Waverley Municipal Council v Swain

[2003] NSWCA 61

CITATION:	WAVERLEY MUNICIPAL COUNCIL v SWAIN [2003] NSWCA 61 revised - 22/04/2003
HEARING DATE(S):	13/11/02 18/12/02
JUDGMENT DATE:	3 April 2003
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 145; Ipp JA at 145
DECISION:	Appeal allowed
CATCHWORDS:	TORTS - Negligence - Jury trial - Whether verdict against the evidence and against the weight of the evidence - Whether no evidence capable of sustaining verdict - TORTS - Negligence - Liability of statutory authority - Breach of duty of care by failure to erect warning signs and positioning of flags on beach - Where swimmer dived under wave and hit submerged sandbar
LEGISLATION CITED:	Suitors' Fund Act 1951 Supreme Court Act 1970, s 75A, s 102, s 108 Supreme Court Procedure Act 1900, s 7
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Attorney-General (NSW) v X (2000) 49 NSWLR 653 Banbury v Bank of Montreal [1918] AC 626 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bell v Thompson (1934) 34 SR (NSW) 431 Bressington v Commissioner of Railways (1947) 47 SR (NSW) 472 Bressington v The Commissioner of Railways (NSW) (1947) 75 CLR 339 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Bus v Sydney County Council (1989) 167 CLR 78 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Council of the Municipality of Waverley v Bloom [1999] NSWCA 229 Darling Island Stevedoring & Lighterage Co Limited v Jacobsen (1945) 70 CLR 635 Edith Cowan University v Czatryko [2002] WASCA 334 Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 Franklins Self-Serve Pty Ltd v Bozinovska, NSWCA, 14 October 1998 Glasheen v Council of the Municipality of Waverley (1990) Aust Tort Reports 81-016 Hampton Court Limited v Crooks (1957) 97 CLR 367 Hocking v Bell (1945) 71 CLR 430 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1984) 155 CLR 306 Metropolitan Railway Company v Jackson (1877) 3 App Cas 193 Mountain Cattlemen's Association v Barron [1998] 3 VR 302 Mulligan v Coffs Harbour City Council [2003] NSWSC 49 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Naxakis v Western General Hospital (1999) 197 CLR 269 NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Prast v Town of Cottesloe (2000) 22 WAR 474 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 Qualcast (Wolverhampton) Limited v Haynes [1959] AC 743 Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 Richmond Valley Council v Standing [2002] NSWCA 359 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Rootes v Shelton (1967) 116 CLR 383 RTA v McGuinness [2002] NSWCA 343 Ryder v Wombwell (1868) LR 4 Exch 32 Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 Shepherd v Felt & Textiles of Australia Limited (1931) 45 CLR 359 Sydney County Council v Dell'Oro (1972) 132 CLR 97 Vairy v Wyong Shire Council [2002] NSWSC 881 Van der Sluice v Display Craft Ltd [2002] NSWCA 204 Waverley Council v Lodge (2001) 117 LGERA 447 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Waverley Municipal Council Guy Edward Swain
FILE NUMBER(S):	CA 40419/02
COUNSEL:	P Taylor SC / G Curtin (Appellant) P Menzies QC / D Jenkins (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Beston Macken McManis (Respondent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20261/00
LOWER COURT JUDICIAL OFFICER :	Taylor AJ

- 59 -

CA 40419/02
SC 20261/00

SPIGELMAN CJ
HANDLEY JA
IPP JA

Thursday 3 April 2003

WAVERLEY MUNICIPAL COUNCIL v Guy Edward SWAIN

Facts

Guy Edward Swain (the Respondent) was rendered a quadriplegic on 7 November 1997 as the result of diving into the water at Bondi Beach in small surf. The Respondent sued the Waverley Municipal Council (the Appellant) which had care, management and control of the Beach. The parties agreed on damages at $3.75 million and litigated as to liability only, before Taylor AJ and a jury of four. The jury returned a verdict in favour of the Respondent but reduced his entitlement to damages by 25% for contributory negligence. The Appellant appealed seeking a verdict in its favour or, in the alternative, a new trial.

On all issues the Appellant submitted that the jury verdict was against the evidence and against the weight of the evidence. On all but one issue the Appellant submitted that there was no evidence to support the verdict.

Held

A. ( per Spigelman CJ, Handley and Ipp JJA agreeing )

The phrase “against the evidence and against the weight of the evidence” is a hendiadys. The two component phrases do not carry different meanings. The test is whether the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach. [12], [15], [145]

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Hocking v Bell (1945) 71 CLR 430 ; Bell v Thompson (1934) 34 SR (NSW) 431 applied. Darling Island Stevedoring & Lighterage Co Limited v Jacobsen (1945) 70 CLR 635 at 643 ; Naxakis v Western General Hospital (1999) 197 CLR 269 ; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 cited.

(per Handley and Ipp JJA)

The “no evidence” question is whether there was evidence on which the jury, acting reasonably, could have found its verdict. [152]

Ryder v Wombwell (1868) LR 4 Exch 32; Shepherd v Felt & Textiles of Australia Limited (1931) 45 CLR 359; Hocking v Bell (1945) 71 CLR 430 applied. Metropolitan Railway Company v Jackson (1877) 3 App Cas 193 cited.

B. ( per Spigelman CJ, Handley and Ipp JJA agreeing )

The jury was entitled to conclude that the Respondent entered the water between the flags, was injured there and subsequently drifted south of the flags before being retrieved from the water. [46], [145]

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 applied.

C. ( per Spigelman CJ, Handley and Ipp JJA agreeing )

There was evidence from a number of witnesses that there was a sandbar in the surf on the day of the accident. It was open to the jury to accept the Respondent’s case that he was injured when he hit a sandbar while executing a shallow dive. [59], [145]

D. ( per Spigelman CJ, Handley and Ipp JJA agreeing )

There was evidence of causation before the jury in respect of the flags and a postulated warning sign in terms of the effect such matters had, or would have had, on the behaviour of the Respondent. It was open to the jury to be satisfied as to causation. [64], [145]

E. ( per Spigelman CJ, Handley and Ipp JJA agreeing )

There was no evidence before the jury capable of justifying a finding that the Appellant had breached its duty of care to the Respondent by failing to warn of the risk of a sandbar. There was no evidence of the content and practicality of the duty to erect relevant warning signs. [126], [145]

Wyong Shire Council v Shirt (1980) 146 CLR 40 ; Waverley Council v Lodge (2001) 117 LGERA 447 ; Nagle v Rottnest Island Authority (1993) 177 CLR 423 ; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; Bressington v The Commissioner of Railways (NSW) (1947) 75 CLR 339 ; Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 applied.

