. I do not take those matters into account as they did not form part of the evidence that was received at trial. However, some of the other sites that were visited on the view were the subject of evidence, primarily by way of photographs. In the absence of direct evidence about the other sites, such as the number of visitors to the site, the construction of a road to the site and the facilities at the site, the history of the site and any accidents, it is difficult to make any direct comparisons between those other sites and the Accident Site that informs how the Council should have responded to the risk at the Accident Site. Where the evidence of other sites seen on the view was useful was in observing some of the other safety measures that had been adopted at those sites.
In these proceedings, some 275 photographs were tendered (exhibit A11) of the Accident Site and its surrounds and the other sites visited on the view. Some of the photographs were taken by drones. Further photographs of the Accident Site and the surrounding area were also tendered. These included a bundle of seven photographs taken by one of the members of the Country Fire Service (CFS) who attended on the day of the accident and who assisted in the retrieval of Gregory from the beach. These are the photographs numbered 1-7 of exhibit A12. Mr Graham Warren (Graham), the brother of Gregory, and his mother, Ms Farr, attended the Accident Site on 14 February 2014, about 2 months after the accident, and took a further 93 photographs of the site (photographs 8-100 of exhibit A12). In addition, a further 16 photographs were taken on a visit to the site by Gregory’s solicitor in January 2017. These are the photographs numbered 101-116 of exhibit A12. Some of the lay witnesses gave evidence of the Accident Site, the Car Park and Greenly Beach Road. The traffic engineers called by the parties, Ms Mellen and Mr Verco respectively, gave evidence about Greenly Beach Road, the Car Park and the escarpment. Professor Coyle and Professor Alais, the expert psychologists called by the parties, also gave evidence about the Accident Site, although Professor Coyle had not visited the site in person.
Gregory did not give evidence. It was accepted by the Council that he was amnesiac in relation to the events of the claim. A report from a Dr Stephen Buckley, a consultant physician, which was accepted by the Council, stated that in almost all cases, a person who suffered a brain injury of the type sustained by Gregory, would have no memory of the events leading up to the accident and the accident itself.
The applicant called four lay witnesses and two expert witnesses. Three witnesses, Mr Graham Warren, Mr Elijah Burk and Mr Louis Stevens were part of the group who travelled with Gregory to the Accident Site on the day of the accident. Graham and Mr Burk were 18 years of age at the time and Mr Stevens was 19 years old. They gave evidence as to the events on that day, their observations of Greenly Beach Road, the Car Park, the escarpment and the areas proximate to the Accident Site. Graham also returned to the site in February 2014 to take some further photographs, to which I have already referred. Mr Brian Foster, a local farmer, who had lived and worked in the area most of his life and was part of the CFS rescue team that retrieved Gregory from the beach. He also gave evidence about the use of the beach over the years, the creation and maintenance of Greenly Beach Road and the appearance of the escarpment and other areas near the Accident Site.
The applicant called two expert witnesses: Ms Mellen and Professor Coyle. Ms Mellen is a chartered engineer with specific expertise in traffic and transport engineering. She prepared four reports. These reports dealt with the classification, construction and maintenance of Greenly Beach Road and the Car Park and risks associated with those areas and in particular, the Car Park.
The first report addressed the risk assessment and engineering requirements for the Car Park and the need for warning signs. The second and third reports of Ms Mellen addressed the report of the Council’s expert, Mr Verco. Ms Mellen disagreed with Mr Verco’s conclusions about the grading and the trafficability of Greenly Beach Road. She also disagreed with his conclusions about the safety issues, risk assessments and standards associated with Greenly Beach Road. In her third report, Ms Mellen provided a further opinion on the formation of Greenly Beach Road and the nature of the Car Park. The fourth report dealt with grader movements along Greenly Beach Road and the Car Park and an analysis of the Fleetminder data which recorded the movements of the graders.
Professor Coyle is a psychologist and human factors engineer and provided four reports. In his first report, he stated that in his opinion the decision to leave in situ the path down the escarpment when the Car Park was graded invited individuals to traverse the path to the edge of the vertical cliff. Failure to inform visitors by way of appropriate warning signs or placing a barrier were violations or knowledge based mistakes. He stated that there was a lack of visual cues to enable the applicant to perceive that he was proceeding into danger. In Professor Coyle’s opinion, warning signs or barriers would have been effective to deter visitors such as the applicant from descending down the escarpment. In his second report, Professor Coyle confirmed his previously expressed opinion in light of some additional information or opinions provided by Ms Mellen. In his third report, Professor Coyle responds to the report of the Council’s expert, Professor Alais, and in particular to comments made by Professor Alais about the path taken by Gregory, the visual cues present at the escarpment and the inattentional blindness of Gregory descending down the escarpment. In his fourth report, Professor Coyle corrected some assumptions that he made or was asked to make about Gregory running (the new assumption that he was asked to make was that Gregory was walking) and a wrong date of the erosion of the gully path (which was in fact 2016 and not 2006 as Professor Coyle had originally stated). Professor Coyle also stated this his previously expressed opinion in his third report as to inattentional blindness was not relevant.
The Council called four lay witnesses and two expert witnesses.
Ms Sarah Barns was a member of the group who attended at the Accident Site with Gregory on 18 December 2020. She gave evidence of her observations of Gregory prior to the accident and of the location on the day of the accident.
Two witnesses from the Council were called, Mr David Hall and Mr Gary Jutzen. Mr Hall is currently employed as the Works Constructions Coordinator of the Council and previously, from 1994 to 2008, held a supervisory role in relation to the construction and maintenance work of the Council. From 2008 to 2017, he was employed as a general inspector by the Council. He gave evidence about the work undertaken by graders by the Council on Greenly Beach Road and at the Car Park, the Council grading records pre 2014 and the Fleetminder data, which, from 2014, recorded the movements of the graders. He also gave evidence of the instructions provided to Mr Verco. Mr Jutzen was the works manager employed by the Council and gave evidence about the financial position of the Council and the allocation of resources.
The Council also called Mr Timothy Mills who is the works manager of the District Council of Elliston which adjoins the Council to the northwest. Like the Council, the District Council of Elliston has control over many cliff top areas from which there may be some form of access to the beaches below. Mr Mills gave evidence about how the District Council of Elliston responded to these issues and the budgetary constraints operating upon that council. Given the different circumstances of each of the locations and the different budgetary position of the District Council of Elliston, I found his evidence to be of no real assistance.
The Council called two expert witnesses, Professor Alais and Mr Verco. Professor Alais is professor of experimental psychology at the University of Sydney. Professor Alais provided two reports which responded to the reports of Professor Coyle. In his first report, Professor Alais contested the opinions of Professor Coyle that there was a path down the escarpment or a graded parking area. Professor Alais gave evidence of what he called primary depth cues and optical cues that were present to someone who was commencing a descent from the top of the escarpment that they were approaching a cliff. He considered that a reasonable person, exercising an appropriate degree of caution would have perceived the risk. He disagreed with Professor Coyle about the need for signs or a barrier. Professor Alais’ second report followed his visit to the Accident Site. In that report, he referred to the advantages of having visited the site before the preparation of that report. He also responded to the opinion of Professor Coyle as to inattentional blindness.
Mr Verco provided three reports. He is a civil and traffic engineer. His reports and evidence were responsive to the reports and evidence of Ms Mellen and in some instances, Professor Coyle. He disagreed with Ms Mellen’s evidence that Greenly Beach Road and the Car Park near the Accident Site had been created and maintained by a grader. In his first report, Mr Verco provided the opinion that Greenly Beach Road was properly described as a track and its condition did not contribute to the accident suffered by Gregory. He said that the Car Park was a rubbled area which had never been constructed as a car park but had been formed through vehicular movements. He said that the Car Park also did not contribute to the accident. He said it would have been unreasonable for the Council to take protective measures given the number of similar areas from which access might be made to beaches and the length of the coastline. The second report was prepared following the view and also provided responses to Ms Mellen’s second report and the report of Professor Coyle. Mr Verco confirmed his opinion about Greenly Beach Road and the Car Park. Mr Verco was of the opinion that Greenly Beach Road as a whole was rarely graded and that it had been a very long time since the section of the road from the top of the hill to the Car Park had been graded and it may have never been graded He said that he did not consider it appropriate or reasonable to expect the Council to place barriers or warning signs at the Car Park. Mr Verco’s third report dated 31 August 2022 responded to the report of Ms Mellen in which she analysed the Fleetminder data.
