Warren v District Council of the Lower Eyre Peninsula - [2025] SASCA 93

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA
[2025] SASCA 93
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
21 August 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
TORTS - NEGLIGENCE - OCCUPIERS' LIABILITY - DUTY OF CARE: EXISTENCE
TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - AT COMMON LAW - HOW DETERMINED - FAILURE TO WARN OR ADEQUACY OF WARNING
Appeal against a decision of a judge of the District Court dismissing a claim in negligence.
On 18 December 2013, the appellant suffered serious injury when he fell about 10 metres from a cliff onto rocks at a beach on the Eyre Peninsula.
The appellant claimed that the respondent (‘the Council’) breached its duty of care in failing to erect signs and/or barriers that would warn of the danger posed by the cliff and directing visitors to a safe route to the beach.
The trial judge dismissed the claim. He found the Council, as the occupier of the land, owed a duty of care to visitors to protect them from physical injury. However, he found that the Council did not breach its duty by failing to erect a warning sign or barrier.
Grounds 1 to 7 and 9 complain that the trial judge erred in finding that:
1. the Council did not breach its duty to the appellant;
2. the Car Park was not a ‘destination car park’;
3.there was a low probability that the risk of harm to the appellant would materialise if precautions were not taken;
4.the probability of harm to members of the public was low because a ‘sufficient combination’ of events was required to occur before the risk of harm would materialise;

5. the burden upon the Council of taking precautions to avoid the risk of harm was significant;
6.to avoid the risk of harm to the appellant the Council was required to have placed signage extending the whole of the area between the escarpment and the Car Park, and overlooked or gave insufficient weight to uncontested evidence that the Council had erected warning signs at other car parks in not dissimilar locations;
7.it was necessary for the Council to have encouraged the appellant to access the beach from the escarpment for a breach of duty to have occurred; and
9.a sign or barrier would not have had any effect in deterring the appellant from descending to the beach via the escarpment unless it was placed at the point of descent or between the bushes.

Ground 8 complains that the trial judge erred in failing to give sufficient weight to several particularised factors in finding that Council did not breach its duty of care.
Grounds 10 to 12 complain that the trial judge erred:
10.in not having regard to the consideration that all reasonable allowance should be made in favour of an appellant and against the respondent in circumstances where the respondent’s breach of duty has placed the appellant in the position of having to answer a counterfactual;
11.by giving consideration to other sites at which the Council would be required to provide warning signs or barriers when assessing the burden upon the Council without considering evidence or making a finding by way of comparison between the Car Park and other locations; and
12.in finding that the requirement for a risk assessment did not arise by virtue of the creation and maintenance of Greenly Beach Road and the Car Park and in relying upon expert evidence adduced by the Council as to a possible number of locations where a risk assessment would be required.

Held (by the Court), dismissing the appeal:
1.The judge’s failure to accept that the Car Park was a destination Car Park was not inconsistent with other findings of fact and was not in error (Ground 2).
2.The judge did not find that it was necessary for the respondent to have encouraged the appellant to access the beach for a breach of duty to have occurred (Ground 7).
3.The judge did not err in finding that there was a low probability that the risk of harm to the appellant would materialise if precautions were not taken (Ground 3).
4.The judge did not err in finding that the probability of harm to members of the public was low because a ‘sufficient combination’ of events was required to occur before the risk of harm would materialise (Ground 4).
5.The judge did not err in finding that the burden of taking precautions to avoid the risk of harm was significant in circumstances where he found the cost of installing a sign was insignificant. His reasons for rejecting the characterisation of the accident site as a destination site and the manifest dissimilarity of the ‘other locations’ meant he did not give insufficient weight to evidence of the measures taken at the other locations (Ground 5).
6.The judge did not err in finding that there was no obvious place where signs should be placed (Ground 6). Contrary to the judge’s finding, however, a low barrier could have been placed around the perimeter of the Car Park. The significance of that inference was subject to the question of the burden of what would be required of the Council at other sites.
7.The judge did not err in his assessment of the burden of taking precautions by reference to what would be required of the Council at other sites, including the placing of barriers or signs and the conducting of risk assessments (Grounds 11 and 12).
8.The judge did not err in failing to place greater weight on particular aspects of the evidence (Ground 8).
9.The complaints under Grounds 9 and 10 are hypothetical given the judge’s finding that there was no breach of duty and that causation could not be determined. It is not necessary to consider whether to draw further or different inferences relating to causation (Grounds 9 and 10).
10.The judge did not err in finding that the respondent did not breach its duty to the appellant (Ground 1).

Local Government Act 1999 (SA) s 244; Civil Liability Act 1936 (SA) ss 19, 20, 31, 32, 34, 35, 36, 37, 38, referred to.
Fox v Percy (2003) 214 CLR 118; Dearman v Dearman (1908) 7 CLR 549; The Glannibanta (1876) 1 PD 283; Warren v Coombes (1979) 142 CLR 531; Taylor v Johnson (1983) 151 CLR 422; Jovanovic v Rossi (1985) 58 ALR 519; Moran v McMahon (1985) 3 NSWLR 700; Jones v Dunkel (1959) 101 CLR 298; Vairy v Wyong Shire Council (2005) 223 CLR 422; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Brodie v Singleton Shire Council (2001) 206 CLR 512; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; Peter Steven Blenic v State of New South Wales [2010] NSWSC 1039; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; Chappel v Hart (1998) 195 CLR 232; Queen Elizabeth Hospital v Curtis [2008] SASC 344; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Betts v Whittingslowe (1945) 71 CLR 637; Naxakis v West General Hospital (1999) 197 CLR 269; Curtis v Harden Shire Council [2014] NSWCA 314; Shoalhaven City Council v Pender [2013] NSWCA 210; Strong v Woolworths Ltd (2012) 246 CLR 182, considered.

WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA
[2025] SASCA 93
Court of Appeal – Civil: Livesey P, Bleby and David JJA

THE COURT: On 18 December 2013, the appellant suffered serious injury when he fell about 10 metres from a cliff onto rocks at a beach on the Eyre Peninsula. The appellant had alighted from a motor vehicle that had just parked at the top of an escarpment overlooking the beach. The escarpment terminated with a 10‑metre cliff drop to the beach. The cliff drop was not visible from the top of the escarpment.
The appellant claimed that the respondent, the District Council of the Lower Eyre Peninsula (‘the Council’), breached its duty of care in failing to erect signs and barriers that would warn of the danger posed by the cliff and directing visitors to a safe route to the beach. The appellant also claimed that the Council ought to have conducted a risk assessment in respect of the Car Park area. An important premise of the claim was that the Council had created and maintained the car park where the appellant and his friends had parked, as well as the road terminating in that car park.
The trial judge dismissed the claim.[1] Briefly stated, he found that the Council, as the occupier of the land, owed a duty of care to visitors, including the appellant, to protect them from physical injury. However, he found that the Council did not breach its duty by failing to erect a warning sign or barrier. He made further findings on the alternative hypothesis that the Council had breached its duty of care. He found that causation would not have been established unless the scope of the duty extended to the placing of a sign or a barrier at the point of the appellant’s descent. He found that the appellant would have been contributorily negligent to the extent of 40 per cent. The defence of volenti non fit injuria was not made out; neither did s 244 of the Local Government Act 1999 (SA) operate as a defence.
[1] Warren by his Litigation Guardian Direlle Farr v District Council of the Lower Eyre Peninsula (No 3) [2024] SADC 37.
The Notice of Appeal challenges the determination that the Council did not breach its duty of care to the appellant and the hypothetical finding that causation was not established. The challenges are primarily challenges to findings of fact and inference. The Council filed a Notice of Alternative Contention.
The appeal is by way of rehearing. This Court is required to undertake its own assessment of the evidence. The High Court explained the role of this Court in Fox v Percy:[2]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”[3]. In Warren v Coombes[4], the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”[5].
(Footnotes in original)
[2] (2003) 214 CLR 118 at [25].
[3] Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287.
[4] (1979) 142 CLR 531 at 551.
[5] Warren v Combes (1979) 142 CLR 531 at 551. See also Taylor v Johnson (1983) 151 CLR 422 at 426; Jovanovic v Rossi (1985) 58 ALR 519 at 522; cf Moran v McMahon (1985) 3 NSWLR 700 at 715-716 per Priestley JA.
For the reasons that follow, we dismiss the appeal. In these circumstances, it is not necessary to address the Notice of Alternative Contention.
Background
The trial
The appellant did not give evidence at trial. The Council accepted that he was amnesiac, unable to recall the events surrounding his fall and of the claim. The appellant called four lay witnesses and two expert witnesses. Three of the lay witnesses, Mr Graham Warren (the appellant’s brother), Mr Elijah Burk and Mr Louis Stevens were part of the group who travelled with the appellant to the accident site. At the time of the accident, the appellant was 17 years old, Graham and Mr Burk were 18 years old, and Mr Stevens was 19 years old.
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 the appellant from the beach, also gave evidence. The appellant called two expert witnesses, Ms Melissa Mellen and Professor Ian Coyle. Ms Mellen is a chartered engineer with specific expertise in traffic and transport engineering. She produced four reports. Professor Coyle is a psychologist and human factors engineer. He provided four reports.
The Council also called four lay witnesses and two expert witnesses. Ms Sarah Barns was a member of the group who travelled to the cliffs on the day of the accident. Mr David Hall and Mr Gary Jutzen were employees of the District Council of the Lower Eyre Peninsula. Mr Hall was the Works Constructions Coordinator of the Council. Mr Jutzen was the works manager employed by the Council. The Council also called Mr Timothy Mills, the works manager of the District Council of Elliston, which adjoins the District Council of the Lower Eyre Peninsula to the northwest. The Council called Professor David Alais, a professor of experimental psychology at the University of Sydney and Mr Philip Verco, a civil engineer and consultant specialising in road engineering. Mr Verco produced three reports.