Vairy v Wyong Shire Council [2002] NSWSC 881; Prast v Town of Cottesloe (2000) 22 WAR 474; Franklins Self-Serve Pty Ltd v Bozinovska , NSWCA, 14 October 1998; Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43; Sydney County Council v Dell’Oro (1972) 132 CLR 97; Bus v Sydney County Council (1989) 167 CLR 78; Mountain Cattlemen’s Association v Barron [1998] 3 VR 302 considered.

Qualcast (Wolverhampton) Limited v Haynes [1959] AC 743 ; Van der Sluice v Display Craft Ltd [2002] NSWCA 204 referred to.

F. ( per Handley and Ipp JJA, Spigelman CJ dissenting )

There was no evidence capable of sustaining a finding that the Council was negligent with respect to its placement of the flags on the beach. There was no evidence that the Respondent relied on the flags as an assurance of safety with respect to diving. The risks of channels and sandbars on the ocean floor are obvious and inherent in the activity of diving near the shore. [182]

Ryder v Wombwell (1868) LR 4 Exch 32 ; Hocking v Bell (1945) 71 CLR 430 ; Prast v Town of Cottesloe (2000) 22 WAR 474 applied. Nagle v Rottnest Island Authority (1993) 177 CLR 423 referred to.

Orders
Appeal allowed.

CA 40419/02
SC 20261/00

SPIGELMAN CJ
HANDLEY JA
IPP JA

Thursday 3 April 2003

WAVERLEY MUNICIPAL COUNCIL v Guy Edward SWAIN

Judgment

1 SPIGELMAN CJ: Guy Edward Swain (“the Respondent”) was injured while swimming at Bondi Beach on 7 November 1997 in a calm sea. He dived into the water. He suffered a spinal injury and is now quadriplegic. He brought an action for damages in negligence against the Waverley Municipal Council (“the Appellant”), which, it is accepted by both parties, has care, control and management of Bondi Beach. The case was heard by Taylor AJ and a jury of four. The parties agreed on the quantum of damages at $3.75 million. They litigated only the issue of liability for that damage. The jury found the Appellant liable to the Respondent in negligence. The jury further found contributory negligence of twenty-five percent on the part of the Respondent. The Appellant appeals to this Court.

Grounds of Appeal

2 Originally there was only a single ground of appeal:

“The verdict was against the evidence and against the weight of the evidence.”

3 On this basis the Appellant sought that the verdict be set aside and that a verdict in its favour be entered rather than a new trial be ordered.

4 On the day of the hearing the Appellant sought to add a number of grounds as follows:

“2 There was no evidence capable of sustaining a finding that reasonable care required the Council to either:
2.1 remove or reposition the flags;
2.2 provide a warning of the presence of a sandbar or hidden sandbar.
3 There was no evidence capable of sustaining a finding that the Council breached a duty to take reasonable care in:
3.1 the placing of the flags at Bondi Beach on 7 November 1997;
3.2 failing to take measures to determine the conditions of the beach;
3.3 failing to provide supervision and direction to users of the beach.
4 There was no evidence capable of sustaining a finding that the absence of a warning caused the Respondent’s injury.
5 There was no evidence capable of sustaining a finding that the Respondent was injured by hitting a hidden sandbar.
6 In the alternative, each of the findings in grounds 2 to 5 above was against the weight of the evidence.
7 The finding that the Respondent swam between the flags and was injured there was against the weight of the evidence.”

5 As can be seen all of the substantive grounds sought to be added involved an assertion that there was “no evidence” of a particular character as set out in pars [2]-[5]. Paragraphs [6] and [7] do not add anything to Ground 1 as originally pleaded, save insofar as they purport to rely on a distinction between the terminology “against the evidence” and that of “against the weight of the evidence”. In some respects they constitute a particularisation of Ground 1 as originally pleaded.

6 The Court heard argument on the original ground of appeal on the day the appeal was originally listed. The matter was relisted on a subsequent day to hear the Respondent’s submissions on the new grounds of appeal. The Respondent will suffer no prejudice by reason of the amendment, save as to costs. Leave to amend should be granted.

Appeal from a Jury

7 It is, of course, of the greatest significance that this appeal is brought from a decision of a jury. The Court is exercising a jurisdiction to supervise or review the verdict of the jury. (See Darling Island Stevedoring & Lighterage Co Limited v Jacobsen (1945) 70 CLR 635 at 643; Sir Frederick Jordan General Principles of the Administration of Justice University of Sydney, 1958 at p21 reprinted in Sir Frederick Jordan’s Select Legal Papers, Legal Books, Sydney, 1983.)

8 This is not an appeal by way of rehearing as provided for by s75A of the Supreme Court Act 1970. The authority of the Court is conferred by s102 and s108. (See Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at [26].)

9 Those sections provide:

“102 Where in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for -
(a) the setting aside of a verdict or judgment;
(b) a new trial; or
(c) the alteration of a verdict by increasing or reducing any amount of debt, damages or other money,
shall be by appeal to the Court of Appeal.
…
108(1) This section applies to an appeal to the Court of Appeal in proceedings in the Court in which there has been a trial with a jury.
(2) Where it appears to the Court of Appeal that on the evidence given at the trial a verdict for the plaintiff could not be supported and that, pursuant to any provision of the rules, an order ought to have been made for the dismissal of the proceedings either wholly or so far as concerns any cause of action in the proceedings, the Court of Appeal may make an order of dismissal accordingly.
(3) Where it appears to the Court of Appeal that upon the evidence the plaintiff or the defendant is, as a matter of law, entitled to a verdict in the proceedings or on any cause of action, issue or claim for relief in the proceedings, the Court of Appeal may direct a verdict and give judgment accordingly.”

10 Section 108 is the current form of s7 of the Supreme Court Procedure Act 1900 which was considered by the High Court in Hocking v Bell (1945) 71 CLR 430, see esp at 441-442, 486, 498. The Appellant invokes that section. The Notice of Appeal does not seek an order of the kind referred to in s108(2). Alternatively, the Appellant seeks an order for a new trial.

11 It is trite law that the Court is not entitled to disturb a jury’s verdict on the basis that this Court would have come to a different conclusion. It is not enough for this Court to come to the conclusion that the evidence favoured the Appellant. Such an approval would fail to recognise the jury’s role as the finder of fact.