All of the witnesses were truthful and trying to assist the Court. For the reasons that I will later express, I have reservations about the evidence of Graham, Mr Burk and Mr Stevens in relation to the steepness of the escarpment and the appearance of the escarpment. I do not accept the evidence of Ms Barns about Gregory and Mr Burk running down the escarpment. I will set out in detail my assessment of the reliability of all witnesses when dealing with their evidence on particular issues. I also will set out my assessment of the evidence of the expert witnesses.
Both parties criticised the failure of the other party to call particular witnesses. The applicant criticised the failure of the Council to call the council employees who actually operated the graders that undertook work on Greenly Beach Road. The Council criticised the failure of the applicant to call other members of the group who attended with Gregory at the Accident Site on the day of the accident. In particular, the Council criticised the failure of the applicant to call Mr Quade Carbine who was also known to have visited the site, with others, in the company of Gregory’s then solicitor, in 2017.
Both parties invited me to apply the rule in Jones v Dunkel[2] and draw an inference that the uncalled witness would not have assisted that party’s case. If that is the case, the Court may more readily draw an inference fairly to be drawn from the other side’s evidence. I will deal with those matters when addressing that evidence.
[2] (1959) 101 CLR 298; [1959] HCA 8.
Both parties also criticised the pleadings of the other side. The applicant submitted that the Council had not pleaded in its defence that Gregory went over the escarpment without surveying the scene. I do not consider that the Council is precluded from making that submission. The Council, in its defence, put in issue the danger and obviousness of the risk of descending the escarpment and the failure of Gregory to properly assess the risk. The Council pleaded that it was obvious that there was no safe route from the top of the escarpment to the beach. The Council pleaded that it was not required to warn the applicant of an obvious risk that was plainly apparent to any reasonable person in the position of Gregory. The Council pleaded, as particulars of contributory negligence, that Gregory failed to keep any proper lookout, failed to satisfy himself that there was a safe means to access to the beach and failed to take any adequate care for his safety.
In these circumstances, it is clear that the Council has put in issue the circumstances of Gregory descending the escarpment and whether he exercised reasonable care in doing so. It was not until Mr Burk was called by the applicant that the evidence as to how the descent was made was given.
There was no objection taken at any stage during the course of the proceedings until the closing addresses to any evidence or cross-examination on this issue. The circumstances in which Gregory descended the escarpment were always to be a central aspect of the claim. Both Professor Coyle and Professor Alais addressed this issue.
The Council also criticised the formulation of the duty of care as pleaded by the applicant. In paragraph [7] of Revision 2 of the Statement of Claim, the applicant pleaded that the Council owed a duty to manage the area adjacent to the rock pools in accordance with the Council Management Plan for Community Land including Coastal Reserves and in a manner which permitted safe access by members of the public, including the applicant. The applicant conducted its case on the basis of a duty to take reasonable care to prevent loss, not on an absolute basis as pleaded.
Neither of the pleading points taken by the parties confines the Court in the way that it should determine the matter. The case of each party was clear and no objection was taken to any evidence that was called by either party.
One further aspect of the pleadings requires specific mention. The Council in its Defence-Revision 3 admitted it constructed the road to the Car Park and further that the Car Park was a turnaround area. Mr Hall, the Works Construction Manager of the Council, agreed in cross-examination that he would have given instructions to this effect based on his knowledge. These admissions were withdrawn in the Defence-Revision 4. Given my findings about these matters, I do not have to consider the effect of the withdrawal of the admissions that were made in Defence-Revision 3.
The accident site
The Council admitted in its defence that the location where Gregory fell from the cliff onto the rocks on the beach was community land as that term is defined in the Local Government Act 1999 (SA). The Council further admitted that the accident occurred on Crown Land owned by the State of South Australia and dedicated to the care, control and management of the Council by gazettal notice dated 19 November 1992. It is implicit in this plea and in its reliance on the defence provided for in s 244 of the Local Government Act that the Council accepts that it was the occupier of the area where the accident occurred.
The Council also admitted in its defence that it was responsible for the maintenance of Greenly Beach Road and associated infrastructure but denied that it created or maintained infrastructure in the vicinity of the Accident Site. The Council further pleaded that Greenly Beach Road was a coastal access or scenic track which catered for very low volumes of traffic and was a category 5 road for the purpose of the Road Classification Guidelines of South Australia.
Given these admissions, there is no contest that the Council is the occupier of the land at the Accident Site for the purposes of the Civil Liability Act and a claim in negligence.
Mr Foster is a local famer who gave evidence about the Accident Site. Part of his farm is near the Accident Site and he has travelled along Greenly Beach Road frequently. He described how he moved farm machinery from one of his properties to the other and for that purpose drove along Greenly Beach Road (from its intersection with Coles Point) to the top of the hill (point 4 on exhibit A10) and then across private property to reach his own property. He has visited the Car Park above the Accident Site and the nearby beaches between 50-100 times over a period of some 40 years over the years. He was well placed to make observations about Greenly Beach Road, the Accident Site and how often visitors travel along that road to the Car Park. I accept his evidence.
He said that Greenly Beach Road was re-aligned many years prior to the accident. Mr Foster gave evidence, which I accept, that access to the beach at the Accident Site, which he described as End of the Road Beach, was initially through the ravine that is to the south of the Accident Site (or closer to Coles Point Road). However, the ravine was washed out 20-25 years ago. Prior to the wash out of the ravine, Mr Foster said that the graded road ended at the ravine and there were only tracks from there on. He said that following the wash out of the ravine, the graded road was extended to the Car Park.
Mr Foster said that north of the Car Park, the road continues, but is noticeably rougher and narrower. The part of Greenly Beach Road from the top of the hill to the Car Park (being from points 4 to 5 on exhibit A10) is narrower than the part of Greenly Beach Road from its commencement to the top of the hill (being from points 1-4 on exhibit A10).
The now well-known Greenly Beach Rock Pools are south of the Accident Site. Following the wash out of the ravine, Mr Foster said that End of the Road Beach was accessed by the sandy gully to the north of the Car Park (the sandy gully). Mr Foster said that the sandy gully was a drainage gully caused in heavy rain events. It was through this gully that Gregory was brought up from the beach by the CFS on the day of the accident. He said that he had used the sandy gully a number of times over the years and that was his usual route to the beach. There was a storm in 2016 (post the accident) where the bottom part of the sandy gully was eroded. The sandy gully is more difficult to access today than it was on the day of the accident and now requires the use a rope at the end of the sandy gully to access the beach.
Mr Foster gave evidence about the usage of Greenly Beach Road over the years. He said at the time that visitors accessed End of the Road Beach through the ravine, there was fairly low impact at that stage, visitors numbers were minimal and mostly locals. He said that there has been increased public use. He said that ten years ago, he observed vehicles travelling along Greenly Beach Road to the Accident Site. He said there might be two or three cars at different locations along there. There was high intensity at peak holiday times at Christmas through to Easter. He observed people on the beach, swimming, a lot of fishing and surfing. He has seen people using the area all along Greenly Beach Road, including at the End of the Road Beach. He said that he has accessed the rock pools for 30-40 years. He said that he would go to the End of the Road Beach up to 10 times a year.
Mr Hall said that the area where the Accident occurred was an area where people went to surf and fish and was a spot where he went to have lunch when he was part of the grading team because it had a nice view.
Mr Jutzen described the levels of patronage at Greenly Beach in 2013 as being relatively low and regarded the Accident Site as a remote location used predominantly by local fishermen and surfers. In more recent times, and since the accident, Greenly Beach Rock Pools (and not the rocks pools at the Accident Site) have been promoted as a tourist attraction (not by the Council)(see exhibit A25). He said that the Accident Site was not and still is not a tourist attraction and just another of many rock pools in the area or that are located along the coast.
