Wyong Shire Council v Vairy - [2004] NSWCA 247

No judgment structure available for this case.

Reported Decision:
(2004) Aust Torts Reports 81-754

Court of Appeal

CITATION: Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247

HEARING DATE(S): CA40083/03: 20 August 2003
CA40292/03: 17, 18, 20 February 2004

JUDGMENT DATE:
27 July 2004

JUDGMENT OF: Mason P at 1; Beazley JA at 2; Tobias JA at 14

DECISION: Wyong Shire Council v Vairy CA 40083/03; a) Appeal allowed; b) Set aside the orders made by Bell J on 20 December 2002; c) Verdict and judgment for the defendant; d) The plaintiff to pay the defendant's costs of the proceedings and of the appeal but in respect of the latter to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; Mulligan v Coffs Harbour City Council & Ors CA 40292/03; a) Appeal dismissed with costs

CATCHWORDS: TORTS - Negligence - Personal injury - Scope of duty of care - Reasonable response - Obvious Danger - Inherent danger - Duty to warn - Unknown and variabe depth - Diving accident - TORTS - Negligence - Personal injury - Existence of duty - Contributory negligence - Causation - Apportionment - Damages - Volenti - PRACTICE & PROCEDEURE - Fairness - Raising argument post-appeal - Not run at trial - Not argued on appeal

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

CASES CITED: Ah Tong v Wingecarribbee Council [2003] NSWCA 381
Beck v State of New South Wales [2001] NSWSC 278
Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121
Brodie v Singleton Shire Council (2001) 206 CLR 512
Bucheleres v The Chicago Park District (1996) 665 N.E. 2d 826
Burns v Hoyts Pty Ltd [2002] Aust Tort Reports 81-637
Canterbury Municipal Council v Taylor [2002] NSWCA 24
Chappel v Hart (1998) 195 CLR 232
City of Rockingham v Curley (2000) 112 LGERA 123
Darby v The National Trust [2001] PIQR P372
Diamond v Simpson (No. 1) [2003] Aust Torts Rep 81-695
Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706
Dowen v Hall (1989) 548 N.E. 2d 346
Francis v Lewis [2003] NSWCA 152
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Griebler v Doughboy Recreational, Inc (1991) 466 N.W 2d 897
Hadland v Council of the City of Blacktown, Court of Appeal (unreported) 21 May 1997
Hagy v McHenry County Conservation District (1989) 546 N.E. 2d 77
Harriton (by her tutor) v Stephens; Waller (by his tutor) v James; Waller (by his tutor) v Hoolahan [2004] NSWCA 93
Hastings Council v Giese [2003] NSWCA 178 at [18];
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Insurance Commissioner v Joyce (1948) 77 CLR 39 and
Inverell Municipal Council v Pennington (1993) 82 LGERA 268
Jackson v TLC Associates (1998) 706 N.E. 2d 460
Jeffries v Fisher [1985] WAR 250
Moore v Woodforth [2003] NSWCA 9
Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Reports 81-689
Nagle v Rottnest Island Authority (1993) 177 CLR 423.
National Insurance Co of NZ Limited v Espagne (1961) 105 CLR 569
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
O'Sullivan v Shaw (2000) 726 N.E 2d 951
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Prast v Town of Cottesloe (2000) 22 WAR 474
Public Trustee as Administrator of the Estate of the later Peter Saroukas v Sutherland Shire Council (1992) Aust Torts Report 81-149
Redding v Lee; Evans v Muller (1983) 151 CLR 117
Rhind v Ashbury Water Park Limited & Anor [2003] EWHC 1029 (QB)
Roads & Traffic Authority of NSW v Jackson [2003] NSW CA 40
Rogers v Whitaker (1992) 175 CLR 479
Roggenkamp v Bennett (1950) 80 CLR 292
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
Sara v Government Insurance Office of New South Wales (1969) 89 WN (Pt 1) (NSW) 203
Secretary to the Department of Natural Resources & Energy v Harper [2000] 1 VR 133
Snilsberg v Lake Washington Club (2000) 614 N.W 2d 738
Tame v New South Wales (2002) 211 CLR 317
Tomlinson v Congleton Borough Council [2004] 1 AC 46
Turner v South Australia (1982) 56 ALJR 839
University of Wollongong v Mitchell [2003] NSWCA 94
UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Van Gervan v Fenton (1992) 175 CLR 327
Waverley Council v Lodge (2001) 117 LGERA 447
Waverley Municipal Council v Swain [2003] NSWCA 61
Whyte v Redland Aggregates Ltd (unreported) 27 November, 1997; Court of Appeal (Civil Division)
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Woolcock Street Investments Pty Limited v CDG Pty Limited [2004] HCA 16
Wyong Shire Council v Shirt (1980) 146 CLR 40
Wyong Shire Council v Vairy [2002] NSWSC 881; (2002) 129 LGERA 10

PARTIES :
CA40083/03: Wyong shire Council;
Ernest Vairy.
CA40292/03: Garry Mulligan;
Coffs Harbour City Council;
State of New South Wales;
Coffs Harbour Jetty Foreshore Reserve Trust;
Wal Hambly.

FILE NUMBER(S): CA 40083/03; 40292/03

COUNSEL:
CA40083/03
A: Mr I G Harrison SC / Mr D Villa
R: Mr C C R Hoeben SC / Mr E Muston
CA40292/03
A: Mr G O'L Reynolds SC / Mr J B Meadley / Mr R Foord
1R: Mr M T McCulloch / Mr D Villa
2R: Mr J E Maconache QC / Mr Green

SOLICITORS:
CA 40083/03
A: Minter Ellison
R: Carroll & O'Dea
CA40292/03
A: Martin Bell & Co
1R: Phillips Fox
2R, 3R & 4R Crown Solicitor

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): ED 13576/93
SC 20113/00

LOWER COURT
JUDICIAL OFFICER : CA40083/03: Bell J; CA40292/03: Whealy J

CA 40083/03
ED 13576/93

CA 40292/03
SC 20113/00

MASON P
BEAZLEY JA
TOBIAS JA
Tuesday 27 July 2004

WYONG SHIRE COUNCIL v ERNEST VAIRY

GARRY MULLIGAN v COFFS HARBOUR CITY COUNCIL

After hearing both appeals separately the same bench brought down a single judgment.

The first appeal concerned Mr Vairy (the respondent) who was rendered quadriplegic after diving off a rock platform into the sea at a popular Central Coast beach. He had never dived from the platform before although he had seen many others do so on previous occasions without mishap, including immediately prior to his dive. The water’s depth could not be ascertained from Mr Vairy’s position on the platform and he took no steps to determine its depth before diving. Wyong Council (the appellant) who had the care, control and management of the platform was aware of the use of the platform. Further, they were aware that the seabed in that vicinity was subject to variation as sands moved up and down the coast. However, no steps were taken to warn of the dangers of (or perhaps prohibit) diving. The evidence also revealed that Mr Vairy’s former uncle-in-law had suffered sever spinal injuries in a diving accident years earlier at another location.

The primary judge held that the Wyong Council owed Mr Vairy, a legal entrant onto the platform, a duty of care as an occupier. Further, that it was reasonably foreseeable that a person in Mr Vairy’s position might not appreciate (as Wyong did) that, due to seabed variation, the water was not necessarily sufficiently deep: a risk only heightened by seeing others diving safely on other occasions. This risk was found to be a hidden one and that, as such, a reasonable response was to either warn of such danger, or prohibit diving. By failing to do this Wyong Council breached its duty of care.

Mr Mulligan, the appellant in the second appeal, was rendered quadriplegic after he dived forward into a submerged bedform from a standing position in thigh deep water at a creek in Coffs Harbour. He had never swum in the creek before, but for the previous half hour he had been wading out to the middle of the creek and diving forward into the current to be carried downstream. His injury occurred on approximately his sixth repetition of this activity. The bottom of the creek was not visible and, while being aware of the variability in depth due to the presence of bedforms, he was unaware of the depth of water into which he dived. Coffs Harbour City Council, the State and to a lesser degree the Trust (the respondents) had, in accordance with their statutory powers enhanced the creek - a popular recreational location - over several decades. At the time of the injury several others were either swimming in the creek (some engaging in similar activity to the appellant) or recreating on its banks, predominantly the northern bank. The evidence revealed that the presence of bedforms in the creek would naturally vary with the ebb and flow of the creek’s tides.

The primary judge found that while the respondents, as occupiers, owed Mr Mulligan a duty of care as an entrant, and while the risk of injury arising from the striking of a transient dune was reasonably foreseeable, the scope of the duty did not require that Mr Mulligan be warned of the danger of diving since the danger of striking such a dune when diving was both obvious and inherent.

The appeal primarily focused upon, and was ultimately determined by, the scope of the owed duties of care. Several other issues, not strictly determinative of the appeal, were considered by the Court, these included: (common to both appeals) causation and contributory negligence; and (exclusive to Mulligan) the ability of a party to raise issues post-appeal which had neither been raised at trial or in oral argument on appeal, whether all the respondents owed a duty of care, if the defence of volenti was made out, and if damages had been calculated correctly.