The Court and the parties travelled to Port Lincoln shortly after the beginning of the trial. They conducted a view of the accident site and its surrounds, including Greenly Beach Road. Part of the view included visits to other sites within the Council area that involved access to a beach from a clifftop area. They observed what safety measures the Council had put in place at those sites.
The observations made on the view did not constitute evidence at trial. However, some of the other sites that were visited were the subject of photographic evidence. The judge noted that these were helpful by way of observing some of the other safety measures that had been adopted at those sites. The parties tendered several hundred photographs of the accident site, its surrounds and the other sites.
The judge set out the factual issues in dispute at trial. His findings in relation to the events that occurred on the day of the accident are set out by way of summary below.
The accident site
The accident occurred in a remote location on the west coast of the Eyre Peninsula, approximately 50 kilometres north of Coffin Bay. The location is accessed by travelling along Flinders Highway, turning onto a dirt road, Coles Point Road, and driving about 12 kilometres towards Coles Point. Coles Point Road turns onto Greenly Beach Road, from which Greenly Beach can be accessed. Greenly Beach Road is about seven kilometres long and terminates at a car park area (‘the Car Park’). A track which is only suitable for four‑wheel‑drive vehicles continues further north along the coast. The judge accepted that the Car Park could properly be considered to be the end of Greenly Beach Road.[6]
[6] [2024] SADC 37 at [54].
The accident occurred in the vicinity of the Car Park. The Car Park was about three kilometres north of the well-known Greenly Beach Rock Pools.[7] The judge described the Car Park:[8]
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.
[7] [2024] SADC 37 at [62].
[8] [2024] SADC 37 at [52].
At the edge of the Car Park, the landscape descended to an escarpment. The Car Park was 38 vertical metres above the beach. The beach commenced about 64 horizontal metres from the point of descent at the Car Park. The escarpment ended in an abrupt and vertical cliff drop of about 10 metres, at the 64 horizontal metre point. This cliff drop could not be seen from the top of the escarpment. The appellant fell over this cliff drop and onto rocks on the beach below.
There were no facilities of any type at the Car Park or along Greenly Beach Road. There were no signs or barriers warning of danger at the Car Park. Graham Warren and Mr Foster gave evidence that the usual way of entering the beach from the Car Park was by a sandy gully, which the judge found commenced at about 90 metres north of the appellant’s point of descent.[9] It was by this gully that the appellant was carried out on stretcher following the accident.
[9] [2024] SADC 37 at [53].
The judge accepted that the Council had knowledge or ought to have known that some surfers, fisherman and swimmers used the beach.[10] Mr Hall, who supervised work in the vicinity of the Car Park, gave evidence that he would have lunch in the Car Park because of the nice view. Mr Foster gave evidence, which the judge accepted, that there had been increased public use of Greenly Beach Road and the beach below. He observed, around the time of the accident, cars travelling along the road to the accident site. He said that he would go to the beach at the end of the road up to 10 times per year. Nonetheless, the judge found that the accident site could not be described as a tourist attraction at the time of the accident.[11] He described the area as ‘wilderness coastline’.[12]
[10] [2024] SADC 37 at [414].
[11] [2024] SADC 37 at [51].
[12] [2024] SADC 37 at [50].
It was not contentious at trial that the Council was the occupier of the land at the accident site for the purposes of the Civil Liability Act 1936 (SA) (‘Civil Liability Act’) and a claim in negligence.
Travel to the accident site
On 18 December 2013, the appellant travelled, with a group of friends, along Greenly Beach Road and to the Car Park.
Graham Warren, Ms Barns, Mr Burk and Mr Stevens gave evidence about the events leading up to the accident. In the most part, at trial, there was no dispute about these events. There were differences in the witnesses’ recollections, particularly of peripheral events. The judge made the following findings.
The day was very hot, and the skies were clear. Either Graham or Ebony had suggested that they go to the ‘mermaid rock pools’. Graham and Ebony were the only members of the group who had been to this area before. Graham gave evidence that he had been to these rock pools a few times before.
The group of friends travelled to the accident site in three cars. Each of these cars was two-wheel drive. Graham drove the lead car, with Ebony, his girlfriend, and one other as passengers. The appellant and Mr Burk followed in a car driven by Mr Stevens. They were followed, in turn, by another car driven by Renee, with two other female passengers, including Ms Barns.
Greenly Beach Road to the Car Park was a dirt road with potholes. It could be driven by two-wheel drive vehicles. The judge accepted the evidence of Mr Foster, who was familiar with the site and the road, in preference to the evidence of Graham Warren and Mr Stevens, about the state of the road. He attributed to Mr Foster evidence that this road was trafficable but that you would not take your ‘Sunday best car’.[13] In fact, as the appellant submitted, Mr Foster was describing the track made on a road reserve that was separate from Greenly Beach Road.
[13] [2024] SADC 37 at [75].

The appellant drew attention to this mischaracterisation at the appeal hearing. This factual finding does not feature as a complaint in the lengthy and well-particularised Notice of Appeal. Nonetheless, the fact Mr Foster was not here referring to Greenly Beach Road is tangentially relevant to Ground 2, in that the finding as to the state of Greenly Beach Road to the Car Park was based on Mr Foster’s description of a different road reserve. Having said that, the judge noted that Mr Burk also confirmed the existence of potholes.[14]
[14] [2024] SADC 37 at [75].
The Car Park area
There were several factual disputes about the area where the group arrived to access the rock pools and the circumstances of their arrival. The Council admitted that it was responsible for the maintenance of Greenly Beach Road and any associated infrastructure.[15] It denied that it created or maintained infrastructure in the vicinity of the accident site. The judge summarised the issues:[16]
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 [the appellant] 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 [the appellant] commenced descending the escarpment?
7.What were the actions of [the appellant] and other members of the group upon arrival at the Car Park to the time [the appellant] commenced descending the escarpment?
[15] [2024] SADC 37 at [33].
[16] [2024] SADC 37 at [77].
The judge found that the area functioned as both a Car Park and a turnaround area.[17] It was not contested that the Council created Greenly Beach Road to the Car Park.[18] Grading records indicated that maintenance grading had occurred on the section of Greenly Beach Road from the top of the hill leading down to the Car Park. The maintenance grading only took place periodically, generally about once a year.[19] As to the Council’s purpose in maintaining the road, the judge found:[20]
The maintenance grading of Greenly Beach Road was clearly for the purpose of improving the condition of the road for vehicles. Mr Hall admitted as much when he said in cross‑examination that the grading was to smooth and flatten out the road so that vehicles could more comfortably and conveniently travel over the road and so that the road was more serviceable.
[17] [2024] SADC 37 at [81].
[18] [2024] SADC 37 at [119].
[19] [2024] SADC 37 at [121].
[20] [2024] SADC 37 at [125].
The judge considered that an inference was available, based on the grading records and the evidence of Ms Mellen, the transport engineer, that grading occurred along Greenly Beach Road and at the Car Park both at the time that the Car Park had been created and since that time. He was more confidently able to draw that inference given the failure of the Council to call Mr Arnold and Mr Micken, who were the grader operators for the Council.[21] The judge therefore accepted that the Council did work, albeit minimal work, in the formation of the Car Park, using a grader. He found that the Car Park was basic in that it was not bituminised, formally designed or set out.[22]
[21] [2024] SADC 37 at [91]-[92], referring to Jones v Dunkel (1959) 101 CLR 298.
[22] [2024] SADC 37 at [103].
Events following arrival at the Car Park
The judge accepted Graham’s evidence that he was the first to arrive at the Car Park. Graham parked parallel to the coast, facing north and slightly forward of a gap in the vegetation through which the appellant passed before falling over the cliff.[23]
[23] [2024] SADC 37 at [136].
The car driven by Mr Stevens, in which the appellant and Mr Burk were passengers, was the next to arrive. It parked behind the first car, also facing north. Mr Stevens parked approximately opposite to the gap in the vegetation.[24]
[24] [2024] SADC 37 at [137].
The view upon arrival at the Car Park showed a line of cliffs in a northerly direction, descending with varying degrees of steepness to the beach below. It was apparent from the Car Park and where the vehicles were parked that the Car Park was about 30-40 metres above the beach.
Mr Burk exited the vehicle driven by Mr Stevens, walked through the gap in the vegetation and went straight down the escarpment. He did not stop at the top of the escarpment but just went straight down. He did not wait for anyone. He did not run to the gap. This finding required a consideration of contradictory evidence of Ms Barns. The judge was not prepared to accept Ms Barns’s account that Mr Burk ran. He explained this finding.[25]
[25] [2024] SADC 37 at [152].
Mr Burk said that the appellant was about a metre behind him when they started their descent. Given the appellant had travelled from the other side of the vehicle to get to this position, the judge inferred that he had moved more quickly than Mr Burk.[26]
[26] [2024] SADC 37 at [160].
The judge accepted Mr Burk’s evidence that he did not run to the gap[27] and that he was not racing with the appellant.[28] He was not prepared to find that Mr Burk or the appellant ran down the escarpment. He found that Mr Burk and the appellant went straight down the escarpment and did not pause at the point of descent (or any other point) to scrutinise the escarpment below and the potential dangers.[29]
[27] [2024] SADC 37 at [152].
[28] [2024] SADC 37 at [159].
[29] [2024] SADC 37 at [160].
The judge found that neither Mr Burk nor the appellant had been down the escarpment previously and neither knew of the vertical cliff.[30] He accepted the evidence of Mr Burk that he went straight down the escarpment at a fast walk and gained momentum as he descended. He drew an inference that the appellant proceeded in a similar way. The appellant was in and out of control and was leaning forward because he had built up momentum. Mr Burk and the appellant were getting quicker and quicker.[31] They proceeded straight down the escarpment and did not pause at any stage.[32]
[30] [2024] SADC 37 at [245].
[31] [2024] SADC 37 at [246].
[32] [2024] SADC 37 at [248].
Mr Burk said that he first saw the vertical cliff from about 10 metres away. He saw then that the escarpment did not lead to the beach. He pushed his feet into the ground and lay back, stopping himself.[33]
[33] [2024] SADC 37 at [239].
