HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJERNEST VAIRY APPELLANT
AND
WYONG SHIRE COUNCIL RESPONDENT
Vairy v Wyong Shire Council [2005] HCA 62
21 October 2005
S493/2004ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
P C B Semmler QC with L T Grey for the appellant (instructed by Carroll & O'Dea)
B W Walker SC with D F Villa for the respondent (instructed by Minter Ellison)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vairy v Wyong Shire Council
Torts – Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Local authority – Power of care, control and management of natural reserve – Person suffered injury when diving into a body of water – Whether a reasonable local authority would have erected signs warning against the dangers of diving – Relevance of obviousness of risk to questions of duty and breach.
Local Government Act 1919 (NSW).
Ordinance No 52 under the Local Government Act 1919 (NSW), cll 8, 29(a)‑(b).
GLEESON CJ AND KIRBY J. This appeal was heard together with Mulligan v Coffs Harbour City Council[1]. Both cases were actions for damages for negligence brought by young men who suffered serious injury in consequence of diving or plunging into water and striking their heads or necks on the sand below. Both plaintiffs sued public authorities, complaining of a failure to warn of the risk which materialised. In each case, the trial judge accepted that the plaintiff was owed a duty to take reasonable care to protect him from unnecessary risk of physical harm. In the present case, the trial judge (Bell J) held that there had been a breach of that duty, although she reduced the damages substantially on account of contributory negligence. In the case of Mulligan, the trial judge (Whealy J) held that there had been no breach of duty.
[1][2005] HCA 63.
The issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards[2]. The central question concerns the reasonableness of the defendant's behaviour. It is understandable that, in a search for consistency, comparisons with similar cases will be made. However, as Lord Steyn said in Jolley v Sutton London Borough Council[3], decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases.
[2]Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 567 [6]; 213 ALR 249 at 251.
[3][2000] 1 WLR 1082 at 1089; [2000] 3 All ER 409 at 416, cited in Tomlinson v Congleton Borough Council [2004] 1 AC 46 at 55 [18].
The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority[4] is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT)[5] established that reasonableness never requires a warning sign at the top of a cliff.
[4](1993) 177 CLR 423.
[5](1998) 192 CLR 431.
Where this Court upholds, or overrules, a decision of a trial judge or an intermediate court of appeal about whether a particular defendant has or has not behaved reasonably, the reasons given for the Court's decision may provide guidance as to the relevant legal principles, if those principles are in doubt, but the ultimate factual judgment will depend upon the evidence and circumstances in the particular case. In these two cases, there was no legal inconsistency between the decisions of Bell J and Whealy J. They came to different conclusions on the facts. There was no material difference in their respective views of the law. As will appear, in each case we would uphold the decision of the trial judge.
Both cases involve the tortious liability of public authorities responsible for the areas in which the diving accidents occurred. They were areas of recreational land, open to the general public. Many forms of outdoor recreation involve a risk of physical injury. In some cases, while the risk of injury may be small, the consequences may be severe. Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head-first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results. Again, short of a total prohibition, it is impossible to eliminate such risks; and no one suggests that swimmers should be prohibited generally from entering the water head-first.
In each case, the breach of duty alleged was a failure to warn. A defendant's duty of care is owed to an individual plaintiff, but it is a duty to do what is reasonable in all the circumstances. The fact that a defendant is a public authority with the responsibility of managing large areas of recreational land may be a circumstance material to a judgment about the reasonableness of its conduct. As Brennan J pointed out in Nagle[6], the duty owed to the plaintiff is, in the ordinary case, owed to him or her as a member of the public. The nature of the premises, and the right of public access, will have an important bearing on what reasonableness requires by way of a response to risks associated with the use and enjoyment of the land.
[6](1993) 177 CLR 423 at 435-441.
Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out[7]? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign.
[7]Commissioner of Main Roads v Jones (2005) 79 ALJR 1104; 215 ALR 418.
Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs. It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits.
The facts of this case are set out in the reasons of Callinan and Heydon JJ. As has been noted, Bell J found that there had been a breach of duty[8]. The Court of Appeal was divided on the point[9]. Beazley JA agreed with the decision of Bell J. The majority (Mason P and Tobias JA) took a different view.
[8]Vairy v Wyong Shire Council (2002) 129 LGERA 10.
[9]Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports ¶81-754.
In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water head-first without knowing exactly how deep it is. Even if a swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge head-first into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating.
The appellant dived into the sea from a rocky platform, close to a popular surfing beach. There were various levels in the rock formation. The appellant dived from a height of about 1.5 metres above water level. The trial judge could not find the exact depth of the water into which he dived, but at a nearby location from which he was recovered the depth of water was also about 1.5 metres. Diving from a height of 1.5 metres into water of approximately the same depth is very dangerous, depending, perhaps, on the angle of the dive. Yet the evidence shows that, on the day in question, many other people, with apparent safety, were doing what the appellant did. Diving from the rock platform was a popular activity that had been going on for years. The appellant, a competent swimmer who was familiar with the locality, knew that. The trial judge found that the appellant assumed that it was safe to dive from the rock platform because, on the day of his injury, and many times previously, he had seen people doing so. He did not attempt to assess the depth of the water into which he dived. He simply followed common practice. He said of the rock platform that it was "the place to go, to dive in or to jump in or whatever".