12 The original ground of appeal was expressed in terms that “the verdict was against the evidence and the weight of the evidence”. An attempt was made to distinguish between the two limbs of this traditional expression to the effect that there was something different involved in a verdict “against the evidence”, from what was involved in a verdict “against the weight of the evidence”. There are examples in the case law in which one or other of the expressions have been used. However, more commonly they are used together. In my view the phrase in the case law is used as a hendiadys in which a single idea is expressed in two sets of words joined with the conjunction ‘and’.

13 Perhaps the most frequently cited reference to the meaning of this ground of appeal is that of Latham CJ in Hocking v Bell at 440-441 where his Honour said:

“If a verdict is against evidence and the weight of evidence a new trial may be ordered. If the evidence on one side so greatly preponderates over the evidence on the other side that it can be said that the verdict is such as reasonable jurors, understanding their responsibility, could not reach, a verdict may be set aside and a new trial may be ordered. Caution is necessary in applying the principle where the verdict may be set aside if it is against evidence and the weight of evidence. That principle must not be interpreted in such a manner as to deprive the jury of its right of believing one witness on one side against twenty (or any number) of witnesses on the other side.”

14 Another formulation of this ground of appeal is that of Jordan CJ in Bell v Thompson (1934) 34 SR (NSW) 431 at 437:

“Where there is evidence both ways – i.e., evidence that the fact does, and also that it does not exist – in order to justify a new trial on the ground that the verdict is against the weight of evidence, it is necessary not merely that the evidence should, in the opinion of the Court, preponderate in favour of the unsuccessful party, but that it should so strongly preponderate in his favour as to lead to the conclusion that the jury, in finding for the other party, have either wilfully disregarded the evidence or failed to understand and appreciate it …
…
To set aside the verdict as against the weight of evidence, it is necessary that the verdict should be not only unsatisfactory, but unreasonable and unjust, and such as reasonable men could not have found.”

15 To the same effect is the submission to which the four judges’ joint judgment referred with approval in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41:

“The correct principle is that a court of appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.”

16 The Appellant relied on this ground of appeal in each of the five matters with respect to which, it submits, the jury erred:

1 Was the Respondent swimming between the flags?

2 Could it be concluded that the Respondent dived into a sand bar?

3 Was the Council in breach of its duty with regard to the placement of the flags?

4 Was the Council in breach of its duty because it failed to provide supervision of, or warning to, users?

5 Could it be concluded that the absence of a warning caused the injury?

17 In its Notice of Appeal the Appellant seeks an order that it is entitled to a verdict rather than an order for a new trial. This does not give rise to an issue which may turn on the distinction between the original ground of appeal and the no evidence grounds. The no evidence grounds apply only to the matters I have identified in 2 – 5 of the previous paragraph.

18 Under s108(3) the Appellant would have to be entitled to a verdict “as a matter of law” in order to obtain a verdict. This test would be satisfied if the Appellant were to succeed on a no evidence ground. However, if the Appellant established that the verdict was against the evidence or against the weight of the evidence, that does not mean that it is entitled to a verdict in its favour. (See Hocking v Bell at 443, 488 and 498.)

19 As Dixon J put it with respect to the facts of Hocking v Bell at 488:

“In the circumstances of the present case, for the defendant to be entitled as a matter of law to a verdict it must appear that upon the evidence adduced no reasonable man could be satisfied that he had left a piece of tubing in the plaintiff’s neck, but it would be sufficient to enable the court to order a new trial if on the whole evidence, notwithstanding some conflict therein, the contrary conclusion appeared to be the only one which could justly and properly be reached by men who understood their duty and applied themselves faithfully to its discharge.” [Emphasis added.]

20 The second of these two considerations involved a decision to the effect that the verdict was against the weight of the evidence. (See e.g. at 498.6.) A summary of the principles applicable to applications for verdicts by direction is contained in the judgment of Kirby J in Naxakis v Western General Hospital (1999) 197 CLR 269 esp at [58]. See also his Honour’s judgment in Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at [64].

Background Facts

21 On 7 November 1997, the Respondent and a friend Ms Galvin, and her flatmate Mr Wilson, travelled together to Bondi Beach. When they arrived, the Respondent and Mr Wilson each consumed one 750ml bottle of full-strength beer, which they purchased at a shop near the beach. Ms Galvin, Mr Wilson and the Respondent sat together on the grass at the southern end of the pavilion at Bondi Beach. The Respondent gave evidence that he was not adversely affected by the alcohol he had consumed. There was no evidence to the contrary.

22 Mr Wilson left the grass area, proceeded onto the beach and went for a swim in the surf. Mr Wilson’s evidence was that he began swimming between the flags, close to the southern flag, and that when he came out of the water he noticed that he had been swept outside the flags in a southerly direction.

23 While Mr Wilson was swimming, the Respondent and Ms Galvin remained on the grass, talking. The Respondent was sitting on the grass for about an hour and a half before going for a swim. Mr Wilson got out of the surf and sat on the beach reading a book. Ms Galvin and the Respondent then went onto the beach. The Respondent removed his shirt and shoes and went swimming in his shorts. Ms Galvin proceeded into the water a short distance in front of the Respondent. Mr Wilson remained on the beach.

24 The Respondent was not able to give very much evidence about the condition of the beach. He simply said that he waded out and that after he dived under a wave he became unable to move.

25 The Respondent gave the following evidence in chief:

“Q. And what do you recall you did, how did you get into the water?
A. I was just wading out through the water as I normally would have.
Q. And what did you notice about the water, first of all how deep did it get?
A. It just gradually got deeper as I went out.
Q. And at some point as you waded out did you then decide to do something else?
A. I was about fifteen odd metres out when a wave was coming and decided to dive through it.
Q. Now, at that point before the wave started to come or as you appreciated the wave was coming?
A. Yes.
Q. How deep was the water?
A. About waist depth, maybe a little bit higher than waist depth.
Q. What did you do?
A. As the wave got to me I went to dive through it.
Q. And what sort of dive did you do, do you remember?
A. Well, just to dive through the wave as so it wouldn’t sort of knock me back and push me back.
Q. And do you remember what was the next sensation you experienced?
A. Not being able to move.
Q. Just go back one step, you decided to dive?
A. Yes.
Q. Did you do that?
A. Yes, I did.
Q. And then did you have, you said you felt you couldn’t move, had you felt anything happen to you, or did you feel yourself come to contact with anything before that?
A. Not really, I just, I mean, I went to dive and then the next thing I knew was that I was in a bit of pain and I couldn’t move, or a lot of pain.
Q. A lot of pain. And did you find yourself able to move at all?
A. I couldn’t move at all.”