HELD

(Tobias JA, with Mason P agreeing and Beazley JA agreeing in respect of Mulligan and in dissent regarding breach of duty in Vairy):

1. A danger is obvious where both the condition and the risk are, in the individual circumstances of the case, apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. [161]

2. In the present case the risk or danger facing the respective plaintiffs was the risk of significant injury resulting from diving into water of unknown and variable depth, which turned out to be too shallow. [197]

3. In Vairy the primary judge erred by defining the risk (that it was not apparent to a diver on the platform that the water may not be sufficiently deep) at too narrow a level of abstraction. [146] & [199]

4. In Mulligan the risk was defined as that of striking a transient naturally occurring on the bed of a tidal creek of variable depth. To this must be added the fact that the water was of unknown depth. [200]

5. These dangers, in the circumstances, were obvious dangers. [201], [211]

6. In the application of the Shirt calculus the fact that a danger is obvious is merely one factor to be considered when determining the scope of the owed duty. However, in a given circumstance, the presence of an obvious danger may be determinative especially where the only breach alleged is a failure to warn. [72]-[73], [168], [195]

7. In the present cases the circumstances were such that the knowledge of the occupier-defendants (actual or assumed) was neutralised by the obviousness of the risk of injury attaching to diving into water of variable and unknown depth which risk was apparent to the plaintiffs. In these circumstances the scope of the occupier-defendants’ duty did not involve a duty to warn or prohibit diving. [206]

8. The fact that the plaintiff in Vairy had seen others dive without mishap on numerous occasions, and that the plaintiff in Mulligan had himself executed a similar dive safely on immediately preceding occasions, did not neutralise or otherwise detract from the obvious risk of diving into water of unknown and variable depth. [210]

9. In Vairy this finding was accentuated by the plaintiff’s knowledge of his former uncle-in-law’s diving injury. [211]

10. In the circumstances the failure to warn, or to take any other steps, did not constitute a breach of any owed duty of care. In both cases the plaintiffs failed to take proper care for their own safety in the face of a risk that was obvious in the circumstances. [202], [209], [215]

OTHER FINDINGS

:

1. A party on appeal is not at liberty to raise without leave, post-appeal, an argument not in issue in the court below or raised in oral argument on appeal. [226]

2. In Vairy and Mulligan the primary judge’s findings regarding causation were not in error. [249], [296]

3. In Vairy the primary judge, by failing to give significant weight to factors relevant to the plaintiff’s contributory negligence, fell into error. The plaintiff’s contributory negligence should be 55%. [257]

4. In Mulligan the primary judge was correct in finding that Coffs Harbour City Council owed the plaintiff a duty of care due to the extent of its care, control and management of the area surrounding the creek and through its power to erect warning signs. The State, through its active managing role, created a relationship that likewise gave rise to a duty of care. [275]

5. In Mulligan the primary judge was correct to find that the plaintiff did not fully comprehend the nature and extent of the relevant risk such that the defence of volenti was established. [312]

6. In Mulligan the primary judge’s findings of contributory negligence were not outside the applicable range in that they were neither unreasonable nor unjust. [320]

7. In Mulligan the primary judge’s discretion in respect of apportionment miscarried. In the circumstances it would be just and equitable for contribution between Coffs Harbour City Council and the State to be 50% each. [331]

8. In Mulligan the primary judge, when determining damages, was not in error to find that the defendants should not receive credit for the rent the plaintiff has been receiving from his own house while he has been living at his parent’s house post-accident. In the circumstances the plaintiff ought not to be made worse off because he has decided to rent a property in which, but for the accident, he would have resided. [344]

Per Beazley JA in dissent regarding breach of duty in Vairy:

1. Notwithstanding the fact that diving from a rock into the ocean is inherently dangerous, the primary judge was not in error to conclude that the appellant breached its duty by failing to erect warning signs in circumstances where: firstly, the depth of water could not accurately be gauged by observation; secondly, most people assessed the risk of diving by the observation of others; and thirdly, the local life guards occasionally warned people against jumping and diving. Such a conclusion was in accordance with High Court authority. [12]

CA 40083/03
ED 13576/93

CA 40292/03
SC 20113/00

MASON P
BEAZLEY JA
TOBIAS JA
Tuesday 27 July 2004

WYONG SHIRE COUNCIL v ERNEST VAIRY

GARRY MULLIGAN v COFFS HARBOUR CITY COUNCIL

1 MASON P: I agree with Tobias JA.

2 BEAZLEY JA: I have had the advantage of reading, in draft, the judgment of Tobias JA. Given his Honour’s comprehensive review of both the facts and the law it is only necessary for me to state briefly my point of departure from his Honour’s decision in relation to the respondent, Ernest Vairy. I otherwise agree with his Honour’s reasons and agree with his proposed orders in relation to the matter of Mulligan.

3 In Vairy, for my part, I see no error in the trial judge’s findings of fact, the application of the law to those facts or in her reasoning process. Her Honour recounted, in detail, the evidence of Mr. Vairy and the various witnesses. That evidence requires a short review.

4 Mr. Vairy had been a frequent visitor to Soldiers Beach, where his accident occurred, in the years leading up to his accident. He was an experienced swimmer, and had swum and snorkelled at Soldiers Beach, including on the day before his accident. He had frequently seen visitors to the beach jumping and diving off the rock platform into the ocean.

5 The appellant had a policy of encouraging visitors to its area, including the recreational beaches in its local government area. Soldiers Beach was one of the popular recreational swimming areas in the locality, although it was uncertain whether there had been any specific promotion of it by the appellant. The beach was patrolled by surf lifesavers both during the week and on weekends. Officers of the Council provided some of the lifesaving patrols. The local lifesaving club conducted the weekend patrols. The lifeguards both from the Council and the Club were aware that people both jumped and dived from the platform.

6 Relevantly, some twenty years previously, there had been a serious injury when a user of the beach had become a paraplegic when he jumped into the water from the rocks at the northern end of the beach – although it appears he jumped from a place higher than the place from which Mr. Vairy dived.

7 There was a newspaper report at the time stating that the Beach Inspector, Mr. Edwards, proposed to recommend to the appellant that a “Danger: No Diving” sign be erected on the rock platform. Mr. Edwards said in these proceedings that he did not remember speaking to a journalist but agreed he may have done so. He appears to have accepted however that he had considered that there should be a warning sign erected. He said:

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

8 Mr. Edwards said these dangers extended along the length of the rock platform.

9 A number of persons who had regularly dived from various parts of the rock platform gave evidence. Of particular relevance was their evidence that they assessed the safety or otherwise of diving by reference, inter alia, to whether other people were diving from it. They also said it was not possible to gauge the depth of the water from the rock platform, although generally the ocean floor was visible. The trial judge made a finding of fact that the respondent assumed it was safe to dive from the rock platform because, amongst other things, he saw other people diving from it.

10 The Soldiers Beach Surf Life Saving Club, which patrolled the beach on the weekend, was concerned about swimmers jumping and diving off the rock. Mr. Jones, an experienced lifeguard with the Club, said that during summer holidays anything from one to thirty people could be jumping or diving from the rock platform. The Club warned people from time to time by going over to the area in a rubber dinghy telling intending jumpers not to jump because there had been the previous serious accident when “a young man jumped off here and became a paraplegic”. He said such warnings were usually peremptorily ignored.

11 The above is but a brief summary, but it and the other facts found by he trial judge established the following. The danger caused by the changing depth of the ocean floor was a naturally occurring phenomenon. The appellant did not create it. The beach was a popular recreational beach and the activity engaged in by the respondent, namely, diving from part of the rock platform at the northern end of the beach, was a common activity as was known to the appellant. That activity was dangerous and could result in serious injury, as was also know to the appellant. The respondent was aware of the possible serious consequences of a dive because a relative of his former wife had suffered a severe spinal injury as a result of a diving accident.

12 Whilst it is correct to say that diving from a rock into the ocean is inherently dangerous, there were two factors here of particular relevance. The first was that it was not possible to gauge the depth of the water by observation from the rock platform. The second is that there was evidence that most people who dived from that location assessed the risk in doing so by reference to whether other people were diving. When those two factors are taken in conjunction with the fact that the life guards from time to time warned people not to jump, it seems to me, that upon a proper application of the principles in Nagle and Romeo, as discussed by Tobias JA, her Honour’s conclusion, that the appellant breached its duty by failing to erect warning signs, was open to her. It is a conclusion with which I would agree. There is nothing, in my opinion, in the later authorities in the High Court, discussed by Tobias JA, which requires a contrary conclusion. If anything, the remarks of the Chief Justice in Woods v. Multi-Sport Holdings Pty. Limited (2002) 208 CLR 460; [2002] HCA 9 at [45] that

“What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given.”

13 I should also add that I would not interfere with her Honour's assessment of contributory negligence: see Podrebersek v Australian Iron & Steel Pty Limited (1985) ALJR 492.

14 I would dismiss the appeal in Vairy with costs.

15 TOBIAS JA: In coastal New South Wales and, no doubt, in other coastal areas of Australia, public authorities such as local government councils have the care, control and management of ocean beaches, tidal creeks and estuaries. Members of the public enter these areas as of right for various recreational purposes including swimming and surfing. In many cases the public authority encourages, actively or passively, and/or promotes the use of its beaches and creeks for those purposes. It is part and parcel of those activities that people dive into the water from natural features such as rock platforms as well as from a standing or running position in the water itself.

16 So it was that the plaintiffs in the present cases visited, in the case of Mr Vairy, Soldiers Beach in Wyong Shire and, in the case of Mr Mulligan, Coffs Harbour in Coffs Harbour Shire. Both intended to swim and both also decided to dive. Mr Vairy decided to dive into the water from a natural rock platform at the northern end of Soldiers Beach at a point found to be 1 to 1.5 metres above the surface of the water. He had not dived from the rock platform before but had seen others doing so without mishap. Mr Mulligan decided to dive from a standing position in the creek where the water level reached mid-thigh; he had successfully dived from approximately the same location on approximately six occasions. Each man then executed a dive with tragic consequences. Each struck his head on the sandy bottom and suffered a broken neck. Mr Vairy sustained irreversible tetraplegia and Mr Mulligan irreversible quadriplegia. To all intents and purposes their lives were seemingly ruined.

17 Each no doubt feels that fate has dealt with him most unfairly. Each sued the public authorities having the care, control and management of Soldiers Beach and Coffs Creek respectively seeking financial compensation for loss of earning capacity, the expense of the care each will require and the considerable loss of their ability to lead a normal life which, in many respects, was full of promise. To acknowledge one's sympathy with their predicament would be an understatement.

18 However, as Lord Hoffman recently reminded us in Tomlinson v Congleton Borough Council [2004] 1 AC 46 at 72 [4],

"the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one's own fault or even not one's own fault at all. Perhaps it should be, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else's fault"

19 The proceedings in Wyong Shire Council v Vairy [2002] NSWSC 881; (2002) 129 LGERA 10 (Vairy) were heard by Bell J who, on 20 December 2002, found that the defendant was in breach of its duty of care and entered judgment for the plaintiff in the sum of $5,054,753.25. The proceedings in Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Reports 81-689 (Mulligan) were heard by Whealy J who, on 14 March 2003, found there was no such breach and entered judgment for the defendants. Had he found for the plaintiff, his Honour would have awarded damages in a sum exceeding $9,000,000. The defendant in Vairy and the plaintiff in Mulligan appeal to this Court against those decisions

The hearing of the appeals

20 Although the appeals were not heard together, they raise similar issues for determination and have, therefore, been heard by the same bench. In particular, they raise the important question of whether a public authority having the care, control and management of a natural aquatic area such as an ocean beach or tidal creek, will be in breach of its duty of care to an adult member of the public who voluntarily dives into water of unknown but variable depth where the authority has failed to erect a sign or signs warning of the danger of diving in those circumstances.

