Swain v Waverley Municipal Council

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HEYDON JJ

GUY EDWARD SWAIN  APPELLANT

AND

WAVERLEY MUNICIPAL COUNCIL  RESPONDENT

Swain v Waverley Municipal Council

[2005] HCA 4

9 February 2005

S619/2003

ORDER

1.Appeal allowed with costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 April 2003 and in their place order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P Menzies QC with D J S Jenkins for the appellant (instructed by Beston Macken McManis)

J R Sackar QC with M T McCulloch and S P W Glascott for the respondent (instructed by Phillips Fox)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Swain v Waverley Municipal Council

Negligence – Standard of care – Breach – Swimmer injured by diving into sandbank while swimming between flags – Jury finding of negligence on part of Council – Whether finding reasonably open on evidence.

Appeals – Civil trial by jury – Function of appellate court – Appellate review of jury finding on issue of breach of duty of care.  

Words and phrases – "risk", "obvious", "reasonably practicable alternative".

1. GLEESON CJ.   Actions for damages for personal injury suffered by a plaintiff allegedly in consequence of the negligence of a defendant in the past were commonly tried before a judge and a civil jury, usually of four persons.  In New South Wales, and in some other Australian jurisdictions, the use of civil juries in such cases has become less common.  This appeal draws attention to the different considerations involved in appellate review of primary decision-making, according to whether the decision-maker is a judge or a jury.

2. In the common law system of civil justice, the issues between the parties are determined by the trial process.  The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.  Most decisions of trial courts are never the subject of appeal.  When there is an appeal, the appellate court does not simply re-try the case.  Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance.  Trial by jury carries with it significant limitations of that kind.

3. At a trial by jury, the functions of judge and jury are clearly distinguished.  The judge decides issues of law; the jury decides issues of fact.  A judge, whether sitting alone or presiding at a jury trial, gives reasons for his or her decisions.  An appellate court, having the benefit of a statement of a judge's reasons for a decision, may be well placed to identify error.  Juries give no reasons for their decisions.  Leaving to one side cases where a special verdict is taken, ordinarily a jury at a civil trial will simply announce a verdict for the plaintiff or the defendant and, where necessary, an award of damages.  The jury will reach that verdict after receiving directions from the trial judge as to the relevant principles of law, and their relationship to the evidence in the case and the arguments of opposing counsel.  Where unanimity is required, the jurors need be unanimous only in relation to the ultimate issue or issues presented to them for decision.  So long as individual jurors act in accordance with the directions they are given, different jurors might be impressed by different parts of the evidence, or by different arguments of counsel.  Jurors are instructed that they may take a selective approach to the evidence, and even to different parts of the evidence of a particular witness.  They may arrive at their joint conclusion by different paths.  There may be no single process of reasoning which accounts for a jury verdict.

4. In an action framed in negligence, the judge (if necessary) will decide, as a matter of law, whether the facts alleged by the plaintiff are capable of giving rise to a duty of care in the defendant towards the plaintiff.  A legal issue of that kind is often capable of being decided on the pleadings.  On the other hand, the alleged duty of care might depend upon contested facts that need to be resolved as part of the trial process.  In order to be entitled to a verdict, the plaintiff will need to establish a duty of care, conduct on the part of the defendant in breach of that duty (negligent conduct), and consequential damage.

5. In legal formulations of the duty and standard of care, the central concept is reasonableness.  The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm.  Life is risky.  People do not expect, and are not entitled to expect, to live in a risk-free environment.  The measure of careful behaviour is reasonableness, not elimination of risk.  Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers.

6. Where an action for damages for negligence is tried before a jury, the question whether the conduct of the defendant has been negligent, that is, whether it has departed from what reasonableness requires, is presented as a question of fact for the jury.  The jury's decision will ordinarily involve both a resolution of disputed questions of primary fact and an application, to the facts as found, of the test of reasonableness.  Depending upon the nature of the case, and the findings of primary fact, the application of the test of reasonableness might be straightforward, or it might involve a matter of judgment upon which minds may differ.  Either way, it is a jury question.  In 1845, in Tobin v Murison[1], the Privy Council identified a fundamental error of procedure in a Canadian trial where a jury was asked to find particular facts and then it was left to the judge to decide whether, on those facts, the defendant was negligent.  Lord Brougham said[2]:  "Negligence is a question of fact, not of law, and should have been disposed of by the Jury."  Of course, it may be a complex question.  To the extent to which it requires the application to disputed primary facts of a contestable standard of reasonable behaviour, it may require different kinds and levels of judgment.

   [1](1845) 5 Moo PC 110 [13 ER 431].

   [2](1845) 5 Moo PC 110 at 126 [13 ER 431 at 438]. See also Municipal Tramways Trust v Buckley (1912) 14 CLR 731 at 738 per Isaacs J.

7. The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly.  The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision.  In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community, properly instructed as to their duties, deciding the facts, on the evidence, as a group.  In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given.  In the administration of criminal justice in Australia, the former process is normal, at least in the case of serious offences.  In the administration of civil justice, in New South Wales and some other jurisdictions, in recent years there has been a strong trend towards the latter process.  Originally, there were no procedures for appealing against the verdict of a jury, reflecting what Barwick CJ described as "the basic inclination of the law towards early finality in litigation"[3].  He referred, in another case, to the move towards trial by judge alone in civil cases as an abandonment of "the singular advantage of the complete finality of the verdict of a properly instructed jury"[4].  In many areas, the law seeks to strike a balance between the interest of finality and the interest of exposing and correcting error.  In a rights-conscious and litigious society, in which people are apt to demand reasons for any decision by which their rights are affected, the trend away from jury trial may be consistent with public sentiment.  Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system.  It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.

   [3]Buckley v Bennell Design & Constructions Pty Ltd (1978) 140 CLR 1 at 8.

   [4]Edwards v Noble (1971) 125 CLR 296 at 302.

8. Although the question whether certain conduct is a departure from a requirement of reasonable care, notwithstanding its normative content, is treated as a question of fact for the jury, a related, but different, question is treated as a question of law.  That is the question whether there is evidence on which a jury could reasonably be satisfied that the defendant has been negligent.  To the extent to which the dispute in a particular case is about the objective features of a defendant's conduct, that will come down to a question whether there is any evidence from which a jury could reasonably reach a conclusion about those features.  There may also be a dispute about what reasonableness requires in a given case.  When a trial judge, or an appeal court, asks as a matter of law whether a judgment adverse to the defendant is reasonably open to a jury, the enquiry may be affected by the nature of the judgment required of the jury.  A judgment about whether the evidence could support a certain finding of primary fact might require nothing more than attention to the detail of the evidence, and a consideration of its probative potential.  A judgment about whether behaviour is reasonable might involve the application of a measure that is to be found, not in the evidence, but in the wisdom and experience of those who make the decision.

9. The present appeal provides an example of a case where the jury was required to engage in both kinds of decision-making.  The facts are set out in the reasons of Gummow J, with which I agree.  The appellant, the plaintiff, suffered serious injury as a result of diving into the surf at Bondi Beach.  He said he was swimming between the flags.  His case was that he struck his head or neck on a sand bank which was invisible to him, and which he could not reasonably have been expected to see, and that the conduct of the respondent Council, in the circumstances, involved a lack of reasonable care for his safety.  The jurors had to decide disputed facts about the conduct of the appellant and the circumstances in which he was injured, they had to consider substantially undisputed facts about the conduct of the respondent, they had to take into account circumstances relating to other people for whose safety the respondent also had to be concerned, and then they had to make a judgment about the reasonableness of the respondent's conduct. The trial judge said to the jury: 

   "You are the only judges of ... fact in the case.  It is for you to decide what evidence you accept and what evidence you reject, what inferences you draw and what conclusions you come to by reference to the evidence and upon the principles of law that I will give you."

   One of the conclusions to which the jurors had to come was whether, on the facts and in the circumstances found by them, the conduct of the respondent exhibited a failure to take reasonable care for the safety of the appellant.

10. The case of negligence relied upon by the appellant was summarised by the trial judge for the jury as follows: 

    "[Counsel for the plaintiff] said that the plaintiff went into the water where he did for the reason that that was where the flags were.  He was directed or guided to that place because he knew or believed, first of all, that it was where he was supposed to swim because that is how the set up on the beach was ... he thought he would be swimming in a place that was safe because he assumed – [counsel] suggested reasonably assumed – that the persons or the organisation, which had the care, control and management of the beach, namely the Waverley Council, would not place those flags in a position where a person could be as it were encouraged to do something which might be dangerous.

    ...

    [The plaintiff] ... suffered those injuries because the council set up of a system of having flags in the particular place where there was a sand bank, which was a disguised danger.  They could have done a number of things.  First thing, warn people of the existence of it.  Secondly, look for somewhere else to place the flags.  And, third, if there was not anywhere else then do something so people had a choice."

11. There was a dispute at trial about whether the appellant was between the flags when he was injured, or was outside the flags.  There was ample evidence, including that of the appellant, upon which the jury could find that he was between the flags.  The respondent having made an issue out of whether the appellant was outside the flags, the jury would be likely to have treated their conclusion that he was between the flags as a substantial point in his favour.  Nevertheless, it was far from conclusive.

12. There was some debate before this Court as to what the flags might reasonably be taken to have signified to a person such as the appellant. On the day in question, surf conditions were calm.  No one could seriously suggest that the beach should have been closed to surfers.  Undoubtedly, the flags were there to give guidance (indeed, instruction) to people as to where they should bathe.  As to precisely what they represented concerning safety, somewhat different views may have been open.  Safety is not an absolute concept.  No reasonable person would understand flags on a beach to indicate a complete absence of risk.  People who use beaches are of all ages, all degrees of competence as swimmers, all sizes, and all standards of physical fitness.  The evidence was that, for some people, such as children, or elderly or infirm swimmers, sand banks can be a safety feature rather than a hazard.  Furthermore, as was pointed out in the Court of Appeal, flags are not placed in the water.  No one could possibly think that it was safe to dive anywhere between the flags.  That would be nonsense.  It would not mean it was safe to dive at the water's edge.  To say that the flags conveyed a representation that it was safe to swim or dive in a particular area requires consideration of the range of persons to whom the representation was made, and the conditions that might constitute a hazard to different classes of person.  Swimming in the ocean is never entirely risk-free.  For some people who are poor swimmers, the water itself may be a considerable hazard.  For many people, swimming in water beyond a certain depth is dangerous, even if they are between the flags.  For all people, diving in shallow water is risky.  Flags do not indicate an absence of risk.  Even so, considerations of comparative safety play an important part in where they are placed.