Mr Burk said that he did not see the appellant as he descended the escarpment until the appellant passed him near the vertical cliff at the bottom of the escarpment.[34] The judge found, relying on Mr Burk and Mr Stevens’ evidence, that the appellant stumbled and tripped over a ledge near the bottom of the escarpment. He fell over the vertical cliff and landed on the rocks below.[35] Mr Burk said he got up and peered over the edge of the cliff. He saw the appellant lying on the rocks below and turned around and called out for help.[36]
[34] [2024] SADC 37 at [238].
[35] [2024] SADC 37 at [249].
[36] [2024] SADC 37 at [239].
There was no dispute about the events following the appellant falling over the cliff and landing on the rocks. The judge said:[37]
For the purposes of causation, it may be accepted that [the appellant] sustained serious injuries as a result of the fall. The precise nature of those injuries is a matter for the quantum trial, should there be such a trial.
[37] [2024] SADC 37 at [250].
Graham descended the escarpment and climbed down the cliff to reach the appellant. He performed CPR on the appellant. The appellant was unconscious. Others in the group went to the sandy gully to reach the appellant. Graham said that he could recall yelling to call an ambulance. Mr Stevens called the ambulance.
There was considerable delay in the CFS finding and attending the location. The circumstances of the accident were undoubtedly traumatic for the witnesses. When the CFS attended, they took the appellant on a stretcher up the sandy gully to the north of the escarpment.
Risk and view from the top of the escarpment
The judge addressed what he described as a number of interrelated issues in assessing the risk from the top of the escarpment where the appellant and Mr Burk descended:[38]
1.How steep was the escarpment and how was that steepness perceived from the point where [the appellant] and Mr Burk descended the escarpment (the point of descent)?
2.Was there an appearance of a path down the escarpment or towards the Car Park?
3.What was the condition of the escarpment and had its condition changed from the date of the accident to the present time?
4.What could be seen from the point of descent?
[38] [2024] SADC 37 at [161].
A number of lay and expert witnesses gave evidence on these issues, including expert psychologists who gave evidence on what someone would perceive when they were at the top of the escarpment. On this topic, the appellant called Professor Coyle and the Council called Professor Alais.
Graham said that the escarpment went down at a slope and then at the end there was a steep drop. He said that it ‘just looked like a sandhill that went down to the beach’.[39] In cross examination, he agreed that the terrain depicted in the photographs taken in February 2014, about eight weeks after the accident; in 2017; and in February 2022, looked similar in that they depicted rocky terrain with sand and tussocky shrubs.[40] However, he said there was a lot more sand and less bush on the day of the accident, in comparison to that depicted in the photographs exhibited at trial (which were taken about eight weeks after the accident).[41] He expressed a doubt that anyone would have ‘run down that side or tried to’ if the cliff looked like it did in the photographs on the day of the accident.[42]
[39] [2024] SADC 37 at [164].
[40] [2024] SADC 37 at [169].
[41] [2024] SADC 37 at [165].
[42] [2024] SADC 37 at [167].
Mr Burk said that from the top of the escarpment, it looked like a sandhill that rolled straight to the beach.[43] Mr Burk said the escarpment had more sand on the day of the accident than photographs exhibited at trial. He described there being ‘a bit more sand’ in comparison to photographs taken eight weeks after and ‘a lot more sand’ in comparison to photographs taken in February 2022.[44] Mr Stevens also gave evidence that there was more sand on the day of the accident when compared with a recent photograph.[45]
[43] [2024] SADC 37 at [170].
[44] [2024] SADC 37 at [171].
[45] [2024] SADC 37 at [173].
Mr Foster attended the scene of the accident a few days after the accident occurred. He said that he descended to a clump of vegetation but no further as he said the escarpment was too steep and too unstable. He said that the escarpment looked the same as it did as when he gave evidence.[46] In cross‑examination, he said that he went back to the escarpment to confirm his view that he could not ‘imagine anyone going over there’. He agreed that the cliff was obviously too dangerous to descend.[47]
[46] [2024] SADC 37 at [177].
[47] [2024] SADC 37 at [180].
As to the expert psychologists, the judge preferred the evidence of Professor Alais, who had been to the site and examined the escarpment from the point of descent.[48] Professor Alias said that on attending the site, he perceived a high risk in standing at the gap and descending the cliff. He said that cameras can understate the steepness, the size, height and distance. He thought the hillsides were much steeper than he had envisioned from looking at the photographs.[49]
[48] [2024] SADC 37 at [218].
[49] [2024] SADC 37 at [199].
Professor Alias also referred to visual clues as to risk including depth and optical clues. The near distance, being that of the escarpment, and the far distance, being the beach or ocean below, could be observed, but the middle distance could not. This would indicate to someone standing at the edge of the bushes that there was a gulf of unknown and a potentially risky space in the middle distance that could not be observed from the top of the escarpment.[50]
[50] [2024] SADC 37 at [199].
The judge found the escarpment was very steep and appeared so from the top of the escarpment.[51] He preferred the evidence of Mr Foster to the evidence of Graham, Mr Burk or Mr Stevens on the apparent steepness of the escarpment. Mr Foster had been to the site many times before the accident, he was independent, he visited the site a few days after the accident and made observations at a time when he was not in a heightened emotional state.[52] The judge considered that Graham, Mr Burk and Mr Stevens had understated the steepness of the escarpment.[53] He accepted Professor Alais’s description of a ‘steeply descending and dangerous slope’. He found that someone walking at the point of descent was in a position to assess that the escarpment was very steep and dangerous and was not safe to descend.[54]
[51] [2024] SADC 37 at [211].
[52] [2024] SADC 37 at [214].
[53] [2024] SADC 37 at [214].
[54] [2024] SADC 37 at [218].
The judge found, contrary to the appellant’s submissions, that the escarpment did not appear as a sandhill on the day of the accident. He accepted Mr Foster’s evidence that the condition of the escarpment had not changed from the day of the accident to February 2022,[55] and rejected Graham’s evidence to the contrary, accepting the Council’s submission that it was implausible.[56] The composition of the escarpment included rocks and bushes, which were evident from the point of descent. There was nothing that could be described as a path down the escarpment or from the Car Park to the escarpment.
[55] [2024] SADC 37 at [227].
[56] [2024] SADC 37 at [229].
The judge concluded:[57]
In summary, from the point of descent the escarpment was very steep and appeared to be very steep. It could not be characterised as a sandhill although there was some sand on the escarpment. There was no defined pathway. From the point of descent, a clear way to the beach could not be seen. The middle distance, to use the terminology of Professor Alais, could not be seen.
[57] [2024] SADC 37 at [236].
Council allocation of funds
The parties adduced evidence of the funds available to the Council and how they were allocated as relevant to the risk assessments that might be undertaken and the practicality of the Council taking safety measures at the accident site.
There was no evidence that the finances of the Council were such that it was not financially feasible to erect signs at the Car Park. The judge accepted that the cost of erecting a sign was insignificant.[58] He accepted that it was the practice of the Council to allocate resources where the risk was the greatest and therefore to areas such as a heavily used road first.[59] He also accepted the evidence of Mr Jutzen that it was beyond the resources of the Council to conduct risk assessments of all areas along the coast.[60]
[58] [2024] SADC 37 at [260].
[59] [2024] SADC 37 at [261].
[60] [2024] SADC 37 at [262].
The determination at trial
The Civil Liability Act governed the liability of the Council. The judge noted that this does not constitute a code and that s 20, which governs an occupier’s duty of care, provides that an occupier’s liability is to be determined in accordance with the principles of negligence.
The relevant sections of the Civil Liability Act are reproduced here:
Part 4—Occupiers liability
19—Interpretation
In this Part, unless the contrary intention appears—
…
occupier of premises means a person in occupation or control of the premises, and includes a landlord;
premises means—
(a)     land; …
20—Occupier's duty of care
(1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account—
(a)     the nature and extent of the premises; and
(b)     the nature and extent of the danger arising from the state or condition of the premises; and
(c)     the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)     the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)     the extent (if at all) to which the occupier was aware, or ought to have been aware, of—
(i)      the danger; and
(ii)     the entry of persons onto the premises; and
(f)      the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)     the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)     any other matter that the court thinks relevant.
…
Part 6—Negligence
Division 1—Duty of care
31—Standard of care
(1) 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.
…
32—Precautions against risk
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)     the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)     the risk was not insignificant; and
(c)     in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)     the probability that the harm would occur if precautions were not taken;
(b)     the likely seriousness of the harm;
(c)     the burden of taking precautions to avoid the risk of harm;
(d)     the social utility of the activity that creates the risk of harm.
…
Division 3—Assumption of risk
36—Meaning of obvious risk
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or matters of common knowledge.
(3) A risk may be obvious even though it is of low probability.
37—Injured persons presumed to be aware of obvious risks
(1) If, in an action for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not actually aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
(3) However, in order to establish a defence of voluntary assumption of risk, it is necessary to establish that the risk was such that a reasonable person in the plaintiff's position would have taken steps (which the plaintiff did not in fact take) to avoid it.
38—No duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
…
The judge accepted that the Council, as the statutory authority with the control and management of the land where the accident occurred, was the occupier of the land within the meaning of s 19. Referring to Vairy v Wyong Shire Council,[61] he described the duty of the Council owed to persons visiting the land to be:[62]
… to take reasonable care to safeguard them against injury arising from its care, control and management of the land and its role as occupier. A finding that the Council constructed and maintained Greenly Beach Road and the Car Park is not necessary to establish that the Council owed a duty of care. The question of the construction and maintenance of the road and the Car Park is relevant to questions of standard of care and breach.
[61] (2005) 223 CLR 422 at [20] (McHugh J); [117]-[118] (Hayne J).
[62] [2024] SADC 37 at [307].

The judge accepted that the duty extended to reasonably protecting a person who might injure themselves through inadvertence or inattention.[63] He noted that a person ordinarily will be expected to take reasonable care for their own safety.[64]
[63] [2024] SADC 37 at [308], citing Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [76] and [79] (McHugh J).