26 Mr Wilson gave evidence that the Respondent floated in the water for “quite a few minutes” before Mr Wilson and another man pulled him out of the water. The Respondent’s own evidence on this point was as follows:

“Q. Now, how did you get out of the water?
A. Earl actually pulled me out.
Q. And had you any idea how long you were in the water before Earl pulled you out?
A. No, all I was thinking was how am I going to move so I can take a breath. The next thing I knew he was there. I have no idea how long I was face down.
Q. After that then did some other people come along and give you some assistance?
A. Once Earl pulled me back to the beach to where we were seated someone went and got the life guards.
Q. Now I think some time later a helicopter came along?
A. That’s correct.
Q. Were you conscious during all of this?
Q. I can remember part of it but, yes I was conscious.”

27 Mr Nightingale, who was a lifeguard on duty at Bondi on the day of the Respondent’s injury, gave evidence that on that day the surf conditions were “very small”, that there was “next to no surf”, and that the measurement of the waves from the crest to the base of the face of the wave was approximately half a metre. This latter measurement was drawn from the lifeguards’ daily report for 7 November 1997.

28 The Respondent estimated that the wave height on the day of his accident was about two feet as measured from the crest of the wave to where the wave rises from the ordinary level of the ocean on the side of the wave furthest from the beach. On this evidence, the face of the wave as it moved towards the beach would have been higher. Nothing turns on this difference in the evidence. All witnesses agreed that it was a light surf.

29 The Respondent gave evidence that he had been to Bondi Beach more than ten times. He had surfed there on his surfboard. The Respondent was a keen surfer. Although previously he had surfed more often, in 1997 he went surfing with a surfboard about once a month. He most often went surfing at Curl Curl Beach.

30 The Respondent gave evidence about his ability to identify rips, and said that when he was surfing on his surfboard, he sometimes used rips to get out the back. He knew about sand banks, that waves tend to break on sand banks, and that the water is shallower in the area above and around the sand bank. He knew that even on a calm day there could be steep irregularities in the sand under the water. He agreed that every time that he had dived under a wave he had made his own assessment of whether it was safe to do so.

31 I will make further reference to the evidence below, where pertinent to the respective grounds of appeal.

Swimming Between the Flags?

32 A central issue at the trial, and on the appeal, was whether the Respondent entered the water, as he testified, between the flags. In this regard the Appellant relied only on the weight of the evidence ground. It accepts that there was evidence in this regard.

33 The Respondent gave evidence that he swam between the flags. He chose that location because he believed it to be a safe, patrolled, area. The examination in chief of the Respondent included the following:

“Q. Did you make a decision to go into the water?
A. Yes.
Q. Now, in relation to the flags that were on the beach?
A. Yes.
Q. Where did you go?
A. In between the flags.
Q. And were they the red and yellow flags you see on beaches?
A. Yes, they were.”

34 Counsel for the Appellant put to the Respondent that he was swimming outside the flags. The Respondent disagreed.

35 Mr Wilson marked on an exhibit, which was an aerial photograph of Bondi Beach, that the Respondent went into the water between the flags, and that he pulled the Respondent out of the water to the southern side of the southern most flag.

36 Mr Wilson was cross-examined by counsel for the Appellant. The cross-examination was directed to establishing that the Respondent was not swimming between the flags and that the Respondent was running when he dived into the sandbar. Mr Wilson did not concede either of those propositions.

37 Ms Galvin’s evidence was equivocal in relation to whether she and the Respondent swam between the flags, where on the beach in relation to the flags Mr Wilson was sitting, and where the Respondent was helped out of the water.

38 There were a number of transparencies in evidence on which the witnesses indicated where they thought the flags were placed and where various events occurred, particularly where the Respondent entered the water and where he was seen after he was taken out of the water. These transparencies were marked by placing each one over the same aerial photograph of Bondi Beach and indicating the location of the relevant things and events. Evidence about the location of the flags and where the Respondent entered and left the water was given in this way. Mr Taylor relied in submissions on the distances marked on the transparencies. Mr Menzies made no objection to this course or to the accuracy of any of the distances referred to in submissions.

39 The Respondent’s evidence was that the southern flag was roughly opposite the midpoint of the pavilion. Mr Wilson’s evidence was that the southern flag was just north of the midpoint of the pavilion.

40 The Appellant called Mr Sean Tagg, a volunteer lifesaver who was at Bondi Beach on the day in question, although he was not on patrol as a lifesaver. On the day of the Respondent’s accident, Mr Tagg and his friend were completing a training run on Bondi Beach. Mr Tagg interrupted his training run when he came across a man prostrate on the beach and a distressed woman beside the prostrate man. Mr Tagg suspected that the man, who was the Respondent, had suffered a spinal injury.

41 Mr Tagg could only give evidence about what was referred to in submissions as the “point of discovery”, not about the point at which the Respondent entered the water, or where the Respondent was injured, or for how long the Respondent was in the water before he was rescued, or how far south he drifted during that period. Mr Tagg’s evidence, as translated from a transparency marked by him, was that the point of discovery was 150 metres from the midpoint of the Bondi Pavilion. This location, on any account, is well south of the flags.

42 The Appellant called Mr Harry Nightingale, a lifeguard on duty at the time of the Respondent’s accident. Mr Nightingale gave evidence to the effect that the flags were positioned further north along the beach than was indicated in the evidence of the Respondent and of Mr Wilson. Mr Nightingale said that the southernmost flag was almost level with the northern end of the Pavilion, that is about 60 metres north of the midpoint of the Pavilion.

43 Mr Nightingale first noticed the Respondent when he was lying injured on the beach to the southern side of the flags near the board riding area. Mr Nightingale’s mark on the transparency for where he first noticed the Respondent is recorded in the Appellant’s submissions as being “200-300 metres” south of the northern end of the Pavilion, where Mr Nightingale had been. Mr Nightingale could not give evidence about where the Respondent entered the water or suffered the injury.

44 The jury had the advantage of assessing the transparencies to which I have referred above. The jury could well have concluded that the method of identifying locations on the beach was imprecise. This difference between 200 and 300 metres, referred to in the Appellant’s submissions, is a strong indicator of the approximate nature of the exercise. The imprecision is compounded by the fact that the evidence about the location of the flags on a particular day was given almost five years after that day. On the other hand, the Pavilion provides a reference point by which meaningful comparisons could be made.