13. The respondent succeeded in persuading a majority in the Court of Appeal that, as a matter of law, there was no evidence upon which the jury could reasonably be satisfied that the conduct of the respondent Council exhibited a failure to exercise reasonable care for the safety of the appellant.  That involved a finding, not that the jury's conclusion about reasonableness was wrong, but that it was not even open.

14. It was clearly open to the jury to accept the appellant's version of how he came to suffer his injury.  That was that he was swimming between the flags, he was not affected by drink, the manner in which he dived, or attempted to dive, into the water was orthodox, and he struck a submerged obstacle in the form of a sand bank which was not visible to him.  The facts relating to the conduct of the respondent, so far as the evidence went, were uncontroversial.  The condition of the surf, the location of the flags, the size and shape of the sand bank, and the number of people at the beach were not in dispute.  There was, however, one matter that was not the subject of evidence.  The appellant's case criticised the respondent for placing, or leaving, the flags in such a location that a submerged sand bank was in the path of swimmers intending to go any significant distance into the water.  There was evidence that this was not unusual.  There was also evidence that a sand bank (assuming it is stable) can provide security to some swimmers as well as a possible hazard to others.  There was no evidence as to whether it would have been possible to move the flags so that the hazard was removed without compromising other aspects of safety.  Witnesses spoke of general practice in relation to placing and moving flags at beaches, but no witness addressed that particular question.  An employee of the respondent who was on duty at the beach that day gave evidence, but he did not assume responsibility for deciding whether or not to move the flags, or go into the question of the availability of possible alternative locations on the day.

15. The trial judge, in his summing-up to the jury, recorded the argument of the respondent's counsel in these terms: 

    "The third [point] was that the plaintiff has to satisfy you that reasonable care required the council to do something differently on the day.  That is, place the flags elsewhere or do something else.  He said to you should the flags have been placed elsewhere? ...  He said that the sand banks are the safest place to swim, and what was it that was dangerous?

    Essentially he said it was an unexceptional day and the beach formation was unexceptional.  It was a characteristic day.  He described the size of the waves.  He said that the plaintiff agreed that there are irregularities in the surf from time to time.  He said a real possibility of a sand bar is a part of life and there must be  gutters and they vary because the beach is dynamic.  The beach has to be safest for children and infirm people ...

    The way the flags were put was not unreasonable. ...  The council has to take into account the needs of all bathers and must recognise the beach does move around, and that it is a place where people go because of the thrill and it does have its inherent dangers.

    He said [that in] the exercise of reasonable care [in] the circumstances of the day it was appropriate to place the flags there.  There were half metre waves.  He said the plaintiff should have been capable of swimming out in front and the conditions were 'run of the mill'.  He said that there was no evidence the area between the flags was dangerous.  People had been in and out during the day and he said it was obvious that he needed to go out further before he could dive."

16. When counsel for the respondent, in final address, invited the jury to consider whether the flags should have been placed elsewhere, it might have occurred to the jury that no witness, and in particular no witness for the respondent, had given evidence about that possibility.  It was open to the jury to consider that the sand bank was a danger, although not one that was either unusual or such as necessarily to require the respondent either to prevent people from swimming near it or to give them a warning about it.  Yet a possible point of view was that an assessment of the reasonableness of the respondent's conduct would involve a consideration of whether, by moving the flags, the danger could have been avoided without the creation of any countervailing problems.  The argument of the respondent invited such a consideration.  On that matter, the evidence was silent.  As the trial judge's summary of the argument for the respondent shows, the approach of the respondent came down to the proposition that, regardless of conditions to either side of the flags, the sand bank did not constitute a sufficient danger to warrant moving, or even considering moving, the flags.  Apparently, the jury did not accept that.

17. More than 200 years ago, Lord Mansfield said that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."[5]  This basic principle of adversarial litigation is not a matter of esoteric legal knowledge; it accords with common sense and ordinary human experience.  When the jurors in this case were asked to consider whether the flags should have been placed elsewhere, they may have thought that it was up to the respondent, rather than the appellant, to tell them what difficulty there would have been about moving the flags to avoid the sand bank, or to explain why nothing would have been gained by putting the flags in a different location.  That is something they might reasonably have taken into account in making a judgment about the reasonableness of the conduct of the respondent.

    [5]Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970].

18. Given a finding that the appellant was swimming between the flags, the argument for the respondent was that the sand bank was not really a danger, or at least not such a danger as could have affected a decision about where to place the flags.  Faced with a quadruplegic plaintiff, and a jury, that was a strong line to take in the absence of any evidence to show that moving the flags would not have made a material difference, or improved overall safety.

19. Many judges, and many juries, might have accepted the respondent's argument.  Some people, applying their standards of reasonableness, might have reflected that variable water depths are as much a feature of the surf as variable wave heights, that diving into waist-deep water without knowing what lies ahead is obviously risky, just as catching and riding a wave to shore is risky, and for much the same reason, and that, if the conduct of the respondent in this case constituted negligence, the only prudent course for councils to take would be to prohibit surfing altogether.  To my mind, those are powerful considerations.  However, under the procedure that was adopted at this trial, the assessment of the reasonableness of the respondent's conduct was committed to the verdict of a jury.  The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.  The Court of Appeal should have answered that question in the affirmative.

20. The appeal should be allowed with costs.  The judgment of the Court of Appeal should be set aside, and it should be ordered that the appeal to that Court be dismissed with costs.

21. McHUGH J.   The issue in this appeal is whether there was any evidence on which a jury could find that the respondent, Waverley Municipal Council ("the Council"), was guilty of negligence that resulted in the appellant, Mr Guy Swain, suffering spinal injury while swimming at Bondi Beach.

22. In my opinion, there was no evidence upon which a jury could find that the Council was negligent.  That is because, assuming that there was a reasonably foreseeable risk of injury to the appellant when he attempted to dive through a wave while swimming at the beach, he tendered no evidence that would have entitled the jury to find that there existed a reasonably practicable means of avoiding that risk.  One reason why the appellant failed to prove a reasonably practicable alternative is that he failed to tender any evidence that his suggested alternative would not only have eliminated that risk of injury but would also not have exposed himself or other swimmers to similar or other risks.  Before a case of negligence can be submitted to a jury for determination, there must be evidence upon which the jury can find:

    (1)      that the risk of injury to the plaintiff was reasonably foreseeable;

    (2)      that a reasonably practicable means of eliminating that risk existed; and

    (3)that there was a causal connection between the defendant's failure to eliminate the risk of injury and the sustaining of the plaintiff's injury.

23. In the present case, it was probably open to the jury to find that, on this day, swimming or bodysurfing between the flags at Bondi Beach exposed the swimmer to a risk of injury that was reasonably foreseeable.  The risk arose from the possibility that, if the swimmer dived through a wave in an area about 15‑25 metres from the shore, the swimmer might strike an unseen sandbar[6].  I say that it was probably open to find that that risk was reasonably foreseeable because there was no evidence as to how long the risk had existed.  For all that the evidence disclosed, the risk might have been confined to only a small part of the flagged area and might have existed only for a short period.  If the risk had only recently arisen, the appellant would have had the difficulty at trial of showing that the Council should have known of the risk and taken immediate action to avoid it.  Assuming, however, that there was a reasonably foreseeable risk of injury to the appellant, there was no evidence whatsoever that there was a reasonably practicable means available to avoid it.  There was no evidence that the risk was not also present at other parts of the beach outside the flagged area or that there were parts of the beach within the flagged area that did not have the same degree of risk.  There was no evidence that other parts of the beach were free from other dangers associated with swimming and could have been safely used by swimmers including the appellant.  Indeed, the fact that the flags directed bathers to swim between them strongly indicates that areas of the beach outside the flagged area were more dangerous than the part of the beach within the flagged area.  Furthermore, in this Court the appellant accepted that reasonable care did not require the Council to warn him of the danger of striking the sandbar.  And no-one, not even counsel for the appellant, suggests that, on this day with a calm surf running, a reasonably practicable alternative means of eliminating the risk would have been to close Bondi Beach or even the flagged area where he swam.

    [6]Although the terms "sandbank" and "sandbar" were used interchangeably at the trial, Handley and Ipp JJA in the Court of Appeal distinguished the terms as follows:  "Troughs or channels are created by the movement of water 'to the left and right across the sandbank'.  The seaward edge of a channel is known as a sand bar."  Waverley Municipal Council v Swain [2003] Aust Torts Rep ¶81-694 at 63,784.

24. It is no answer to the above analysis to say that the Council, through its employed lifeguards, was in the better position to give evidence concerning the condition of other parts of the beach that day and whether they were safe for swimming.  The law places the onus on the plaintiff to prove negligence.  As part of that proof, the plaintiff must show that there was a reasonably practicable alternative available that would have eliminated a reasonably foreseeable risk of injury.  In some cases, the plaintiff may satisfy that requirement by relying on common knowledge of alternative actions or precautions that would have eliminated the risk.  However, common knowledge was not sufficient in this case to satisfy that requirement.  It did not – could not – prove the conditions of the surf and the seabed at other parts of Bondi Beach on that day.  What was required – and what was absent in this case – was evidence that other parts of the beach outside or even inside the flagged area did not expose swimmers to risks of injury.  Once a plaintiff tenders some evidence of a reasonably practicable alternative, the failure of the defendant to tender evidence that the suggested alternative is not reasonably practicable is relevant in determining whether a verdict for the plaintiff was reasonable.  But it does not eliminate the need for the plaintiff to tender some evidence that there existed a reasonably practicable alternative means of eliminating the risk of injury of the kind that the plaintiff suffered. 

25. With great respect to those who hold the contrary view, I find it impossible to hold that the appellant tendered any evidence against the Council that, as a matter of law, was capable of proving that the Council was negligent.