The very practice which reassured the appellant was, as the respondent knew, a practice that had alarmed others. Members of the local surf life saving club had often warned people of the dangers of jumping or diving off the rock platform, sometimes going to the platform by boat in order to do so. In 1978, a young man who dived from the highest part of the platform became a quadriplegic. The incident received wide publicity in the area. A local newspaper reported that the beach inspector intended to recommend to the respondent the placing of a "danger" sign on the platform. From one point of view, the most surprising feature of the evidence in the case was that so few serious injuries had resulted from diving from the rock platform over the years.
At the trial, the respondent pressed Bell J with the argument that the respondent was responsible for about 27 kilometres of coastline, and that it was unreasonable to expect warning signs to be erected on every outcrop of rock from which someone could dive into the ocean. However, she accepted the evidence of a local government engineer that the rock platform adjoining Soldiers Beach was "most unusual", both in its formation and in its ready accessibility to members of the public attending a popular surfing beach. She also found as a fact that the respondent knew or ought to have known that there could, from day to day, be significant variations in the depth of water adjacent to the rock platform and that, in that respect, the respondent "was armed with knowledge that the [appellant] did not have concerning the danger of diving from the rock platform." She said: "The [respondent] was aware that members of the public commonly dived from the rock platform and that this activity was a dangerous one." The popularity of the activity in a sense increased the danger because it created a misleading appearance of safety. The trial judge concluded that the respondent should have erected signs prohibiting diving from the rock platform. Alternatively, she found that, at the least, the respondent was required to erect signs warning of the danger of diving from the rock platform.
The appellant said that, if diving from the rock platform had been prohibited by the respondent and a sign to that effect had been erected, he would not have dived. He also said that if a warning sign, that it was dangerous to dive from that location, had been erected he would not have done so. Bell J accepted that the erection of a sign that served to bring the risk of diving from the rock platform to the appellant's attention would probably have led the appellant not to run that risk. She gave reasons for this conclusion, particular to the case. The conclusion was one of fact dependent, in part, on an assessment of the appellant.
Like Beazley JA in the Court of Appeal, we find no error in Bell J's reasoning on what was essentially a matter of factual judgment, and we see no reason to interfere with her ultimate conclusion. There being no appealable error on the part of the primary judge, the majority of the Court of Appeal erred in disturbing Bell J's conclusions and the orders giving them effect.
We would allow the appeal with costs, set aside the orders of the Court of Appeal, and in their place order that the appeal to that Court be dismissed with costs.
McHUGH J. Wyong Shire Council is a public authority vested with the statutory care, control and management of the land on which there is a rock platform from which the appellant dived into the Pacific Ocean and was injured. The issue in this appeal is whether, in all the circumstances of the case, the Council breached the duty of care that it owed to the appellant when it failed to warn him of the risk of injury associated with diving in that area. The Supreme Court of New South Wales (Bell J) held that the Council had breached its duty by failing to give that warning and that the breach was causally connected with the injury that the appellant sustained. The Supreme Court entered a verdict for the appellant and awarded him a substantial sum of damages. The Court of Appeal of the Supreme Court reversed the decision of the trial judge and entered a verdict for the Council.
In my opinion, the trial judge correctly held that the Council had breached the duty that it owed to the appellant. The area where the appellant dived was one where many people dived. Diving in that area was fraught with the risk of serious injury to divers. The Council knew of the risk and, in any event, ought to have known that it existed. The large number of people that used the area for diving increased the probability that, sooner or later, the risk of striking the ocean floor would result in serious injury to one or more divers. So far as the evidence revealed, no other area under the Council's control exposed divers to as high a probability of injury occurring as did this particular area. Erecting a warning sign was a simple precaution that, on the trial judge's findings of fact, would have avoided the catastrophic injuries suffered by the appellant.
The Court of Appeal erred in finding that the risk of injury was so obvious that the Council was not negligent in failing to erect a warning sign. Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party. Ordinarily, when the obviousness of a risk requires no action, the magnitude and likelihood of the risk will be so insignificant and so expensive or inconvenient to avoid that reasonable care requires neither the risk's elimination nor a warning concerning its propensity. Hence, the Court of Appeal erred in finding that the Council did not breach the duty of care that it owed to the appellant. It follows that the appeal must be allowed and the appellant's verdict restored.