45 The evidence of the Respondent and of Mr Wilson that the Respondent entered the water between the flags was not directly contradicted. The Appellant sought to convince the jury, and this Court, on the basis of the evidence given by Mr Tagg and Mr Nightingale about where the flags were and where the Respondent was first seen by them and Mr Wilson’s estimate of how the Respondent drifted when incapacitated, that he could not have been injured while between the flags. It is only necessary to say that this was an archetypical jury question. It was open to a reasonable jury to conclude on the evidence, particularly the Respondent’s sworn evidence as corroborated by Mr Wilson, that the Respondent entered the water, and was injured, between the flags but that he drifted, when incapacitated in the water, to the south.

46 It was open to the jury to conclude that the evidence of how far to the south of the southern flag the Respondent was found – between 60 metres and 200 metres south on different versions – was not sufficiently large a distance or precise a calculation, to render the Respondent’s evidence unacceptable. Mr Wilson testified that he had been swept to the south of the flags in the course of his swim, indicating the existence of a current or rip in that direction. The movement of the Respondent could be explained by the pull of the water upon his inert body and the process involved in carrying him out of the water. I am not satisfied, to use the formulation from Calin set out in [15] above, that “the evidence, in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach”.

47 In my opinion Ground 1 insofar as it refers to this factual issue and Ground 7 should be rejected.

The Sandbar

48 Grounds 5 and 6 concern the evidence about how the accident could have occurred. The Respondent’s case was that he performed a flat dive into an oncoming wave and hit sand in the form of a rise in the level of the sand immediately in front of him.

49 In all the circumstances it is difficult to conceive of the Respondent’s injuries as having been caused in any other way than a dive into sand. There was no alternative medical explanation proffered. There was no suggestion of any object in the water or of a wave having dumped the Respondent. It was a matter for the jury to determine whether there was a rise in the sand, consistent with the Respondent’s case of a flat dive or, alternatively, that there was no such rise and, accordingly, that the Respondent must have executed a deep dive.

50 I have quoted above the Respondent’s evidence that his dive was executed when he was in water “a little bit higher than waist deep”. The dive, he said, was “through the wave”, not under it.

51 No evidence was led for the Appellant relating to the sand structure beneath the water at the relevant time. The jury heard evidence about the sand structure from the Respondent’s witnesses and heard nothing from the Appellant on this subject.

52 Both Mr Wilson and Ms Galvin gave evidence about the existence of a sudden rise in the same at the relevant point.

53 Mr Wilson testified:

“Q. What did you notice as you went in, if anything, about the depth of the water?
A. It seemed to go out pretty fluidly.
Q. When you say it seemed to go out pretty fluidly, what do you mean by that?
A. I mean it seemed to go out like normal, like on a downward slope.
Q. Did you continue walking out through the water?
A. I did.
Q. How far did you get out from the water’s edge – how far did you go out from the water?
A. I went out to about 15, 20 metres.
Q. At that point how deep was the water?
A. I got up to about waist-deep.
Q. Having got up to about waist-deep, what did you do next?
A. I continued walking out.
Q. How far did you go continuing?
A. Only a few steps.
Q. What happened?
A. I hit a sandbar.
Q. What do you mean, you hit a sandbar?
A. I kicked a sandbar.
Q. What did you notice about the depth of the water then in front of you?
A. That with that sandbar I then, when I stepped over it, I was at a depth of up to my knees.
Q. You said you got about 15 or 20 metres, the water was about waist-deep. You said you continued walking and you hit a sandbar. In terms of steps, how many steps had you taken before that occurred?
A. About three or four.
Q. Having hit the sandbar, what did you do then?
A. I got a bit of a surprise because it was quite a big step and I hadn’t been used to such conditions, so I, you know, I did notice it and think, ooh, that’s a bit dangerous, because I was thinking of diving when I got to waist-deep, as you do, thinking that it’s safe.
Q. Before you kicked the sandbar, had you seen anything which indicated to you the sandbar?
A. No.
Q. You did tell me, but how deep was the water?
A. The sandbar?
Q. How deep was the water on the sandbar?
A. The sandbar went up – I was knee deep.
Q. And what happened, did you continue walking?
A. I continued walking, where it dropped off again and I dove [sic] in and breast stroked out.”

54 Ms Galvin gave evidence that “there was a definite sort of ditch or hollow in the water because I fell down. And as I kept moving forward I stood up and it was shallow again without a doubt”. Her evidence was that it was at the point that she stumbled, that the Respondent dived.

55 Ms Galvin gave the following evidence about entering the water with the Respondent:

“Q. Can you remember where he was in relation to you at that time?
A. He was to the right of me.
Q. And how far away?
A. Maybe a metre or two metres.
Q. At the time he dived in what do you recall you were doing?
A. I think it was about the same time that I fell into that ditch in the water.
Q. After you fell into the pit or ditch in the water, what did you do; what was the very next thing you did? You fell into the pit or ditch. What happened then?
A. Well, I stood up like just keep moving forward and I noticed that it got really shallow again straightaway afterwards. And then I just kept going. I stepped into the water after that, kept going out.
Q. When you fell into the pit or ditch, do you have any recollection of how deep the water was then?
A. Inside the ditch you mean?
Q. How far down into the water did you go at the maximum?
A. Well, it was enough to make me actually lose my balance and fall over, basically.
Q. And up until you did that, up until that occurred, what was your perception, what did you feel was happening so far as the depth of the water was concerned as you walked in?
A. It was shallow.
Q. Did it remain shallow or did it change in depth as you went into the -
A. Before the ditch it was just shallow water.
Q. When you say shallow, how deep or how shallow?
A. I couldn’t tell you exactly but shallow enough to be jogging in.
Q. And then come forward to the point where you are swimming. You’ve slipped into the water and you are swimming out. When was the next occasion, if at all, that you saw Guy?
A. I swam out beyond the break and when I looked back Guy was still in the shallows and I wondered why he hadn’t come out with me.”

56 Mr Tagg gave evidence that Ms Galvin had told him that the injury had occurred when the Respondent “ran into the water and dove head first and landed on his head”. Ms Galvin was not cross-examined on this matter or anything else.

57 There was, accordingly, evidence from Mr Wilson and Ms Galvin about the existence of a sandbar and no evidence contradicting it. Mr Wilson estimated the variation in depth as being from waist deep, (confirmed by the Respondent as the point at which he dived), to knee deep. Ms Galvin also said the Respondent dived at the “ditch”, after which the water “got really shallow again straight away”. She did not estimate the height of the variation but it was clearly substantial and sudden.

58 That the Respondent was injured when he dived was accepted by the jury. The Appellant asserts that the injury could not have been suffered in the way described by the Respondent. The Appellant asserts that it must have occurred by the Respondent diving into shallow water and hitting the bottom. Accordingly, it had nothing to do with a sandbar. The only shred of evidence that supports this is Mr Tagg’s account of what Ms Galvin said, in circumstances where Ms Galvin was never asked whether she did in fact say such a thing.