    Statement of the case

26. The appellant, Mr Guy Swain, became a quadriplegic when he dived into a sandbar while attempting to dive through a wave at Bondi Beach, Sydney, which is under the care, control and management of the respondent, Waverley Municipal Council.  At the time, the beach was supervised by three lifeguards employed by the Council.  Subsequently, Mr Swain commenced an action in the Supreme Court of New South Wales against the Council, claiming damages for the breach of a duty of care that he claimed the Council owed him.  He alleged that the Council had placed flags on the beach, that the flags had induced him to swim where he did and that the Council had failed to take reasonable care in positioning the flags.  Alternatively, he alleged that the Council was negligent in failing to warn swimmers of the danger of the sandbar that caused his injury.

27. A judge and a jury of four tried the action.  Before the trial commenced, the parties agreed on the amount of damages that reflected proper compensation for Mr Swain's injury.  The jury found that the Council had been negligent, that Mr Swain was guilty of contributory negligence and that his negligence was 25% responsible for the injury that he suffered.  As a result, the Supreme Court entered a verdict and judgment for Mr Swain in the sum of $3.75 million after reducing the agreed amount of damages by 25%.

28. The Council appealed to the New South Wales Court of Appeal on the ground that the verdict of negligence against the Council was against the evidence and the weight of the evidence.  Later, the Council amended its notice of appeal to allege that there was no evidence of negligence on its part.  The Court of Appeal set aside the verdict in favour of Mr Swain and entered a verdict and judgment in favour of the Council[7].  By majority (Handley and Ipp JJA, Spigelman CJ dissenting), the Court of Appeal held that there was no evidence upon which the jury could find that the Council was negligent in placing the flags where it did.  The majority held that it was not open to the jury to find that the flags suggested that the patrolled swimming area between them was safe for diving[8].  In addition, the majority thought that the dangers associated with diving into the surf were so obvious that the jury could not find that the Council had breached its duty by its placement of the flags[9].  The majority also held that there was no evidence of any action that the Council could have taken in placing the flags that would have avoided injury to Mr Swain[10].  All judges of the Court of Appeal held that there was no evidence to support a verdict against the Council on the basis of its failure to warn that it was dangerous to dive in the surf because of the presence of sandbanks[11].

    [7]Swain [2003] Aust Torts Rep ¶81-694.

    [8]Swain [2003] Aust Torts Rep ¶81-694 at 63,786.

    [9]Swain [2003] Aust Torts Rep ¶81-694 at 63,786.

    [10]Swain [2003] Aust Torts Rep ¶81-694 at 63,786.

    [11]Swain [2003] Aust Torts Rep ¶81-694 at 63,781 per Spigelman CJ, 63,785-63,786 per Handley and Ipp JJA.

29. Subsequently, this Court gave Mr Swain special leave to appeal against the orders of the Court of Appeal.  The only issue in the appeal in this Court is whether the Court of Appeal erred in finding that there was no evidence that the Council was negligent in placing the flags where it did.  Mr Swain has not challenged the unanimous finding of the Court of Appeal that there was no evidence the Council was negligent in failing to warn him of the danger of diving into or hitting the sandbar.

    The power of the Court of Appeal to set aside the jury's verdict

30. Section 108(3) of the Supreme Court Act 1970 (NSW) empowers the Court of Appeal to direct a verdict in favour of the defendant where the defendant is "as a matter of law, entitled to a verdict in the proceedings". Ever since Hampton Court Ltd v Crooks[12], appellate courts in New South Wales have been empowered to set aside a jury's verdict on the ground that there was no evidence to support it, even though that objection was not taken at the trial.  The issue in this appeal, therefore, is whether there was any evidence upon which the jury could reasonably find that the Council was negligent in placing the flags where it did.

    [12](1957) 97 CLR 367.

31. As I pointed out in Naxakis v Western General Hospital[13], when a defendant submits that there is no evidence to go to the jury, the submission raises a question of law for the judge to decide.  The question is not whether the quality of the evidence is such that a verdict for the plaintiff would be unreasonable or perverse.  It is whether the plaintiff has adduced evidence that, if uncontradicted and accepted, would justify a verdict for the plaintiff.  An appellate court may later be able to set aside a verdict for the plaintiff on the ground that the quality of the evidence is such that the verdict for the plaintiff was unreasonable or that it was against the weight of all the evidence in the case.  But the question whether there is evidence that, as a matter of law, supports the verdict is more circumscribed.

    [13](1999) 197 CLR 269 at 282 [40].

32. Evidence that is sufficient as a matter of law to entitle the plaintiff to a verdict must be distinguished from the totality of the evidence and its quality.  The common law draws a distinction between evidence that, as a matter of law, entitles the jury to find a verdict for the plaintiff and evidence that supports a verdict claimed to be unreasonable or against the weight of the evidence.  In the former case, the court looks only at the evidence and the inferences most favourable to the plaintiff.  In the latter case, the court not only looks at the whole of the evidence but also examines its weight and quality in order to determine whether the verdict returned was reasonable or in accordance with the evidence[14].  Consequently, a plaintiff may tender evidence that, if accepted, is sufficient as a matter of law to constitute negligence but insufficient as a matter of fact to be regarded as reasonable by an appellate court.  The evidence of the defendant may be so overwhelming or the quality of the plaintiff's evidence may be so weak that the verdict for the plaintiff cannot be regarded as reasonable, even though, as a matter of law, the evidence could justify a verdict for the plaintiff.

    [14]See Hocking v Bell (1945) 71 CLR 430 at 440-442, 444-445 per Latham CJ; Naxakis (1999) 197 CLR 269 at 282 [41], 284‑285 [45] per McHugh J.

33. The much litigated case of Hocking v Bell[15] illustrates the difference between evidence sufficient to constitute negligence as a matter of law and evidence sufficient to justify a verdict claimed to be against the weight of the evidence or to be unreasonable.  In Hocking, a jury found a verdict for the plaintiff in an action of negligence against a surgeon.  The Full Court of the Supreme Court of New South Wales set aside the verdict on the ground that it was against the weight of the evidence and such as no reasonable jury could find.  The Full Court ordered a new trial.  In two subsequent trials, the juries could not agree.  At a fourth trial, a jury again found a verdict for the plaintiff.  The Full Court of the Supreme Court again set aside the verdict for the plaintiff.  This time, however, by majority, it entered a verdict "as a matter of law" for the defendant.  The minority judge, Roper J, also set aside the verdict.  He held that there was evidence of negligence as a matter of law, but that as the verdict of the jury was against the weight of the evidence, the defendant could only obtain an order for a new trial[16].  By majority, this Court upheld the order of the Full Court[17].  In a further appeal, the Judicial Committee of the Privy Council reversed the decision of this Court[18].  It held[19] that the dissenting judgments of Latham CJ and Dixon J in this Court were correct in holding that, despite the overwhelming strength of the defendant's case[20], as a matter of law, the plaintiff had established a case of negligence.

    [15](1945) 71 CLR 430; (1947) 75 CLR 125.

    [16]Hocking v Bell (1944) 44 SR (NSW) 468 at 509.

    [17]Hocking (1945) 71 CLR 430.

    [18]Hocking (1947) 75 CLR 125.

    [19]Hocking (1947) 75 CLR 125 at 132.

    [20]Dixon J said:

    "During the course of this protracted litigation, the evidence has been examined by many judges, but I believe that it has produced the same impression upon the minds of all of them.  There has not, I think, been one of them, who, if the responsibility of deciding the facts had rested with him and not with a jury, would not have found unhesitatingly that the defendant did not leave a piece of tubing in the wound in the plaintiff's neck.  If I myself were a tribunal of fact I should feel much confidence in that conclusion."

    Hocking (1945) 71 CLR 430 at 487.

34. In one situation, however, a jury's verdict may be set aside even though evidence tendered for the plaintiff, standing alone, supports a case of negligence against the defendant.  That situation occurs when the plaintiff has to rely on an inference to make out a case of negligence and other evidence that is admitted to be true or cannot reasonably be disputed proves conclusively that the inference, favourable to the plaintiff, cannot be drawn[21].  Thus, what may appear to be a clear case of trespass to land will disappear once the defendant irrefutably proves lawful authority to enter the land[22].  In De Gioia v Darling Island Stevedoring & Lighterage Co Ltd[23], for example, a receipt for wages signed by a negligent watchman appeared to establish that he was the paid employee of the defendant.  However, evidence from the defendant conclusively established that the receipt showed "that the watchmen were thereby acknowledging that the defendant company had paid them, not on its own account but on account of the ship, for services rendered to the shipping company as ship watchmen."[24]  Because that was so, the Full Court of the Supreme Court of New South Wales held that there was no evidence upon which the jury could find that the defendant was responsible for the negligence of the watchman.  In Hocking, Latham CJ pointed out[25] that further evidence in such cases does not contradict the plaintiff's case, but rather supplements it, with the result that it makes unavailable the inference upon which the plaintiff relies.

    [21]De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 4 per Jordan CJ; Hocking (1945) 71 CLR 430 at 461 per Latham CJ; Hocking (1947) 75 CLR 125 at 131-132.

    [22]See, eg, Hocking (1947) 75 CLR 125 at 131-132.

    [23](1941) 42 SR (NSW) 1.

    [24]De Gioia (1941) 42 SR (NSW) 1 at 7 per Jordan CJ.

    [25](1945) 71 CLR 430 at 461.

35. Hence, in determining whether, as a matter of law, a jury could find that the defendant was negligent, the court – be it a trial judge or an appellate court – must consider all the evidence which, if accepted, could reasonably establish negligence.  If the plaintiff has tendered such evidence, it is irrelevant in determining the question of law that the defendant has tendered evidence that contradicts the evidence of the plaintiff.  It is also irrelevant that a witness for the plaintiff has given evidence that contradicts evidence of negligence upon which the plaintiff relies[26].  In both cases it is irrelevant because determining which evidence to accept or reject is the prerogative of the jury, not the court.  Even when an appellate court sets aside a jury's verdict on the ground of unreasonableness, it does not accept or reject the evidence of witnesses.  It merely says that it was unreasonable for the jury to accept or reject certain evidence and, at common law, sends the case back to the trial court to be determined by another jury[27].

    [26]Naxakis (1999) 197 CLR 269 at 283-284 [42]-[43] per McHugh J.