[64] [2024] SADC 37 at [309], citing Brodie v Singleton Shire Council (2001) 206 CLR 512 at [355] (Callinan J).
The judge characterised the question at trial as being whether, in all the circumstances, the discharge of the duty of care required the erection of a sign or barrier or some form of risk assessment.[65]
[65] [2024] SADC 37 at [312].
As to this, the judge noted that there is no duty to warn as a matter of law. Rather, the question is what the standard of care required in the circumstances of the case to discharge the Council’s duty of reasonable care. The judge referred to the statement of the majority in Nagle v Rottnest Island Authority:[66]
As occupier under the statutory duty [to manage and control the public reserve on the Island's coast for the benefit of the public], the Board [of the Authority], by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.
[66] (1993) 177 CLR 423 at 430 (Mason CJ, Deane, Dawson and Gaudron JJ), cited at [2024] SADC 37 at [313].
Following an analysis of the authorities,[67] the judge concluded, correctly, that the question was whether the failure to erect any signage or a barrier, or to conduct a risk assessment, was, in the circumstances of the case, a breach of the duty of care. That was a question of fact. Thus, for example, in Vairy v Wyong Shire Council,[68] Gleeson CJ and Kirby J said:[69]
Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign.
[67] Vairy v Wyong Shire Council (2005) 223 CLR 422; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Hoyts Pty Ltd v Burns (2003) 201 ALR 470.
[68] (2005) 223 CLR 422.
[69] Vairy v Wyong Shire Council (2005) 223 CLR 422 at [7].
Having characterised and explained these matters of principle accurately, the judge then found as follows:
·the Council, as the occupier of the land where the accident occurred, owed a duty of care to visitors, including the appellant, to protect them from physical injury;[70]
[70] [2024] SADC 37 at [323]. It may be added that the duty is owed to visitors to protect them from the risk of reasonably foreseeable injury.
·the risk of harm was the risk that the appellant would descend the escarpment, believing it to be a path to the beach and be unable to stop when encountering the cliff, and would fall over the cliff and injure himself.[71] In characterising the risk in this way, the judge relied on Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd[72] in describing the approach to be taken to whether there had been a breach of duty by a respondent. The risk was required to be characterised at the appropriate level of generality, from the position of a reasonable person in the position of the appellant.[73] Consistently with Tapp, the judge rejected a description of the risk as being a risk of falling and suffering some injury while going down the escarpment as too broad a characterisation of the risk.[74] Rather, the risk involved two elements: going down the escarpment to access the beach; and losing his footing and falling over the cliff;[75]
·the risk was not an obvious risk for the purposes of ss 36 and 38 of the Civil Liability Act to a person in the appellant’s position. This was because the risk posed by the vertical cliff could not be seen from the point of descent and, to a teenager, it was not obvious that there was such a risk;[76]
·the Council ought to have known of the risk such that the risk was foreseeable within the meaning of ss 32(1) and 20(2)(e) of the Civil Liability Act;[77]
·while the risk was improbable, it was not insignificant within the meaning of s 32 of the Civil Liability Act;[78]
·the Council did not breach its duty of care by failing to erect a warning sign or barrier;[79]
·the Council did not breach its duty of care by failing to inspect and assess the Car Park area;[80]
·on the hypothetical premise that the Council breached its duty of care, on the topic of causation, the placement of a sign or barrier would not have had an effect on the behaviour of the appellant unless it was placed at the point of descent or all along the edge of the interface between the Car Park and the escarpment. It was not possible to say what the Council ought to have done and therefore determine whether factual causation had been established;[81]
·again on the hypothetical premise that the Council breached its duty of care, the appellant was contributorily negligent to the extent of 40 per cent;[82]
·on same the hypothetical premise, the defence of volenti non fit injuria was not made out;[83]
·on same the hypothetical premise, s 244 of the Local Government Act did not operate as a defence available to the Council.[84]
[71] [2024] SADC 37 at [337].
[72] (2022) 273 CLR 454.
[73] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 at [108]; [113].
[74] [2024] SADC 37 at [334].
[75] [2024] SADC 37 at [336].
[76] [2024] SADC 37 at [351].
[77] [2024] SADC 37 at [370].
[78] [2024] SADC 37 at [375].
[79] [2024] SADC 37 at [435].
[80] [2024] SADC 37 at [445].
[81] [2024] SADC 37 at [471]-[473].
[82] [2024] SADC 37 at [483].
[83] [2024] SADC 37 at [491].
[84] [2024] SADC 37 at [513].
The appeal
Grounds 1 to 7 and 9 complain that the trial judge erred in finding that:
1. the Council did not breach its duty to the appellant;
2. the Car Park was not a ‘destination car park’;
3.there was a low probability that the risk of harm to the appellant would materialise if precautions were not taken;
4.the probability of harm to members of the public was low because a “sufficient combination” of events was required to occur before the risk of harm would materialise;
5.the burden upon the Council of taking precautions to avoid the risk of harm was significant;
6.to avoid the risk of harm to the appellant the Council was required to have placed signage extending the whole of the area between the escarpment and the Car Park, and overlooked or gave insufficient weight to uncontested evidence that the Council had erected warning signs at other car parks in not dissimilar locations;
7.it was necessary for the Council to have encouraged the appellant to access the beach from the escarpment for a breach of duty to have occurred;
9.a sign or barrier would not have had any effect in deterring the appellant from descending to the beach via the escarpment unless it was placed at the point of descent or between the bushes.
Ground 8 complains that the judge erred in failing to give sufficient weight to several particularised factors in finding that Council did not breach its duty of care.
Grounds 10 to 12 complain that the trial judge erred:
10.in not having regard to the consideration that all reasonable allowance should be made in favour of an appellant and against the respondent in circumstances where the respondent’s breach of duty has placed the appellant in the position of having to answer a counterfactual;
11.by giving consideration to other sites at which the Council would be required to provide warning signs or barriers when assessing the burden upon the Council without considering evidence or making a finding by way of comparison between the Car Park and other locations; and
12.in finding that the requirement for a risk assessment did not arise by virtue of the creation and maintenance of Greenly Beach Road and the Car Park and in relying upon expert evidence adduced by the Council as to a possible number of locations where a risk assessment would be required.
Ground 1 is an overarching complaint about the judge’s ultimate conclusion. It is convenient first to address the specific complaints of fact‑finding and inference, before turning to the separate complaints about the judge’s reasoning and, finally, the judge’s conclusion.
The finding that the Car Park was not a ‘destination car park’ (Ground 2)
Ground 2 reads as follows:
2.The learned trial judge erred in finding that the Car park was not a ‘destination car park’ in the sense in which that term was employed by the appellant in the trial (R [418]) and such finding is inconsistent with findings that:
(a)     the respondent had created Greenly Beach Road including from the top of the hill to the Car Park (R [119]);
(b)     the respondent did work in forming the Car Park (R [103]);
(c)     the Car Park was the end of Greenly Beach Road (R [54]);
(d)     the respondent engaged in maintenance of the road and Car Park for the purpose of improving the condition of the road and Car Park and making it easier for vehicles and people to visit the Car Park (R [125], [416]);
(e)     employees of the respondent would commonly park at the Car Park when working in the wider area for the purpose of enjoying their lunch break (R [82]);
(f)     that north of the Car Park the road is properly described as a track which is inferior to the road leading into the Car Park and is suitable only for four wheel drive vehicles (R [54], [79]) [a track which on the evidence was created only by vehicles driving over it];
The complaint of inconsistency with earlier findings requires interrogation of those findings. The finding that the Council had created Greenly Beach Road was a finding that the Council had used a grader in the creation of Greenly Beach Road from the ravine down to the Car Park, following the washout of the ravine 20-25 years ago.[85] As to the finding that the Council had created the Car Park, the judge considered that what was in dispute was a question of degree. He found that the Council ‘did work’ in the formation of the Car Park. He held it was ‘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’.[86]
[85] [2024] SADC 37 at [119].
[86] [2024] SADC 37 at [103].
The judge accepted that the Car Park could properly be considered to be the end of Greenly Beach Road, as the track that continued on was a narrow, inferior track suitable only for four-wheel drive vehicles.[87] As to the maintenance of Greenly Beach Road, the judge found that this was done ‘clearly for the purpose of improving the condition of the road for vehicles’.[88]
[87] [2024] SADC 37 at [54].
[88] [2024] SADC 37 at [125].
The appellant’s description of the next finding, being that ‘employees of the respondent would commonly park at the Car Park when working in the wider area for the purpose of enjoying their lunch break’ overstates matters. The finding occurred in the context of the judge’s characterisation of the Car Park as both a car park and a turnaround area. The judge noted, and implicitly accepted, the evidence of Mr Hall that when he was in the position of works manager at the Council, he would commonly park at the area at lunchtime. Nevertheless, the judge also accepted the evidence of Mr Foster that he would see people travel along the road and park at the area.[89]
[89] [2024] SADC 37 at [82].
The judge’s finding that the track leading from the north of the Car Park as narrower than the road and requiring a four-wheel drive vehicle[90] has been referred to earlier. This finding contributed to the finding that the Car Park marked the end of Greenly Beach Road.
[90] [2024] SADC 37 at [54]; [79].
The judge summarised his findings as to the role of the Council in creating and maintaining the Car Park to the effect that the Council:[91]
1.created Greenly Beach Road to the Car Park;
2.created the Car Park;
3.performed grading work from time to time on the road and on the Car Park; and
4.to some degree, by undertaking those actions encouraged or made it easier for persons to come to the Car Park.
[91] [2024] SADC 37 at [416].
The judge then indicated that he did not accept that the Council had encouraged the appellant to descend the escarpment. To descend was self‑evidently dangerous. The escarpment was part rock and part sandy, without any pathway. A person could not see an entire pathway to the beach from the point of descent.[92]
[92] [2024] SADC 37 at [417].