Mr Verco and Ms Mellen also addressed the question of access to the beach through the sandy gully. In his first report dated 1 June 2021 (exhibit R45), Mr Verco referred to the sandy gully, although not as steep as the escarpment, as still being “very rough, steep and quite treacherous with large rocks protruding, along with lots of lose sand.” He said that “there is no way that this valley approach could reasonably be considered to be a safe access trail leading to the beach”. I note that Mr Verco in his report referred to advice that he received from Mr Foster that the sand had been graded steeply down to the beach in the last section of the sandy gully (where the storm in 2016 caused the sand mound to be washed away and there is now a metal post with a rope attached requiring someone to accessing the beach to use that rope and abseil down the last section). At Court, Mr Foster did not give that evidence and I do not take into account Mr Verco’s comments that rely upon Mr Foster and how that last section of the sandy gully appeared in December 2013 at the time of the accident.
In her second report dated September 2021 (exhibit A2), Ms Mellen referred to those observations and agreed that the sandy gully could not be considered an access trail but said it was not the lack of an access trail that is relevant to whether safe access could be provided to the beach. Ms Mellen did not directly respond to the statements made by Mr Verco about the steepness and treacherous nature of the sandy gully.
In his second report dated 18 July 2022 (exhibit R46), Mr Verco repeats his observations about the sandy gully as a highly eroded depression valley and being still very steep and unsafe with loose sand. He also refers to photographs 92, 93 and 98 to 103 of exhibit A11 as showing the steepness of the sandy gully (recognising that the rope and metal stake were not present at the time of the accident and the bottom section had changed because of the storm in 2016). He said that the sandy gully was approximately 90 metres from where the car in which Gregory travelled was parked. He calculated that distance from the aerial photography. Professor Coyle, in his third report, estimated the distance to be 50 metres.
Photographs 1-5 of exhibit A12 show the sandy gully on the date of the accident as the CFS were carrying Gregory up that gully.
Mr Verco in his first report (exhibit R45) and Ms Mellen in her first report (exhibit A1) provided a description of the Car Park, which I accept.
I have also had regard to documentary evidence describing the location.
Findings as to the Accident Site
I make the following findings.
The Accident Site and the Car Park are remote and a considerable distance from any town. They are reached by travelling along Flinders Highway. Leaving Flinders Highway, a visitor must then turn down a well-constructed dirt road, Coles Point Road, heading towards Coles Point, a distance of about 12 kilometres. Coles Point Road is signposted at the intersection of Flinders Highway and Coles Point Road. Coles Point is approximately 50 kilometres north of Coffin Bay[3] and it follows that the Accident Site is about the same distance. Also at the intersection of Flinders Highway and Coles Point Road, was a sign to “Greenly Beach 12.” Greenly Beach Road is a dirt road, situated about 1.7 kilometres from Coles Point (or about 10.2 kilometres from the intersection of Flinders Highway and Coles Point Road). It is accessed by turning right from Coles Point Road. There is a sign to Greenly Beach at the intersection. The sign at the intersection of Coles Point Road and Greenly Beach Road at the time stated “Greenly Beach Rd” with a further sign underneath stating “Greenly Beach 2km” (photograph 17 of exhibit A12). Greenly Beach itself is accessed by turning left off Greenly Beach Road, a short distance from the intersection of Coles Point Road and Greenly Beach Road. Greenly Beach Road is 7.06km in length from its commencement at the intersection of Coles Point Road to its end at a point north of the Car Park. Greenly Beach Road becomes narrower from the top of the hill down into the Car Park.
[3] See Draft Coastal Management Plan, March 2001 (exhibit A56, document 6).
At the time of the accident in December 2013, the area could be described as a wilderness coastline although it was beginning to change because the number of visitors were increasing. That was the evidence of Mr Foster which I accept.
There are no facilities of any type at the Car Park or along Greenly Beach Road. The Accident Site could not be described as a tourist attraction at the time of the accident.
The Car Park is a flat open area and is made of rubble. The Car Park is between 20-28 metres wide and approximately 30 metres from the far end back to the access road. There are visible wheel ruts in the Car Park. There is a slightly raised middle area. Multiple vehicles are able to park there. It is large enough for vehicles to easily turn around. There are no signs warning of any danger. There are no barriers in the Car Park.
The sandy gully was the usual way by which visitors to the area accessed the beach from the Car Park. As both Ms Mellen and Mr Verco agreed, the sandy gully could not be considered as an access trail to the beach. I consider that Mr Verco overstated the treachery and steepness of the sandy gully at the time of the accident. I consider his evidence on this issue to be contrary to the evidence of Graham and Mr Foster who had both accessed the beach using the sandy gully and the photographic evidence (photographs 1-5 of exhibit A12). That said, the sandy gully posed a steep route by which access to the beach could be obtained and as the Council submitted, presented its own challenges. The sandy gully was about 90 metres north of the place where Mr Stevens parked his car in the Car Park. Mr Verco was not challenged on his calculation of that distance. Ms Mellen did not make any alternate calculation. Professor Coyle referred to the sandy gully being 50 metres north of the accident site but he had not been to the Accident Site. I prefer the evidence of Mr Verco on this issue. In his second report (exhibit R46 at [4.6.11]), he measured that distance from aerial photography. There is no evidence to suggest that Professor Coyle did anything other than make an estimate.
A track leads from the Car Park to the north towards Convention Beach (which is about 6 kilometres further on), but is a narrow track, inferior to the road leading into the Car Park and which, as Mr Graham Warren and Mr Burk stated, is suitable only for four wheel drive vehicles. Ms Mellen and Mr Verco said in their reports that the track narrowed to about 3 metres north of the Car Park. Mr Hall agreed that the road into the Car Park was very different from the track to the north, towards Convention Beach. I accept the submission of the applicant that the Car Park can properly be considered to be the end of Greenly Beach Road.
As at the date of the accident, the predominant visitors to the site were surfers and fishermen with increased visitors at school and public holidays although visitor numbers were low.
Travel to the accident site
The accident occurred on Wednesday 18 December 2013. Mr Graham Warren, Mr Burk, Mr Stevens and Ms Barns all gave evidence about the events leading up to the accident and in the most part, there is no dispute about these events. As might be expected when witnesses are asked to recall events many years previous, recollections will differ as to some of the detail of those events. In this case, those differences of the events leading up to the accident are not significant.
Graham gave evidence that he and a group of friends, including Gregory, travelled to the Accident Site on 18 December 2013. It was a very hot day, with clear skies. The group comprised young adults, about 17-18 years of age. Graham himself was 18 years of age as at December 2013. Gregory was 17 years of age. They travelled in three cars to the Accident Site, one car driven by Graham, one vehicle driven by Mr Stevens and one car driven by Renee. It was the evidence of Graham that his girlfriend, Ebony, and another friend Mr Carbine, travelled in his car and that Gregory, Mr Burk and Mr Nick Ormsby travelled in Mr Steven’s car. He could not recall who exactly was in Renee’s car but believed Ms Barns and a girl called Tarshi were in that car.
Graham said that he and his girlfriend had been to the rock pools a few times before, which he knew as the mermaid pools. On these occasions, he accessed the beach by the sandy gully to the north of the Car Park (which he had been shown by Ebony’s father). Graham had once travelled down the escarpment on one of these occasions but knew of the vertical cliff when he made that descent.
Graham gave evidence that it was likely that he or Ebony suggested that they go to mermaid pools on the day of the accident.
Graham said that he, Ebony and Mr Carbine met the rest of the group at about the turn off to Greenly Beach Road from Coles Road. Graham said that there had been some delay while he swapped cars at Ebony’s parents farm so that they could travel in a car that had air conditioning in it. He said that he then travelled to the Accident Site with the other two cars following.
Graham gave evidence that all three cars were sedans and were two wheel drives. He said that he could recall the road as being smooth.
Mr Burk gave evidence that he was also 18 years of age at December 2013. He agreed that it was a very hot day. He said that he had stayed overnight at the Warren house. He said that Gregory, Graham and Ebony were also there. He can recall Mr Carbine being there and Mr Nick Ormsby and Mr Stevens, although Mr Stevens had not stayed the previous night. He said that the day was very, very hot and that Ebony had suggested a swim at Greenly Beach Rock Pools. Mr Burk said that he thought at the time that the rock pools that they were going to were known as the Greenly Beach Rock Pools. That was clearly wrong. The Greenly Beach Rock Pools are about 3 kilometres to the south. Mr Burk said that he had not been to the mermaid rock pools previously.