The duty of care
At the trial and in this Court, the Council correctly conceded that "as a public authority vested with statutory care, control and management of public land [it] owed a duty to take reasonable care" to safeguard the appellant from physical harm. When a person such as the appellant lawfully enters an area that a public authority controls and manages as an exercise of statutory power, the public authority has a legal obligation to take reasonable care to protect that person from physical injury[10]. What is required to discharge that duty depends on all the circumstances of the particular case.
[10]Nagle v Rottnest Island Authority (1993) 177 CLR 423; Swain v Waverley Municipal Council (2005) 79 ALJR 565; 213 ALR 249.
As the argument of the Council accepted, the issue in the appeal was not the existence of a duty of care but whether the Council had breached that duty. That was a question of fact. And, like all questions of fact that a court determines, it is resolved within its own parameters without comparing the facts of the case to the categories of facts in other cases. However, at times during the argument, statements were made which seemed, probably unconsciously, to confuse breach of duty with the existence of duty.
Jurisprudentially, a duty of care is a notional pattern of conduct[11]. It arises in the context of a relationship between individuals and "imposes upon one a legal obligation for the benefit of the other ... to deal with particular conduct in terms of a legal standard of what is required to meet the obligation."[12] Today, duty is an essential element of the tort of negligence[13]. Yet it was not recognised as such until well into the 19th century. Sir Percy Winfield has traced the history of the rise of duty as an integer of the tort of negligence[14], and it is unnecessary to repeat it. It was the decision of the English Court of Appeal in Heaven v Pender[15] that finally ensured that the concept of duty would be an element of the tort of negligence. There, Brett MR (as Lord Esher then was) said[16]:
"But want of attention amounting to a want of ordinary care is not a good cause of action, although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question."
[11]Dias, "The Duty Problem in Negligence", (1955) Cambridge Law Journal 198 at 202.
[12]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 356.
[13]Some academic writers have maintained that the issue of duty is superfluous and that the factors relevant to it can be adequately dealt with under the issues of causation and carelessness (negligence). See, eg, Green, "The Duty Problem in Negligence Cases", (1928) 28 Columbia Law Review 1014 at 1028-1029; Winfield, "Duty in Tortious Negligence", (1934) 34 Columbia Law Review 41 at 61-64; Buckland, "The Duty To Take Care", (1935) 51 Law Quarterly Review 637 at 644; Stone, The Province and Function of Law, (1946) at 181-182; Atiyah's Accidents, Compensation and the Law, 6th ed (1999) at 58.
[14]"Duty in Tortious Negligence", (1934) 34 Columbia Law Review 41.
[15](1883) 11 QBD 503.
[16](1883) 11 QBD 503 at 507.
Ten years later in Le Lievre v Gould[17], Lord Esher MR reaffirmed the need to establish a duty of care when he said:
"The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence ... A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them."
[17][1893] 1 QB 491 at 497.
Forty years later, the speech of Lord Atkin in Donoghue v Stevenson[18] finally put beyond doubt the necessity for the existence of a duty in the tort of negligence:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
[18][1932] AC 562 at 580. The dissenting speeches of Lord Buckmaster and Lord Tomlin show that the need for a duty outside contract and certain defined situations was a live issue as late as 1932. Lord Buckmaster said (at 576) of Heaven v Pender that it "should be buried so securely that [its] perturbed spirits shall no longer vex the law."
As these quotations indicate, the duty in negligence is generally described as a duty to take reasonable care. In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms. Until the decision of this Court in Zaluzna[19], for example, the duty owed to entrants upon privately owned land varied according to the category of the entrants. They were classified as invitees, licensees and trespassers. Similarly, the duty in respect of negligent statements is more specific and limited than a simple duty to take reasonable care in all the circumstances of the case. In negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care. As Prosser and Keeton have pointed out, "the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk."[20]
[19]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
[20]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 356.
As a result, the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence. If they were, a trial judge would be bound to direct a jury in the circumstances of a particular case that the defendant had a duty to keep a proper lookout or sound his or her horn, as the case may be. Given such a direction, the only question for the jury would be whether or not a motorist had complied with the duty specified by the judge. But it is the jury, not the judge, that determines whether reasonable care required the motorist to keep a proper lookout or to sound the horn.
The present case fell within the familiar category of cases where the plaintiff was a member of a class of persons to whom the defendant had a duty – according to a body of common law precedent – to take reasonable care for the safety of members of that class. Teachers and students[21], doctors and patients[22], occupier and entrant[23], employer and employee[24], jailer and prisoner[25] are examples of established categories of cases in which the common law imposes a duty on the former class of person to take care of the latter. Similarly, public authorities and lawful entrants on land under the control of those authorities are another category[26]. But this categorisation of relationships that attract a duty of care is irrelevant to the issue of breach of the standard of care that the duty demands. While the principles laid down in Wyong Shire Council v Shirt[27] continue to state the common law of Australia, the standard of care that discharges the duty of reasonable care is determined according to the well-known formula set out in the judgment of Mason J in that case.
[21]Geyer v Downs (1977) 138 CLR 91.