That being the case, the judge then concluded:[93]
It follows that I also do not consider that by undertaking some work in creating and maintaining Greenly Beach Road and the Car Park, the Council can be said to have encouraged visitors to drive to the Car Park and then access the beach from the escarpment. The applicant referred to the Car Park as a destination car park. I do not agree with that description. That description implies a level of work or activities undertaken by the Council to encourage visitors to the Car Park which I do not consider occurred. The minimal work done by the Council in maintaining the road and the Car Park (and creating the road and the Car Park in the first place) is not sufficient to describe the Car Park as a destination car park.
[93] [2024] SADC 37 at [418].
It is apparent that the judge reached this conclusion as an assessment of the degree of encouragement that the Council held out to potential visitors. The appellant coined the phrase ‘destination car park’. This appears to have been intended to incorporate both the physical characteristics of the Car Park, as created by the Council, and the consequent encouragement thereby communicated (consciously or not) to potential visitors to visit the Car Park. The judge accepted that the work done by the Council provided some degree of encouragement to visitors. However, that encouragement was of insufficient degree to warrant the description the appellant appended to the Car Park.
The appellant submitted that the judge’s conclusion here ‘miss[ed] the point’. He submitted that the judge’s use of the term ‘destination car park’ incorporated the notion of the Council consciously encouraging visitors, which was not the point of the submission. Rather, the very availability of the trafficable road was an encouragement to visit the Car Park. The Car Park was at the end of a road and a ‘natural stopping point’. It sat above an attractive beach which the Council knew, or ought to have known,[94] was frequented by surfers, fishers and swimmers.
[94] [2024] SADC 37 at [414].
On this basis, the appellant submitted:
It is not to the point that the Council did not actively encourage visitors to access the beach from the Car Park in those circumstances. In particular, it is not to the point that the Council did not encourage such access either by the sandy gully or over the escarpment. Having created a ready means of access to a stopping point above an attractive beach, the relevant consideration is that there was a real and sufficient likelihood, and it was foreseeable, that visitors to the Car Park would access the beach either by going down the escarpment or through the sandy gully.
The judge inferred that the description implied ‘a level of work or activities undertaken by the Council to encourage visitors to the Car Park’. On its own, this might suggest that the judge was inferring that the description incorporated a degree of conscious encouragement. However, the judge’s rejection of the description was firmly grounded in the level of works undertaken, not the Council’s intention in performing them. We reject the submission that the judge mischaracterised the phrase ‘destination car park’.
The above submission also complains that ‘the relevant consideration’ was that it was foreseeable that visitors would, on reaching the Car Park, then seek to access the beach below. That is a separate question. The complaint in Ground 2, consistently with the appellant’s submission at trial, was that the judge erred in rejecting the submission that the Car Park was a ‘destination car park’. Characterisation of the Car Park as a ‘destination car park’ was a matter of factual inference, by degree. Ground 2 complains that the failure to accept that characterisation was inconsistent with other findings of fact. It was not. It was an inference that was clearly open, given the limited works done on both Greenly Beach Road and the Car Park. Those findings did not deny that those works gave some level of encouragement to visitors, just not to the degree that the appellant had submitted they did. Further, we do not think the judge’s misattribution of Mr Foster’s description of a different road reserve to Greenly Beach Road, discussed earlier, detracts from the conclusion that the Car Park was not a destination car park, in circumstances where the judge found that Greenly Beach Road was nevertheless trafficable.
We dismiss Ground 2 of the appeal.
The apparent finding that it was necessary for the Council to have encouraged the appellant to access the beach from the escarpment for a breach of duty to have occurred (Ground 7)
The complaint in Ground 7 is closely connected to that in Ground 2. It is convenient to address it next. Ground 7 reads as follows:
7.The learned trial judge erred in apparently finding that it was necessary for the respondent to have encouraged the appellant to access the beach from the escarpment for a breach of duty to have occurred (R [417], [418]) when he also found that:
(a)     the respondent had created Greenly Beach Road including from the top of the hill to the Car Park (R [119]);
(b)     the respondent did work in forming the Car Park (R [103]);
(c)     the Car Park was the end of Greenly Beach Road (R [54]);
(d)     the respondent engaged in maintenance of the road and Car Park for the purpose of improving the condition of the road and Car Park and making it easier for vehicles and people to visit the Car Park (R [125], [416]);
(e)     the respondent was aware that members of the public accessed the beach from the Car Park for the purposes of fishing, surfing and swimming (R [414]);
(f)     the respondent must take into account that young people less cognisant of risks would visit the site (R [413]).

The first four of these particulars repeat the first four in Ground 2 and have been addressed earlier as to the precise findings made. The finding the subject of Particular (e) is also addressed above. As to Particular (f), the judge accepted the appellant’s submission to that effect.[95]
[95] [2024] SADC 37 at [413].
The Notice of Appeal describes the finding complained of in this ground as an ‘apparent’ finding. The paragraphs of the judge’s reasons referred to as containing that apparent finding are those, referred to above, by which the judge did not accept that the Council encouraged the appellant to descend the escarpment and rejected the appellant’s submission that the Car Park was a destination car park. They do not contain a finding that it was necessary for the Council to have encouraged the appellant to access the beach from the escarpment for a breach of duty to have occurred. These paragraphs simply state the judge’s rejection of certain inferences that the appellant submitted he should draw. This is demonstrated from the paragraph immediately following:[96]
The Council did not provide any access to the beach from the Car Park and therefor [sic] did not encourage visitors to access the beach from the Car Park which was self‑evidently on top of cliffs, 30-40 metres from the beach.
[96] [2024] SADC 37 at [419].
The judge based his ultimate conclusion, that the Council did not breach its duty, on all the factors he brought to account including these findings of fact. The appellant has not established the premise of Ground 7.
The finding that there was a low probability that the risk of harm to the appellant would materialise if precautions were not taken (Ground 3)
Ground 3 reads as follows:
3.The learned trial judge erred in finding that there was a low probability that the risk of harm to the appellant would materialise if precautions were not taken (R [386], [387], [412]) and such finding is inconsistent with findings that:
(a)     it was not possible from the Car Park to see the vertical cliff at the bottom of the escarpment (R [351]);
(b)     there were no visual cues to the presence of a concealed vertical cliff from the point of descent (R [301]);
(c)     the Council had knowledge, or ought to have known, that members of the public, including swimmers, fishers and surfers, used the beach below the Car Park (R [414]);
(d)     the respondent was aware that members of the public accessed the beach from the Car Park for the purposes of fishing, surfing and swimming (R [414]);
(e)     the respondent must take into account that young people less cognisant of risks would visit the site (R [413]);
This ground concerns the judge’s consideration of probability of harm pursuant to s 32(2)(a) of the Civil Liability Act. It is convenient to set out again here the judge’s characterisation of the risk of harm facing the appellant:[97]
Properly characterised, the risk of harm facing [the appellant] was that he would descend down the steep escarpment, believing it to be a pathway to the beach and because of inadvertence, accident or some other reason, would be unable to stop when he came to the vertical cliff at the bottom of the escarpment and would fall over that cliff and injure himself.
[97] [2024] SADC 37 at [337].
The appellant does not challenge this characterisation of the risk of harm that he faced, although the Council does so in its Notice of Alternative Contention, in arguing that the risk should have been characterised as an obvious risk for the purpose of s 38 of the Civil Liability Act. For present purposes, the complaint is made on the basis of the judge’s characterisation of the risk. In that regard, it is pertinent to note again here the dual character of the risk.
As to the particularised findings said to be inconsistent with the conclusion of a low probability of the risk materialising if precautions were not taken, the inability to see the vertical cliff from the top of the escarpment was a fact that the judge found in the course of concluding that the risk was not obvious.[98] Secondly, the judge expressed his finding about a lack of visual clues as to the presence of the vertical cliff by noting the experts’ agreement about that.[99] The point is the same as the first, in that the cliff could not be seen from the top of the escarpment.
[98] [2024] SADC 37 at [351].
[99] [2024] SADC 37 at [301].
Particulars (c) and (d) express the same thing, being the Council’s knowledge that surfers, fishers and swimmers used the beach. We have referred to that finding, above. As to particular (e), the judge held:[100]
I accept the submission of the applicant that the Council must take into account that young persons such as the applicant might visit the site and that they may be less cognisant of risks (including the risk of descending the escarpment) than older persons.
[100] [2024] SADC 37 at [413].
The appellant therefore relied on the inability to see the cliff from the top, the fact that surfers, fishers and swimmers were known to use the beach, and that young people may be less cognisant of the risk of descending the escarpment, as being inconsistent with the finding that there was a low probability that the risk of harm, as described, would materialise.
The judge premised his finding that there was a low probability that the harm would occur on some further observations. First, the Car Park was ‘self‑evidently’ high above the beach. Further, the row of cliffs above the beach was clearly visible to the north of the Car Park.[101] The judge also noted that there was no evidence that other persons had, to the knowledge of the Council, used the escarpment as a means of accessing the beach. Neither was there any evidence that other persons were regularly using the escarpment as an access.[102]
[101] [2024] SADC 37 at [384].
[102] [2024] SADC 37 at [385].
The judge then explained his finding of low probability that the harm would occur:[103]
[103] [2024] SADC 37 at [386]-[387].
Notwithstanding a finding that the risk was foreseeable and not insignificant, I consider that there was in fact a low probability that the harm would occur, even if precautions were not taken. I have set out the series of steps that had to occur before the harm materialised. They were:
1.    A visitor to the site wrongly assessing the escarpment as the way to the beach, even though the entire route to the beach was not visible;
2.    A visitor to the site wrongly assessing the escarpment as a sandhill (and not observing the ledges);
3.    A visitor to the site wrongly assessing the steepness of the escarpment and concluding that it was safe to descend;
4.    A visitor to the site wrongly assessing that it was safe to descend straight down the escarpment and not descend in a careful manner;
5.    A visitor to the site not turning his or her mind to possible impediments when descending the escarpment, given the height of the escarpment at the point of descent; and
6.    A visitor to the site through inadvertence or accident, stumbling or losing their footing, being unable to stop falling over the cliff.