21 The difficulty of resolving this issue is illustrated by the fact that in one case the plaintiff succeeded and in the other he failed. This is not to say that out of some necessity, based upon general factual similarities, both plaintiffs must either have succeeded together or failed together. Given the individuality of a particular case it is conceivable that both first instances decisions could have been correct. The point to be made is that the issues thrown up by the two cases do involve points of considerable difficulty and that the level of difficulty is simply made all the more evident by the differing outcomes at first instance where the cases did share notable factual similarities but did not exhibit notable factual differences.

22 In both cases the relevant public authorities were aware that people dived into the waters in question. In both cases the depth of the water into which the plaintiffs dived was variable due to the natural movement of the sand bed. In neither case could the depth of the water be accurately determined by visual observation, a fact known to each plaintiff and to the authorities. In both cases the plaintiffs assumed that the water was sufficiently deep for their dive to be executed safely: in the one case because the plaintiff had seen others dive from the same rock platform without mishap; and in the other because the plaintiff had seen others in the vicinity dive safely and had done so himself on a number of occasions before the dive that resulted in his injuries. In both cases the plaintiff sustained a broken neck with consequent quadriplegia. And in both cases the plaintiff relied heavily on the decision of the High Court in Nagle v Rottnest Island Authority (1993) 177 CLR 423.

23 In one sense the primary issue in each case of breach of duty involves no more than an application of the test enunciated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 (the Shirt calculus). But the very balancing exercise called for by that test, when taken in conjunction with later decisions of the High Court and this Court, makes it apparent that that exercise involves, at least in some respects, policy considerations of some significance.

24 In particular, the balancing exercise called for by the Shirt calculus involves consideration of whether, all things being equal, a public authority should be liable in negligence for failure to warn of conditions brought about by natural phenomena such as the movement of waves and/or the ebb and flow of the tide. In these circumstances, should not a person who engages with the natural conditions of the ocean or a tidal creek for the purposes of recreation accept often inherent and obvious risks of injury associated with his or her activities as part of the price of enjoyment of the activity undertaken? These are difficult questions to answer where, in terms of the Shirt calculus, the magnitude of the risk of catastrophic injury is high but the degree of probability of its occurrence based, at least, on past experience, is low. It is made even more difficult by the fact that, generally speaking, the erection of an appropriate warning sign or signs at the particular location is simple and inexpensive and would have been so in the present cases.

Wyong Shire Council v Vairy

– the facts

25 At the northern end of Soldiers Beach within the area of Wyong Shire Council (Wyong) lies a headland separating Soldiers Beach from Pebbly Beach. Around the base of the headland is a substantial rock outcrop. Extending into the sea from the southern end of the rock outcrop is a finger-like expanse of rock of varying heights above the surface of the water (the rock platform). Mr Vairy suffered his injuries when, on 24 January 1993, he dived into the water from a position on the eastern side of that platform.

26 At the time of the accident Soldiers Beach was a popular surfing and recreation spot. Wyong had provided a number of amenities including a substantial bituminised public car park at the top of the northern headland from which both the beach and rock platform could be accessed. Relevantly, the rock platform was accessible by a set of low wooden steps, which joined a gravel path. This path led to the rocks at the base of the headland near the point where the rock platform commenced its extension into the sea.

27 Other amenities provided by Wyong included a kiosk adjacent to the car park, two other car parks and a substantial clubhouse occupied by the local surf club.

28 In 1993 Soldiers Beach was one of six patrolled beaches under the care, control and management of Wyong. On weekdays it was patrolled by lifeguards employed by Wyong while on weekends volunteer lifesavers assumed the patrolling responsibilities. It was Wyong's policy at the time of the accident to promote tourism by encouraging members of the public to visit the patrolled beaches within its Shire including Soldiers Beach. It was aware at all relevant times that the car park located on the northern headland enabled the public to gain access more readily to a number of points on the coastline including the rock platform.

29 At the time of the accident, Mr Vairy had been living near Soldiers Beach for approximately four years. He was aware that his former wife's uncle had suffered a severe spinal injury as a result of a diving accident on the Nepean River several years before he and his former wife were married. He was a physically active man who participated in a number of sports but, this notwithstanding, the primary judge accepted that he was a person who did not take risks and who was safety conscious. In the four years leading up to the accident, Mr Vairy had frequented Soldiers Beach in the summer to engage in swimming, snorkelling and fishing. He recalled seeing people traverse the gravel path that led from the car park to the rock platform and observed people diving and jumping from the rock platform. The primary judge found that for many years prior to January 1993, the rock platform had been a popular place for people to congregate during the summer months and that it was common for people of various ages to jump and dive into the ocean from that platform. However, on no occasion prior to the accident had Mr Vairy himself ever dived from the platform into the sea.

30 Importantly, Mr Vairy had never previously made an assessment of the depth of the water adjacent to the location from which he dived. On the day prior to the accident, when snorkelling off the western side of the southern tip of the rock platform, he had duck-dived in an attempt to pick up an object lying on the seabed and although he was not able to recall how deep the water was on this occasion, he thought it was "a fair way down".

31 On the day of the accident Mr Vairy, with members of his extended family, entered the surf for a swim. His young niece wished to visit the rock platform and Mr Vairy agreed to accompany her. The platform was visible from where they stood and people could be seen jumping and diving from it. He recalled that as he approached the rock platform he had it in mind to dive from it. Upon arriving at the platform, he and his niece spent approximately five minutes standing and watching people diving, jumping and bombing into the water from it.

32 While the seabed was visible from the point on the rock platform from which he dived (the dive location), Mr Vairy took no steps to assess the water's depth at that point. Instead, he assumed that it was safe for him to dive. The reasons for his assumption were two-fold: firstly, because he had seen others dive in the five minutes leading up to his own dive; and secondly, because he had seen others dive from the rock platform over the years that he had been visiting Soldiers Beach and on no occasion had he seen anyone sustain an injury from doing so.

33 Having assumed that diving from the rock platform was safe, Mr Vairy did so and was injured. The primary judge accepted that he sustained his injuries because he hit his head on the ocean floor. She further found that it was not suggested that Mr Vairy had executed a vertical or otherwise inherently dangerous style of dive. Her Honour concluded that Mr Vairy hit the ocean floor because the water was not sufficiently deep to admit a dive at a 45° angle being safely executed by an adult male of his height.

34 The primary judge also found that at the time of the accident the sea was calm with only a little surge. However, notwithstanding a deal of expert evidence, her Honour was unable to determine the depth of water at the dive location. However, she was able to conclude that the distance between the water surface and the dive location was greater than 1 metre and more likely as much as 1.5 metres.

35 It was common ground that before he dived, Mr Vairy did not seek to observe the depth of the water in any meaningful way. In fact he gave evidence that he could not see the seabed from where he stood (which was slightly back from the edge of the rock platform) prior to his dive. However, he thought it "looked deep enough" because it was a deep shade of blue. The primary judge found that Mr Vairy could have seen the ocean floor had he looked but, of course, he did not. However, as I have already observed, visual observation would not have permitted an accurate determination of the depth of the water due, no doubt, to the effect of the refraction of light.

36 There had been a previous diving accident in the general location (in January 1978) when a Mr von Sanden had suffered irreversible tetraplegia after diving off a section of the rock platform known as the "high rock". It would appear that the "high rock" was located some distance to the north of the location from which Mr Vairy dived. It was surveyed at 5.27 metres AHD compared to Mr Vairy's dive location, which was between two points surveyed as 1.91 metres and 3.03 metres AHD. There was a localised but large response to Mr von Sanden's accident and it was established that Wyong was aware of it. Notwithstanding that knowledge, Wyong took no steps to either prohibit people from diving from any part of the rock platform or to warn of the dangers of so doing.

37 There was also evidence that there were other accidents (approximately one injury each year) associated with the rock platform, resulting in dislocations, cuts and fractures. Members of the local surf life saving club had warned people of the dangers of jumping off the rock platform, sometimes by going over to it in the club's "rubber ducky". However, the response to such warnings was typically negative. There was no finding by the primary judge that Wyong was aware of these incidents.

38 As I have noted, the primary judge found that although the seabed could be seen from the rock platform, one could not accurately assess the depth of water at that location. Her Honour thus found that the risk that the water on any given occasion was not sufficiently deep to making diving safe was not necessarily apparent to a person standing on the rock platform at the dive location and looking into the water.

39 The expert evidence established that the movement of sand along the coast was particularly pronounced around rock headlands such as the rock platform. The depth of water at the rock platform would therefore change due to the build up of sand and the tide. The primary judge found that Wyong knew or ought to have known that the ocean floor adjacent to the rock platform would vary in depth as a result of the significant movements in sand along the eastern coast and that those variations in the level of the seabed posed a danger for persons diving from the rock platform. In particular, she identified the danger as being one whereby persons who had previously dived with safety may have been misled by the belief that the depth of water would be sufficient to allow safe diving and that persons such as Mr Vairy, who had observed people diving safely on other occasions, might be misled into thinking that the water was sufficiently deep to dive when it was not.

40 So far as the erection of an appropriate sign was concerned, there was no suggestion that the erection of such a sign in the immediate locality would be a drain on Wyong's financial resources. However, concern was expressed with respect to the practicality and cost of erecting warning signs (as to a variety of dangers) along the 27 km of coastline, which Wyong controlled.

41 The primary judge held that Wyong owned to Mr Vairy a duty to take reasonable care to avoid a foreseeable risk of injury being occasioned to him. In so holding, her Honour applied the High Court's decisions in Nagel and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. However, the real issue confronting her was the scope of the relevant duty of care and whether it had been breached.

42 The primary judge then referred to the passage in the judgment of Kirby J in Romeo at 478 [123] where his Honour held that where the statutory duties of the relevant public authority are stated in general and permissive terms (as in the present case), the scope of the duty of care imposed by the common law will be no more than that of reasonable care so that where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the authority must warn with respect to that risk was neither reasonable nor just. Her Honour considered that the obviousness (or otherwise) of the risk was relevant to her determination of the content of the reasonable response of Wyong to what she had held to be a foreseeable risk of injury.

43 On the breach issue, the primary judge, after stating the Shirt calculus, expressed her satisfaction that the danger of a person sustaining severe injury as a result of diving from the rock platform was foreseeable, it being neither far-fetched nor fanciful to consider that a person so diving might sustain severe injury. After noting that Wyong did not contend to the contrary, her Honour further found that the erection of signs prohibiting diving or, at least, warning of the dangers of diving from the rock platform would have occasioned relatively little expense to it.