Mr Burk said that he travelled in Mr Steven’s car. He was seated in the back, next to the left passenger door. Mr Stevens was driving. He did not remember where Gregory was seated. Mr Ormsby was also in the car.
He can remember stopping at a bottle shop on the way and buying a four pack or six pack of scotch mixed cans. He can remember having a drink but cannot recall who else did.
He said that they met up with Graham and Ebony on the highway and he followed them along Greenly Beach Road to the Car Park. He said that Greenly Beach Road was a dirt road with potholes through it.
Mr Stevens also gave evidence about that day. He was 19 years of age at that time. He said that a number of people had gathered at the home of Graham and Gregory on the morning of 18 December 2013. He said that someone suggested that they go to the mermaid rock pools, although he could not remember who made that suggestion. He said that he drove his vehicle, a VS Holden Commodore, to the Car Park and that Gregory, Mr Burk and Mr Ormsby were in his car. He said that Mr Ormsby was seated in the front and Mr Burk and Gregory in the back of his car.
He can recall going to the service station and the bottle shop and getting a six pack of alcohol and meeting one of the other vehicles, being the vehicle driven by Tarshi, at the intersection of Flinders Highway and the dirt road. He said that he thought that he met up with the vehicle driven by Graham at that point. He said that when going to the mermaids rock pools, he took a wrong turn off Greenly Beach Road down a track where he lost a bumper bar. He said that he did not have any trouble driving along Greenly Beach Road and that it was a relatively smooth, dirt road. I accept the submission of the applicant that the fact that Gregory was in Mr Steven’s car when they took a wrong turn (and the fact that they waited for Graham to arrive and lead the cars to the Car Park) supports an inference that Gregory had not been to the rock pools or the Accident Site previously.
Ms Barns was another of the group of friends who travelled to the mermaid rock pools on the day of the accident. She was then 18 years of age. She could recall Gregory, Graham, Mr Stevens, Mr Burk and Renee also being part of the group. She thought that there were a couple of other girls but could not say definitively that this was the case. She said that Renee was driving the car in which she was a passenger. In cross-examination, she confirmed that she believed Renee was driving and that Tarshi was sitting in the passenger seat. She could not remember where she was sitting. She could remember two cars but thought there was possibly a third vehicle. She could remember the bumper bar falling off Mr Steven’s car when they were on a dirt road.
Findings as to travel to the accident site
Given that the events occurred about 10 years ago, it is not surprising that the witnesses recalled different aspects of the day and that their memory differed, particularly of peripheral events.
However, from the evidence, I am able to make the following findings.
The group first assembled at the home of Graham and Gregory’s parents. I am not able to find whether Graham and Ebony were there or met the group later at or near the intersection of Flinders Highway and Coles Point Road.
The day was very hot. The skies were clear. Either Graham or Ebony suggested that they go to the mermaid rock pools. Graham and Ebony were the only members of the group who had been to the rock pools previously.
The group travelled to the mermaid rock pools in three cars; one driven by Graham in which Ebony was a passenger; one driven by Mr Stevens in which Mr Ormsby, Mr Burk and Gregory were passengers, Mr Ormsby being in the front passenger seat and Mr Burk and Gregory being in the left and right back seats respectively, and a third car being driven by Renee in which Ms Barns and Tarsi travelled. I consider it more likely that Renee was driving this third vehicle. This is the memory of Ms Barns who was in that vehicle and more likely to remember. It was the evidence of Graham that it was Renee’s car.
At some stage, the group took a detour onto a dirt track off Greenly Beach Road and Mr Stevens lost a bumper bar on that dirt track.
Greenly Beach Road to the Car Park was a dirt road, with many potholes, but could reasonably be driven by two wheel drive vehicles. This was the evidence of Mr Foster, a farmer who lived and farmed near the Accident Site and was the witness most familiar with the site and road. He said the road into the Accident Site was trafficable, you could get through, but you wouldn’t take your Sunday best car. Mr Burk also confirmed the existence of the potholes. I consider that Graham and Mr Stevens were overstating the condition of Greenly Beach Road. I prefer the evidence of Mr Foster who was independent and had travelled over the road many times and was most familiar with its condition.
The car driven by Graham was in the lead, the car driven by Mr Stevens was next and the car being driven by Renee following. Insofar as Ms Barns gave evidence that she thought the car driven by Renee arrived first at the Car Park, I consider that she was mistaken. She agreed in cross-examination that it was possible that she was mistaken and that she did not recall those details. Graham and Ebony were the only members of the group who had been to the rock pools previously and it is likely therefore that they led the way. The area was remote and it would not be clear to a new visitor to the site where they should go. I accept the evidence of the other members of the group that it was the car driven by Graham that was in the lead, the car driven by Mr Stevens followed and the car driven by Renee was the third car in the convoy. Ms Barns admitted that it was possible that this was the case and she did not remember all of the peripheral details and only the more traumatic details. The other witnesses all agreed that this was the sequence of cars.
Arrival at the accident site
There are a number of significant factual issues in dispute relating to the arrival of Gregory at the Car Park. They are:
1. Was the area a car park, as the applicant claims, or a turnaround area as the Council contends?
2. Did the Council construct the Car Park?
3. Did the Council maintain the Car Park?
4. Did the Council create and maintain Greenly Beach Road?
5. Where, in the Car Park, did Gregory arrive and what was the view from the Car Park upon arrival?
6. What is the view from the top of the escarpment, at the point where Gregory commenced descending the escarpment?
7. What were the actions of Gregory and other members of the group upon arrival at the Car Park to the time Gregory commenced descending the escarpment?
Was the area a car park or a turnaround area?
The parties disagreed upon the proper characterisation of the area where the vehicles pulled up at the Car Park to access the rock pools. The applicant called the area a car park. The Council described the area as a turnaround area. The parties also disagreed on whether the Car Park had been created (i.e. man-made) and whether the Council was responsible for its maintenance.
Photographs of the Car Park form part of exhibit A11 (photographs 76-78) and exhibit A12 (photographs 64-71 and 112). They show a wide area with a small mound in the middle. The road continues past the Car Park although it is narrower and less well constructed. It is properly described as a track past that point and requires a four wheel drive vehicle.
There was no evidence of the purpose of the Council or any other party in creating the Car Park.
I consider that the area functioned as both a car park and a turnaround area. That was the opinion of Professor Alais who stated that the area was functionally akin to a car park although, in his opinion, it does not appear to have the hallmarks of a deliberately and purposefully graded car park. Ms Mellen stated that the area was formed to be the end of the road where you could turn around or park your vehicle.
I agree with that characterisation. I do not consider that it is a binary choice between characterising the area as a car park or a turnaround area. The area was used as both. The evidence about the continuation of the road past the Car Park as only a track to the north suggests that many people would turn round or park at the Car Park. The evidence from Mr Foster that he would see people travel along Greenly Point Road and park at the area demonstrates that it was used as a car park. The evidence of Mr Hall that he would commonly park at the area at lunchtime when he held the position of works manager at the Council also supports the use of the area as a carpark.
Maintenance of the Car Park
I accept the evidence of Ms Mellen that there was evidence of some maintenance grading of the Car Park. The manual records of the Council indicate that grading occurred along the length of Greenly Beach Road. That includes to and from the Car Park. The manual records do not indicate where along the length of the road that grading occurred. The Fleetminder records for the period from 2015-2018 also show that the grader was in the Car Park. The movements of the grader in the Car Park, the number of times that it was in the Car Park and the speed at which the grader was travelling in the Car Park give rise to the inference that the grader was conducting grading activities in the Car Park. I accept the submission of the applicant that these observations were not consistent with the grader merely driving around the Car Park. Whilst the Fleetminder data was only available for operations after the accident, it does lead, in the absence of any other evidence, to the inference that similar activities would have been conducted prior to the accident.
It was within the power of the Council to call the operators of the graders. Mr Hall gave evidence that a Mr Trevor Arnold was the primary operator of the grader known as patrol Q. Mr Arnold had been the operator of patrol O before patrol Q had been purchased. He recently retired and lives in the area. Although he has been sick, there was no suggestion that he was unable to give evidence. Mr Paul Micken had been the operator of patrol O, including along Greenly Beach Road. He still lives in the district.