There was a low probability that a sufficient combination of these events would occur and that the risk of harm would materialise.
These steps are a function of the judge examining closely the dual character of the risk in the context of the view of the cliffs to the north of the Car Park and the lack of evidence as to any person using the escarpment as a means of access to the beach.
The appellant submitted that in making this finding of low probability, the judge was ‘apparently’ referring back to his analysis of the significance of the risk. In doing so, the judge did not expressly refer to or take into account the youth of the appellant. The judge had said, in his assessment of the significance of the risk, that that assessment was to be judged from the position of the respondent and prospectively.[104]
[104] [2024] SADC 37 at [372], referring to Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 at [103].
It is not clear that the judge was referring back to his assessment of significance of the risk in this analysis, other than to note his conclusion that the risk was not insignificant. He had expressed that conclusion in the following terms:[105]
In my opinion, the risk could not be described as insignificant even though I consider it to be improbable. There was a logical, coherent risk that someone could make the series of missteps that have been described above and descend the escarpment and then fall over the vertical cliff.
[105] [2024] SADC 37 at [375].
The judge then considered that series of missteps when assessing the probability of the harm occurring, pursuant to s 32(2)(a). These two analyses are not inconsistent. Neither is the judge’s analysis of the probability of harm inconsistent with the particularised facts in Ground 3 of the Notice of Appeal. Indeed, the inability to see the cliff contributed to the improbability of a person taking the steps necessary for the harm to result. The fact that surfers, fishers and swimmers used the beach had to be considered in the context of there being no evidence that the escarpment was ever used for access.
It is true that the judge did not here mention the appellant’s youth. However, as the appellant noted, he had earlier accepted, relying on Tapp v Australian Bushman’s Campdraft & Rodeo Association Ltd,[106] that the risk was to be assessed from the perspective of a reasonable person in the appellant’s position.[107] The judge also accepted, when introducing his consideration of the factors in s 32(2), that a reasonable response to the risk might anticipate a variety of visitors, including children and ‘the exuberant’.[108] In the final evaluative exercise under s 32(2), the judge accepted that the Council was required to take into account that young persons such as the appellant might visit the site, and that they may be less cognisant of the risks, including the risks associated with descending the escarpment, than older persons would be.[109]
[106] (2022) 273 CLR 454.
[107] [2024] SADC 37 at [333].
[108] [2024] SADC 37 at [382].
[109] [2024] SADC 37 at [413].
The possibility that young people would visit the Car Park was relevant to the probability of harm occurring. However, it is necessary to consider the full context of the judge’s evaluative assessment, pursuant to s 32(2) of the Civil Liability Act, as to whether a reasonable person would have taken precautions against a risk of harm. For the reasons discussed above, we do not think it can be said that the identified failure to refer explicitly to the factor of young people visiting the Car Park, who may be less cognisant of the risks, had any material bearing on the judge’s analysis of the factors mandated for consideration by s 32(2). We dismiss the complaint under this ground.
The finding that the probability of harm to members of the public was low because a ‘sufficient combination’ of events was required to occur before the risk of harm would materialise (Ground 4)
The complaint that the judge’s reasoning, to this conclusion of low probability, was in error comprises a different attack on the finding about the probability of harm as required by s 32(2)(a). The appellant did not develop the complaint in submissions. The specific finding here challenged was:[110]
The probability that harm would occur, was for the reasons that I have identified, low. There were a number of missteps that had to occur before the harm was realised.
[110] [2024] SADC 37 at [412].
The complaint as articulated in the Notice of Appeal seems to be that only one of these events had to occur to result in significant harm to the appellant.
It is difficult to know what to make of this complaint. It is true enough that the last of the series of steps the judge identified was a single step that would cause harm. However, the judge’s analysis showed the sequential steps that had to be traversed before reaching that point. It was the improbability of the sequence of steps all occurring that gave a low probability to the final result of harm occurring.
The appellant has not demonstrated error in the judge’s assessment under s 32(2)(a). We dismiss this ground of appeal.
The findings relevant to the burden upon the Council of taking precautions to avoid the risk of harm (Grounds 5, 6, 11 and 12)
Grounds 5, 6, 11 and 12 make various complaints about the judge’s consideration of the burden of taking precautions, which was mandated by s 32(2)(c) of the Civil Liability Act. The judge found that burden to be significant:[111]
The burden upon the Council of taking precautions to avoid the risk of harm was significant, particularly when considering the cost that would be incurred to prevent equivalent accidents at other sites in the Council area.
[111] [2024] SADC 37 at [390].
The extent of the burden on the Council of taking precautions to avoid the risk of harm is a matter of inference to be drawn from the facts as found or uncontested. It is convenient here to recall the task of this Court on this complaint. The Court must give respect and weight to the conclusion of the trial judge, but once it has reached its own conclusion, must not shrink from giving effect to it.[112]
[112] Warren v Coombes (1979) 142 CLR 531 at 551.
The judge’s findings and conclusions relevant to burden
On the cost of erecting a sign at the Car Park, the judge found:[113]
First, there was no evidence that the finances of the Council were such that it was not financially feasible to erect signs at the Car Park. I accept the unchallenged evidence from Professor Coyle that the cost of erecting a sign or barrier at the location was insignificant.
[113] [2024] SADC 37 at [260].
Manifestly, the judge did not premise his ultimate finding about burden just on the question of the cost of erecting a sign or barrier. These grounds direct attention to the matters on which the judge did rely in reaching his conclusion that the burden of taking precautions to avoid the risk of harm was significant. In this regard, the judge gave particular attention to the cost that would have to be incurred to prevent equivalent accidents at other sites in the Council area.
The judge referred to the observations of Kirby J in Romeo v Conservation Commission of the Northern Territory[114] on the relevance of the limited resources available to public authorities when considering whether reasonableness requires, in a particular case, the expenditure of resources in one area, such as on the erection of fencing in a particular area. Justice Kirby observed that:[115]
… even in so‑called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk.
[114] (1998) 192 CLR 431.
[115] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [129].
The judge accepted the evidence of Professor Coyle that the cost of erecting a sign in the Car Park would be in the order of $1,000. That is minimal. However, he considered that there was no reason why the signposting would be limited to that site or to the appellant’s point of descent. He said:[116]
The point of descent was not obvious or the only place from which a person might descend down to the beach. The signage would need to extend all along the edge between the escarpment and the Car Park. The Car Park itself was not small and there were various places where a vehicle might park at the Car Park …. The place where the vehicle was parked in which [the appellant] was a passenger, was not the only place where a vehicle might be parked.
[116] [2024] SADC 37 at [390].
The judge therefore considered that a sign at the point of descent would be insufficient.[117]
[117] [2024] SADC 37 at [391].
Similarly, the judge rejected the possibility of a sign at or near the sandy gully, directing visitors to access the beach from that point. He found the sandy gully was about 90 metres from the Car Park and even further from its southern end.[118] He therefore did not consider a sign near the sandy gully to be a reasonable response to the risk that someone would descend the escarpment. Secondly, he held that the mere fact that the sandy gully was a safer option to access the beach did not mean that the Council wished to encourage people to take that route to the beach. Thirdly, he found that a sign so placed would not have caused Mr Burk or the appellant to have altered their behaviour on the day of the accident. He noted that this last consideration was perhaps a matter of causation.
[118] [2024] SADC 37 at [392]. The appellant disputed this distance but did not suggest that the finding amounted to appealable error.
The question of what would reasonably be required at other sites within the Council’s area of responsibility, and the judge’s treatment of that question, require some explanation of the evidence. Ms Mellen’s report characterised the Car Park as a road related area that required a risk assessment in accordance with the Austroads Guide to Road Safety and Austroads Guide to Road Design. The relevant risks were associated with the Car Park being used as a turning area. The ‘critical risk’ that warranted consideration in this regard was, in Ms Mellen’s opinion, a hazard assessment in relation to the cliff, ‘which is considered a critical slope and would require a barrier to prevent an errant vehicle from travelling over the cliff’.
Ms Mellen considered that the edge of the turning area should have been better defined to guide drivers as to the edge of the trafficable area. This could be achieved by a fence or series of posts, or ‘increased dense landscaping’ for the width of the clear zone adjacent the cliff.
As to a path to the rock pools, she considered that no safe path had been provided for public access. There was no requirement for a safe path ‘as it relates to traffic and road safety’. She further said:
Should a path be provided, there is a requirement that it be safe. Further, there is a requirement to complete a risk assessment to determine whether warning signage should be provided to pedestrians and drivers in respect to hazards adjacent the coast in accordance with the requirements of AS/NZS 2416.
The judge noted Ms Mellen’s acknowledgement that the primary reason for the buffer was for the safety of the vehicle. However, Ms Mellen said that the road safety rules were also for the benefit of pedestrians who might otherwise misinterpret the potential for beach access.[119] She gave evidence that the escarpment required a buffer of three metres on account of its steepness. If that was not possible, a barrier of some sort might be considered. She also said, in her second report, that it was important that a risk assessment be completed at each site and along each road.[120] Her preliminary view was that if an investigation had been conducted as it should have, there should have been warning signs erected of the type set out in her report.[121]
[119] [2024] SADC 37 at [267].
[120] [2024] SADC 37 at [275]; [277].
[121] [2024] SADC 37 at [275].
At trial, the appellant relied on the materials referred in Ms Mellen’s evidence to establish that the failure to erect a sign or barrier could not be characterised as an omission for the purposes of s 244 of the Local Government Act, but also to establish that the discharge by the Council of its duty of care required some basic precautions, such as erecting a warning sign or barrier.[122] The judge accepted that Greenly Beach Road was a road, and that the Car Park was a road related area.[123] However, he held that the warning signs that Ms Mellen suggested had little application to the case.[124] The first related to drivers and the risk of a motor vehicle going over the edge. The second showed an unstable cliff edge with a person falling over. The suggested buffer zone related to the risk of vehicles going over, not requirements of pedestrian safety in accessing the beach.[125] The absence of a buffer zone played no part in the accident.[126]
[122] [2024] SADC 37 at [268].