44 After citing from the joint judgment in Nagel at 429-430 and from a number of other authorities to which I shall return, the primary judge made the following findings:

a) the facilities provided by Wyong encouraged members of the public to make use of the rock platform as well as the beach; there was no distinction in terms of the nature of that encouragement between that in the present case and that found by the High Court in Nagle ;

b) the rock platform from which Mr Vairy dived was a distinct and unusual natural formation adjoining the beach and readily accessible to members of the public and, to Wyong's knowledge, provided an attractive, popular and ready means of entering the ocean by diving, jumping or bombing;

c) diving from any position along the rock platform was dangerous in that it was attended by a real risk that the diver would strike the ocean floor and thereby suffer injury;

d) the risk for a person diving from the rock platform was greater on some days than on others by reason of the movement of sand leading to significant variations in the depth of the ocean floor;

e) although the ocean floor was generally visible, it was not possible to accurately gauge the depth of the water from the rock platform;

f) the risk that the water on any given occasion was not sufficiently deep to make diving safe was not necessarily apparent to a person standing on the rock platform at the dive location and looking into the water;

g) the fact that it was common for people to dive from the rock platform was likely to lead others to consider that it was safe to do so; however on some occasions it would be safe and on others it would not;

h) Wyong knew or ought to have known that the ocean floor adjacent to the rock platform varied in depth as a result of the significant movements of sand along the eastern coast; it also knew or ought to have known of the danger that the variation in the level of the seabed posed to persons diving from the rock platform;

i) in addition to the general difficulty of estimating the depth of the water, the relevant dangers were: firstly, that persons who had previously dived with safety may be misled by the belief that the depth of water would be sufficient to allow safe diving and, secondly, persons such as Mr Vairy who had observed people diving safely on other occasions may be misled into thinking the water was sufficiently deep to dive safely when it was not;

j) Wyong was armed with knowledge that Mr Vairy did not have concerning the danger of diving from the rock platform in that it knew or ought to have known that there could be significant variations in the depth of the water adjacent thereto so that a dive might safely be executed on one day but not the next;

k) the fact that it was relatively common for people to dive from the rock platform detracted from any contention that the risks of doing so were apparent such that it was reasonable for Wyong to take no action to warn the public of them;

l) accordingly, the risk of sustaining severe injuries by diving from the rock platform was not of such an obvious nature that the reasonable response of Wyong was to take no steps to warn of it;

45 I shall, for the moment, put to one side Bell J's findings on causation and contributory negligence. I turn now to the facts as found by Whealy J in Mulligan and to his Honour's conclusions with respect to scope and breach of duty in that case.

Mulligan v Coffs Harbour City Council

– the facts

46 Coffs Creek runs through the centre of the town of Coffs Harbour before spilling, albeit shallowly, into the sea at Park Beach at a point some 500 metres or so north of the harbour. Approximately 300 metres west of the beach two bridges cross a 30-metre span of the creek. The most westerly of these is known as the Orlando Road Bridge whereas the one to east and running parallel is known as the Railway Bridge.

47 The creek to the east of the bridges had been a popular swimming location since the 1970's. In particular, a section of the northern bank was a popular swimming location for children and their families – the use of which had been enhanced by the construction by Coffs Harbour Shire Council (Coffs Harbour) of two rock training walls that had been extended from time to time. The purpose of the training walls was to direct the flow of water in the creek so as to reduce the erosion of sand from the beach comprising the northern bank of the creek.

48 The beach upon the northern bank adjoined a grassed area retained by a timber wall constructed by Coffs Harbour. That grassed area contained a number of facilities such as BBQ, picnic and changing rooms, toilets and the like, which were accessible from a nearby public car park. The foregoing area was Crown land known as Park Beach Reserve, the trustee of which was Coffs Harbour. It was common ground that the latter had the care, control and management of this area the southern boundary of which extended to the northern mean low water mark of the creek.

49 In contrast the southern bank of the creek, although sandy and attractive, was not developed. Access to the beach comprising the southern bank was achieved by way of a short, well-used dirt track (the dirt track) that branched off a paved walkway/cycleway (the walkway) a few metres east of the railway bridge. The walkway commenced on the eastern side of Orlando Street, a short distance west of the Orlando Street Bridge, proceeded down an embankment to a point on the southern bank of the creek some metres to the west of that bridge where it turned and proceeded under both bridges in an easterly direction, past the commencement of the dirt track and then swept to the south-east through the dune area behind the south bank of the creek and Park Beach for approximately 500 metres to the harbour.

50 Coffs Harbour had the care, control and management of the land to the west of the Railway Bridge and upon which the walkway commenced. It had been granted a licence from State Rail of a four metre wide strip of land beneath that bridge to enable the construction of the walkway. The land to the east of the Railway Bridge was Crown land known as the Jetty Reserve, the trustee of which was the Coffs Harbour Jetty Foreshore Reserve Trust (the Trust). The land under its care, control and management extended to the southern mean high water mark of the creek. The bed of the creek between the northern mean low water mark and the southern mean high water mark was unalienated Crown land managed by the Marine Park Authority. However, it was accepted that its control did not extend beyond marine and ecological matters as a consequence whereof the State of New South Wales (the State) was accepted as being responsible for that part of the bed of the creek between the mean high and low water marks to which I have referred.

51 I mention these matters because an issue arose as to whether Coffs Harbour had sufficient de facto care, control and/or management of the southern bank of the creek as to impose upon it a relevant duty of care in addition to that imposed upon the State and/or the Trust in respect of their de jure and de facto care, control and management of that part of the creek.

52 Apart from signs attached to the Railway Bridge warning against the dangers associated with the railway, as well as directing people not to trespass upon railway property, there were two signs which had been erected by Coffs Harbour. The first was erected between the two bridges reading:

"Coffs Harbour City Council, Coffs Harbour Water. Harbour Co-op 1.2km; Mutton Bird Island 1.8km"

"This Beach is Unpatrolled."

53 Mr Mulligan had seen the first of these signs and those on the Railway Bridge but had not seen the second. This was because, as will appear, Mr Mulligan and his girlfriend had come to the area via the Orlando street end of the walkway diverting at the point where the dirt track joined the walkway to proceed onto the southern bank of the creek.

54 Originally it had been Mr Mulligan's intention to swim at Park Beach rather than in the creek. However, having observed the condition of the surf from the southern bank of the creek, he decided instead to swim in the creek. He and his girlfriend first swam in that part of the creek just to the east of the Railway Bridge. No question arose of Mr Mulligan diving in this part of the creek as he determined that it was too shallow and therefore not safe to do so. Accordingly, the couple moved east along the southern bank of the creek to a point opposite a group of people who were swimming alongside the most eastern of the training walls on the northern side of the creek.

55 After moving his belongings further down the southern bank of the creek, Mr Mulligan entered the water at a spot slightly to the east of the western end of the eastern training wall. Immediately he noticed that the water was a lot deeper than it had been nearer to the Railway Bridge. He took about six or seven steps towards the centre of the creek (in a northerly direction) and found that the creek went from "quite shallow down to his thighs fairly quickly". At a point where the water came up to around the bottom of his swimming trunks he dived forward from a standing position into the creek in roughly an easterly direction, and projected himself under the surface by pulling his hands back by his side as the force of the dive propelled him forward. Upon surfacing he attempted to touch the bottom but could not do so. He noticed that there was a strong seaward current being created by the tide that was running out. He then breast stroked towards the sea allowing the current to carry him along – an experience he found to be "pleasurable". After some distance he exited the water at a point where the creek became shallower as it approached the sea. He then returned to the area where he had left his belongings and repeated the exercise six or seven times over the next half hour.

56 As Mr Mulligan dived forward on each occasion he was not aware of the depth of the water before him. Indeed, as far as he was concerned, he did not know whether the water beyond was " four feet or fourteen feet deep". He did try to ascertain the depth of the water at various points along the creek as he swam towards the sea but on each occasion he was unable to touch bottom until the creek shallowed out as it approached the sea. However, he did notice factors such as the variability of the creek bed, the speed of the current, the fact that the water was cloudy and visibility limited. He agreed that he would have been conscious as he dived each time that because he did not know the depth of the water it was better to make a shallow rather than a deep dive. However, when asked whether he knew that it was dangerous to dive into water of variable depths, he responded in the affirmative but added that he did not know that it was "that variable" as he "only knew it was shallow at the bank and got deeper as I went into the centre".

57 On the fateful dive he once again waded out to roughly the same commencement point and dived forward. However on this occasion he hit his head on the sandy creek bed, breaking his neck. The primary judge found that Mr Mulligan carried out this final dive in the same manner as his earlier, successful, dives in that he did not dive more deeply than he had on the other occasions and had executed what was described as a shallow style of dive. The only difference on this occasion was that he struck an elevated sand dune that formed part of the bed of the creek and which had been formed by the force of the current in the particular tidal flow conditions existing at the time.

58 There was a deal of expert evidence called with respect to the formation of the sand dunes or bedforms in the creek in respect of which the primary judge's findings may be summarised as follows:

(a) the phenomenon of sand dunes or variable height bedforms in estuaries and rivers particularly on the eastern seaboard of New South Wales was a well known and natural phenomenon. It was typical of a situation to be found in tidal estuaries around the world;

(b) accordingly it was the movements of water along the creek, particularly the tidal movements, which caused the formation of the bedforms of the creek. These bedforms were transient in the sense that as the tide moved in and out the bedforms were in a state of constant flux and change. The sand dunes were bedforms that appear, disappear and reappear in different parts of the creek and ocean bed and are sometimes large and sometimes not, sometimes hard and sometimes soft;

(c) ocean, tidal and weather conditions were likely to have resulted in the presence of bedforms on the creek bed at the time of Mr Mulligan's accident. The size of these bedforms would have varied considerably and it was quite likely that there were at least some bedforms, which were reasonably significant in height compared to the water depth. Although it was not possible to be precise about the height of the bedforms it was clear that they would have had more than a minimal impact on the variability of the depth of the creek;

59 The primary judge summarised his factual findings in the following paragraphs of his judgment:

"293 …Here, it is true that the plaintiff did not know the depth of the water that lay in front of him when he made his last dive. He was not able to see his feet nor the creek bed below them at the point each time when he dived into the creek. He knew how deep the water was where he was standing and made certain assumptions about the depth beyond that point. He did not know whether the water beyond was "four feet or fourteen feet deep". He also knew in a general sense that the creek was of variable depth. For example, he knew (or believed probably erroneously) that the water in the first area where he swam was not safe to dive. He thought that it was too shallow. He knew in the second area that the water was of variable depth. He had in fact taken a sudden step down to a deeper position before he made his first dive. He knew as well that it was dangerous to dive in water which was of variable depth. At least, he knew this in a generalised way. He agreed with this proposition when it was put to him but said that he did know it was "that variable". He "only knew" that it was shallow at the bank and got deeper as he went into the centre. He agreed however, that although he made an assumption that it was deep enough to dive he in fact did not know one way or another whether it was deep enough to dive.