    [27]In some jurisdictions, statutes or Rules of Court give an appellate court, which has set aside a jury verdict, power to determine the matter itself instead of ordering a new trial.

36. Furthermore, it is the province of the jury to determine not only what evidence is acceptable but also the inferences that should be drawn from that evidence.  If an inference upon which the plaintiff relies is "equally consistent" with an inference or inferences upon which the defendant relies, the jury cannot reasonably act on the inference upon which the plaintiff relies[28].  But the cases in which a court can say that two inferences are "equally consistent" are rare.  This is particularly so where the inference is not one of fact but a conclusion incorporating a value judgment, such as the reasonable care element of negligence.  As Isaacs J pointed out in Cofield v Waterloo Case Co Ltd[29] in the context of discussing whether causation was established: 

    "A Court has always the function of saying whether a given result is 'consistent' with two or more suggested causes.  But whether it is 'equally consistent' is dependent on complex considerations of human life and experience, and in all but the clearest cases – that is, where the Court can see that no jury applying their knowledge and experience as citizens reasonably could think otherwise – the question must be one for the determination of the jury."

    [28]Wakelin v London and South Western Railway Co (1886) 12 App Cas 41 at 45 per Lord Halsbury LC.

    [29](1924) 34 CLR 363 at 375.

37. Statements can also be found in the cases, for example, by Jordan CJ in De Gioia, to the effect that in determining whether, as a matter of law, there is evidence of negligence, the court may take into account that "some of the facts essential to the plaintiff's case are peculiarly within the knowledge of the defendant"[30].  In Hampton Court Ltd[31], Dixon CJ held that there was no evidence of negligence, but his judgment also appears implicitly to have endorsed this approach.  His Honour said[32]:

    "But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it".

    [30](1941) 42 SR (NSW) 1 at 4.

    [31](1957) 97 CLR 367.

    [32]Hampton Court Ltd (1957) 97 CLR 367 at 371.

38. With great respect to these great jurists, however, it is not legitimate to take into account on a "no evidence" submission that some of the facts essential to the plaintiff's case are peculiarly within the knowledge of the defendant.  Either the facts relied upon by the plaintiff give rise to a reasonable inference of negligence or they do not.  If the evidence tendered by the plaintiff cannot reasonably support an inference of negligence, it does not matter that the defendant has knowledge of facts that may have assisted the plaintiff's case.  The plaintiff has simply failed to make out a case of negligence.  If the evidence tendered does support a reasonable inference of negligence, the knowledge of the defendant is irrelevant because, as a matter of law, the plaintiff has established a prima facie case of negligence.  Moreover, applying the knowledge-of-the-defendant doctrine leads to incongruous results, which seem to have been overlooked.  It would mean that, at the end of the plaintiff's case, an application for a non-suit might succeed on the ground of insufficiency of evidence.  At that stage, the defendant has not had an opportunity to tender evidence, so its conduct is irrelevant.  On the other hand, an application for a verdict by direction in the same case when the evidence has closed might fail because the defendant has elected not to go into evidence or rebut the inference. 

39. The proposition that "evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer"[33] is not relevant in determining whether, as a matter of law, there is evidence of negligence.  It applies only where, although the evidence is sufficient as a matter of law, the defendant seeks to set aside the verdict on the ground of unreasonableness.  The remarks of Lord Mansfield in Blatch v Archer[34] to which Dixon CJ referred were made in a motion for a new trial.  Although the report does not say so, the ground for a new trial must have been that the verdict was against the weight of the evidence.  The grounds that would support a motion for a new trial at common law were basically the same then as they are today:  evidence wrongly admitted or rejected, misdirection by the trial judge or that the verdict was perverse or against the evidence or the weight of the evidence.  The remarks of Lord Mansfield were not spoken in the context of an issue whether, as a matter of law, there was evidence to support the plaintiff's case.  They should not be applied in that context.

    The need for evidence of a reasonably practicable alternative

    [33]Hampton Court Ltd (1957) 97 CLR 367 at 371-372 per Dixon CJ, citing Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970].

    [34](1774) 1 Cowp 63 at 65 [98 ER 969 at 970].

    Evidence of the existence of an alternative

40. The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence[35].  To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff[36].  The plaintiff does not establish a prima facie case simply by asserting that there "must be" a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists[37].  The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk[38].

    [35]De Gioia (1941) 42 SR (NSW) 1 at 3-4 per Jordan CJ.

    [36]Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 364 per Dixon CJ, 369-370 per Taylor and Owen JJ; Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J; Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 at 725 per McHugh JA.

    [37]Neill (1963) 108 CLR 362; Vozza (1964) 112 CLR 316.

    [38]Kingshott (1987) 8 NSWLR 707 at 727 per McHugh JA, referring to Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666 at 668 per Barwick CJ and Menzies J.

    Evidence of the practicability of the alternative

41. The plaintiff must also provide at least some evidence from which the jury can find that the alternative is a practicable one that was reasonably open to the defendant[39].  Thus in Vozza v Tooth & Co Ltd[40], the plaintiff suggested two alternatives to obviate the risk of injury arising from the broken bottles he was required to handle, namely, the installation of a system for the mechanical handling of the bottles or the provision of thicker gloves.  He did not describe the mechanical handling system in sufficient detail to enable the jury to contrast it with the defendant's manual handling system or to assess its advantages and disadvantages or to say whether or not it would have been practicable and reasonable to install it in the defendant's premises.  He tendered evidence that more strongly reinforced gloves were available but there was no evidence that they would be suitable for the plaintiff's task.  The defendant called an expert who said he could make a better glove (not an impenetrable glove).  This Court held that there was insufficient evidence in relation to any of the alternatives suggested by the plaintiff to support a verdict for the plaintiff as a matter of law.  The Court affirmed the decision of the Full Court of the Supreme Court of New South Wales to set aside the jury's verdict for the plaintiff and enter a verdict for the defendant.

    [39]Neill (1963) 108 CLR 362; Vozza (1964) 112 CLR 316.

    [40](1964) 112 CLR 316.

42. Similarly, in Neill v NSW Fresh Food and Ice Pty Ltd[41], the plaintiff suggested that a handrail might have been placed inside a cylindrical milk container to minimise the risk of injury from slipping inside the container while the plaintiff cleaned it.  Alternatively, he contended that the defendant employer could have provided "non-skid boots".  The plaintiff provided no evidence of the practicability of either suggestion.  This Court held that in the absence of expert evidence, it was merely "a matter of conjecture" whether the suggested precautions would have been practicable or not[42].  Accordingly, as the plaintiff had not established a prima facie case of negligence, the Court upheld the decision of the Full Court of the Supreme Court of New South Wales to set aside the jury's verdict for the plaintiff and enter a verdict for the defendant.

    [41](1963) 108 CLR 362.

    [42]Neill (1963) 108 CLR 362 at 365 per Kitto J.

43. Where the suggested alternative carries its own risks, the plaintiff must tender some evidence to support the practicability of that alternative[43].  Thus, the plaintiff may be required to describe an alternative system in sufficient detail to enable the jury to contrast it with the defendant's system, or to assess its advantages and disadvantages, or to say whether or not it would have been practicable and reasonable for the defendant to adopt it[44].  The plaintiff may also be required to provide some technical or expert evidence of the feasibility of the alternative, especially where the operation is complex and technical[45].

    [43]See, eg, General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 193 per Lord Reid, 196 per Lord Tucker; Neill (1963) 108 CLR 362 at 365 per Kitto J; Vozza (1964) 112 CLR 316 at 319 per Windeyer J; Krstevski (1973) 128 CLR 666 at 669-670 per Barwick CJ and Menzies J.

    [44]See, eg, Vozza (1964) 112 CLR 316 at 319 per Windeyer J.

    [45]See, eg, Krstevski (1973) 128 CLR 666 at 680 per Mason J.

    A matter of expert evidence or common knowledge and common sense

44. In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative[46].  In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence.  In Maloney v Commissioner for Railways[47], Barwick CJ said that evidence of the practicability of the proposed alternative course or safeguard "is essential except to the extent [that it is] within the common knowledge of the ordinary man."  Similarly, in Tressider v Austral Stevedoring and Lighterage Co Pty Ltd[48], the New South Wales Court of Appeal said that in some cases:

    "[N]o more than common knowledge or common sense is necessary to enable a judge or jury to perceive the existence of a real risk of injury and to permit the tribunal of fact to say what reasonable and appropriate precautions might appropriately be taken to avoid it."

    [46]See, eg, Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Tressider v Austral Stevedoring and Lighterage Co Pty Ltd [1968] 1 NSWR 566 at 568; Neill (1963) 108 CLR 362 at 368 per Taylor and Owen JJ; Maloney v Commissioner for Railways (1978) 18 ALR 147 at 148 per Barwick CJ; Colquhoun v Australian Iron and Steel Pty Ltd (Unreported, New South Wales Court of Appeal, 15 November 1996, Mahoney P, Handley and Powell JJA).

    [47](1978) 18 ALR 147 at 148.

    [48][1968] 1 NSWR 566 at 568 per Herron CJ, Sugerman and Jacobs JJA agreeing.

45. Where the case involves a technical or complex operation or service, however, it is likely that the plaintiff will not have a case to go to the jury without leading technical or expert evidence as to the existence and practicability of the suggested alternative.  Where the issues involve "technical knowledge and experience"[49], the plaintiff must provide evidence as to what the defendant ought to have done.  The question cannot be determined by the application of common knowledge, and a jury cannot decide the issue on the basis of its own ideas as to what the defendant ought to have done[50].  Thus, a mere allegation that a precaution is practicable is insufficient where the evaluation of whether or not the precaution is practicable involves issues of technical knowledge and experience[51].

    [49]Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339 at 348 per Latham CJ.

    [50]Urban Transit Authority (NSW) v Hargreaves (1987) 6 MVR 65 at 72 per Clarke JA, citing Bressington (1947) 75 CLR 339 at 348 per Latham CJ.

    [51]Bressington (1947) 75 CLR 339 at 348 per Latham CJ.