[123] [2024] SADC 37 at [271].
[124] [2024] SADC 37 at [276].
[125] [2024] SADC 37 at [279].
[126] [2024] SADC 37 at [281].

We do not consider that there is any basis for departing from the finding that that there would be a significant burden on the Council if it were required to erect warning signs or barriers at similar locations throughout the area of the Council.[179] Mr Verco and Mr Hall provided an evidential foundation for it, and we do not draw any contrary inference with respect to the burden of placing signs or barriers at similar sites.
[179] [2024] SADC 37 at [420].
Having reached that conclusion, the question is then what impact, if any, does our inference, contrary to that of the judge, that it was practicable to put a continuous low barrier at the site to act as a warning, have on the evaluative exercise? The practicality of placing a barrier at this one site cannot be divorced from the burden of placing barriers at other sites. More specifically, for the purpose of the evaluative exercise, the broader burden of placing such an extensive barrier at each similar site is a significant consideration.
The judge effectively answered this in the context of considering a submission that barriers could be placed at gaps in the vegetation. He held that there was a danger, common to all areas involving cliff top areas, that a person might fall when descending such a steep slope.[180] To place a barrier at just one area (and we interpolate here, whether as a continuous barrier as we have postulated or just as barriers between the gaps), begs the question of why one would choose just that area, given the supported findings of the existence of other, similar areas. As discussed earlier, the judge cited the decision of Gleeson CJ and Kirby J in Mulligan v Coffs Harbour City Council[181] to the effect that it is difficult to see how such common dangers can be addressed by particular warnings at particular locations.
[180] [2024] SADC 37 at [434].
[181] Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 at [6].
We agree with the judge that the evidence did not provide a sufficient basis for singling out the Car Park from the other areas as warranting a barrier to act as a warning. Notwithstanding that we take a different view of the practicality of installing a barrier at the accident site, we do not think that this ultimately affects the evaluative exercise.
For these reasons, we do not depart from the trial judge’s conclusion that a reasonable person in the position of the Council would not have taken the precautions of erecting signs or a barrier against the risk of harm facing the appellant.[182] We dismiss Ground 11.
The burden of a risk assessment
[182] [2024] SADC 37 at [435].
As to the burden of requiring a risk assessment at other, similar sites, the judge held:[183]
I accept the submission of the Council that the cars [sic] parks for the beaches north of the Car Park (heading along the track to Convention Beach) (photographs 114 and 115 of exhibit A11) would also qualify as a road related area and required a risk assessment. It would also follow, as Ms Mellen accepted, that the same standard would apply to all cases where a track that could carry a vehicle might lead an area near a cliff where a car could be parked. She accepted that there could be hundreds of such locations along the coastline of the western end of the Lower Eyre Peninsula, although she didn’t know how many. She accepted that her standard (i.e. at least an investigation as to what measures should be adopted) would apply to the 30 sites referred to on the 7 km from Coles Point to the Car Park.
[183] [2024] SADC 37 at [397].
The appellant submitted that the concessions attributed to Ms Mellen did not reflect her evidence. He submitted that this inaccurate account of her evidence had significant consequences for the judge’s consideration of what would be required of the Council in the broader area, and hence what was reasonable for the Council do to in respect of the accident site. He submitted that the effect of Ms Mellen’s evidence was that the track north of the Car Park could only be described as a road in accordance with the definition in the Australian Road Rules, as was the case with the cleared areas made by tyre tracks north of the Car Park. Moreover, Ms Mellen was simply asked to accept that Mr Verco would give evidence that there were over 30 similar sites within a 9 km distance up the coast. That was not evidence of the fact.
The appellant acknowledged that Ms Mellen accepted that any area that met the definition of a road related area in the Australian Road Rules would trigger the requirement of a risk assessment. He submitted, however, that those areas were not clearly defined in her evidence. Ms Mellen did not dispute, in cross-examination, that there were different lengths of road in different categories in the Council area, but the appellant again observed that this was not evidence of that fact.
The appellant further submitted that where Mr Verco had identified turning areas on Greenly Beach Road, Ms Mellen agreed that her analysis should be applied to those areas ‘where they are close to a cliff’. In answer to a question in cross-examination, she said she did not know how many locations existed that were similar to the accident site. She did not think that anything more than a risk assessment was required to be done in respect of any identified location and that the majority of these would not require actual attendance. One critical feature would be whether a road had been carved out close to a cliff edge. So too would be the known frequency of visitors. She did not think it would be necessary for Council to engage in risk assessments in any area that was not obviously accessible or where it was necessary to traverse vegetation.
The appellant also submitted that in circumstances where Ms Mellen had only advocated for a desktop assessment in any event, it was not for the Court to refashion a different kind of assessment.
We do not consider that these criticisms of the trial judge’s conclusions, by reference to Ms Mellen’s evidence, have substance. In the first instance, Ms Mellen’s opinion as to what required an assessment depended on whether a place was a road or a road related area. She accepted that the three sites she had visited to the north of the Car Park met that definition. She did not dispute Mr Verco’s evidence that there were 30 similar such sites within a 9 km distance to the north of the Car Park. She accepted that that fact (of which she did not know) would trigger the obligations she set out in her first export report.
Accepting that Ms Mellen did not give evidence of the facts to which her opinion adhered in this regard, the question is what evidence existed? The road lengths that were put to Ms Mellen were in evidence.[184] As discussed above, Mr Verco’s evidence was not speculation.
[184] District Council of Lower Eyre Peninsula, Level of Service Standards, July 2016, Attachment 1.
We do not accept that the judge was in some way prevented from limiting his consideration to Ms Mellen’s evidence, given in cross-examination, that a risk assessment did not necessarily require physical attendance by the Council. Ms Mellen’s evidence in this regard was concerned with risk assessments going to the safety of vehicles and, in consequence of that, people. She explained that a risk assessment included the number of movements on a road or road related area that were ‘likely to be there’. She accepted that a key factor in the need for a risk assessment was the volume of usage. In this regard, she considered that the Austroads Guidelines considerations warranting a risk assessment would apply if an area was visited by one vehicle once a week.
Ms Mellen disagreed that another factor would be the obviousness of the risk associated with going near a cliff edge, ‘because you would not expect that someone would carve a road out, be it a normal driver or a piece of machinery, so close to a cliff edge’. Rather, she considered that the need for a risk assessment depended on whether the road was created to be an accessible route or whether it was created only by the ordinary activity of four-wheel drive vehicles.
The difficulty with the application of Ms Mellen’s analysis to the claim is that her analysis was not ultimately concerned with the risk with which the judge found existed. The evidence of ‘similar’ areas, particularly that given by Mr Verco, showed that there were other turnout areas close to the escarpment above the cliffs along the coastline north of the Car Park, albeit that they had been formed by the passage of vehicles. These areas had been carved out close to the edge. The judge was concerned with this reality, and the risk arising therefrom, not what might be expected to be created for the purpose of a risk assessment under the Austroads criteria.
The judge concluded, on the topic of the burden of an inspection and risk assessment:[185]
It is also the case that the requirement of an inspection and assessment would place a considerable burden on the Council. There would be no reason to limit the inspection and assessment of the Car Park. All similar areas along the coast would also have to be inspected and assessed. Various investigations would need to be carried out and the results considered by those with authority in the Council. Recommendations would need to be made and if approved, resources allocated to the work. The burden imposed on Council to undertake a risk assessment as suggested would be considerable even if the Council engaged a third party to conduct the risk assessment as Mr Jutzen said that they would do.
It is, contrary to the evidence of Ms Mellen, difficult to see how this risk assessment could be undertaken in the absence of a physical examination of each site. Matters such as the nature of any particular hazard, the volume of traffic and matters peculiar to each site could only be properly assessed on a visit to the particular site.
[185] [2024] SADC 37 at [441]-[442].
For the reasons given above, it was plainly open to the judge to accept Mr Verco’s evidence as to the existence of similar areas along the coastline, to find that more than a desktop assessment would have been required in each case and to conclude that the necessary burden on the Council would have been considerable. We do not depart from these findings.
As to the difference between the areas insofar as the work done by the Council was concerned, the judge held:[186]
In my opinion, the requirement for a risk assessment cannot arise or be influenced by whether or not the Council may have undertaken some work (even minimal in nature) in either creating or maintaining the road leading into the site or any car park at the site. A risk assessment is triggered by knowledge of the nature of the site, the usage of the site and likely danger.
[186] [2024] SADC 37 at [444].
For the reasons given above, we do not depart from this conclusion either.
As to the appellant’s complaint that there was no evidence that the required risk assessments would be beyond the financial capacity of the Council, the judge did not make a finding that this would be the case. He simply found, in this regard, that the necessary investigations, consideration of results, making of recommendations and allocation of resources to the consequent work would constitute a considerable burden. Those findings were open and sufficient for the purposes of assessing the burden on the Council.
We do not depart from the judge’s findings with respect to risk assessments. We dismiss Ground 12.
Complaints of insufficient weight given to evidence (Ground 8)
Ground 8 complains:
In finding that the respondent did not breach its duty of care the learned trial judge erred in failing to give sufficient weight to:
(a)the evidence which he accepted that:
(i)    warning signs, particularly in a natural environment where the risk of injury is not obvious (as the learned trial judge found in this case), are effective (R [294], [464]);
(ii)     there was no evidence that the finances of the Council were such that it was not feasible to erect signs (R [260]);
(iii)    the Council had knowledge, or ought to have known, that people used the beach below the Car Park (R [414]);
(b)the uncontested evidence that:
(i)    signs warning of dangerous cliffs had been erected by the respondent at other locations to seemingly good effect;
(ii)     boulders had been placed by or with the consent of the respondent at other locations at low cost;
(iii)    a risk assessment does not, in the first instance require attendance at a site in person, and would not have required attendance at any sites along the coastline which members of the public were not encouraged to visit by reason of a graded and maintained road and car park;
(c)the evidence that:
(i)    members of the public wanting access to the beach could take such access by the sandy gully to the north west of the Car Park which usually, and at the time of the accident, was in a condition which allowed for such access;
(ii)     the sandy gully was not immediately visible from all points in the Car Park; and
(iii)    there was no signage or other installed indicator directing visitors to the sandy gully.