294. The necessary analysis must be made bearing well in mind that the plaintiff was an experienced swimmer, a strong swimmer and experienced at diving. It is true that he had not swum in a creek before and that Australian conditions were not known to him at the time of his accident. But the existence of sand dunes in tidal conditions are not confined to creeks. They occur in the ocean and they occur in creeks and oceans worldwide. The plaintiff certainly knew that the creek was sand based and that its depth varied at different positions. In other words, he knew two things: first that the water depth was variable. Second, that the variability in part related to the condition of the creek bed. …"

60 The primary judge held ([247], [256], [261]) that Coffs Harbour, the State and the Trust owed to members of the public resorting to either the northern or the southern reserve when swimming in the creek generally in the area between the bridges and the ocean, a "generalised duty of care – to take reasonable steps to avoid foreseeable risk of injury". As in the case of Vairy, the critical issue was the scope of that duty and whether it had been breached. That is not to say that the existence of a duty of care as well as causation and contributory negligence were not in issue, but it is appropriate to deal initially with the issues of scope of duty and breach, as it was with respect to the resolution of those matters that the primary judge in each case differed. In dealing with these issues Whealy J referred to essentially the same authorities as Bell J. Again, the issue upon which their Honours disagreed was related to whether the relevant risk was obvious or hidden. His Honour referred to the "diving cases" (to which I shall return) in some of which the plaintiff was successful upon the basis that there were found to be hidden dangers that resulted in serious risks emerging for a person diving in a manner that would otherwise be relatively safe. According to the primary judge, Nagle was such a case.

61 It was submitted on behalf of Mr Mulligan that the risk of his striking his head upon the bedform in the creek was hidden because it was neither apparent nor obvious to him that the bedforms would be of variable height due to the natural processes of the movement of the tide. His Honour rejected this analysis on two bases. The first was that in a situation where it is impossible to see into the water because of natural conditions in a creek or, for that matter, in the ocean, by definition everything below the surface of the water is hidden. But to an experienced swimmer such as Mr Mulligan that was an obvious fact that imposed an inherent risk every time such a swimmer dived into turbulent or cloudy water of unknown depth. The second was that what was hidden in this case was a naturally occurring and dissipating sand dune of normal dimensions.

62 The primary judge then defined the relevant risk as

"the risk of injury from striking a sand bank or sand dune in the creek bed"

63 The primary judge thus expressed himself in these terms ([299]):

"To an experienced swimmer and diver such as the plaintiff, notwithstanding that he was not familiar with Australian conditions and probably knowing nothing of the physics of creek beds, the risk of striking a transient sand dune occurring naturally on the bed of a tidal creek was, as a matter of factual evaluation, an inherent risk involved in swimming and diving in such an estuary. The plaintiff knew in general terms of the danger of diving in a creek of variable depth. …the danger which eventuated fell within the ambit of the normal dangers that, for experienced swimmers, attached to the ordinary activity of swimming in the ocean or in tidal creeks."

64 The primary judge then stated what he regarded as the fundamental difference in the breach analysis between the diving cases where the plaintiffs have succeeded and the present case:

"303 … The matter requiring a warning, according to the plaintiff's case related to the presence of variable depth due to the formation of naturally occurring sand dunes in the creek bed. This was a naturally occurring phenomenon in the truest sense of the word. It was part of the natural condition of the creek and indeed of tidal estuaries throughout the world. Ordinary competent swimmers know and can immediately sense that there is variability in creek beds because of the presence of sand dunes underneath their feet as they enter the creek waters. They will know that variability is not uniform because of the varying nature of the sand dunes. They may not understand the physics but they know there is variability. …"

65 Having noted that Mr Mulligan was best placed (and better placed than the defendants) to know about the circumstances and conditions of the creek at the time and place he chose to dive, it was a relevant consideration to ascertaining the response of the reasonable person owing a duty of care to take cognisance of that fact, a corollary of which was that it would be reasonable to assume that Mr Mulligan would use reasonable care for his own safety in making the decisions he did.

66 Accordingly, notwithstanding that the primary judge found that it would have been a relatively cheap and simple measure to put up a sign or signs warning of the variable depth of the creek, the present was a case where the relevantly foreseeable risk was obvious as a consequence whereof there was no breach by Coffs Harbour, the State or the Trust of the duty of care owed by each to Mr Mulligan.

Review of the authorities

67 The starting point of this discussion, as it was with the primary judges, is the decision of the High Court in Nagle. There the defendant was under a duty to manage and control for the benefit of the public the reserve known as Rottnest Island. The reserve adjoined a swimming area known as "the Basin" although it was not actually part of the reserve. The plaintiff who had never previously visited the reserve or swum at the Basin dived from a partially submerged rock ledge into the water, striking his head upon a submerged rock, thereby becoming quadriplegic. He sued the Rottenest Island Authority claiming that it was negligent in failing to give any or any adequate warning that the ledge was unsafe for diving. According to the finding of facts made by the trial judge, the Authority ran Rottnest Island as a business, deriving revenue from visitors. It promoted the Basin for swimming and related recreational activities by means of publicity and directional signs. It encouraged members of the public to use the Basin as a venue for such activities by installing and maintaining appropriate facilities.

68 The majority (Mason CJ, Deane, Dawson and Gaudron JJ) held (at 430) that the Authority was under general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the reserve. The basis for that holding was that the Authority, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in that location. By encouraging persons to engage in that activity, the Authority 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".

69 When it came to the possibility that a person might dive into the water in circumstances where it was not safe to do so, their Honours said (at 431):

"It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper for his or her own safety".

ratio decidendi

Woolcock Street Investments Pty Limited v CDG Pty Limited

70 As I have noted, their Honours had held that the discharge of the Authority's duty would naturally require that those who had encouraged swimming activities in the Basin should be warned of foreseeable risks of injury associated therewith. Having held that the risk of injury was foreseeable, their Honours turned to the question of breach. So far that issue had not been determined by the passage that I have cited above. Having commented upon the form which any relevant warning might take, it would appear that their Honours found (at 432) that the failure to warn of the danger of diving from the rock ledge into the Basin due to the presence of rocks was a breach of the Authority's general duty of care upon the basis that, firstly, there were appropriate warning signs that could have been erected, secondly, the Authority had the power to erect signs at the probably point from which the plaintiff had dived and, thirdly, there was no reason why the Authority could not erect signs on the platform warning of the danger which existed notwithstanding that the Basin into which the plaintiff dived was beyond the boundaries of the reserve.

71 Several observations can be made with respect to their Honours' reasoning. The first is that although reference was made to the finding of the trial judge that when the appellant dived into the water of the Basin, his visibility may have been affected by a sun glint or glitter pattern as a consequence of the reflection of sunlight on the water thus obscuring his vision to some extent (although the rock which his head struck would not have been totally obscured), no question of the obviousness of the risk of injury from diving into partially obscured water played any part in their Honours' consideration of breach of duty. Secondly, their Honours appeared to have approached the issue of breach upon the basis that if the risk of injury associated with diving into the Basin was foreseeable, then the only way that that duty could be discharged would be by the Authority warning of that risk. In other words, provided there was no impediment, legal or practical, to the erection of a warning sign, the Authority would be in breach of its duty if it failed to erect such a sign warning of the foreseeable risk of injury. Thirdly, it is noteworthy that although their Honours made reference to Shirt when dealing with the issue of foreseeability, no reference was made to the Shirt calculus or any attempt made to apply its elements to the facts of the case when their Honours consider the issue of breach of duty.

72 The second and third points of the foregoing observation should be considered immediately lest it be assumed that, after Nagle, Shirt was authority for the proposition that there is a breach of duty if the risk of injury is reasonably foreseeable and removal of that risk by the adoption of simple and cheap measures (such as a warning sign) is practicable but not undertaken. As Heydon JA, with whom Meagher JA and Foster AJA agreed, noted in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [83], such a reading of Shirt would be fallacious as the proposition that the suggested measures

Shirt

73 A similar point was made by Hayne J in Brodie v Singleton Shire Council (2001) 206 CLR 512, 631 where his Honour observed ([318]):

"As I have said, however, the search for some unifying principle or principles which will explain why an analogy has been drawn with previous authority in some cases but not others has so far proved unsuccessful. All that emerges is that foresight of harm, and capacity to avoid it, has been said not to be enough. 'Something more' must be found. If, however, the expansion of duty of care continues on its current path, foresight of harm and capacity to avoid it will become the only criteria which underpin the imposition of a duty of care. In that event, duty of care would serve no purpose in identifying the cases in which liability is to be found. The only questions would be whether a defendant in fact acted without reasonable care, or failed to act when it would be reasonable to do so, and whether that act or omission was a cause of the plaintiff's loss or damage."

74 I return to my review of the authorities. Nagle was decided on 21 April 1993. In Public Trustee as Administrator of the Estate of the later Peter Saroukas v Sutherland Shire Council (1992) Aust Torts Report 81-149, decided a little over a year earlier, the defendant council had the care, control and management of a park beside a bay which was extensively used by the public. At the edge of the park were tidal baths that were separated from the bay by a walkway that had been constructed by the council around the baths. Around the outside of the walkway was a rail fence but it was possible to climb through or over it. The defendant erected numerous and prominent signs that warned of the danger of diving into the baths and of the variable depth of the water in them but had not erected any sign warning of the risk of diving from the walkway into the bay. In this respect the depth of the water in the bay also varied and the surface was such that it was very difficult, and frequently impossible, to visually assess its depth. Whilst walking along the walkway between the baths and the bay with no intention of swimming or diving, one of the plaintiff's shoes fell into the bay whereupon he climbed through the fence and dived into the water. The water was only three feet deep and he ended up a quadriplegic.

75 Gleeson CJ, with whom Priestley and Handley JJA agreed, held firstly, that the defendant owed the plaintiff a duty of care which extended to persons diving from the walkway into the bay and, secondly, that it was in breach of that duty in that part of the facilities it had provided for the public included the walkway which was intended for public use for recreational purposes. As the risk that a person might dive into the bay from the walkway and suffer injury as a consequence was foreseeable, the defendant failed to discharge its duty of care by failing to erect an appropriate pictorial sign warning of the danger of diving from the walkway into the bay.