I consider that the rule in Jones v Dunkel[4] has application. That rule states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated at 312:
In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
[4] (1950) 101 CLR 298; [1959] HCA 8.
Kitto J stated at 308:
It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched.
Davies A-JA (dissenting on the facts) in Ho v Powell[5] explained the principle as follows:
The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), Handley JA and Beazley JA said ... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default.
[5] (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168.
Austin J in Australian Securities & Investments Commission v Rich[6] indicated that there are three conditions for the application of the principle:
1. the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence);
2. his evidence would elucidate a particular matter, which is a live matter at the trial; and
3. his absence is unexplained.
[6] (2009) 75 ACSR 1 [449]; [2009] NSWCA 1229.
The onus of establishing the unavailability of a witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.[7]
[7] Ibid [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573.
The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd:[8]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted]
[8] (2011) 243 CLR 361; [2011] HCA 11 [63].
In the present case, I consider there was an unexplained failure on the part of the Council to call Mr Arnold and Mr Micken. They were the grader operators who it would be expected would have given evidence on what parts of Greenly Beach Road and the Car Park were graded. They were former council employees, both of whom had only relatively recently retired and who still lived in Port Lincoln or in neighbouring areas. It would be expected that the Council would have called them to give evidence about the grading. No explanation was given as to why they were not called. Further, Mr Wander was the area supervisor who had supervisory responsibility for the grading of unsealed roads. He still lives in the area and is contactable.
I consider that an inference is available from the evidence of Ms Mellen and the grading records that grading occurred along Greenly Beach Road and at the Car Park, both at the time that the Car Park area was created and since that time. I am more confidently able to draw that inference given the failure of the Council to call Mr Arnold and Mr Micken. The documentary evidence records grading activity along the whole of Greenly Beach Road to the Car Park. There would need to be cogent evidence, in the face of such documentary evidence, to come to a conclusion that no grading activity occurred in the Car Park.
Creation of the Car Park
Ms Mellen gave evidence that the Car Park had been formed, in the sense that it was made by someone with a grader although she did not mean it was designed or produced to certain levels. She said that the Car Park had been scraped, as in cleared, and had the form of a trafficable surface. She referred to the fact that the trafficable routes around the central raised area had not formed in wheel paths which would be expected if the area had been created by vehicular movements. She said when an area is formed by vehicular movements, it is formed in wheel paths. She also said that if the area was created by virtue of vehicle movements, the angle of the cross fall across the area would change. She said that the Car Park was formed to be the end of the road where a driver could turn around or park their vehicle.
Ms Mellen accepted that there were some contra-indicators to the Car Park having been made. She agreed that the central area of the Car Park showed evidence of water pooling in different places from time to time and that was inconsistent with a man made attempt to create a single fall across it for drainage or a camber to facilitate drainage. She said that she accepted there was a possibility that the car park area was formed from the passage of vehicles.
Ms Mellen was cross-examined about her use of the word “formed”, but I do not consider anything turns on the terminology that she used. Ms Mellen was clear in the opinions that she expressed.
Mr Verco in his first report addressed the opinion of Ms Mellen that the Car Park had been formed. He said from his engineering experience it did not appear that there had been importation of road making rubble to create a formal carpark zone, rather it appeared that naturally occurring materials such as sand and rubble had been progressively moulded into a semi-hard base over which vehicles had passed or parked on. He said that the fact that the area where movements had occurred was lower than the central area suggested that the Car Park had been created by vehicular movements. He said that the Car Park had not been formally constructed to provide a car park to attract visitors to the beach. This conclusion led to his further opinion that the Car Park was not a road related area (i.e.an area that is not a road and is open to or use by the public for driving, riding or parking vehicles).[9]
[9] Australian Road Rules, regulation 12.
In his second report, he expressed the view that the Car Park had not been developed as a parking area and again referred to the nature of the material, uneven surface and comments from Mr Foster and the Council. As he accepted in cross‑examination, he was not able to point to the source of the comments from the Council that he relied on.
The evidence from Mr Foster was that he saw graders working all the way to the Car Park. He was not in a position to observe whether or not the blade was down.
Mr Hall stated in his written statement that to his knowledge that the Car Park was not made with the use of the machinery of the Council. He agreed that to actually know that he would need to know whether the grader had been in that area, a fact that he had not observed. He agreed that the grader operators would be the best source of information on this topic. He said however that he had not seen grading activity in that area nor evidence of grading in that area. Mr Hall agreed that there were two mounds towards the centre area of the Car Park and said that would have been created by vehicular traffic.
I accept the evidence from Ms Mellen that a grader was used to form the Car Park. I also accept her evidence that the area was level. The photographs demonstrate that the Car Park was in a similar condition in 2014 (when the photographs in A12 were taken) as 2022 (when the photographs A11 were taken). As at 2014, the vehicular traffic was relatively minimal and it is difficult to see that it would create such a level area that has not changed over time with increased usage.
The evidence of Ms Mellen accords with the circumstances in which Greenly Beach Road was extended to the Car Park. The road was extended from the ravine because of the washout of that area. The Council graded the track that had previously existed from the ravine. The grading continued to the Car Park area but not further given that the track to the north was accepted by all parties as being of noticeably inferior quality. It is therefore logical that the grading took place up to and including the Car Park area and that the graders turned around at the Car Park. I also accept the evidence of Ms Mellen that the Car Park was larger than the turning circle of a normal large grader, suggesting that more than a turnaround area was created.
I do not accept the submission from the Council that the Court should infer that if the Council intended to construct the Car Park, it would have done so in a way similar to other car parks at coastal locations within the area of the Council. How a car park is constructed will depend on many factors including its location, its likely use, the resources of the Council, the budget allocated to the project and the level of classification of the road leading into the car park.
Again, the issue in dispute appears to be a question of degree. Mr Verco places emphasis on the formality of the construction of the Car Park as indicated by matters such as whether rubble had been imported or whether the area was developed as a car park. That is not the relevant question. It was accepted by Ms Mellen that the surface area of the Car Park was a subgrade of natural forming materials. What is relevant is that the Council did work in the formation of the Car Park. It is true that it is a basic car park in the sense that it is not bituminised or formally designed or set out. Imported materials were not used. The work done was minimal.
Creation and maintenance of Greenly Beach Road to the Car Park
Mr Foster gave evidence about the history of Greenly Beach Road. He said that it was initially further inland but was realigned in the 1970s or 1980s along the line of the current road. At that time, the road ended at the ravine (that is before the Car Park) with a track leading from the ravine to the Car Park.
The uncontested evidence of Mr Foster was that following the wash out of the ravine about 20-25 years ago, the Council graded, what had previously been a track, from the ravine to the Car Park. The Council effectively extended Greenly Beach Road to the Car Park. At the same time, the Council moved the road further north away from the drop off in the ravine. Mr Foster gave evidence that he saw graders from time to time on Greenly Beach Road all the way to the Car Park. He has never seen a grader on the track heading north from the Car Park to Convention Beach. He agreed that he had not made observations as to whether the grader was actually undertaking grading activities.
Mr Hall also agreed that the wash out of the ravine required reconfiguration of the section of the road leading into the ravine (from the top of the hill to point 5 on exhibit A10). He said that the road narrows at about the top of the hill from 8 metres to 5 metres (down to the Car Park).
Mr Hall agreed that the Fleetminder data (which electronically tracks the movements of the graders since its introduction by the Council from about 2014), shows that the grader from 2015 had traversed the section down to the Car Park as many as five or six times in the one day. He agreed that would suggest, and was consistent with, grading activity. He also agreed that some of the speeds recorded in the Fleetminder data in this area were consistent with grading. He agreed that the records were consistent with fairly extensive maintenance grading and indicated that they had been scavenging material for one side of the road.
Mr Hall said that the term “patrol grading” was used to describe a grader undertaking a continuous grading activity along a section of a road. The terms “spot or maintenance grading” was used to describe grading in particular spots to fix potholes, ruts, blowouts or washouts. He agreed that both types of grading were designed to make or restore the road to a passable and serviceable condition.
Mr Hall was referred to the handwritten grading records of the Council that existed up to the introduction of the Fleetminder system in July 2014. That data records one of the graders working on Greenly Beach Road on 9 May 2006, 2 August 2006, 27 November 2007, once in July 2008 and once in September 2008, 25 August 2009, 10 June 2010, 2 June 2011, 20 June 2012 and 8 July 2012.