59 It was open to the jury to accept the Respondent’s case about how the injury was suffered. It is not inherently implausible. The evidence of Mr Wilson and Ms Galvin supports it. Such discrepancies as there are in the evidence are minor and within the normal variation of eyewitness accounts of the same event. The evidence of Mr Tagg is ambiguous. Whether or not it should have led to a conclusion that the injury did not occur in the manner put forward by the Respondent was a matter for the jury. Ground 5 should be rejected. So should Ground 6 insofar as it refers to Ground 5 and Ground 1 insofar as it refers to this subject.

Causation

60 The Respondent gave evidence linking each of the two basic acts of alleged negligence – the positioning of the flags and the absence of a warning – to his own conduct and, therefore, to his injuries.

61 As to the flags, the Respondent said in chief:

“Q. And why did you choose to go between those two flags?
A. I believed it was safe and a patrolled area.
Q. And had you believed that the area was not safe what do you think you would have done?
A. I wouldn’t have swum there.
Q. Did you see anything about the water that indicated to you that there was any obvious danger?
A. No, not at all.
Q. And what was the surf like?
A. It wasn’t rough it was quite calm.”

62 As to a warning, the Respondent gave the following evidence in chief:

“Q. Were you aware of any signs or warnings or notices which were related to the existence of a sand bar or some dangerous condition on the beach?
A. No, the only other sign I saw was the one that is always there for the surfboarders to stay out twenty metres away from the flags.
Q. Had there been a sign on the beach which warned of the existence of the sand bar, what would you have done had you seen such a sign?
A. Well I would have paid attention looking for the sand bar, and I mean, it would have been in my mind, so I would have paid a lot more attention to it.”

63 This theme was revisited in re-examination of the Respondent by Mr Menzies:

“Q. Had such a sign been there, would that have had any effect upon before your diving or doing anything to determine the existence or otherwise of the whereabouts of any obstruction in the water?
A. I would have found the sand bar before I dove through any waves.”

64 In each respect, it was open to the jury to accept this evidence. It established a sufficient chain of causation between the negligence relied upon and the injuries. In any event, the Appellant did not challenge causation with respect to the particular of negligence concerning placement of the flags. Ground 4 and Ground 6 in this regard, refer only to a finding that the absence of a warning caused the Respondent’s injury. There was evidence to support a finding of causation. These Grounds should be rejected. I do not understand, in the absence of any separation in the question to the jury between the two particulars of negligence, how this ground could ever have succeeded.

Duty and Breach

65 No issue has arisen concerning any legislation or subordinate legislation relevant to the Council’s authority over the breach. It was common ground that the Council had care, management and control of the beach.

66 The trial judge gave directions to the jury, without objection, as to the relevant duty of care, in the following terms:

“… [L]et me tell you as a matter of law the Council being in control of the beach and having the care of this and management of it owed a legal duty to take reasonable care for the safety of those citizens who are using the beach. What the law requires is the Council exercise reasonable care in all the circumstances to protect the plaintiff from unnecessary risk of injury.”

67 This direction was in accordance with High Court authority. (See e.g. Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 429-430; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [47]-[49], [65]-[66], [74]-[76], [123] and [145].)

68 The proceedings in this Court were conducted on the basis that a duty of care of this character was owed by the Council to users of the beach, including the Respondent. The issue was breach.

69 Grounds 2 and 3, together with Ground 1 and Ground 6, insofar as each refers to Grounds 2 and 3, focus on the position of the flags and the failure to identify and warn about the potential hazard of the sandbar. These grounds must be considered on the basis that the jury correctly found that the Respondent was swimming between the flags.

70 Two omissions were and are relied upon by the Respondent as constituting the relevant departure from the requisite standard of care. First, the failure of the Appellant to position or reposition the flags in such a way as to avoid the hazard of the sandbar into which the Respondent dived. Secondly, the failure of the Appellant to warn the Respondent of the hazard. Other matters particularised lead to one or other of those alleged deficiencies.

71 No attempt was made at trial to separate the issue of flag placement from the issue of warning. The question put to the jury was general:

“Has the plaintiff proved that the defendant was negligent?”

72 This appeal was conducted on the basis that the Appellant had to succeed on both issues.

73 I will summarise the evidence on placement of the flags and warning signs before considering whether it was open to the jury to find that the Appellant was in breach of its duty. For reasons I have given elsewhere I do not think anything is gained by asking whether a finding was “reasonably open” as distinct from “open”. (Attorney-General (NSW) v X (2000) 49 NSWLR 653 at [56]-[63].)

Placement of the Flags

74 Mr Jeffrey Williams, a senior ocean lifeguard and beach and surf education officer for the Sutherland Shire Council, was called by the Respondent. Mr Williams has been a professional ocean lifeguard since 1978 and, from 1998, has been the beach and surf education officer for the Sutherland Shire Council. He has considerable experience with respect to water safety, including with respect to safety signage.

75 Mr Williams gave evidence that red and yellow flags are placed on the beach by whoever has control of the beach, and that the placement of the flags is made after some consideration of the conditions. His evidence was that the purpose of the red and yellow flags is to designate swimming areas. Mr Williams also gave evidence that before positioning flags on a beach, the following should be taken into account:

“The condition of the surf and the effect of the wind and tide and currents, potential hazards.”

The types of hazards that he had in mind were:

“Wind can be a hazard, current can be a hazard, the occurrence of currents and channels and the actual formation of the beach”.

76 The present case is concerned with “the actual formation of the beach”.

77 Mr Williams gave evidence about various factors that influenced conditions and sand structure at a beach. He said that a normal feature of a beach is the creation of a sandbar and the formation of channels, commonly known as rips, on either side of the sandbar, which is where the water flows back out to sea. His evidence was that depending on the circumstances on any particular day, the structure of a sandbar and channels may change throughout the day. He further gave evidence that he believed that such changes were things that a prudent lifeguard would take into account, and that variation of beach conditions of this type could result in a lifeguard taking steps with respect to the positioning of the flags. Mr Williams said that a sandbar can present a hazard because of the variable depth of the water that is created.

78 Mr Williams was cross-examined. He agreed that the person responsible for placing the flags has to make a judgment about the conditions on the day and agreed that flags are often placed adjacent to sandbanks because that can be the safest place to swim. He agreed that an area with a “shallow trough” could be an ideal spot for young children, but added:

“… well, depending on the circumstance on the day, the trough could be the biggest hazard on the day.”