The appellant did not address this ground separately. We have addressed most of the matters of evidence relied on in this ground, in context, in considering the grounds discussed above, particularly in the context of the burden of placing signs and conducting risk assessments. Having regard to that consideration, we are not satisfied that any of the matters particularised in sub‑grounds (a) or (b) warranted any greater weight being attached to them.
Sub-ground (c) complains that the judge did not give sufficient weight to the evidence that members of the public could access the beach via the sandy gully, that the sandy gully was not immediately visible from all points in the Car Park and that there was not signage installed directing visitors to the sandy gully. We cannot see that it was necessary to give any more weight to these factors than the judge did. This complaint seems to be related to the appellant’s submission that having created a ready means of access to a stopping point above the beach, there was a real and sufficient likelihood, and it was foreseeable, that visitors to the Car Park would access the beach either by going down the escarpment or through the sandy gully. The sandy gully not being visible or signposted, it was foreseeable that a person would go directly over the escarpment.
As noted earlier, the judge found that the sandy gully was 90 metres from the Car Park.[187] He therefore did not consider that a sign near the sandy gully would be a reasonable response to the risk that someone would descend the escarpment. He also found that although safer than descending the escarpment, it did not follow that the Council wished to attract people to access the beach via the sandy gully.[188] As discussed earlier, he held it was not appropriate that a sign should have directed people to the sandy gully, as that was not a means of access to be promoted.[189]
[187] [2024] SADC 37 at [53].
[188] [2024] SADC 37 at [392].
[189] [2024] SADC 37 at [427].
The fact that the sandy gully was not signposted then adds little to the matrix of matters relevant to whether the Council breached its duty of care. There was a reason not to encourage access via the sandy gully. The Council knew some people used the beach, but the sandy gully was itself steep and presented its own challenges.[190] The area was neither a destination car park nor even a tourist attraction. The lack of signage to the sandy gully was not something that pointed with any great weight to Council’s breach of its duty of care.
[190] [2024] SADC 37 at [53].
We dismiss Ground 8.
Causation (Grounds 9 and 10)
Ground 9 complains:
The learned trial judge erred in finding that a sign or barrier would not have had any effect in deterring the appellant from descending to the beach via the escarpment unless it was placed at the point of descent or between the bushes (R [465], [471]) in circumstances where:
(a)the learned trial judge found that the appellant did not run down the escarpment (R [246]);
(b)the learned trial judge found that warning signs, particularly in a natural environment where the risk of injury is not obvious (as in this case), are effective (R [294], [464]);
(c)there is no evidence that the appellant would have ignored warning signs;
(d)there was no basis in the evidence upon which the learned trial judge could find that the placement of rocks or boulders between the Car Park and the escarpment would not have avoided the injury to the appellant;
(e)there was no basis in the evidence upon which the learned trial Judge could find that a barrier in the form of a low fence would not have provided adequate warning and avoided the injury to the appellant;
(f)there was evidence that warning signs, boulders and rocks had been installed in other locations with the intention of warning visitors against taking direct access to the beach below and with apparent good effect without being placed all along the boundary between a car park and any similar points of access to the beach below;
(g)self-evidently, just one prominent sign could have been erected at the eastern entrance to the Car Park.
Ground 10 then complains:
The learned trial judge erred in not having regard to the consideration that all reasonable allowance should be made in favour of an applicant and against the respondent (and no adverse inferences ought readily to be drawn against an applicant) in circumstances where it is the respondent’s breach of duty which has placed the applicant in the position of having to answer a counterfactual.
The judge approached causation noting that it was not strictly necessary to consider it given his findings of breach. Given that we dismiss the appeal grounds relating to breach of duty, the same is true here.
The judge accepted that it was necessary to consider the counterfactual of what would have happened if the Council had erected a sign or other barrier.[191] He accepted, following Chappel v Hart,[192] that he must be wary of absolving a respondent from legal responsibility ‘by allowing decisive weight to hypothetical and problematical considerations of what could have happened … in conditions of great variability’.[193]
[191] [2024] SADC 37 at [457], citing Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 at [149].
[192] (1998) 195 CLR 232.
[193] Chappel v Hart (1998) 195 CLR 232 at [81].
It is necessary, having regard to the terms of Ground 10, to set out the judge’s consideration of the difficulties in assessing causation on the hypothetical:[194]
[194] [2024] SADC 37 at [459]-[462].
Proof of causation is to be assessed in a practicable and robust manner.[195] Often questions of the effect of omissions and whether an omission was causative will give rise to hypothetical questions which may be inherently difficult to answer definitively. That however does not preclude a finding on the balance of probabilities.[196]
[195] Queen Elizabeth Hospital v Curtis [2008] SASC 344 [44].
[196] Ibid.
Often it will be the case that a finding of breach, followed closely by damage and loss, will prima facie give rise to an inference of causation, in the absence of evidence to the contrary. Thus, in Bennett v Minister of Community Welfare,[197] Gaudron J held (quoting in part from Dixon J in Betts v Whittingslowe)[198]:
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”.
Callinan J in Naxakis v West General Hospital[199] adopted the same approach when he held:
Where, as here, a plaintiff demonstrates that it was open to a jury to conclude that the respondents were in breach of their duty of care to him and this breach was closely followed by his damage, a prima facie causal link is established. It may be displaced and it may be rejected; but it cannot be ignored in considering a motion for judgment for the defendant for the want of evidence.
These statements indicate the difficulty in embarking on a hypothetical exercise of determining whether causation was established when the precise precaution that ought to have been taken has not been found.
(Footnotes in original)
[197] (1992) 176 CLR 408 at 420-421; [1992] HCA 27.
[198] (1945) 71 CLR 637 at 649; [1945] HCA 31.
[199] (1999) 197 CLR 269; [1999] HCA 22 [76].

The judge considered that this difficulty was exacerbated in circumstances where he had made findings about the conduct of Mr Burk and the appellant when they got out of the car. He reiterated:[200]
I found that Mr Burk got out of the car and moved three or four steps to the point of descent and then went straight down the escarpment. I found that [the appellant] followed him. They did not pause to consider the dangers posed before embarking on his descent. I found that the escarpment did not have the appearance of a sandhill. I found the escarpment to be very steep.
[200] [2024] SADC 37 at [463].
While the judge accepted the evidence that signs or barriers can have the effect of deterring risky behaviour, he found that they would not have had the effect of deterring Mr Burk or the appellant unless they were placed at the point of descent or between the bushes.
The judge recognised that there was no direct evidence about what effect signs or barriers would have had on the appellant. However, he found that he was able to draw certain inferences:[201]
The evidence allows the inference to be drawn that [the appellant] went around the back of the car and followed Mr Burk down the escarpment. It follows from the evidence about Mr Burk stopping before falling over the vertical cliff and [the appellant] stumbling and being unable to stop, that [the appellant] was close behind Mr Burk as they descended and that [the appellant] was travelling about the same speed as Mr Burk. Mr Burk said that he was travelling at a fast walk as he approached the vertical cliff.
It follows from this evidence that unless [the appellant] was running or going substantially faster than Mr Burk, he also must have also walked straight down the escarpment. Any inference that he paused at the point of descent and then ran down the escarpment is dispelled by the evidence of Mr Stevens.
On all of the evidence therefore, I find that [the appellant], like Mr Burk, went straight down the escarpment from the point of descent without stopping at the point of descent.
[201] [2024] SADC 37 at [468]-[470].
The judge found, in consequence, that a sign or barrier would not have had an effect of the appellant’s behaviour unless it was placed at the point of descent or all along the edge of the interface between the Car Park and the escarpment.[202] Causation could only be established in the hypothetical exercise if the scope of duty extended to such action. Having found that the Council did not breach its duty of care, the judge considered that it was not possible to say what it ought to have done and therefore determine factual causation.
[202] [2024] SADC 37 at [471].
With respect to Ground 9, the judge’s findings of fact about what Mr Burk and the appellant did after alighting from the car and descending the escarpment supported his conclusion that only a sign or barrier that was directly in their path would have had an effect on the appellant’s behaviour. Contrary to particular (e) of Ground 9, the judge’s findings implicitly accepted that a low barrier placed all along the interface would have affected the appellant’s behaviour. His conclusion, however, rested on his finding that the Council did not breach its duty of care. He was for that reason unable to say what the Council ought to have done and thereby establish causation.
We have found that it would have been practical to erect a low barrier around the interface of the Car Park and the escarpment. However, we have also concluded that the failure to do so did not breach the Council’s duty of care, primarily because of the effect of the associated burden on the Council in having to attend to numerous other similar sites the subject of the evidence of Mr Verco and Mr Hall. In those circumstances, it is not necessary to consider whether to draw further or different inferences relevant to causation, as urged by Ground 9.
We do not think that Ground 10 is established in any event. The passages extracted above show that the judge was plainly cognisant of the difficulty facing the appellant in addressing the counterfactual exercise required by causation.
Ultimately, the judge was not able to establish causation in the absence of a finding that the Council had breached its duty of care, given he could not say what should have been done. We have not found that the failure to erect a barrier constituted a breach of duty. Given that Ground 10 is premised on the difficulty occasioned by the Council’s breach of duty putting the appellant in the position of having to answer a counterfactual, the finding that there was no breach of duty, and the judge’s consequent conclusion that he could not draw a conclusion on causation, render this complaint hypothetical.
We dismiss Ground 10.
Conclusion
It follows from all of the above that we also dismiss Ground 1 of the appeal. We dismiss the appeal. It is not necessary to address the Notice of Alternative Contention. We dismiss that also.