The primary documents, from which the above summary documents were prepared, record that the job length of the grading work at Greenly Beach Road was 7.5km. That distance is the length of Greenly Beach Road from its commencement at Coles Point right to the Car Park.
Mr Hall agreed that in the mid-1990s, the Council performed work on Greenly Beach Road in which they formed a section of that road, namely forming up the natural surface and putting shape into it from the top of the hill to the ravine (from point 4 to point 5 on exhibit A10).
Ms Mellen in her third and fourth reports addressed the grading of Greenly Beach Road. She expressed the opinion that while it was evident that Greenly Beach Road was not routinely graded, it was graded from time to time (including when created) as evidenced by the entire width of the road being cleared, windrows are formed on both sides of the road, vegetation is limited to the edges of the road and drainage channels have been created on the edge of the road. The fourth report analyses the Fleetminder data and shows that the grader operated on the length of Greenly Beach Road. The Fleetminder system was introduced in 2014 and therefore provides information about the extent of grading activities post‑accident and which may inferentially support a finding about the extent of grading prior to the accident. The system records the precise location of the grader as it is undertaking grading activities through GPS data. The line of travel of the grader could then be plotted and the number of passes over a particular length of the road. The speed at which the speed of the grader was travelling at particular spots could also be calculated.
An analysis of this data and the number of passes and the speed at which the grader was travelling indicated that grading activity was occurring along the length of Greenly Beach Road. The number of passes down to the Car Park is indicative of grading activity having taken place on the section of Greenly Beach Road that leads to the Car Park. That data shows that in the period from 2015-2018, grading activities generally occurred on Greenly Beach Road and the Car Park about once a year.
Mr Verco in his second report stated that only a short length of Greenly Beach Road (being from the commencement of the road from the Coles Point Road) was ever graded and then only opportunistically. He said that the section of the road leading to the Car Park had not been graded for a very long time and perhaps when only first cut. In his second report, he said that the Council had likely used a grader down to the Car Park when the road was first formed (exhibit R46 p 22).
In his third report (which responds to Ms Mellen’s analysis of the Fleetminder data), Mr Verco said that the data only indicated intermittent grading activity in the last section of the road leading to the Car Park involving remedial action on deformed sections of the road or for the development or maintenance of drainage turnouts or cut outs. He denied that the speed of the grader at the Car Park was indicative of grading activity, rather than turning around movements.
It is clear that Mr Verco, in reaching his conclusions about the creation and maintenance of Greenly Beach Road, erroneously relied on statements attributed to Mr Foster that it was Mr Foster’s recollection that there had been very little involvement by the Council in the maintenance of the road nor could he recall the actual construction of the road. He said that Mr Foster told him that rarely would he see a grader near the Car Park. Insofar as Mr Verco also relied on comments from the Council to support his statement, he was unable to identify any such statements. Mr Verco to some extent also relied upon his own observations that Greenly Beach Road had not been graded for a long time. That fact had no relevance as the Council had ceased grading activities over the road in 2018.
In cross-examination, Mr Verco accepted that the Council had some involvement in the creation and maintenance of Greenly Beach Road down to the Car Park. He also accepted in cross-examination, that the Council maintained the road by periodic or maintenance grading. He accepted that whatever the description of the type of grading, it was done so as to preserve the integrity of the road. He accepted that there was no question that Greenly Beach Road had been graded in its creation, although not well constructed. Mr Verco also accepted that his statement that Greenly Beach Road (in the area approaching the Car Park) had rarely, if ever, been graded was inconsistent with the Fleetminder data.
Findings as to the creation and maintenance of Greenly Beach Road
I make the following findings.
It was not contested that the Council had created Greenly Beach Road to the Car Park by grading the section from the ravine to the Car Park (which had previously been a track) following the washout of the ravine 20-25 years ago. The evidence clearly supports a finding that the Council used the grader in the creation of Greenly Beach Road down to the Car Park.
The issue of the grading, particularly of the maintenance grading, appears to be a question of degree.
The evidence, both lay and expert (after Mr Verco ultimately agreed to this position) as well as the documentary evidence, including the Fleetminder data, supports a finding that the Council engaged maintenance grading, including on the section of Greenly Beach Road from the top of the hill (point 4 on exhibit A10) leading down to the Car Park. The maintenance grading only took place periodically, generally about once a year.
The road was clearly a minor road with a variable surface and width. Ms Mellen said that Greenly Beach Road was properly classified as class U4 or U5 unsealed rural road for the purposes of the Austroads Guide to Pavement Technology, Part 6, Unsealed Pavements. Class U4 is described as an “unformed pavement with single pavement layer over subgrade with a typical daily traffic volume of less than 20 vehicles per day. The material quality is typically natural gravels, pit material or quarry waste.” Class U5 is described as an “unformed pavement comprising subgrade only with a typical daily traffic volume of less than 10 vehicles per day. The material quality is typically vegetation cleared subgrade.” Ms Mellen said that, by reference to the materials that were used (no materials having been imported to the site to construct an unsealed pavement), Greenly Beach Road could be characterised as an U5 rural road. However, she said that she observed six vehicles in the hour that she was on site and the road could be considered functioning akin to a road with a U4 classification. She said this classification held for the length of the road down to the Car Park. I do not place much weight on her observations as to the number of vehicles that she observed using Greenly Beach Road at the time of her inspection. These observations were made some years after the accident and on one occasion for a short period of time. In these circumstances, I do not consider that they can be used to make any conclusion about the number of vehicles using Greenly Beach Road in 2013. I note that Mr Verco also made observations about the number of other vehicles that were present at the Accident Site when he attended for the purposes of preparing his report. He observed very few vehicles at the Accident Site. However, for the same reasons, I place little weight on these observations.
Ms Mellen in her fourth report (exhibit A13) stated the Council documentation suggested that up until 2016 the Council classified Greenly Beach Road as a category 5 road but thereafter as a category 4 road. She said however that the grading activity at the time of the accident was consistent with a category 4 road.
It is not necessary to make a specific finding was to whether the road was properly characterised as a category 4 or category 5 road at the time of the accident.
It is also not necessary to consider the question of contributory negligence, given my finding that the Council was not negligent. There are obvious difficulties in assessing contributory negligence when negligence has not been found and therefore the precise nature of the asserted negligence has not been determined. However, given the confined nature of the claim for negligence, it is possible to make an assessment as to contributory negligence in the event that a finding had been made that the Council were negligent.
Section 3 of the Civil Liability Act defines contributory negligence as meaning:
A failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection of for the protection of his or her own interests.
Section 44 of the Civil Liability Act provides that the principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent.
Section 31 sets out the principles that apply in determining whether a person is negligent. Section 31(1) states:
For determining whether a person (the "defendant") was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
That position reflects the position at common law. In Imbree v McNeilly (Imbree), Gummow, Hayne and Kiefel JJ held:[134]
And both what a plaintiff actually knows, and what that plaintiff ought reasonably to have known, will be relevant to an inquiry about contributory negligence. The answers to both questions (about what a plaintiff knew and what a plaintiff ought to have known) will bear upon whether the plaintiff failed to take reasonable care for his or her own safety.
[134] (2008) 236 CLR 510; [2008] HCA 40 [85].
The applicant also made the submission that Gummow, Hayne and Kiefel JJ held in Imbree that there was little, if any difference between the defence of volenti and the defence of contributory negligence.[135] That statement was made in the context of the facts of that case: a gratuitous passenger accepting carriage in a vehicle driven by a person known by the passenger to be drunk. I do not take the Court to be expressing a general proposition that there was little, if any difference between the defence of volenti and the defence of contributory negligence.
[135] Ibid [76].
The question of apportionment for the purposes of contributory negligence involves questions of balance and relative emphasis and weighing different considerations. In Podrebersek v Australian Iron & Steel Pty Ltd,[136] Gibbs CJ, Mason, Wilson, Brennan and Deane JJ held:
[a] finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’...
[136] (1985) 59 ALJR 492 at 493-4. Cited in State of Queensland v Kelly [2014] 1 Qd R 577; [2014] QCA 27 [54].