46. In Bressington v Commissioner for Railways (NSW)[52], this Court held that there was no evidence of negligence in the absence of expert evidence as to the practicability of measures which the defendant could have undertaken to reduce the risk of injury to the plaintiff's deceased husband.  The plaintiff's husband, a fireman employed by the Commissioner for Railways, was struck and killed by a van while crossing railway lines in his employer's shunting yard.  While there was evidence that a system of stationing people at the stationary vans to warn others that the vans might suddenly move would have been a safe precaution to take, there was also evidence that this system would not be practicable.  Latham CJ held that, where the issue of negligence involved issues of technical knowledge and experience, a jury acting on its own knowledge could not find negligence on the basis of its own ideas of what ought to be done[53].  His Honour said that the practicability of providing a system of warnings in a large railway shunting yard "is not a question to be determined in the light only of the common knowledge which is attributable to juries."[54]

    [52](1947) 75 CLR 339.

    [53]Bressington (1947) 75 CLR 339 at 348.

    [54]Bressington (1947) 75 CLR 339 at 348. Another case where the defendant succeeded because of the plaintiff's failure to lead technical evidence of the practicability of the suggested measure to obviate the risk of injury is Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257. In that case there was "a total absence of evidence of any kind" on the matter of the safety and practicability of the suggested alternative: at 266 per Mason J. As the practicability of the suggested alternative could not be assessed on the basis of common sense or common knowledge – in other words, expert evidence was required – the absence of such expert evidence meant that the verdict for the plaintiff could not stand. This Court ordered a new trial.

47. In Maloney, the plaintiff fell through the open door of a Sydney suburban train and suggested that automatic closing doors should have been fitted or some other system should have been provided to ensure that the doors were closed when the train was in motion.  The plaintiff led no evidence that the installation of the suggested automatic closing doors was feasible or practicable.  There was also no evidence about the feasibility of providing and installing such doors in circumstances which included the continued operation of the Sydney suburban train service.  This Court held that in the absence of evidence, among other things, as to the practicability of the precautions proposed, no tribunal of fact could reach a conclusion on the reasonableness of the defendant's conduct.  The reasonable practicability of the proposed alternative of installing automatic closing doors was not a matter within common knowledge in those days.

48. In Carlyle v Commissioner for Railways[55], however, the Full Court of the Supreme Court of New South Wales held that the jury could use common knowledge to determine whether a risk of injury to railway employees could have been obviated by the provision of warning bells with markedly different tones.  Carlyle concerned the death of a railway porter, who was struck and killed by a train as it passed through the station where he worked.  Although there was an alarm system to warn of approaching trains, which used different bell tones for each train line, the tones were not easy to distinguish and cut out when the train was quite close to the station.  The plaintiff, the railway porter's wife, suggested that the risk of injury could have been obviated by the provision of bells with markedly different tones, and there was evidence that it was reasonably practicable to provide for different tones in the bells.  Maxwell J, who gave the leading judgment in the Full Court, held that the jury could use its own knowledge to determine whether the plaintiff's alternative system was reasonably practicable.  His Honour said[56]:

    "An examination of the system does reveal, I think, that the common knowledge of mankind would enable a jury to say at least that it was practicable to have a bell on each platform either in the place where at present installed on one only and, as well, within the office of each platform where the porter was from time to time obliged to be.  This suggestion, which is part of the plaintiff's case, is not so confined to the technical field as to require that it should be the subject of expert evidence.  The same considerations apply also to provision for marked distinction in the tones of the bell's warning in respect of the up-line and the down-line.  If this is correct then there was evidence for the jury of negligence on the part of the defendant Commissioner related to the accident."

    [55](1954) 54 SR (NSW) 238.

    [56]Carlyle (1954) 54 SR (NSW) 238 at 243.

49. Another example of a case that did not require expert evidence is City of Richmond v Delmo[57].  However, it is a case of the use of common sense rather than common knowledge and experience.  In Delmo, the plaintiff's car was struck by a golf ball that passed through a fence on the defendant's golf course.  The plaintiff suggested that the risk of damage could have been avoided by using a different type of fencing.  There was evidence that the fence was a typical cyclone wire mesh fence with an interlocking pattern of wire strands.  Smith J held that the inference was open that, if the wire fencing could be manufactured in an interlocking pattern, it could be manufactured in other patterns, including a pattern with smaller openings.  The defendant did not lead evidence to suggest that this was not possible.

    [57]Unreported, Supreme Court of Victoria, 13 November 1992, Smith J.

50. In General Cleaning Contractors Ltd v Christmas, Lord Reid said[58] that a plaintiff is generally required to put forward some alternative that can be tested by evidence, but that this might not be necessary in a "clear" case.  In that case, the plaintiff window cleaner fell from the sill on which he was working when the sash of the window that he was gripping moved.  The plaintiff led some evidence about alternative systems of work, such as the use of safety belts and hooks or ladders.  There was very little evidence about the practicability of these alternatives.  Lord Tucker said[59] that "in some cases there may be precautions which are so obvious that no evidence is required on the subject".  He went on to say, however, that in cases where there is a system in general use, it is[60]:

    "eminently desirable … that it should be clearly established by evidence that some other and safer system is reasonably practicable and that its adoption would have obviated the particular accident which has occasioned damage to the plaintiff." 

    The House of Lords held that this case fell into the former category.

    [58][1953] AC 180 at 193.

    [59]Christmas [1953] AC 180 at 198.

    [60]Christmas [1953] AC 180 at 198.

51. In Dixon v Cementation Co Ltd[61], Devlin LJ appeared to accept that in some cases the plaintiff may discharge the evidentiary burden simply by saying:  "If this is dangerous, then there must be some other way of doing it that can be found by a prudent employer and it is not for me to devise that way or to say what it is."  With great respect to one of the greatest judges of the 20th century, that statement is wrong.  In Australian Iron & Steel Pty Ltd v Krstevski[62], Barwick CJ and Menzies J sought to explain it as depending on a finding that the employers could have altered a system which they knew or ought to have known was unsafe.  But this is not the natural meaning of what Devlin LJ said.  His statement is contrary to basic principle, and it should not be followed.

    [61][1960] 1 WLR 746 at 748; [1960] 3 All ER 417 at 419.

    [62](1973) 128 CLR 666 at 668.

    The material facts

52. Mr Swain sustained his injury at about 4.30pm on 7 November 1997, which was a fine but overcast day.  About 2,500 persons were at Bondi Beach that afternoon.  About 3,500 persons attended that beach that day.  The surf was light, the swell size in the afternoon being only 0.5 metres.  Flags, designating the patrolled swimming area, had been placed in the sand at about 6am by a lifeguard employed by the Council.  They were in the same place when Mr Swain was injured.  The flags may have been 100 metres apart but were probably closer than that.  High tide of 1.5 metres occurred at approximately 2pm.  Low tide that morning was at 7.30am and was about 0.6 metres.

53. Mr Swain arrived at the beach at about 3pm with two friends, Mr Earl Wilson and Ms Kathryn Galvin.  Mr Wilson and Mr Swain drank some beer.  Some time before 4.30pm Mr Wilson went into the surf between the flags.  He gave evidence that there was a "normal ... downward slope" in the seabed.  He said that, about 15‑20 metres from the shore, he took a slight step down, took "three or four" steps and "kicked a sandbar."  In the evidence, the terms "sandbar" and "sandbank" were used interchangeably.  Just before the sandbar, the water was about waist deep.  Mr Wilson said, "[W]hen I stepped over it, I was at a depth of up to my knees."  He said that "it was quite a big step" and that he:

    "got a bit of a surprise because it was quite a big step and I hadn't been used to such conditions, so I, you know, I did notice it and think, ooh, that's a bit dangerous, because I was thinking of diving when I got to waist-deep, as you do, thinking that it's safe."

    After he returned to the beach, Mr Swain and Ms Galvin went into the water.  Ms Galvin said that there was a "ditch or hollow in the water" just before the sandbank.  She stumbled forward on the sandbank and the water became "shallow again without a doubt."  At that stage, she said that Mr Swain was about a metre to the right of her.

54. Mr Swain was the last of the three to enter the water.  He was 24 years of age and a very experienced surfer.  As an 11 or 12 year old, he had taken a Learn to Surf course.  He was familiar with rips, able to identify them and knew that they were dangerous.  He knew that the safest areas to swim were areas without rips.  He had dived under waves many times before.  He knew that rocks or other dangers might be under the water.  He was aware of the presence of sandbanks in surfing and swimming areas, particularly at North Curl Curl Beach where he had frequently surfed.  Asked to define a sandbank, he said:  "[Y]ou have this wall of sand that is sticking up from the base of the sand or the bottom of the ocean."  He was familiar with the phenomenon of waves breaking on a sandbank, washing over the sandbank and then running out to sea.  He was also aware that, where the waves break close to the shore, there is froth from the surf and scour from the sand as it is dragged back to where the waves break.  He also accepted that the water tends to be shallower over the sandbank and that it is "deeper again closer to the shore".  He agreed that the "slightly deeper area in front of the sand bank is where you have the water going off to the sides and finding its way out towards the rip area and is being fed out to sea".  When surfing, he usually used a surfboard.  He said that he avoided surfing over sandbanks because inconsistency in water depth meant "the waves aren't always the best over the sand bank."  He had been to Bondi Beach more than 10 times before.  Only on one occasion had he used a surfboard at Bondi.

55. Handley and Ipp JJA inferred from Mr Swain's evidence that:

    ."He knew there were likely to be channels and sandbars in sandbanks."[63]

    ."There might be irregularities on a sandbank closer to the shore."[64]

    ."The irregularities include channels and sandbars."[65]

    ."Waves break as they hit the sandbank and the water usually gets deeper where a channel has formed closer to the shore."[66]

    ."Inshore from the channel, the water becomes shallower again."[67]

    [63]Swain [2003] Aust Torts Rep ¶81-694 at 63,784.

    [64]Swain [2003] Aust Torts Rep ¶81-694 at 63,785.

    [65]Swain [2003] Aust Torts Rep ¶81-694 at 63,785.

    [66]Swain [2003] Aust Torts Rep ¶81-694 at 63,785.

    [67]Swain [2003] Aust Torts Rep ¶81-694 at 63,785.