79 The Council did not call the person who placed the flags on the day of the accident. However, Mr Nightingale who came on duty by 10.00 am gave evidence that there was no change in conditions which required the flags to be moved.

80 Mr Nightingale gave the following evidence:

“Q. What’s the normal procedure, if there is one, for the beach being open when it’s being patrolled by lifeguards? What do lifeguards do?
A. The flags are up. The flags are on the beach.
Q. And can you tell the members of the jury what the flags are?
A. The flags … indicates to people a reference where they can swim safely. If they stay between the flags, ideally they should come to no harm. It’s safe swimming.”

81 Mr Nightingale gave evidence about the placement and repositioning of the flags:

“We set up at six but during the course of the day we are always observing the beach, of course, and at times situations change; you might have a wind change, a swell starts to come up and what was a safe area might have to be minimised or moved. So we basically - apart from watching for people in trouble we are waiting to reassess the situation.”

82 Mr Nightingale said that on 7 November 1997 the flags were not moved from the time that he commenced his shift at 10.00am. Mr Nightingale said in cross-examination “I could definitely tell you now there was no change in the beach conditions”.

83 He agreed in cross-examination with the proposition that “Things can look safe to an ordinary swimmer but in fact be quite dangerous, and the danger will be recognised by an expert but perhaps not by the average swimmer.” He then referred to the difficulty of identifying an ‘average’ swimmer because of the vastly different levels of experience of different beach users, and said “I think basically all we can do is - what we could do is pick out something that is a danger. If we pick out or see a situation that is a threat, doesn’t matter to whoever it is.”

84 Mr Nightingale gave evidence that on 7 November 1997 he would have checked the “set out” of the beach, including checking for rips. He likened this process to checking the lay of a golf course. The following interchange occurred in cross-examination:

“Q. What do you do to identify dangerous positions for swimmers?
A. I do it visually by colour checks. That is the way I do it. Dark green, to me, signifies deep water. And more oftentimes than not there is a current in the deep water. That is the first thing that I looked at on the beach; that is the first thing I would see. And then I would be drawn to that position and to check it out to see if there is a current running out or whether it’s a still piece of ocean.”

Warning Signs

85 Mr Nightingale gave the following evidence in chief:

“Q. Apart from the flags, are there any other things the lifeguards do in patrolling the beach?
A. Yes. We also - we are experienced to basically examine the beach and point and we find the dangerous places which may bring swimmers that aren’t very efficient to trouble. … We usually mark those areas with a danger sign to basically give a warning to the public.”

86 The witness proceeded to describe different signs relating to various hazards.

87 In cross-examination, Mr Menzies QC went to the issue of warning signs immediately after the interchange reproduced in par [84] above, relating to checking the colour of the water and identifying characteristics and potential dangers of the beach in that way. The cross-examination of Mr Nightingale continued:

“Q. And if there is a current running out, then you might consider whether or not the conditions were so dangerous that perhaps some warning sign would need to be placed …
A. That’s correct that’s the way we do it.
Q. And you have told my learned friend about a number of the warning signs. If you saw blue bottles, you would put a sign out, I take it?
A. Yes.
Q. And if there was a strong current running somewhere, you would put a sign out about that?
A. Yes. A “no swimming” sign.
…
Q. …[I]f you found there were deep holes, for example, near the shore, would you put out some sign to warn -
A. Not necessarily. And see, there again that’s relying on our expertise. We look at the situation. Sometimes, see, it depends on how deep is deep.
Q. Sure. Okay.
A. Sometimes a deep hole would be a safe place to swim as long as there is not a current et cetera, et cetera.
Q. So the answer to my question is not necessarily, but sometimes you would and it would depend upon whether you perceive the deep hole to be a danger or not?
A. Exactly yes that’s right. …”

88 There was no description in evidence of a sign that can be readily used to warn of sandbanks in the surf. The Respondent described how he thought one might look. Whatever a creative signwriter might be able to devise, a sign with the words ‘Sandbanks: use caution when diving’ is entirely conceivable.

Breach of Duty

89 As I have indicated above there was no issue at the trial, or on the appeal, that the Council did owe a duty of care to users of the beach. The critical issue is one of breach. The relevant risk, which falls within the accepted duty, is the risk of a person diving into a sandbank formation at a time when his or her ability to see that there was a sudden rise in the level of the sand was obscured by a breaking wave. What, if anything, should a reasonable Council have done by way of response to the existence of this risk? Specifically, in the present case, should the Council have provided some kind of warning of the risk and/or should it have ensured that the position of the flags was such as to avoid a section of the beach where there was a sudden rise in the sand level of the character suggested in the evidence in this case? I reiterate that the issue for the Court is not whether this court believes that there was such a breach, but whether it was open to the jury to so find.

90 The factors involved in making the assessment of what a reasonable response would be is a multifaceted one including, in accordance with the basic Australian authority on the subject, issues of magnitude of risk, probability of occurrence, expense, difficulty and inconvenience of action and conflicting responsibilities of the person who owes the duty. (See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46-48.)

91 It is sometimes said that the decision as to what reasonableness requires by way of a response to a risk is a ‘question of fact’. That is so when that terminology is contrasted with the terminology of ‘question of law’, as constituting the relevant universe of discourse. However, a decision as to reasonableness is not the making of a finding of fact strictly so called. It involves the exercise of judgment. The permissible range of judgments as to reasonableness of conduct can be very wide. It can rarely be said, on the basis of any particular set of circumstances, that only one judgment can reasonably be reached. (See e.g. Glass, McHugh and Douglas “The Liability of Employers in Damages for Personal Injury” (2nd ed) Law Book Company, Sydney, 1979, at 209.) This is of particular significance in a case such as the present, where the Court operates under the constraints of an appeal from a jury trial.

92 There is now a substantial body of case law about when warnings are required to discharge a duty of care. There is also a significant number of cases in which the necessity for some kind of warning or barrier has been considered in the context of diving into water. (Bell J has summarised this line of cases in Vairy v Wyong Shire Council [2002] NSWSC 881 esp at [145]-[152].) It is possible to look at these cases with a view to teasing out the elements in the final judgment of reasonableness that were given weight in reasons for decisions, where a trial has been by judge alone and reasons for judgment are published.

93 In the past when a substantial proportion of trials were conducted before juries the standard of reasonableness applied was not able to be discerned at all. The availability of reasons obscures the fact that the formulation of the requisite judgment is a matter for the tribunal of fact and what is an appropriate judgment is something on which reasonable minds can differ.