The causal effect of a party’s own negligence is an evaluative exercise and not a matter of precise calculation.[137] When assessing contributory negligence, age is a relevant fact and the care expected is what is reasonable to be expected of a person of the same age, intelligence and experience.[138]
[137] Chotiputhsilpa (by his tutor Chotiputhsilpa) v Waterhouse [2005] NSWCA 295 [92].
[138] Ibid citing McHale v Watson (1966) 115 CLR 1099 [215].
In my opinion, there are a number of acts or omissions on the part of Gregory that caused or contributed to his accident. They were:
1. Failing to stop at the top of the escarpment and determine that the escarpment was not the way to the beach;
2. Failing to stop at the top of the escarpment and conclude that there was not visible a path all the way to the beach;
3. Failing to stop at the top of the escarpment and determine that the escarpment was not a sandhill;
4. Failing to stop at the top of the escarpment and assess the steepness of the escarpment and therefore failing to conclude that the escarpment was not safe to descend;
5. Failing to appreciate the steepness of the escarpment;
6. Descending straight down the escarpment; and
7. Not descending in a careful and slow manner.
Taking into account all of the above matters and considering these along with the assumed negligence (for the purposes of this exercise) of the Council in not erecting a warning sign or placing a barrier at the point of descent, I would have found that Gregory was contributory negligent to the extent of 40%.
Volenti non fit injuria
Again, for the sake of completeness, I will address the defence of volenti non fit injuria (volenti) which has been raised by the Council.
Although the Civil Liability Act has made the defence easier to establish, there remains a requirement that a respondent must still prove that an applicant consciously adverted to the possibility that the known risk might eventuate and nonetheless decided to embark on a course of conduct that involved that risk of which he or she was aware.
The circumstances in which the defence of volenti can be established under the common law required the respondent to prove that the applicant:[139]
1. perceived of the existence of a danger;
2. fully appreciated the danger; and
3. freely and voluntarily agreed to accept the risk.
[139] Schuller v SJ Webb Nominees Pty Ltd [2015] SASCFC 162 [35.2] citing Roggenkamp v Bennett (1950) 80 CLR 292 at 300; [1950] HCA 23 [11].
The Full Court in Schuller v SJ Webb Nominees Pty Ltd[140] held that ss 36 and 37 of the Civil Liability Act made it easier for a respondent to establish the defence of volenti in the case of an obvious risk in that: (1) s 37(1) provided that if the risk was obvious, the respondent did not need to prove that the applicant knew of the risk (although the applicant could prove on the balance of probabilities that he was actually unaware of the risk); (2) s 37(2) provided that the applicant is aware of the risk if they were aware of the kind of risk even if they did not know of the precise nature, extent or manner of occurrence of the risk.[141]
[140] Ibid.
[141] Ibid [49].
There are two difficulties with the application of volenti to the circumstances of this case. First, I have not found the risk facing the applicant to be an obvious risk. In these circumstances, the presumption provided for in s 37(1) does not apply. The Council had not proved that the applicant knew of the risk.
Secondly, s 37 and in particular s 37(3) does not do away with the requirement of voluntariness and the respondent must still prove the common law requirement that an applicant consciously adverted to the possibility that the known risk might eventuate and nonetheless decided to embark on a course of conduct that involved that risk of which he or she was aware.[142]
[142] Ibid [51] and [54]. See Woods v Multi Sports Holdings Pty Ltd (2002) 208 CLR 460 [125].
In my opinion, the Council is unable to prove that Gregory had that consciousness. The evidence supports the inference that Gregory did not advert to the risk at all.
In these circumstances, the defence of volenti is not made out.
Section 244 of the Local Government Act
The last matter to consider is whether the Council has made out its defence under s 244 of the Local Government Act. Again, that is a hypothetical exercise given my finding that the Council is not liable. I will however assume for the purpose of consideration of this defence that it has been established that the Council has been found to be negligent.
Section 244 of the Local Government Act provides that the Council is only liable as an occupier of community land for injury, damage or loss that is a direct consequence of a wrongful act.
Section 244 was introduced into the Local Government Act upon its enactment in 1999. A similar provision was not included in the Local Government Act1934. The second reading speech in relation to the enactment of the 1999 Act does not provide any assistance in understanding the reason for the inclusion of the section.
There is no directly equivalent section in other states although a number of states provide that a public authority does not breach a statutory duty unless the act or omission was in the circumstances so unreasonable that no authority could properly consider the act or omission to be a reasonable exercise of its functions.[143]
[143] Wrongs Act 1958 (Vic), s 84; Civil liability Act 2002 (NSW) s 43(2); Civil Law (Wrongs) Act 2002 (ACT), s 111(2); Civil Liability Act 2002 (Tas), s 40(2); Civil Liability Act 2002 (WA), s 5 Y(2).
There are four matters relevant to the possible application of the defence in this matter. They are:
1. Was the Council the occupier of the community land where the injury occurred?
2. Did Gregory suffer an injury?
3. Did the Council commit a wrongful act?
4. Was the injury sustained by Gregory a direct consequence of that wrongful act?
There is no dispute about the first two matters. The Council is the admitted occupier of the land where the injury occurred and Gregory clearly suffered very severe injuries. The dispute concerns the latter two matters. The Council argues that any injury suffered by Gregory was not a direct consequence of a wrongful act and further that it did not commit a wrongful act.
Wrongful act
The Council submitted that it has not committed a wrongful act within the meaning of s 244 and therefore s 244 applies to exclude any liability on its part. The Council submitted that the claim made by Gregory, namely the failure to erect a warning sign or the failure to erect a barrier, amounted only to alleged omissions and cannot be characterised as wrongful acts.
The applicant submitted that the acts committed by the Council must be examined in the context of the Council creating or maintaining the Greenly Beach Road down to the Car Park and further by creating or maintaining the Car Park. In those circumstances, it was submitted the Council committed a positive act, (which was wrongful) rather than an omission.
The applicant submitted that while the ultimate deficiency of the Council in failing to erect signs or a barrier might be characterised as an omission, that deficiency must be considered as part of the fabric of conduct which led to the breach and therefore was a positive conduct. The omission is part of the larger course of conduct. The classic example of such characterisation is the failure to apply a handbrake. While in isolation, it could be characterised as an omission, it is properly characterised as part of the larger course of activity.[144]
[144] Stovin v Wise [1996] AC 923 at 930.
The applicant placed reliance on the following passages from Brodie v Singleton Shire Council [145] where Gaudron, McHugh and Gummow JJ held in relation to the distinction between misfeasance and non-feasance:[146]
Likewise, there may be misfeasance if the authority has created a false sense as to the security or safety of a road. The authority may have thrown open an unsafe road for use as a safe road; its work may have created or maintained a "trap" by creating an appearance of safety, or at least of uniformity, across its surface, which could readily mislead; or its work may have created a new danger or added to the danger by making an unfenced hole.
In some of these cases, the so-called "misfeasance" appears to consist of omissions to take certain steps while carrying out some positive actions. Indeed, on such a reading, anything done which "has in fact increased the risk of accidents" will be misfeasance, even where that risk has been increased solely by omissions to act. This is so although in Gorringe Dixon J sought to introduce a criterion of "severability" between what was done and what was left undone Here, the true determinant seems not to be non-feasance contrasted with misfeasance, but the presence or absence of positive action: if the authority has taken some steps, then its actions are to be examined using the ordinary principles of negligence. [citations omitted]
[145] (2001) 206 CLR 512; [2001] HCA 29.
[146] Ibid [88] and [89].
I do not accept that the alleged wrongful act of the Council can be properly characterised as the one act or course of activity involving the creation and maintenance of the road and the Car Park accompanied by the failure to erect a sign or barrier. The alleged acts of negligence are the failure of the Council to erect the sign or install some barrier or conduct a risk assessment. The road and Car Park are circumstances which the applicant submits assist in defining the scope of the liability of the Council, leading to his claim and submission that the Court ought to find that the omissions by the Council were a breach of the duty of care it owed the applicant. Although I have rejected that contention, even if I had come to the opposite conclusion, I would not have found the creation and maintenance of the road and the Car Park were part of the wrongful act and therefore that the omissions were part of a larger course of conduct.