56. Mr Swain said that he went into the surf between the flags, waded about 15 metres through the water and then dived through an oncoming wave.  He said that he swam between the flags because he thought "it was safe and a [patrolled] area."  The surf was "quite calm".  He could not see the sand beneath his feet as he waded out.  At the point where he dived, the water was about waist deep.  Ms Galvin was about 18 metres ahead of him.  He had no idea of the depth of the water in front of him but agreed that it must have been shallow enough for the wave to break.  When he dived, the wave was 0.5 to 1 metre away.  After diving, his next awareness was an inability to move and a lot of pain.

    Evidence about the uniformity of channels and sandbars

57. Mr Jeffrey Williams was called as an expert witness in Mr Swain's case.  Mr Williams was a senior ocean lifeguard and beach and surf education officer for the Sutherland Shire Council.  He testified that a beach is generally "one large sandbar" that "is dissected by the channels."  The typical formation is "a sandbar, a rip, a sandbar, a rip, in that formation."  Rip tide currents form the channels.  The water is gathered at the shore-line and creates the easiest flow of water back out to sea, which results in the formation of a channel and a sandbar.  The feeder system for the channels starts "where the waves gather then they travel either side and join up to a rip … to either side."  The channel then goes out to sea.  Mr Williams gave uncontradicted evidence that:

    .There is always a channel where the rips are, but the channel "depends on the passiveness of the ocean."

    .The two channels that go out to sea are generally joined by another channel, which results in a U-shape formation.

    .It is inevitable that there is "guttering", that is, a channel, in the inshore area of a sandbank.

    .The dimensions of the channel, that is, the depth and width of the channel, are not uniform; rather, the channel is "a fluctuating entity determined by the concentration of water or the tidal influence."

    .During the course of any day on the beach, the channels "may move or they may stay the same" depending on the circumstances.  Such circumstances include the wave direction and the size of the waves, the tidal influence, wind, currents and the availability of the sand.  These circumstances affect the formation of the beach, including the formation of channels and sandbars and, by implication, the movement of channels during the course of the day.

    .The direction from which the wave comes determines the actual formation of the sandbank and the location of the channels or rips.  Wind alters the direction and flow of the wave.  The strength of the water flow and the concentration of the water determine the size of the sandbank and the size of the channels.

    .The tidal influence that affects the formation of channels is the difference between the mean high water and the mean low water.  The more extreme the swing between the mean high water and the mean low water, the greater the differences in the relative current flow between the rips or channels and the sandbank area.

    .If there is a rip tide flowing out and there is a strong current, the sandbar typically becomes isolated and surrounded by the current on either side.

    .Every part of the beach seaward of the shoreline contains natural hazards.

58. Mr Williams was unable to say as a general proposition that the further the sand goes out, the more likely there is to be a gradual change in the depth.

59. The trial judge summarised Mr Williams' evidence about the factors that influence conditions and sand structure at a beach as follows[68]:

    "[Mr Williams] said the conditions of the surf and the effect of the winds and tide and currents are potential hazards.  He identified the hazards as wind, currents, occurrence of channels, and the actual formation of the beach.  He said that the formation of the beach was generally affected by the wave direction, the size of the waves, and what he described as the total influence.  This dictates the construction of the beach on the day.  He said the wind alters the direction and flow of the wave.  He said the varying effect which the movement of the waves make on the formation of the beach and the direction the waves come from nominates the actual sand bank formation and the location of channels and what people normally describe as rips.  He said the tidal influence can be a strong factor on the size of waves and the formation of channels.  He said that the strength of the water flow and the concentration of the water create the channels as areas of sand are relocated.  He said the rip tide currents occur because the direction of a wave coming on the beach gathers at the shore line.  It was unable to be stored so [the] natural process is for the water to find its own level so it creates the easiest flow of water back to the sea.  That results in the formation of a channel and also a sand bar.  He says you would expect the sand bar with a strong current to become isolated by a surrounding current on either side.  Generally a beach is one large sand bar and is dissected by the channels.  So you will generally find the sand bar rip in that formation.  The dimension and depth of the channel is variable and fluctuates as determined by the concentration of water or the tidal influence.  The channels do move depending on the circumstances on the day.  They may stay the same."

    [68]Swain v Waverley Municipal Council, Supreme Court of New South Wales, Trial Transcript, 13 May 2002 at 13-15 per Taylor AJ.

    Evidence about the conditions at Bondi Beach on the day of the accident

    Waves

60. Mr Harry Nightingale, a lifeguard employed by the Council who was on duty at Bondi Beach on the day, testified that on that day the surf conditions were "[v]ery small" and that there was "[n]ext to no surf".  The lifeguards' daily report gave the measurement of the waves from the crest to the base of the face of the wave as approximately half a metre.  Mr Swain said that the waves were about two feet from the crest of the wave to the base of the wave on the ocean side.  All witnesses said that the surf was light.

    Current and rips

61. Mr Wilson testified that he had been swept to the south of the flags while swimming.  This indicates the existence of a current or rip in that direction.  A reasonable jury could draw the inference that the current or rip extended from the area between the flags to the waters outside (to the south) of the flagged area.

    The channel and sandbar

62. One of the many difficulties of the case is that there was no detailed evidence concerning the length, breadth, height or direction of the sandbank.  There was no evidence whether the sandbank was parallel to the beach or ran diagonally or was crescent shaped.  There was no evidence whether the height of the sandbank was uniform through its length and breadth or whether it sloped in any particular direction.  However, Mr Wilson said that, after he stepped on to the sandbar, "I continued walking, where it dropped off again and I dove [sic] in and breast-stroked out."  Nor was there any detailed evidence concerning the length, width or depth of the channel on the shore-side of the sandbank.  For all that the evidence reveals, the ditch or hollow of which Ms Galvin spoke may have been a hole only a few metres wide.  I have already referred to what Mr Wilson and Ms Galvin said about the sandbar and the conditions leading to it.  Mr Wilson also said that, before he kicked the sandbar, he did not see anything that indicated its presence.

63. Mr Wilson gave the following evidence about the variation in the depth of the water:

    "Q.      What do you call a slight step down; from about knee deep to waist deep?

    A.       No, it wasn't that great.  That's why I said it was above – higher than the knee before the trench. …

    Q.       What you indicated is the water about a third of the way up your thigh above the knee?

    A.       Yes.

    Q.       And then waist deep to about your crotch level or maybe a little bit higher?

    A.       Yes."

64. Ms Galvin said that "there was a definite sort of ditch or hollow in the water because I fell down.  And as I kept moving forward I stood up and it was shallow again without a doubt."  She said that when she stood up and moved forward, she "noticed that it got really shallow again straightaway afterwards."  She said that the ditch was deep enough "to make me actually lose my balance and fall over", and "[b]efore the ditch it was just shallow water."  Ms Galvin was unable to say how shallow the water was, but it was "shallow enough to be jogging in."  She said that Mr Swain dived at the point where she stumbled, and that he was about a metre or two away from her.  In that respect, her evidence is inconsistent with that of Mr Swain.

65. Mr Swain said that the water was "[a]bout waist depth, maybe a little bit higher than waist depth" or a little bit above his navel when he commenced his dive.  He agreed under cross‑examination that there was "quite a deal of frothing, surging surf in front of the wave", which "would suggest … that some distance in front of [him] the water was shallow enough to cause the wave to break".

66. As Spigelman CJ in the Court of Appeal noted, evidence from Mr Wilson and Ms Galvin showed the existence of a sandbar and no evidence contradicted it[69].  Mr Wilson estimated the variation in the depth of the water as being somewhat less than from waist deep to knee deep.  Ms Galvin could not estimate the height of the variation in the depth of the water, but said that after the "ditch" the water "got really shallow again straightaway".  The Council led no evidence concerning the sand structure beneath the water at the relevant time[70].

    Placement of the flags

    [69]Swain [2003] Aust Torts Rep ¶81-694 at 63,771.

    [70]Swain [2003] Aust Torts Rep ¶81-694 at 63,770 per Spigelman CJ.

    General beach conditions which affect placement of the flags

67. Mr Williams testified as to the beach conditions that a prudent lifeguard takes into account when deciding where to position the flags on the beach.  He said that, before positioning flags on a beach, the lifeguard should take into account the "condition of the surf and the effect of the wind and tide and currents, potential hazards."  He identified the types of "potential hazards".  He said:  "Wind can be a hazard, current can be a hazard, the occurrence of currents and channels and the actual formation of the beach."  He also said that channels and sandbars can present a hazard, as can the trough that is created.  The hazard presented by the trough is that "the circumstance is that it's a variable depth and people aren't familiar with that circumstance."

68. Mr Williams said that "[g]enerally flags are erected and placed on sandbanks."  By "on" he meant on the beach adjacent to the sandbanks.  He agreed that flags are placed there because that is generally regarded as the safest place to swim.   He agreed that the person responsible for placing the flags has to make a judgment about the conditions on the day.  As Spigelman CJ observed, Mr Williams also agreed that:

    "[A]n area with a 'shallow trough' could be an ideal spot for young children, but added:

    '... well, depending on the circumstance on the day, the trough could be the biggest hazard on the day.'"[71]

    [71]Swain [2003] Aust Torts Rep ¶81-694 at 63,773.

69. In cross-examination, Mr Nightingale said that "channels for sure are dangerous positions for swimmers."  Mr Nightingale gave evidence about how a prudent lifeguard identified the conditions of the beach, including potentially dangerous conditions.  He said that he identified dangerous positions for swimmers "visually by colour checks".  In cross‑examination he said:

    "I do it visually by colour checks.  That is the way I do it.  Dark green, to me, signifies deep water.  And more oftentimes than not there is a current in the deep water.  That is the first thing that I looked at on the beach; that is the first thing I would see.  And then I would be drawn to that position and to check it out to see if there is a current running out or whether it's a still piece of ocean."

70. He agreed that "[s]ometimes a deep hole would be a safe place to swim as long as there is not a current et cetera, et cetera."  However, he agreed that this would depend on whether he perceived the deep hole to be a danger or not.

71. There was therefore evidence that it was generally accepted practice to place the flags opposite a sandbank, although the beach conditions on the day ultimately determine where the flags are placed.