[22]Rogers v Whitaker (1992) 175 CLR 479.
[23]Zaluzna (1987) 162 CLR 479.
[24]Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.
[25]Howard v Jarvis (1958) 98 CLR 177.
[26]Nagle v Rottnest Island Authority (1993) 177 CLR 423; Swain v Waverley Municipal Council (2005) 79 ALJR 565; 213 ALR 249.
[27](1980) 146 CLR 40 at 47-48.
In a case concerned with negligently inflicted physical injury, the most assistance that a judge can draw from legal precedent when determining whether a defendant has breached a duty of care is the basic and general principle that the duty that the defendant owed the plaintiff was a duty to take reasonable care. Since Perre v Apand Pty Ltd[28] and the rejection of "proximity" as a doctrine, this Court has accepted that the concept of reasonableness cannot be factorised further into any other statements of principle. Judicial attempts to specify the content of a duty of care are destined to be as fruitless as attempts to specify the full set of values to which the reasonable traveller on the Bondi bus subscribes. Both attempts are bound to lead to error because the standard of reasonableness – and reasonable care – depends upon the facts of each case. There are a range of factors – I referred to some of them in Perre v Apand[29] – that determine when the common law will impose on a defendant a duty to take reasonable care for the safety of a plaintiff. But there are no factors other than the Shirt formula by which the common law defines the standard of reasonable care required in a particular case. That is an evaluative task for the tribunal of fact – assuming that there is some evidence on which the tribunal of fact could find negligence.
[28](1999) 198 CLR 180 at 194 [10], 202 [41], 233-235 [142]-[145], 304 [341].
[29](1999) 198 CLR 180 at 231 [133].
As I have already indicated, at times during the present appeal and the appeal of Mulligan v Coffs Harbour City Council[30] heard at the same time, the argument for various parties did not keep the issues of duty and breach distinct. The arguments were often clouded by reference to phrases such as "the scope and content of duty" and "duty to warn". Judges and lawyers often use such phrases. When they are understood as commensurate with the standard of care required to discharge the defendant's duty of reasonable care, they cause no harm. But often enough they are used as if they themselves define or were the duty, or part of it. Using them creates the risk that they will be treated as stating legal propositions and convert what is a question of fact into a question of law. Hence, their use invites error in analysis, particularly the analysis of judicial precedents.
[30][2005] HCA 63.
During the argument, the risk of error surfaced in a number of ways but nowhere more sharply than in the analysis of Nagle[31]. Except in so far as that case recognised "that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve"[32], it involved nothing more than a question of fact. It is not a precedent in favour of the appellant or anybody else except Mr Nagle. It lays down no principle of law other than that the Board had a duty to take reasonable care for lawful visitors on its Reserve. It is a binding authority in so far as it affirms that bodies such as the Board owe a duty to take reasonable care for the safety of lawful visitors on land under their control. The Court also upheld[33] the trial judge's "finding that the failure to warn of the danger of diving from the eastern rock ledge into the Basin due to the presence of rocks was a breach of the [Board's] general duty of care." But that finding and the Court's upholding of it were questions of fact and bind no one. Given a similar case, the most junior judicial officer may disregard its reasoning, if the officer disagrees with it. As Barwick CJ pointed out in Conkey & Sons Ltd v Miller[34], "a statement by an eminent judge ... is entitled to respect by those who have themselves to decide a question of fact upon the evidence of the case before them. But its persuasion rises no higher: and certainly does not bind in point of precedent."
[31]Nagle v Rottnest Island Authority (1993) 177 CLR 423.
[32](1993) 177 CLR 423 at 429-430.
[33](1993) 177 CLR 423 at 432.
[34](1977) 51 ALJR 583 at 585; 16 ALR 479 at 485.
The common law has no need to – and does not – categorise the cases in which the defendant was held to have breached a standard of care. It is unlikely that "diving cases" will ever constitute such a category. The common law categorises cases – for the purposes of ascertaining the circumstances in which a defendant owes the plaintiff a duty of care – according to the relationship between plaintiff and defendant and not the activity that caused the plaintiff harm. In cases where the defendant is a public authority, the act of diving is not apt to place the diver in a relationship with the defendant. It is not the act of diving, but the act of entering onto the land that the respondent had a statutory power to control and manage, that made the appellant a member of a class to whom, in accordance with precedent, the Council owed a duty to take reasonable care. Thus, in determining whether the Council breached the standard of care that it owed to the appellant, references to other diving cases – like this Court's decision in Nagle – are not decisive. Their reasoning is "entitled to respect" and may be useful. But that is all. The appellant's reliance on Nagle was misplaced.
Equally misplaced was the analysis by the majority judges in the Court of Appeal of a large number of diving cases decided by courts in this country and the United States. Those cases turned on their own facts. They provided no assistance in determining the issue of fact in the present proceedings – whether on the evidence in this case the Council should have erected a sign warning of the danger of diving from the rock platform at Soldiers Beach.