94 As Lord Somervell of Harrow said in Qualcast (Wolverhampton) Limited v Haynes [1959] AC 743 at 757-758:

“The question whether on the facts in [a] particular case there was or was not a failure to take reasonable care was a question for the jury. There was not, and could not be, complete uniformity of standard. One jury would attribute to the reasonable man a greater degree of prescience than would another. The jury’s decision did not become part of our law citable as a precedent. In those days it would only be in very exceptional circumstances that a judge’s direction would be reported or be citable. So far as the law is concerned they would all be the same. Now that negligence cases are mostly tried without juries, the distinction between the functions of judge and jury is blurred. A judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at the conclusion previously reached by a jury are to be treated as ‘law’ and citable, the precedent system will die from a surfeit of authority.”

(See also at 759-761 per Lord Denning and Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 at 463-464.)

95 The wide scope of permissible variation in making the relevant judgment plainly exists in the present case. Judgments in other warning or diving cases must be treated with care. They are not precedents to be followed or distinguished.

96 Two distinct matters arise in assessing whether there was evidence before the jury and whether the jury’s verdict was against the weight of the evidence. First, with regard to the alleged breach by failure to warn. Secondly, with regard to the alleged breach in the placement of the flags.

Breach by Failure to Warn

97 One factor which generally arises in a warning case is the degree of obviousness of the risk. This may arise at the level of causation, i.e. would a warning have made any difference. It also arises at the level of reasonableness of the conduct suggested to have been necessary to avoid or minimise the risk. The case law on obviousness reflects in a stark manner the proposition to which I have referred above, i.e. that there is a wide range of permissible judgment when deciding what reasonable conduct requires.

98 At one end of the spectrum are risks about which any warning would be entirely superfluous. As Latham CJ put it in a case which bears some resemblance to the present case:

“The dangers … are so obvious that they advertize themselves.”

( Bressington v The Commissioner of Railways (NSW) (1947) 75 CLR 339 at 349.)

99 The Full Court of the Supreme Court of Western Australia concluded that the risk of a body surfer being dumped was obvious and inherent in body surfing (Prast v Town of Cottesloe (2000) 22 WAR 474 at [42]-[44] per Ipp J with whom Wallwork and Parker JJ agreed). A similar conclusion has been reached with respect to the risks to a customer standing on a wire basket in a supermarket (Franklins Self-Serve Pty Ltd v Bozinovska, NSWCA, 14 October 1998 per Mason P); the risk of horses slipping on mossy rocks when crossing a stream was “part and parcel of the recreation” (Mountain Cattlemen’s Association v Barron [1998] 3 VR 302 at 309 per Brooking JA with whom Phillips JA agreed); the risk of a tree falling on someone walking in a forest in windy conditions (Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 at [47] per Batt JA); the risk that a single pronged hook may come out of a bale of wool and cause a wharf labourer to fall from the top of the wool bales was an “obvious and inherent incident” of his occupation (Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 at 170 per Barwick CJ); loss of money was an inherent risk of gambling (Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 at [27]).

100 Classification of a risk as “inherent” or equivalent, considers only one factor in determining whether a duty of care exists, or identifying the appropriate standard of care, or determining breach. The whole of the circumstances need to be considered, even in the case of an inherent risk. (See Rootes v Shelton (1967) 116 CLR 383 at 385 per Barwick CJ and 390 per Kitto J; Agar v Hyde (2000) 201 CLR 552 at [14] per Gleeson CJ.)

176 The respondent said he went in between the flags because he “believed it was safe and a patrolled area” and if he had not thought it was safe he “wouldn’t have swum there”. He said “you swim in between the flags”. In fact it was safe to swim there. He did not say, knowing he was between the flags, that he thought for that reason it was safe to dive as and where he did. His evidence of reliance was directed, not to the flags which were on the shore, but to the warning signs which were not.

177 In Prast v Town of Cottesloe (2000) 22 WAR 474, 481-3, Ipp J referred to the distinction between the inherent risks of body-surfing and the risks in the “diving” cases such as Nagle v Rottnest IslandAuthority (1993) 177 CLR 423, where there were held to be hidden dangers which created a duty to warn. The risk of being dumped is inherent in body-surfing and well-known and can only be avoided by avoiding waves that are dumpers.

178 The risks of channels and sandbars, such as those that caused the respondent’s injury, close to the shore, are also well-known and can only be avoided by not diving or diving with care. When one dives into a wave over a channel close to the shore there is an inherent and well-known risk of encountering a sandbar. Although a broken wave may obscure a channel and sandbar this does not mislead a swimmer who has surfed before. A sensible swimmer in that situation will either not dive into a wave or will make a shallow dive with little force and arms extended for protection. The dangers of doing otherwise are obvious.

179 The respondent had dived through waves before in waist deep water, and before doing so had made his own assessment of whether or not it was safe to do this. He said that even if he had seen warning signs he would have made his own assessment of the water in front and would have relied on his own experience.

180 The surf at the time was very light, and the respondent said it was “quite calm”, with waves about three to four feet high at the front and two feet high at the back. He was referring to the waves before they broke. Mr Nightingale, one of the Council’s lifeguards, said the surf was “very small”, “next to no surf”, it was about half tide, which was going out.

181 The appropriate place for the flags was opposite a sandbank where it is safest to bathe, not opposite a rip. It was therefore normal, if not inevitable, that there would be a channel and therefore a sandbar in the swimming area between the flags. Moving the flags along the beach in front of another part of the same sandbank or another sandbank would not have protected the respondent from a channel and its sandbar.

182 In our opinion therefore there was no evidence that could sustain a finding of negligence on the part of the Council in the placement of the flags.

183 Nothing we have said is intended to detract from the fact that the respondent has suffered a tragic and terrible accident that has cut him off in the prime of his youth. But the real and genuine sympathy that all must have for his plight cannot obscure the need for there to be evidence of negligence before the jury, acting reasonably, could find a verdict for the respondent.

184 The appellant has only succeeded on grounds of appeal which were not argued at the trial and were added by amendment during the hearing. The amendment led to an adjournment and a further hearing on a later day. If the no evidence points had been taken at the trial, there should have been a directed verdict for the defendant and the appeal would have been unnecessary. In these circumstances there should be no order as to the costs of the appeal. See NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, 282.

185 Accordingly, we make the following orders:

(1) Appeal allowed.

(2) Verdict for the respondent set aside and verdict and judgment entered for the appellant.

(3) Respondent to pay the costs of the trial.

(4) No order as to the costs of the appeal.

(5) Respondent to have a certificate under the Suitors’ Fund Act 1951 .

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Last Modified: 04/22/2003