76 For present purposes the critical part of the Chief Justice's judgment is as follows (at 61, 138 (citations omitted)):

"Whilst it is true to say that the Council did not intend that people should dive from the walkway into the Bay outside the baths, nevertheless the Council provided a recreational facility which made that possible, and the risk that a person might dive out into Gunnamatta Bay from the walkway and suffer injury as a consequence was foreseeable...the necessary relationship and proximity between the respondent and the deceased existed, and the learned trial judge was correct in concluding that the respondent was under a duty to warn those using the walkway of the dangers of diving into variable depth tidal waters.

It was submitted on behalf of the respondent that the circumstances of the deceased dived from one side of the walkway rather than the other meant that there was no duty upon the respondent to warn the deceased of the risk involved. As an absolute proposition this cannot be correct. Suppose, for example, that to the knowledge of the Council the bed of Gunnamatta Bay immediately outside the swimming pool was covered with large quantities of broken glass. It cannot be the case that there would be no duty upon the Council to warn users of the walkway of that danger. The very existence of the Council's walkway going out into the bay creates the possibility that people would or dive from it. Once it is accepted as a possibility that the Council's recreational facility be used in that way then it would be taking far too narrow an approach to limit the Council's obligation to an obligation to give a warning to people who intend to jump or dive in one direction rather than another."

77 The Chief Justice did not deal expressly with the question of breach. However, he did hold (at 61, 139) that as there was a possibility that somebody might decide to jump from the walkway into the bay rather than the baths, the attendant risk of such an activity was not something that the defendant was entitled to disregard. However, like the majority in Nagle, his Honour did not in terms apply the Shirt calculus except with respect to the issue of foreseeability; nor did any question of the obviousness of the risk of jumping or diving into variable depth tidal waters arise for consideration. Furthermore, the walkway from which the plaintiff dived was an artificial structure created by the defendant for recreational purposes and which provided the clear opportunity, if not the temptation, for persons to dive from it into the bay. As a creation of the defendant the walkway, in my opinion, falls into a different category to cases such as the present where no such artificially created situation is involved. This is a point picked up by Hayne J in Romeo at 489 ([157]) to which I later refer.

78 Inverell Municipal Council v Pennington (1993) 82 LGERA 268 was decided by this Court three months after Nagle. Like Saroukas it involved the creation by the defendant council of an artificial structure, namely, a municipal swimming pool. The plaintiff dived into the pool from a point where the water was insufficiently deep given his size and weight, as a consequence whereof he struck his head on the bottom and became a quadriplegic. The only depth notices were on each side at the deep end of the pool showing 11'6" and one at each side of the 6' mark. The trial judge held that the defendant was liable in negligence, a decision upheld by this Court.

79 It was found that the plaintiff was aware of the dangers of diving into water that was too shallow. He thought he was diving into water that was no more than 5' deep. He was aware that the depth of the pool varied from one end to the other. He therefore knew that he was diving into water that was less than his height and therefore, objectively considered, posed a risk of injury to him.

80 Mahoney JA found that the relevant default on the part of the defendant was that it did not bring the danger and the depth to the plaintiff's immediate attention so that the absence of signs warning of the danger of diving and the absence of depth indicators resulted in the plaintiff not being warned and made subjectively aware of the danger he was taking.

81 Having stated the Shirt calculus, his Honour noted (at 272) that it was

"believed by some that once a risk of injury was relevantly foreseeable and if that risk was not far-fetched or remote that it could properly be put aside, then there was a duty upon the defendant to remove or neutralise that risk. That could be done either by removing the factual circumstances which gave rise to the risk or, in some cases, by bringing the risk sufficiently to the plaintiff's attention that the risk of injury was effectively excluded."

82 His Honour then expressed the view that the judgment of Mason J in Shirt established that the law did not in every case require a defendant to go so far. He continued (at 272):

Shirt

83 His Honour noted the argument of the defendant that a plaintiff is required to exercise appropriate care for his own safety and that what a reasonable person would do is to be determined upon the basis that a person diving into a pool will at least satisfy himself that the water is sufficiently deep. Although not expressed in terms of obviousness of the risk of danger of diving into a pool of unknown depth, the defendant's argument had overtones of such a proposition. Mahoney JA's response thereto was as follows (at 273):

"I do not dissent from this view, as a general principle. In the end, the court must determine what is the response appropriate to the whole of the circumstances of the case. But a person who crosses the street must do so with his eyes open. A motorist on the street must be conscious that pedestrians may act without care or foolishly, but special cases apart, he is not required to take the care appropriate to the risk that the pedestrian has simply closed his eyes."

84 One might paraphrase and adopt his Honour's language to the present case by asserting that a public authority is not required to take the care appropriate to the risk of injury from diving into water of unknown depth where the diver has simply closed his or her eyes to the obvious.

85 Having observed that the burdens which the law of negligence poses are, in the view of some, inappropriately heavy, his Honour considered (somewhat reluctantly I think) that, in the light of the decision in Nagle which illustrated the standard of care required, the trial judge had not erred in holding that, in failing to bring to the attention of the plaintiff the dangers created by diving into a pool of the kind in question, the defendant council had not discharged the duty placed upon it because, having set up the pool facility, it had in the relevant sense created the danger which caused the plaintiff's injury.

86 Clarke JA considered that the appeal failed whilst the law remained as expressed in Nagle. His Honour then questioned whether that decision had effectively placed the council in the position of an insurer. He opined (at 275) that this resulted in a consideration of the reasonableness of conduct and the reaction of the reasonable person being replaced by a mechanical test, which in a real sense looked only to the means available to guard against a risk of injury, no matter how unlikely it is that that injury will occur. He then proceeded with a discourse upon the development of the law in this area. In the course of doing so, he referred to what Gibbs CJ said in Turner v South Australia (1982) 56 ALJR 839, 840:

"Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful by adopting the means which involves little difficulty or expense, the failure to adopt such means will in general be negligent"

87 It is to be noted that this passage from Turner was made in the context of the duty of care owed by an employer to an employee. On the other hand the Chief Justice, although not referring expressly to the Shirt calculus, did adopt that part of its language describing a foreseeable risk. But that is only the gateway to the exercise for which Shirt is authority: see [60] above.

88 According to Clarke JA, it was this approach that was adopted in Nagle notwithstanding the likelihood that someone would dive into rocks that were visible to him must have been very small indeed. He thus posed the question (at 279):

"Should we not accord much greater weight to the possibility, bearing in mind the enormous range of foreseeable risks involved in virtually every form of activity, that the reasonable person would have struck a balance and decided that a particular risk was remote and that no action was called for despite the fact that it may cost little to provide a measure of protection?"

89 Meagher JA agreed but, again, his Honour considered that the result was dictated by the decisions of the High Court in Shirt and Nagle. He said (at 283):

Shirt

Nagle

90 The misgivings of both Clarke and Meagher JJA in Pennington were, though not consciously, responded to by the High Court in Romeo, which although declining to overrule Nagle, modified its impact and apparent absoluteness.

91 In Romeo the defendant Commission managed a nature reserve, which contained a car park at the top of a cliff. The plaintiff, at night and whilst intoxicated, fell from the top of the cliff onto a beach below and sustained serious injuries. There was no barrier at the edge of the cliff and its presence was obvious. It was held by the whole court that the defendant was under a duty to persons entering the reserve to take reasonable care to avoid reasonably foreseeable risks of injury – people falling off the edge of the cliff was one of those risks. However, the majority held that the defendant was not in breach of that duty by failing to erect a fence or other barrier at the edge of the cliff. In the light of Nagle, all members of the court held that the Commission was under a duty of care whilst that decision stood. So far as the issue of breach of duty was concerned, Toohey and Gummow JJ, after referring to passages from the joint judgment in Nagle at 431, and in particular the passage I have cited in [69] above, observed (at 454 [50]):

"He did not, however, regard the type of diving and swimming he was doing in the second area of the creek as dangerous and this was so, first, because of the assumptions he had made; and secondly, because of his life experience as a swimmer to that point of time"

308 The State interests submitted that his Honour erred in this finding as Mr Mulligan knew that it was dangerous to dive into water of variable depth and he knew the water in the creek to be variable. It was plainly dangerous of him to execute any kind of dive unless he established how variable.

309 Whether or not Mr Mulligan's conduct, objectively considered, was dangerous may be relevant to the issue of obviousness but in my opinion it is not relevant to the present issue. In Canterbury Municipal Council v Taylor [2002] NSWCA 24, Ipp JA, with whom Spigelman CJ and Mathews A-JA agreed, stated the principle in the following terms (at [144] omitting citations):

"For the defence to succeed it must be shown that the plaintiff fully appreciated the risk and, by voluntary choice, elected, agreed or consented to accept the risk".

310 After citing from the judgment of Burt CJ in Jeffries v Fisher [1985] WAR 250 at 253 the proposition that although appreciation and acceptance of the risk can readily be inferred from knowledge, knowledge alone is insufficient, Ipp JA observed that it was necessary to consider whether the plaintiff expected that the relevant risk would materialise. This was so because his Honour considered (at [147] omitting citations) that:

"[a] belief that the dangers (of which [the plaintiff] had full appreciation) would not materialise, would negative the proposition that he accepted those dangers".

311 In the present case, the primary judge clearly found that Mr Mulligan believed that so far as his activities were concerned, the danger of diving into the creek, albeit of unknown depth, would not materialise. As his Honour said (at [341]), Mr Mulligan:

"did not, however, regard the type of diving and swimming he was doing in the second area of the creek as dangerous".

312 Although other criticisms were made of some of his Honour's findings, in my opinion the State interests' challenge to the primary judge's finding that Mr Mulligan did not fully comprehend the nature and extent of the relevant risk fails. This was sufficient to justify his rejection of the defence of voluntary assumption of risk.

Contributory negligence

313 Each of Coffs Harbour and the State interests submitted that Mr Mulligan was guilty of contributory negligence. In particular, the State interests submitted that, as a matter of justice and equity, he should bear 90% of the responsibility for his injuries.

314 After stating the relevant principles from the joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494, the primary judge found that Mr Mulligan did fail to take care for his own safety to the extent that he chose to dive in the creek not knowing the depth of the water in the area into which he dived and in circumstances where the cloudiness of the water and the fast-moving current prevented him from seeing below the surface. His Honour then considered that it was just and equitable that the damages recoverable by Mr Mulligan, should he have been entitled thereto, should be reduced by 15% pursuant to s 9 of the Law Reform (Miscellaneous Provisions) Act 1965.

315 Mr Mulligan submitted that the primary judge erred in holding that he was guilty of contributory negligence in that he had failed to exercise reasonable care for his own safety. It advanced some 24 facts to support the proposition that Mr Mulligan had taken reasonable care for his own safety.