The second question that arises is whether the omission to erect a warning sign or barrier is a wrongful act. That question involves the statutory construction of s 244. Provisions such as s 244 which provide statutory protection against liability for an omission should ordinarily provide so in express terms but also such provisions should generally be strictly construed.[147]
[147] Puntoriero v Water Administration Ministerial Corporation (1999) 1999 CLR 575; [1999] HCA 45 [113] per Callinan J.
The High Court has emphasised the primacy of the text: see Taylor v The Owners -Strata Plan No 11564[148] and Weiss v The Queen.[149] The construction of the text must be undertaken at the same time as considering the context in which the provision was enacted. In SAS Trustee Corporation v Miles Edelman J held:[150]
... this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where “the clearer the natural meaning the more difficult it is to justify departing from it”, so too in statutory interpretation “questions of degree arise” and it will be more difficult to displace an interpretation that “has a powerful advantage in ordinary meaning and grammatical sense”.
[148] (2014) 253 CLR 531; [2014] HCA 9.
[149] (2005) 224 CLR 300 [30]; [2005] HCA 81.
[150] (2018) 265 CLR 137 [64]; [2018] HCA 55.
The Full Court in Edwards v Virgin Blue International Pty Ltd[151] summarised the approach from SAS Trustee as follows:
Statutory construction is the process by which meaning is attributed to statutory text. Where the meaning of the text is in doubt it involves constructional choice. The statutory text must be considered from the outset in context, and attribution of meaning to the text in context must be guided, so far as possible, by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. [citations omitted]
[151] (2019) SASR 55 [45]; [2019] SASCFC 98.
The first stage of the enquiry is to construe the words “wrongful act” in their context, including considering the statutory purpose for the enactment of s 244.
The meaning of the word “wrongful” in s 244 is not controversial. It means wrongful in the sense of a breach of duty.[152] That meaning contrasts with an omission.
[152] See Scala v Mammolitti (1965) 114 CLR 153, 159, 161; 1965] HCA 63.
The more problematical question is the meaning of the word “act”. One meaning, advanced by the Council, is “something done or performed”.[153] On the other hand:[154]
The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of human will. Such a definition is, indeed, not ultimate, but is sufficient for the purposes of the law.
[153] Black’s Law Dictionary 9th ed.’ 2009, 27.
[154] Ibid citing J Salmond “Jurisprudence” at 369, Glanville Williams ed., 10th ed., 1947.
In Puntoriero v Water Administration Ministerial Corporation,[155] Kirby J (although dissenting in the result) held:[156]
Mason P, in the Court of Appeal, correctly remarked on the unsatisfactory features of the distinction between "acts of commission and acts of omission". He continued: "It would probably be possible to characterise practically any activity of the [respondent] in positive or negative terms. The scope of the immunity cannot turn upon which side of the same coin faces the decision-maker." I agree. [citation omitted]
[155] (1999) 199 CLR 575; [1999] HCA 45.
[156] Ibid [64].
The statutory context in which s 244 was enacted provides little assistance in the task of ascertaining the meaning of the Act. The section was introduced at the time that the Local Government Act1999 was enacted. It was not part of the 1934 Act. It is included in Part 5 of the 1999 Act which simply is headed “other matters”. Other than limiting liability for injury caused by trees in s 245, the other provisions do not relate to liability. The 1999 Act was enacted prior to the Ipp reforms. No other state has a similar provision.
The statutory purpose is clearly to limit the liability of the Council as the occupier of land. The question is, on its proper construction, does it do this by limiting liability to direct losses or by limiting liability also in respect of liability for omissions.
In my opinion, it is the former-that is, it is seeking to limit its liability to direct losses. I come to this conclusion for four reasons: first, the construction of s 244 places emphasis on the acceptance of liability only for direct losses. Secondly, the narrower interpretation of “act” (as excluding omissions) would lead to harsh and irrational outcomes. The Council would never be liable for a failure to erect signs or any other form of omission , even in the most obvious of cases. It would be a very harsh outcome that an injured person could never recover against a council, as the occupier of a property, for an omission. A more proportionate response would be to limit the amount to be recovered to direct losses. Thirdly, the common law has permitted claims against councils, as the occupier of property. There is no material that suggests the legislature was intending to limit claims of a certain class. Fourthly, the legislative scheme is more consistent with limiting, rather than excluding, actions of this class. Section 3 of the Local Government Act1999 (SA) provides that an object of the Act is to ensure the accountability of the council. Section 39 provides that the council has the legal capacity of a natural person and may sue and be sued.
For all of these reasons, I consider that “wrongful act” in s 244 includes an omission. It follows therefore that s 244 does not operate as a defence that is available to the Council in these proceedings.
Direct consequence
If the injuries and losses suffered by Gregory are not a direct consequence of a wrongful act, then the Council may be able to rely on this section to avoid liability.
Expressions such as direct loss and consequential loss are ambiguous and commonly lead to uncertainty.[157] These expressions are most commonly found in contractual terms seeking to exclude or limit liability. Courts have not adopted a fixed rule that determines that in all cases what categories of loss fall within the description of consequential loss.[158]
[157] Macmahon Mining Services v Cobar Management [2014] NSWSC 731 [13].
[158] Regional PowerCorporation v Pacific Hydro Group Two Pty Ltd(No 2) [2013] WASC 356 [94] citing Carter “Exclusion of Liability for Consequential Loss” (2009) 25 Journal of Contract Law 118 at 133.
A rigid approach that equates “consequential” with “everything beyond the normal measure of damages” should also be rejected.[159] The interpretation of equating consequential loss with everything beyond the normal measure of damages was first enunciated in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd.[160]It has been followed by a number of cases, including Allianz v Waterbrook[161] and in South Australia by Bleby J in Alstom v Yokogawa Australia (No 7)[162] but was rejected in Valentine Falls Estate Pty Ltd v SMEC Australia Pty Ltd[163] (affirmed in SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd[164]).
[159] Ibid.
[160] [2008] VSCA 26; (2008) 19 VR 386 at 388.
[161] [2009] NSWCA 224 [126] and [127].
[162] [2012] SASC 49 [289]. Bleby J rejected the Hadley v Baxendale approach.
[163] [2010] WASC 319.
[164] [2011] WASCA 138.
As pointed out by Bleby J in Alstom Power (No 7)[165], the word “consequential” connotes both direct and indirect consequences. In Macmahon Mining Services v Cobar Management[166], Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2)[167] and GEC Alsthom Australia Ltd v City of Sunshine[168] similar approaches to the construction of “indirect” and “consequential” were adopted. In each of these cases, it was held that “indirect” or “consequential losses” were understood to connote a loss that was a step removed from the transaction and its immediate effects. Atkinson J held in Saint Line Ltd v Richardson, Westgarth & Co Ltd[169] “direct damage is that which flows naturally from the breach without other intervening cause and independently of special circumstances, while indirect damage does not so flow”.
[165] Above [281]; Macmahon (above) [13].
[166] Above [13].
[167] Above [109].
[168] Unreported, FCA No BC 9600288, 20 February 1996).
[169] [1940] 2 KB 99 at 103.
In Regional Power, Kenneth Martin J held the economic losses or damages claimed by the plaintiff (such as replacement energy expenditures, labour and associated expenses) were properly characterised as direct losses.[170] His Honour went on to hold that in the circumstances of that case, loss or revenue was not consequential as it was not a step removed from the contemplated transactions and her immediate act.[171]
[170] Ibid [50].
[171] Regional Power (above) [114].
It follows from the statements of principle to which I have referred, that the injuries suffered by Gregory are, in my opinion, a direct consequence of a wrongful act of the Council (if that had been established). I reject the submission of the Council that all losses could be said to be indirect or consequential. Aside from the contributory negligence of Gregory, there is no intervening cause that has caused or contributed to the injury. If negligence on the part of the Council had been found and that the negligence caused the injury, then that wrongful act has caused Gregory to fall over the vertical cliff and onto the rocks.
It may be that not all of the losses claimed by Gregory could not be said to be direct losses. That however would be a matter that would be determined on a separate trial, if one was required to be heard, on the assessment of damages. For the purposes of this trial, the Council would have to prove that all of the losses sustained by Gregory were indirect losses. It has failed to do so and therefore this requirement of s 244 does not provide a basis for denying the liability of the Council.
Conclusion
For the reasons which I have set out, I dismiss the claim of the applicant.
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