The Council breached its duty
No one reading the evidence in this case and examining the photographic exhibits could doubt that diving from the rock platform adjoining Soldiers Beach gave rise to a serious risk of injury that was reasonably foreseeable. As long ago as 1978, Mr Errol von Sanden dived from the platform, struck the ocean bed and was rendered tetraplegic. The General Manager of the Council knew of Mr von Sanden's accident and the place and circumstances in which it occurred. Indeed it was a matter of common knowledge within the Council. The section from which Mr von Sanden dived was known as the "high rock" area. It was between 3.36 metres and 2.24 metres higher than the section from which the appellant dived, which was 1 to 1.5 metres above the surface of the water[35]. No doubt the risk of injury in diving from the high rock area was greater than that involved in diving from the lower section. But the risk of diving from the lower section was still significant. Mr John Edwards, who was the Beach Inspector at Soldiers Beach in 1978, testified that over the years much sand had accumulated around the platform and that the water was shallower than it once was. Two expert witnesses testified that it could be dangerous to dive from the platform because the height of the seabed changed from time to time. They favoured prohibiting diving or at least erecting a sign telling divers to beware of shallow water when diving.
[35](2004) Aust Torts Reports ¶81-754 at 65,869 [36].
A few days after Mr von Sanden's accident, a local newspaper reported that Mr Edwards was intending to recommend to the Council that it place a "Danger: No Diving" sign at Soldiers Point. No sign was erected. But the evidence established that, from time to time, members of the Soldiers Beach Surf Lifesaving Club often told intending jumpers and divers not to jump or dive at this spot.
The Council's General Manager knew that many people visited the platform and that on weekends, especially, young people would jump and dive from the platform. The General Manager said he had seen as many as 10 to 15 young people, perhaps even more, jumping and diving from the platform on particular days. Another witness said that, during the summer holidays, up to 30 people would be jumping and diving from the rock platform.
Upon this evidence, the learned trial judge correctly found that the Council breached the duty that it owed to the appellant.
In determining what was a reasonable response by the Council to the perceived danger at Soldiers Point, a tribunal of fact had to take into account other competing responsibilities of the Council[36]. But the existence of other dangers at other places within the Shire that arguably required the institution of precautions did not itself automatically displace the Council's responsibility to deal with particular dangers at particular places. Situations may sometimes occur where, in an area under the control of the defendant, the totality of the magnitude of each risk of injury and the probability of its occurrence are outweighed by the expense or inconvenience of taking precautions to reduce or eliminate the totality of those risks. But each case depends on its own facts and circumstances, and the existence of other risks and competing obligations is not an automatic gateway to negligence immunity. One relevant circumstance in a case like the present is that the public authority usually has statutory powers that enable it to prohibit or regulate activity in particular locations.
[36]Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 460 [75].
Hence, given the evidence in this case, it is no answer to the appellant's claim to contend that the boundaries of Wyong Shire include a coastline of about 27 kilometres with other potential hazards. There may or may not have been other areas along the coastline or within the Shire that were dangerous to swimmers or divers – the Council led no evidence that there were. Given the known danger of diving from this platform and the large number of people using it, then, this contention of the Council borders on the irrelevant. What it overlooks is that the probability of a risk causing injury increases with the number of persons coming into contact with the risk. At Soldiers Beach, there were a large number of divers using the rock platform on a regular basis. There was no evidence as to particular dangers in other areas of the Shire. Nor, even more importantly, was there any evidence as to the number of persons exposed to those dangers, if they existed.
In any event, whatever other dangers may be present to swimmers and others in other areas of the Shire, one may be pardoned for thinking that there would be few, if any, areas where there was a higher chance of an injury occurring to divers than at Soldiers Point. The numbers using the platform for diving and jumping make that thought inevitable. Indeed, in the absence of evidence to the contrary, the risk of an injury occurring at Soldiers Point was probably hundreds of times greater than at isolated spots along the coastline or within the Shire. There may have been more dangerous places in the Shire. But in the absence of evidence concerning their user, it would be speculation to conclude that they required attention equal to, or more urgently than, the proven probability of injury occurring at Soldiers Point.
The learned trial judge held that a reasonable response to the risk of injury was the erection of a warning sign. Whether a warning sign is a reasonable response to a perceived risk of harm depends on a number of factors. They include the nature and obviousness of the risk, the probability of its occurrence, the age and maturity of those exposed to it, the actual or imputed knowledge of those persons and the likelihood that the warning will be effective to eliminate or reduce the harm resulting from the risk. Most importantly, they include the likelihood that inadvertence, familiarity with the area or constant exposure to the risk will make those coming into contact with the risk careless for their safety. It follows that I cannot accept that Lord Hoffmann's statement in Tomlinson v Congleton Borough Council[37], that "[a] duty to protect against obvious risks ... exists only in cases in which there is no genuine and informed choice", accurately represents the common law of Australia.