    Placement of the flags at Bondi Beach on the day

72. There were two sets of flags at Bondi Beach that day, one at the North Bondi end and one – the set where Mr Swain was – in the centre of the beach.  Mr Nightingale said that the southern end of the beach was "a more dangerous part of the beach usually."  The area from south of the centre part of the beach "to the south end is allocated to board riding."  Mr Swain also said that the "surf is bigger at the south than the north."  Mr Sean Tagg, who in November 1997 had been a lifesaver for eight years, agreed that it would be fair to rate North Bondi "4", South Bondi "7" and the middle part varying between "4" and "6" on a scale of 1 to 10 of the dangerousness of the conditions at the beach, where "1" represented the safest conditions.  However, none of the witnesses was asked about the conditions of the surf or the seabed at the North Bondi and South Bondi ends on this particular day or how they compared with the conditions at the centre of the beach.

73. The Council did not call the person who placed the flags on the day of the accident.  Mr Nightingale said that, during the course of the day there was no change in conditions at the beach which required the flags to be moved:  "I could definitely tell you now there was no change in the beach conditions."  Mr Nightingale was not asked about the channel in front of the sandbank, that is, whether he was aware of it on the day.  He was merely asked about his capacity to determine the existence of a channel.  Nor was he asked whether there were any "holes" in the inshore area that day.  He was asked in cross-examination whether he would take action if he found that there were "deep holes, for example, near the shore".  His answer was that "it depends on how deep is deep."  He said that "[s]ometimes, a deep hole would be a safe place to swim as long as there is not a current".

74. Mr Williams was not asked to express any view as to whether the Council should or should not have placed the flags where they were on the day.  Neither Mr Williams nor Mr Nightingale was asked whether the particular sandbar present on the day was an unusual or usual occurrence for the seabed.  In the state of the evidence, that was not surprising.

75. Accordingly, the evidence entitled the jury to find that, at a beach such as Bondi, a channel or channels with variable depth and width commonly existed.  Sandbanks were also part of the typical formation of the beach.  "Guttering", that is, a channel on the inshore side of a sandbank, was inevitable.  There was also evidence that the position and dimensions of the channels and the location and size of the sandbanks depended on the conditions prevalent on the day, such as the direction and size of the waves, the tidal influence, wind, currents and the availability of the sand.  It was therefore open to the jury to infer – whether favourably to Mr Swain is another matter – that, at a beach such as Bondi, the location and size of the sandbanks and the position, depth and width of the channels were not uniform.  It was also open to the jury to find that the current flowing in the channel also varied from day to day and during the course of the day.  In addition, there was evidence that there were risks to swimmers associated with sandbanks, but there were much greater risks associated with rips.

210. Whilst avoiding this fallacy, it remains for the intermediate appellate court to discharge functions of the kind conferred in this case by the court's constituent statute[179].  So long as there is no error of principle or reasoning in the performance of this function, this Court should not disturb the judgment that has been entered by the intermediate court of appeal.  On the other hand, where error is demonstrated this Court is authorised by the circumstances, and may be required, to perform its own constitutional function.

     [179]Supreme Court Act, s 108(3).

     Errors on the part of the Court of Appeal

211. Approaching this appeal with the foregoing considerations in mind, can it be said that error has been shown on the part of the Court of Appeal to justify the intervention of this Court?

212. The ultimate point of division between the majority judges (Handley and Ipp JJA) and the dissenting judge (Spigelman CJ) is rather confined[180].  As the majority said, they agreed with Spigelman CJ on all matters other than on the question of the breach of the Council's duty by the placement of flags on the beach.  The majority were of the view that there was no evidence of negligence in that respect.  It was on that footing alone that they allowed the appeal[181]. 

     [180]Swain [2003] Aust Torts Reports ¶81‑694 at 63,782‑63,783 [145].

     [181]Swain [2003] Aust Torts Reports ¶81‑694 at 63,782‑63,783 [145].

213. Clearly, the majority were correct in rejecting the respondent's submission that, for the appellant to succeed on this ground, it was necessary for the Council to demonstrate that there was "literally" no evidence to support the finding of the jury[182].  This is not, and has never been, the law of Australia.  That fact was put beyond any residual doubt by this Court's decision in Naxakis[183].  Indeed, the assertion to the contrary would be to make the law even stricter than the now overthrown "scintilla doctrine".  Therefore, it is not enough to show that there is a mere scintilla of evidence favouring a party.  The "no evidence" ground, as it is currently named, bears little relationship to the concept which it is intended to signify.  More properly, it should be called the "no reasonable evidence" ground.  That is how I mean the expression to be understood.  It remains to decide whether the evidence that has been proved is such that it could reasonably satisfy the jury that the contested fact is established.

     [182]See Swain [2003] Aust Torts Reports ¶81‑694 at 63,783 [146].

     [183](1999) 197 CLR 269 at 281‑282 [39]-[40], 288 [55]-[57].

214. Allowing that there is no error to this point in the reasoning of the majority of the Court of Appeal, there follow three errors of analysis that warrant, when read together, an order by this Court allowing the appeal. 

215. The first is, of itself, a relatively trivial one.  But it is indicative of a flaw that is more serious.  At an important passage in their reasoning, the majority state that it is "necessary to distinguish between a 'sandbank' and a 'sandbar'", and declare that the "seaward edge of a channel is known as a sandbar"[184].  They then proceed even to correct the evidence given by the appellant, substituting "sandbanks" for "sandbars" as used by him in his testimony.  This approach to the evidence of the witnesses does not conform to the governing authorities that have been cited concerning the approach which the appellate court must take to the evidence adduced in a jury trial.  The question on appeal in a case of this kind is not how the appellate court reads the evidence (still less how it corrects it).  It is how it was open to the jury to consider the evidence, accepting that evidence at its most favourable from the point of view of the party in favour of whom the jury's verdict was entered. 

     [184]Swain [2003] Aust Torts Reports ¶81‑694 at 63,784 [156].

216. Mr Williams, the experienced ocean lifeguard and beach education officer, gave evidence contrary to the factual analysis of the majority judges:

     "Q:Now [the appellant's counsel] asked you a number of questions where he used the expression 'sandbank' and then he used the expression 'sandbar'; remember that?

     A:Yes.

     Q:Did you have any understanding when he was asking you those questions of the distinction between the two concepts?

     A:Well, they're two terms used to describe the same entity, to me.

     Q:So the members of the jury should understand that despite [this] use of two different words, you understood them to mean the same thing?

     A:Generally, yes."

217. In the face of this evidence, it was clearly open to the jury to draw no distinction whatever between a "sandbank" and a "sandbar".  To the extent that, for their factual analysis, the majority judges in the Court of Appeal thought that such a distinction was "necessary", as they put it[185], it was a mistake and one that does not comply with the proper legal approach.  Indeed, despite endorsing Spigelman CJ's citation of the applicable authorities, it suggests the adoption of an approach that did not undertake the task of the appellate court as those authorities required.  In effect, the Court of Appeal was performing the function much more familiar to it in its everyday work of reviewing decisions about the facts found at trial as expressed in the reasons of judges.  It was reconsidering and re‑evaluating the evidence in that way.  It was not doing so in the more limited and strict way necessary where a judgment under consideration has followed a jury's verdict.

     [185]Swain [2003] Aust Torts Reports ¶81‑694 at 63,784 [156].

218. Secondly, confirmation that this was the approach adopted by the majority in the Court of Appeal may be found in the passages in the majority's reasons where they cite a decision in which Ipp JA had earlier participated.  This was Prast v Town of Cottesloe[186].  His Honour had there referred to the distinction between the inherent risks of body-surfing and the risks in "diving" cases, such as Nagle v Rottnest Island Authority[187], where there were held to be hidden dangers which created a duty to warn.  This citation is followed, in turn, by a passage of reasoning which, with great respect, can only be understood as expressing an evaluation of particular facts by the members of the majority in the Court of Appeal for themselves.  Their Honours state[188]:

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

     [186](2000) 22 WAR 474 at 481-483.

     [187](1993) 177 CLR 423.

     [188]Swain [2003] Aust Torts Reports ¶81‑694 at 63,786 [178].

219. Allowance must be made for the proper function of the appellate court in reviewing the evidence proved in a jury trial in order to decide whether there is no evidence that ought reasonably to have satisfied the jury that the matter in issue is established.  Nevertheless, the starting point in the foregoing reasoning was incorrect.  No analysis is undertaken of the evidence that was before the jury favourable to the appellant.  Nor is there a measurement of such evidence against the limited circumstances in which the appellate court is permitted to intervene in such a case.  Although the applicable test, expressed by Willes J in Ryder[189] was cited in the majority reasons[190], what followed reads as their Honours' own evaluation of the facts and not a consideration of the appellant's case at its highest and then scrutiny of whether that case was sufficiently reasonable to satisfy the jury and to sustain their verdict.

     [189](1868) LR 4 Ex 32 at 38-39.

     [190]Swain [2003] Aust Torts Reports ¶81‑694 at 63,783 [147].

220. Thirdly, the foregoing points of criticism emerge in still sharper relief when the majority's reasons are contrasted with those of Spigelman CJ.  Thus, the majority state that[191]:

     "The flags are there to designate swimming areas and to indicate to people where they can swim safely.  They do not indicate that it is safe to dive anywhere between them.  They do not indicate, for example, that it is safe to dive at the water's edge, or that it is safe to dive into a channel.  The flags were not intended to convey, and did not convey, any indication to persons in the water of the condition of the sand floor or the depth of water immediately in front of them.

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

     [191]Swain [2003] Aust Torts Reports ¶81‑694 at 63,786 [175]‑[176].

221. Once again, with respect, the analysis by the majority constitutes an explanation by them of what they considered the flags, put in place by the Council's employees, signified.  That was not the correct approach.  The issue is how the jury could have understood the information conveyed by the position of the flags, not how appellate judges interpreted them. 

222. If regard is paid to the evidence that the jury had before them from Mr Williams, it was open to the jury to conclude that the safety indicated by the flags was the safety relevant to "ocean swimming".  It was also open to the jury to conclude that this encompassed a number of activities, and included body-surfing.  It was open to the jury to decide that the flags were put in place to indicate to persons such as the appellant that it was safe for him to body-surf in the designated area.  It would likewise have been open to the jury to conclude that the flags signified the assessment of the Council's lifeguards on duty that, so long as the bather remained within the space marked out, no special warning or caution was being signified to the public.  In the words of Mr Nightingale, if "they stay between the flags, ideally they should come to no harm.  It's safe swimming" (emphasis added).