316 In my opinion, most if not all of the matters upon which Mr Mulligan relied were taken into consideration by his Honour: see [346] of his judgment. In particular, a number of them were also recited by his Honour in [340] of his judgment when dealing with the defence of voluntary assumption of risk. It was after dealing with that issue that his Honour turned to the issue of contributory negligence upon the basis that each of the defendants had submitted that in the event that the defence of voluntary assumption of risk was not proved, nevertheless the evidence established that Mr Mulligan was guilty of contributory negligence. It is therefore clear that he took into account when dealing with this issue, the facts and matters upon which Mr Mulligan had relied when contesting the defence of voluntary assumption of risk.

317 The primary judge's conclusion (at [348]) was that Mr Mulligan

"was to a moderate degree guilty of failing to exercise reasonable care for his own safety…"

318 Both Coffs Harbour and the State interests submitted that his Honour erred in assessing the reduction in Mr Mulligan's damages by only 15%. Accepting that that assessment was based on the respective culpability of the parties and the relative importance of their respective acts or omissions in causing the damage, Coffs Harbour submitted firstly, that Mr Mulligan's voluntary decision to dive into water of unknown depth was causally the most significant factor in his ultimate injury. Secondly, it submitted that if there was a departure from the required standard of care in failing to provide a warning sign, that failure was so marginally on the breach side of the equation as to warrant a significant reduction in Mr Mulligan's damages.

319 The State interests submitted that Mr Mulligan was in complete control of the circumstances and the choices open to him. It further submitted that any breach of duty by the State interests in failing to warn was "insignificant, modest or minor". Accordingly, Mr Mulligan's actions of diving into water into which he could not see and which he knew to be of variable depth as a matter of free choice, was significantly more culpable and demanding of a just and equitable apportionment weighted very much against him.

320 I have already stated at [241] above the principles relevant to the interference by this Court in a primary judge's apportionment of responsibility pursuant to the statute. In my opinion, Mr Mulligan's responsibility for his injuries is significantly less than that of Mr Vairy. Although I would regard a reduction of 15% as being at the bottom of the applicable range, it was not outside that range and, therefore, did not result in a reduction that was either unreasonable or plainly unjust in the sense in which those expressions are used in House v The King. Accordingly, in my opinion this challenge to the primary judge's decision fails.

Apportionment between defendants

321 Each defendant cross-claimed against the other seeking contribution or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The primary judge concluded that the responsibility of the State interests for the damage suffered by Mr Mulligan was greater than that of Coffs Harbour. He considered it to be just and equitable that contribution between the defendants for the amount of any damages that would otherwise have been recoverable by Mr Mulligan (were he entitled to succeed) be borne as to 25% by Coffs Harbour and as to 75% by the State interests.

322 His Honour's reasons for coming to this conclusion are set out in [354] of his judgment in the following terms:

"First, the State of New South Wales was the owner of the creek and both reserves. Secondly, between the 1970's and 1996, the Department of Public Works and its successor had a significant and overall supervisory role in relation to matters of control affecting the creek east of the Orlando Street bridge to the ocean and the area of the Jetty Reserve. From 1996, the third defendant had the statutory and de facto control of the Jetty Reserve. Thirdly, while it is true that there are a number of important aspects in which the Council exercised elements of management over the creek, in my view the State interests' role in that regard was superior and, where necessary, paramount. Fourthly, in terms of scientific expertise and economic capability, the State interests were in a decidedly superior position in relation to the ability to understand and control matters relating to the hydrodynamics of the creek when compared to the Council's situation. Fifthly, although the Council had a role to play in relation to the Jetty Reserve particularly in relation to the provision of short term car parking, the pathway and signage, again the paramount supervision and control of the reserve both prior to 1996 and afterwards fell on the State interests. Sixthly, the plaintiff was in fact drawn to the southern bank of the creek when he was traversing the Jetty Reserve and the pathway within it. Seventhly, the primary responsibility for the erection of signage in the southern reserve and on or near the southern bank of the creek especially fell, in my view, on the State interests. This is not to say the Council had no responsibility or opportunities in that regard but the primary responsibility fell upon the Public Works Department and the Jetty Reserve Trust."

323 The State interests submitted that the apportionment adopted by the primary judge was firstly, contrary to the weight of the evidence; secondly, without consideration of the causative actions of each of the relevant defendants; and thirdly, without consideration of the position of the defendants individually. This last ground of challenge was directed to his Honour's lumping of the State interests together. In my opinion, there is no substance in this complaint.

324 The State interests then sought to canvass each of the seven reasons upon which the primary judge's conclusion was based as set out in [354] of his judgment. I do not propose to add to the significant and regrettably unavoidable length of this judgment by repeating those submissions. However, in my opinion they have substance. They raise matters upon which the State interests relied in its submissions in support of Mr Mulligan, that Coffs Harbour owed him a duty of care. They are also matters upon which the primary judge relied in finding that such a duty was owed. I think it is fair to say that, neither in their oral nor written submissions, did Coffs Harbour challenge to any great degree the factual matters upon which the State interests now rely in support of their challenge to his Honour's findings on apportionment. On the issue of no duty, Coffs Harbour's submissions were more narrowly focussed.

325 In light of the material to which I have referred, the State interests submit that in apportioning 75% of responsibility for Mr Mulligan's injuries to them, the exercise of his discretion miscarried. In particular, it was contended that Coffs Harbour had assumed responsibility for the erection of signage including upon the southern bank as evidenced by the signage it had erected with respect to Park Beach being unpatrolled. It was submitted that that assumption of responsibility was the most relevant manifestation of Coffs Harbour's control of the southern bank of the creek for present purposes. If it had assumed responsibility for warning against the perils of an unpatrolled beach, it must also be taken to have assumed responsibility for warning against cognate perils, namely, the variable depth of the creek.

326 In [263] above, I found that Coffs Harbour's duty of care extended at least to the point of the concrete pathway constituted by the eastern boundary of the licensed area beneath the railway bridge and that, had a warning sign been erected at that point, being so close to the unmade diversion from the pathway to the southern bank of the creek, it would have been heeded by Mr Mulligan (as the primary judge found). I was also tentatively of the view (at [264]) that in all probability the better view was that Coffs Harbour's duty of care extended to the whole of the southern bank.

327 In the foregoing circumstances, to hold Coffs Harbour responsible for only 25% of Mr Mulligan's injuries was so unreasonable or unjust in the circumstances as to evince error in the exercise by his Honour of his discretion. Accordingly, it is necessary to reassess the appropriate apportionment.

328 As in the case of contributory negligence, the making of an apportionment as between defendants for their respective shares in their responsibility for the plaintiff's damage involves a comparison of both culpability, i.e. of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts or omissions of the respective defendants in causing that damage. The whole of the conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination.

329 The circumstances giving rise to a duty of care on the part of both Coffs Harbour and the State interests have been set out above in relation to that issue. In essence, Coffs Harbour had exclusive control, both de facto and de jure, over the concrete pathway leading from Orlando Road to the eastern boundary of its licensed area beneath the railway bridge. The State interests had both de facto and de jure control over the bed of the creek and its southern bank. However, Coffs Harbour had some influence over the southern bank of the creek insofar as it had participated in the construction of the concrete pathway/cycleway over the Jetty Reserve and as evidenced by its erection of a sign upon that pathway warning of the fact that the beach was unpatrolled. In my opinion, each of Coffs Harbour on the one hand and the State interests on the other were essentially equal in terms of their responsibilities with respect to those members of the public, such as Mr Mulligan, who swam in the creek from the southern bank.

330 The only breach of the duty of care alleged against each defendant was its failure to erect a warning sign. Had that failure been such a breach, then the respective duties of care would have been satisfied by the erection of a warning sign by Coffs Harbour just inside the eastern boundary of its licensed area under the railway bridge and by the State interests and, in particular, the Trust, by erected one or two signs in an appropriate location upon the southern bank and, in particular, at the access point to that bank from the dirt path leading from the pathway/cycleway. In these circumstances, it seems to me that, again, the culpability of the defendants was equal.

331 Accordingly, taking account of the factors to which I have briefly referred, I would consider it to be just and equitable that contribution between the defendants for the amount of the damages that would have been recoverable by Mr Mulligan, were he entitled thereto, ought to be borne as to 50% by Coffs Harbour and 50% by the State interests.

Damages

332 In assessing damages upon the assumption that Mr Mulligan was entitled thereto, the primary judge awarded damages in respect of domestic and nursing care (both past and future) required by Mr Mulligan including that provided by the Irish Wheelchair Association. In so doing, and consistent with the decision of the High Court in Van Gervan v Fenton (1992) 175 CLR 327 at 333-334, his Honour assessed those damages by reference to the market cost or commercial rate of providing those services rather than, as was submitted by the defendants, by reference to the rates at which the services were actually provided. Coffs Harbour formally submits that in so doing his Honour erred. However, it recognised that the decision of the High Court in Van Gervan bound him to find as he did: this Court is also bound by that decision. Accordingly, the challenge to this aspect of his Honour's finding of assessment of damages fails although Coffs Harbour has reserved its position with respect to the correctness of the decision referred to.

333 In determining the quantum amount of past economic loss, it was submitted to the primary judge that he ought to have deducted from that loss the income received by Mr Mulligan by way of rental of a house at Arbour Hill which he had purchased prior to the accident but in which he is now unable to live as the building is unsuitable for modification to accommodate his needs resulting from his extensive injuries. It was submitted by Coffs Harbour that when a plaintiff is awarded compensation he should not be better off financially than if he had not been injured. Had he not been injured, Mr Mulligan would have lived in this house and paid his mortgage out of his earnings with the Irish Railways Department. Coffs Harbour thus submitted that Mr Mulligan will be compensated for loss of past earnings but his mortgage repayments will now be made out of rents and not out of the compensation for lost earnings. Accordingly, it was submitted he will be better off than if he had not been injured.

334 The primary judge (at [361]) queried whether Mr Mulligan could in any sense be said to be better off as a consequence of receiving compensation than if he had not been injured. Furthermore, even if it were true that, in a narrow sense, he would be better off,

"the consequence would be to penalise a thrifty and prudent plaintiff at the expense of the unwise and wasteful. Such a consequence would be repugnant to common sense."

335 His Honour then referred to the analysis of this topic by Windeyer J in National Insurance Co of NZ Limited v Espagne (1961) 105 CLR 569 at 588-599 and concluded (at [362]):

"The principles spelled out by his Honour make it quite clear that the plaintiff's rent monies could not possible fall into the category of a subvention that was intended to accrue to the benefit of the defendant. There being no other basis for the argument advanced by the defendants, it must fail."