[37][2004] 1 AC 46 at 85 [46].
In the present case, the evidence established that, despite the danger lurking below the seductive waters lapping the rock formation that contained the platform, many young people dived from the platform into the ocean, either oblivious to or reckless of the risk. From time to time, lifesavers warned them of the risk of injury. Some continued to dive and jump despite the warning. But nothing in the evidence suggests that the lifesavers were at or near the platform day after day warning of the risk. To those not aware of the risk of their heads or necks striking the ocean floor at this spot, the continual stream of diving without incident must have made diving from the platform seem no more dangerous than diving from a three metre springboard in a standard Olympic-sized pool. It is one thing to know that diving into water of unknown depth may cause injury. But a different area is reached where large numbers are known to dive into water without apparent harm. If the water does contain a risk of injury, its apparent safety will make it a trap for the unwary. When such a situation arises it is almost always imperative for the controller of the land to warn swimmers of the danger.
Given the reaction of some divers to the warnings of lifesavers, a warning sign may not have deterred all. But at the least it must have made many stop and think of what might happen to them. The trial judge found that it would have deterred the appellant. Given that the Council, the authority that controlled this land, permitted diving to continue at this spot, despite its knowledge of the dangers, reasonable care required that it give a warning to those who did not have the Council's knowledge or who had become desensitised to the risk.
In finding that the Council had not breached its duty, the majority judges in the Court of Appeal emphasised the obviousness of the risk. Giving the majority judgment, Tobias JA said[38]:
"In my opinion, this knowledge (or assumed knowledge) on the part of the [Council] is neutralised by the fact that [the appellant was] aware that the water into which [he was] diving was not only of variable depth but also of unknown depth. It was those factors, as I have said, which made the risk of injury from diving into such water, obvious. As such, in the present circumstances, a reasonable response from the [Council] did not require a duty to warn. The duty of care owed to the [appellant] was not breached by the failure of [the Council] to give any warning: the giving of a warning was not within the scope of [its] duty of care."
[38]Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports ¶81-754 at 65,900 [206].
With great respect to the learned judges in the majority, this passage appears to betray a fundamental misunderstanding of this branch of the law of negligence in its application to diving cases. It appears to be based on the premise that, where a risk from diving is obvious, the defendant has no duty to warn of it even when the defendant knows of the risk. It is true that earlier in his judgment Tobias JA recognised that "[o]n a given set of facts it could be the case that a warning may not go far enough to satisfy the duty." His Honour said that "[p]erhaps in a given entrant-occupier case a prohibition upon entry, or a class of entrants such as children, may be the minimum action necessary to discharge the duty."[39] His Honour had also said that "this is not to say that in every case where an obvious danger presents itself there can never be a duty to warn."[40] However, the block quotation set out in the previous paragraph appears to suggest that, where prohibition is not an issue, the obviousness of the risk negates the need for a warning in a diving case.
[39](2004) Aust Torts Reports ¶81-754 at 65,894 [171].
[40](2004) Aust Torts Reports ¶81-754 at 65,900 [202].
Leaving aside cases of volenti, however, it is not the law that a defendant has no duty to take reasonable care for the safety of the plaintiff or that no warning is required if the risk of injury is, or ought to be, obvious to the plaintiff. The logical consequence of such a proposition would be that, except in those cases where the danger was unknown to or unobservable by the plaintiff, the defendant would not be required to take any action to eliminate the most dangerous risk of injury. In most cases, the greater the danger, the more obvious is the risk of injury.
Discharge of the defendant's duty requires the defendant to eliminate a risk – whether or not it is obvious – whenever it would be unreasonable not to do so. That proposition applies in all cases of alleged negligence including diving cases. The obviousness of the risk goes to the issue of the plaintiff's contributory negligence, rarely to the discharge of the defendant's duty. In the vast majority of – maybe all – cases, obviousness of the risk is relevant to the discharge of the defendant's duty only where the taking of precautions, other than giving a warning, is not a reasonably practicable alternative for the defendant. As I have indicated, whether a warning is a reasonable response to a perceived risk of harm depends on a number of factors. In a small number of cases, the obviousness of a risk may not require a warning. But ordinarily that will be because the magnitude and likelihood of the risk are both so insignificant and so relatively expensive or inconvenient to avoid that reasonable care requires neither the elimination, nor a warning concerning the propensity, of the risk. Exceptionally, there may also be cases where the risk is so well known and so likely to be present in the minds of those who are likely to come into contact with it that a defendant does not act unreasonably in failing to warn of it.
The risk of injury in the present case was not insignificant. Nor was its likelihood of occurrence so small that a reasonable person in the position of the Council could reasonably ignore it. Nor was erecting a sign an expensive or inconvenient course of action to impose on the Council. To fail to erect a warning sign was an unreasonable response to a risk known to the Council but which may not at times – in some cases at any time – be known to entrants on the Council's land. The majority judges in the Court of Appeal erred in finding that the risk of injury was so obvious that the Council did not breach the duty of care that it owed to the appellant.