223. It was in this way that Spigelman CJ, in his reasons[192], approached the issue for resolution.  Repeatedly, by reference to the detailed evidence, his Honour considered not his own assessment but what it was open to the jury to find, looking at the evidence in the way required, namely as that evidence was reviewed most favourably to the appellant.

     [192]Swain [2003] Aust Torts Reports ¶81‑694 at 63,781‑63,782 [133]-[140].

224. The steps in Spigelman CJ's reasoning on this point are clear.  The Council's accepted duty of care with respect to the beach extended to the placement of the flags and the provision of warnings of any hazards relevant to the inducement (which it was open to the jury to infer the flags otherwise provided) that people could safely enter the water between them[193].  His Honour noted that the Council did not adduce evidence about what its officers had in fact done or considered with respect to the placement of the flags on the day of the appellant's injury.  Mr Nightingale said that there had been no change in the conditions of the beach during the day[194].  However, it was open to the jury to conclude that this was unconvincing evidence because Mr Nightingale would have been unaware of the original conditions when the flags were first put in position hours before he commenced duty.  Another inference that the jury might have accepted was that the initial placement of the flags was incorrect.  Certainly, the jury could properly conclude that lifeguards, including Mr Nightingale, were in a good position to see the general contours of sandbanks, channels and troughs within the water from their elevated vantage point.  Yet no evidence was called for the Council to indicate that the flags on that day were shifted by specific reference to movements in the ocean floor creating an unexpected hazard for ocean swimming. 

     [193]Swain [2003] Aust Torts Reports ¶81‑694 at 63,782 [140].

     [194]Swain [2003] Aust Torts Reports ¶81‑694 at 63,781 [133].

225. In particular, the Council, which called Mr Nightingale to give evidence, failed to ask him why, on the day of the appellant's injury, the flags had not been shifted.  By inference, he could have answered that question.  It is true, that the appellant, as the plaintiff in the action, bore the legal onus throughout the trial of adducing evidence sufficient to discharge his burden of proof[195].  However, in the context of the trial, it was unreasonable to expect the appellant, on the blind, to have asked Mr Nightingale such a question.  It was for the jury to draw inferences from the facts proved at the trial.  Inferences (representing something more than mere conjecture[196]) may be drawn by a jury from the omission of a party with the interest to do so to ask such an obvious question[197].  The Council had the interest to ask the question.  Similarly, it had the interest to cross-examine Ms Galvin over her alleged statement to Mr Tagg concerning the way the appellant's injury had occurred.  Neither of these steps was undertaken.

     [195]See reasons of Handley and Ipp JJA, Swain [2003] Aust Torts Reports ¶81‑694 at 63,783 [149].

     [196]Holloway (1956) 94 CLR 470 at 480; Naxakis (1999) 197 CLR 269 at 289 [58].

     [197]See Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214‑215 per Gibbs J; Chappel v Hart (1998) 195 CLR 232 at 247‑248 [34] per McHugh J.

226. Where such forensic omissions happen, it is open to a jury to conclude that the failure to elicit the apparently relevant evidence, or to press the relevant point, has occurred for good reason.  They might conclude that it was a simple mistake or oversight.  But in a case of such importance, the Council having called Mr Nightingale to give evidence, it was open to the jury to decide that he was never asked to meet directly the case being advanced for the appellant, concerning the shifting of the safety flags which was within his authority and responsibility, because his answer would not help the Council's case.  Thus, the jury could properly have decided that, forensically, the omission in questioning was deliberate, occurring for some reason consistent with the appellant's assertions. 

227. Two witnesses (Mr Wilson and Ms Galvin) gave evidence strongly suggestive of the presence of a sudden trough that Mr Wilson described and that caused Ms Galvin to fall over in the water.  It was open to the jury to conclude that, from his elevated position, Mr Nightingale could have seen that trough and the sandbank formed next to it, if he had been paying due attention.  It was Mr Nightingale after all who had said:

     "I can see a sandbank because it's yellowy.  And a deeper water would be signified by darker green."

228. Once this course of reasoning was accepted by the jury (as was their entitlement) it was but a small step for them to conclude that the Council had failed to take reasonable care for the safety of the appellant as a person using the beach and that this failure had caused (in the sense of contributed to) his injury.  Thus, the jury may have concluded that, although the lifeguards on duty could see the contours of troughs and channels and sandbanks, on this day they paid no adequate attention to them, or that they noticed them, but decided to place the flags adjacent to the sandbank regardless.  Given the description of the features of the sandbank and trough in the evidence of Mr Wilson and Ms Galvin, the jury must have concluded that the appearance of each was plain to attentive lifeguards viewing the beach from their vantage point.  In the particular circumstances, it was a hazard.  lt should have been drawn to the notice of bathers and their safety protected by the shifting of the flags to a point beyond the trough adjacent to the sandbank.  Visually, this would have been clear to the lifeguards.  But it was open to the jury to accept that it was invisible to the appellant.

229. Against this reasoning, powerful contrary arguments existed that supported the Council's case on the positioning of the flags.  According to the evidence, sand levels on the ocean floor often vary, especially near the shore.  They are in a constant state of change.  They create channels, troughs and dangers of varying degrees.  The beach in question is very popular, attended by large numbers of people and on the day of the appellant's injury the water was calm and the conditions unremarkable.  All of this was also known to the appellant and he tendered no evidence of different practices on different beaches, whether in Sydney or elsewhere.  Moreover, the appellant's own expert witness, Mr Williams, gave evidence that it was usual to place flags opposite sandbanks precisely because, in general, the shallower water above a sandbank near the beach gave protection to children, the aged, the infirm and inexperienced swimmers.  On this basis, there was certainly plenty of evidence available to the jury on the basis of which they would have been entitled to reject the appellant's case.  Such a rejection would have been reasonable and in no way irrational or unexpected.  However, that is not the question presented by this appeal.

230. What the jury made of the evidence was, within very large boundaries, a matter for them.  It was so, as long as they acted within the ultimate legal requirement of reasonableness as established in the cases.  They were not obliged to accept the Council's evidence or argument.  They were entitled to conclude that the lifeguards on duty had the capacity to perceive a trough adjacent to a sandbank.  They could then conclude that this represented a hazard on the particular day that misled the appellant as to the water's depth and contours and caused his injury.  Yet, the lifeguards on duty had failed to shift the flags to a position where that hazard was not present.  And they gave no evidence, although they had every reason to do so if it had been the case, that there was no safer place for the flags than that maintained by them throughout the fateful day.

231. The dissenting opinion in the Court of Appeal approached the issue in the appeal in the legally correct way.  Because the correct approach was taken, it is unsurprising that the correct conclusion was reached by Spigelman CJ.  History shows that the verdicts of juries on safety questions have sometimes reflected the commonsense of ordinary citizens which experts and established practice have occasionally neglected.  The notion that lifeguards on duty on a popular public beach should be vigilant throughout the day for troughs and emerging sandbanks presenting particular dangers to ocean swimmers, and attentive to shifting the flags as required by such changes, is not one offensive to rationality and reasonableness.  It may not be a conclusion that every judge would draw in the present case.  But once such a conclusion was reached by the jury, the resulting verdict must be upheld by an appellate court save for the very limited circumstances where such a court is authorised by law to set it aside.

     Conclusion and orders

232. In some ways, the jury's verdict in this case was a surprising one.  However, as the dissenting judge said in the Court below, too much should not be read into it[198].  No jury verdict (nor appellate decision reconsidering it) enjoys the authority of precedent that belongs to a reasoned decision of a judge upheld by the judicial process[199].  Of necessity, a jury's verdict speaks enigmatically.  It gives neither reasons nor explanations.  It gives nothing more than the jury's ultimate decision on the mass of evidence in the particular case. 

     [198]Swain [2003] Aust Torts Reports ¶81‑694 at 63,782 [142]-[143].

     [199]Indeed all such judgments are in any case merely decisions confined to their facts.  They do not establish principles of law:  Joslyn v Berryman (2003) 214 CLR 552 at 602 [158] per Hayne J.

233. In the present case much may have turned on the primary forensic battleground which the Council chose and upon which it obviously failed (swimming outside the flags).  It would not have been surprising if that issue had distracted the jury's attention from the truly separate issues of reasonableness of conduct in the case.

234. This case was not one where there was "no evidence" to support the appellant's claim of negligent breach of duty causing him damage.  There was evidence.  I am not convinced that the jury's conclusion was such that no jury performing their functions properly could reasonably have been satisfied of the facts necessary to sustain the verdict in favour of the appellant.  Accordingly, the jury's verdict, and the judgment that followed it, must be restored.

235. The appeal should be allowed with costs.  The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside.  In place thereof, it should be ordered that the appeal to that Court be dismissed with costs.

236. HEYDON J.   I agree with McHugh J that the appeal should be dismissed with costs on the ground that there was no evidence that would have entitled the jury to find that there existed a reasonably practicable means of avoiding the risk of the injury which the plaintiff suffered.  However, in my opinion, applying existing principle, the factual question whether it was reasonably foreseeable that there was a risk of injury to the plaintiff of the kind he suffered in the circumstances should also be answered in the negative.  I do not agree with McHugh J that it was open to a reasonable jury to find that the risk was reasonably foreseeable in this case[200].           

     [200]cf reasons of McHugh J at [90].

237. I would reserve for later consideration, if necessary, the question whether, in determining as a matter of law that there is evidence of negligence, a court may take into account the circumstance that some of the facts essential to the plaintiff's case are peculiarly within the defendant's knowledge[201].  The present was not a case where a plaintiff had advanced some evidence from which inferences could be drawn that there was a reasonably practicable alternative, and where the failure of a defendant who was in a position to call evidence rebutting those inferences to do so enabled the inferences to be drawn more strongly.  It was instead a case in which, by the end of the trial, there was no evidence from which it could be inferred that there was a reasonably practicable alternative.

     [201]cf reasons of McHugh J at [37]-[39]; reasons of Gummow J at [154]-[155].