336 Coffs Harbour repeats before this Court the submission made by it to the primary judge that Mr Mulligan should not be placed in a better position after the accident than he was before it as a consequence whereof he was required to give credit for income received which would otherwise not have been received and in relation to which there was no "special characteristic" such as would entitle him to retain both. It was submitted that the rental income from the Arbour Hill property was not a subvention as a consequence whereof the decision in Espagne did not require that those amounts accrue to the benefit of Mr Mulligan rather than to the benefit of the defendants.

337 In Espagne, Windeyer J said (at 597):

"Damages are given as compensation for the consequences of a tortious act when the harm is of a kind that a reasonable man could have foreseen. Consideration of cause and consequence are thus necessarily involved in the assessment of damages. But in cases such as this the question is not whether a harm that the plaintiff has suffered is, in the relevant sense, a consequence of the defendant's negligence, but whether an advantage that the plaintiff has gained is to be regarded as mitigating that harm. Causal considerations cannot be decisive of the latter question, unless there be a general rule of law that all benefits, or foreseeable benefits, received by an injured person because of, or as a consequence of, his injury are to be set-off against the damages he can recover from a wrongdoer. In my view, there is no such rule."

338 After further discussion of the principles relevant to aid given by friends and philanthropic persons to ameliorate the loss of an injured person, his Honour stated the governing principles as follows (at 599-600):

"In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages."

Diamond v Simpson (No. 1

339 It may well be, as Coffs Harbour submits, that any rental received by Mr Mulligan in respect of his Arbour Hill property does not fall within the principles articulated by Windeyer J in the above passage in that that rental does not constitute a subvention given out of benevolence. Nevertheless, the question remains whether that rental is to be regarded as otherwise mitigating his loss.

340 Certainly, it could not be said that the tenant who paid the rent intended that it should be used to relieve the defendants from fully compensating Mr Mulligan in respect of his injuries. Thus, in Redding v Lee; Evans v Muller (1983) 151 CLR 117, Mason and Dawson JJ, with whom Wilson and Deane JJ in substance agreed, explained the Espagne approach as follows (at 137):

Espagne

341 Although this and other authorities concerned with the "Espagne approach" were dealing with gratuitous payments or benevolent services, I see no reason in principle why that approach cannot be applied to any payment received by an injured plaintiff from a third party. The question should always be: was the payment made with the intention that it should result in the reduction of damages recoverable by the injured party? In the present case, the answer to that question must be in the negative.

342 Mr Mulligan nevertheless submitted that no credit should be given for that rental for two reasons. Firstly, it was submitted that he is not receiving a collateral benefit because if the accident had not occurred, it would have been open to him in any event to live with his parents and pocket the rent he received from his own property. Secondly, it was submitted that any collateral benefit arising from the receipt of rent is a consequence of an act of benevolence on the part of Mr Mulligan's parents (with whom he lives) namely, by not demanding rent from him for living at their home. If that rent is the equivalent of the rent received by him from his own property, then the principle referred to by Windeyer J in Espagne would be applicable.

343 Mr Mulligan further submitted that the benevolence of his parents might not be a situation upon which he can rely for the rest of his life. His parents may start demanding rent from him or they may die, move house or divorce, in which event he would have to buy a new house with appropriate modifications or in some way move back into his own house. It was submitted that the receipt of rent was merely a buffer against these contingencies.

344 In my opinion, Mr Mulligan's submissions have substance. He had purchased the house before his accident and the fact that he is unable to reside therein is not due to any conduct on his part but on the contrary, to the negligent conduct (if such it be) of the defendants. Rather than receive rent, it would be open to Mr Mulligan to leave his house vacant or to permit a family member or friend to occupy it rent-free. In these circumstances, the defendants would have no claim in respect of rental, which was neither demanded nor received. I do not consider that Mr Mulligan should be worse off because, at least for the time being, he has decided to rent the property in which, but for the accident, he would have resided. Accordingly, I would reject Coffs Harbour's challenge to this aspect of his Honour's assessment of damages.

Conclusion

345 I would propose the following orders:

Wyong Shire Council v Vairy CA 40083/03:

a) Appeal allowed;

b) Set aside the orders made by Bell J on 20 December 2002;

c) Verdict and judgment for the defendant;

d) The plaintiff to pay the defendant's costs of the proceedings and of the appeal but in respect of the latter to have a certificate under The Suitors Fund Act 1951 if otherwise entitled.

Mulligan v Coffs Harbour City Council & Ors CA 40292/03

a) Appeal dismissed with costs.

**********

Last Modified: 12/16/2004

Citations

Wyong Shire Council v Vairy [2004] NSWCA 247

Most Recent Citation

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45

Council of the City of Sydney v Bishop [2019] NSWCA 157

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Schultz v McCormack [2015] NSWCA 330

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Statutory Material Cited

3

Woods v Multi-sport Holdings Pty Ltd [2002] HCA 9

Breen v Sneddon [1961] HCA 67

Vairy v Wyong Shire Council [2002] NSWSC 881

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CITATION:	Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247
HEARING DATE(S):	CA40083/03: 20 August 2003 CA40292/03: 17, 18, 20 February 2004
JUDGMENT DATE:	27 July 2004
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Tobias JA at 14
DECISION:	Wyong Shire Council v Vairy CA 40083/03; a) Appeal allowed; b) Set aside the orders made by Bell J on 20 December 2002; c) Verdict and judgment for the defendant; d) The plaintiff to pay the defendant's costs of the proceedings and of the appeal but in respect of the latter to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; Mulligan v Coffs Harbour City Council & Ors CA 40292/03; a) Appeal dismissed with costs
CATCHWORDS:	TORTS - Negligence - Personal injury - Scope of duty of care - Reasonable response - Obvious Danger - Inherent danger - Duty to warn - Unknown and variabe depth - Diving accident - TORTS - Negligence - Personal injury - Existence of duty - Contributory negligence - Causation - Apportionment - Damages - Volenti - PRACTICE & PROCEDEURE - Fairness - Raising argument post-appeal - Not run at trial - Not argued on appeal
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
CASES CITED:	Ah Tong v Wingecarribbee Council [2003] NSWCA 381 Beck v State of New South Wales [2001] NSWSC 278 Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 Brodie v Singleton Shire Council (2001) 206 CLR 512 Bucheleres v The Chicago Park District (1996) 665 N.E. 2d 826 Burns v Hoyts Pty Ltd [2002] Aust Tort Reports 81-637 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Chappel v Hart (1998) 195 CLR 232 City of Rockingham v Curley (2000) 112 LGERA 123 Darby v The National Trust [2001] PIQR P372 Diamond v Simpson (No. 1) [2003] Aust Torts Rep 81-695 Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706 Dowen v Hall (1989) 548 N.E. 2d 346 Francis v Lewis [2003] NSWCA 152 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Griebler v Doughboy Recreational, Inc (1991) 466 N.W 2d 897 Hadland v Council of the City of Blacktown, Court of Appeal (unreported) 21 May 1997 Hagy v McHenry County Conservation District (1989) 546 N.E. 2d 77 Harriton (by her tutor) v Stephens; Waller (by his tutor) v James; Waller (by his tutor) v Hoolahan [2004] NSWCA 93 Hastings Council v Giese [2003] NSWCA 178 at [18]; Hoyts Pty Ltd v Burns (2003) 201 ALR 470 Insurance Commissioner v Joyce (1948) 77 CLR 39 and Inverell Municipal Council v Pennington (1993) 82 LGERA 268 Jackson v TLC Associates (1998) 706 N.E. 2d 460 Jeffries v Fisher [1985] WAR 250 Moore v Woodforth [2003] NSWCA 9 Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Reports 81-689 Nagle v Rottnest Island Authority (1993) 177 CLR 423. National Insurance Co of NZ Limited v Espagne (1961) 105 CLR 569 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 O'Sullivan v Shaw (2000) 726 N.E 2d 951 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Prast v Town of Cottesloe (2000) 22 WAR 474 Public Trustee as Administrator of the Estate of the later Peter Saroukas v Sutherland Shire Council (1992) Aust Torts Report 81-149 Redding v Lee; Evans v Muller (1983) 151 CLR 117 Rhind v Ashbury Water Park Limited & Anor [2003] EWHC 1029 (QB) Roads & Traffic Authority of NSW v Jackson [2003] NSW CA 40 Rogers v Whitaker (1992) 175 CLR 479 Roggenkamp v Bennett (1950) 80 CLR 292 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 Sara v Government Insurance Office of New South Wales (1969) 89 WN (Pt 1) (NSW) 203 Secretary to the Department of Natural Resources & Energy v Harper [2000] 1 VR 133 Snilsberg v Lake Washington Club (2000) 614 N.W 2d 738 Tame v New South Wales (2002) 211 CLR 317 Tomlinson v Congleton Borough Council [2004] 1 AC 46 Turner v South Australia (1982) 56 ALJR 839 University of Wollongong v Mitchell [2003] NSWCA 94 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Van Gervan v Fenton (1992) 175 CLR 327 Waverley Council v Lodge (2001) 117 LGERA 447 Waverley Municipal Council v Swain [2003] NSWCA 61 Whyte v Redland Aggregates Ltd (unreported) 27 November, 1997; Court of Appeal (Civil Division) Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Woolcock Street Investments Pty Limited v CDG Pty Limited [2004] HCA 16 Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy [2002] NSWSC 881; (2002) 129 LGERA 10
PARTIES :	CA40083/03: Wyong shire Council; Ernest Vairy. CA40292/03: Garry Mulligan; Coffs Harbour City Council; State of New South Wales; Coffs Harbour Jetty Foreshore Reserve Trust; Wal Hambly.
FILE NUMBER(S):	CA 40083/03; 40292/03
COUNSEL:	CA40083/03 A: Mr I G Harrison SC / Mr D Villa R: Mr C C R Hoeben SC / Mr E Muston CA40292/03 A: Mr G O'L Reynolds SC / Mr J B Meadley / Mr R Foord 1R: Mr M T McCulloch / Mr D Villa 2R: Mr J E Maconache QC / Mr Green
SOLICITORS:	CA 40083/03 A: Minter Ellison R: Carroll & O'Dea CA40292/03 A: Martin Bell & Co 1R: Phillips Fox 2R, 3R & 4R Crown Solicitor

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	ED 13576/93 SC 20113/00
LOWER COURT JUDICIAL OFFICER :	CA40083/03: Bell J; CA40292/03: Whealy J