The majority judges in the Court of Appeal also found that Bell J had erred in holding that it was relevant that the appellant had been misled, by others diving safely, into believing that the depth of water was sufficient to allow safe diving. Tobias JA said[41]:
"the fact that ... other people to [the appellant's] observation ... had dived safely on other occasions did not neutralise or otherwise detract from the obvious risk of diving into water of unknown depth particularly where each was aware that the water depth was variable, that that variability related (at least in part) to the condition of the seabed ... and that [he] well knew that it was dangerous to dive into water of variable depth. In such factual circumstances the reasonable response to the exercise of the [Council's] duty of care did not require the erection of a warning sign or signs."
[41](2004) Aust Torts Reports ¶81-754 at 65,901 [209].
With great respect to both Bell J and the majority judges in the Court of Appeal, the belief of the appellant was irrelevant to what was required to discharge the Council's duty of care. That has to be determined by looking at the situation before the accident, not after. This was not a case where a positive act of the defendant had misled the plaintiff. Such a representation gives rise to a different duty than that owed to the ordinary entrant on land. Moreover, the above passage in the Court of Appeal judgment discloses two errors. First, whether or not the appellant was misled by others diving safely goes to the issue of contributory negligence not to the discharge of the defendant's duty. It is true that the fact that people have been safely diving in this area is relevant to the discharge of duty. But that is because the Council knew or ought to have known that entrants to the land may be misled by the apparent safety of the platform as a diving area. It is therefore relevant to what the Council ought to have done to eliminate or reduce the risk of injury to entrants generally on the Council's land. Second, the passage proceeds on the erroneous assumption, to which I have already referred, that the obviousness of the risk eliminates the need for a defendant to give a warning.
In another passage, Tobias JA also placed some weight on the "inherent danger" involved in what the appellant did. His Honour said[42] that "where the dive is to be undertaken in an environment where the depth of water is subject to change at short notice and without reasonable warning, then the danger (individual circumstances depending) will generally be an inherent danger." His Honour went on to say that if the danger is both obvious and inherent, then it may add weight to the claim that the reasonable response was to do nothing. His Honour said[43] that "[t]he reason for such a response is that no amount of due care through warning could have removed the danger". But to speak of inherent risks or dangers is to invite error. It is reminiscent of the argument that held the field in employer's negligence cases about 40 years ago – that there were inherent risks in certain forms of employment that prevented an employee succeeding in a negligence action. But the only risks or dangers that are inherent in activities are those that cannot be avoided by the exercise of reasonable care. Describing an activity as inherently dangerous records the result of the application of the Shirt formula. It is of no assistance whatever to characterise an activity as inherently dangerous or risky before one determines whether it could have been avoided by the exercise of reasonable care. Moreover, where a risk of injury can not be eliminated by other reasonable measures it will ordinarily call for a warning. In medical negligence cases, for example, the patient will generally need to be warned against the "inherent risks" of the procedure[44]. That is to say, where there is an "inherent danger" in the correct sense of that term, a warning will usually be required.
[42](2004) Aust Torts Reports ¶81-754 at 65,893 [167].
[43](2004) Aust Torts Reports ¶81-754 at 65,893 [168].
[44]cf Rogers v Whitaker (1992) 175 CLR 479; Chappel v Hart (1998) 195 CLR 232.
The trial judge correctly held that the Council breached the duty that it owed to the appellant. The Court of Appeal erred in setting aside the appellant's verdict.
Order
The appeal should be allowed.
GUMMOW J. This appeal and that in Mulligan v Coffs Harbour City Council[45] were heard consecutively. What is said in these reasons to some degree informs the reasons in Mulligan. The facts in both cases are detailed by Hayne J and Callinan and Heydon JJ. The circumstance disclosed by those facts that opposed to public authorities are "vulnerable victims" unlikely to have protection from insurance against the risk of serious injury in recreational pursuits, should not skew consideration of the legal issues.
[45][2005] HCA 63.
Both appeals concern serious injury sustained by plaintiffs engaged in the dangerous recreational or sporting activity of diving into water, the South Pacific Ocean in the case of Mr Vairy and a creek not far from the sea in the case of Mr Mulligan. The care, control and management of areas adjacent to the site of the injuries was vested by or pursuant to statute in the defendant or, in the case of Mulligan, one or more of the defendants. The plaintiffs alleged a failure by the defendants sufficiently or at all to warn them of the hazards involved. There was much debate in submissions as to the form an adequate warning would have taken. In the Vairy appeal, these and other factual matters were emphasised in a fashion which tended (as appears to have happened at trial and in the Court of Appeal) to telescope secondary questions of breach with the primary questions of duty of care and its content.
Something further should be said at this stage respecting the somewhat confused state in which the issues in Vairy came to this Court and were argued here. The plaintiff lost in the Court of Appeal the verdict recovered at trial before Bell J. The leading judgment of Tobias JA placed great weight upon the significance of the notion of obviousness of risk as destructive of the plaintiff's case. In his appeal to this Court, the plaintiff complained of this as displaying error in principle. This point also was stressed in the submissions to this Court in Mulligan. From a reading of the reasons of Tobias JA, there is room for debate as to how determinative of the outcome that weight was. But, in any event, I agree with Hayne J, for the reasons he gives, that reference to a risk being "obvious" cannot be used as a concept necessarily determinative of questions of breach of duty or, I would add, of questions of the existence and content of duty itself.
The significance of Nagle v Rottnest Island Authority[46]
[46](1993) 177 CLR 423.
The defendant ("the Council"), perhaps anticipating in this Court that view of the notion of obviousness of risk, sought to trim its sails accordingly. It stated in its written submissions that the first issue was whether its duty of care required it to warn the plaintiff against conduct involving a risk of injury presented by natural features of the site of injury. Both at trial and in the Court of Appeal, there had been much discussion of Nagle[47]. There, in a "diving case", the plaintiff had succeeded. That might be thought to pose a hurdle for the Council. In argument the Council dealt with that by confession and avoidance. No attempt was made to seek leave to re-open Nagle. Rather, counsel fixed upon those passages in the joint judgment appearing under the heading "Breach of duty"[48] and correctly identified the outcome in favour of Mr Nagle as an answer to a jury question of no precedential value. That left on one side and bypassed the significance, if any, of the earlier finding in Nagle, again favourable to the plaintiff, respecting the existence and content of a duty of care. In this way the Council sought to fix the battle ground on the present appeal on the application of the so‑called Shirt calculus[49].
[47](1993) 177 CLR 423.
[48](1993) 177 CLR 423 at 431.
[49]Shirt v Wyong Shire Council [1978] 1 NSWLR 631; affd (1980) 146 CLR 40.
Any apprehension respecting the present force of the holding in Nagle respecting duty of care was exaggerated. It is important to note that Nagle was decided whilst the "proximity" requirement was the doctrine of this Court. The trial in Nagle had been conducted on that basis. In concluding that the parties were in a relationship of proximity, the trial judge had attached importance to the activities of the defendant Authority in fostering attendance of swimmers at the site of the accident, known as the Basin, by promoting attendance there and providing facilities[50]. Mason CJ, Deane, Dawson and Gaudron JJ did likewise. By encouraging the public to swim in the Basin, the defendant brought itself under a duty of care to those who swam there, and that duty "would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged"[51] (emphasis added). In substance, the present plaintiff sought to bring his case within those words.
[50](1993) 177 CLR 423 at 427.
[51](1993) 177 CLR 423 at 430.
The duty of care
The essential issue on the Vairy appeal was the content of the duty of care, namely, the alleged requirement of a warning or a prohibition by the Council. But this re-emerged as part of the Shirt calculus, without the Council expressly seeking to re-locate it at its place of origin. It will be necessary to return later in these reasons to the question whether in those circumstances the Council can rely upon any favourable consideration of the content of the duty of care. In Mulligan these other considerations do not arise. The trial judge in Mulligan made an express finding that "the obligation to warn the plaintiff about the risk of diving in the creek due to its variable depth did not fall within the scope of the duty of care imposed upon each of the defendants"[52]. But it is convenient to begin consideration of the appeal in Vairy by looking to the question of duty of care.
[52](2003) Aust Torts Reports ¶81‑696 at 63,875.
In Graham Barclay Oysters Pty Ltd v Ryan[53], Gleeson CJ observed that, if it is not possible to identify the content of an asserted duty of care, this may cast doubt upon the existence of the duty. An example is provided by Agar v Hyde[54]. In Romeo v Conservation Commission (NT), Kirby J remarked[55]:
"It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion."
[53](2002) 211 CLR 540 at 555 [8]. Gleeson CJ had spoken to similar effect in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 [5].
[54](2000) 201 CLR 552 at 578-582 [70]-[83].
[55](1998) 192 CLR 431 at 478 [122].
The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant[56]. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective.
[56]cf Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 290 [105]; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at 367 [158].
In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue.
Whether in the given circumstances there exists a duty of care in negligence is a question of law. After all, Donoghue v Stevenson[57] itself was decided upon a demurrer type procedure used in Scotland. Of course, the existence of some or all of those "given circumstances" may depend upon issues of fact to be tried by the jury[58].
[57][1932] AC 562.
[58]Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 501-502; Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 221; Rootes v Shelton (1967) 116 CLR 383 at 388.
In many well‑settled areas of the law of negligence, the existence of a duty of care presents no challenge. After Donoghue v Stevenson it was accepted that manufacturers of mass produced goods intended for human consumption owed a duty of care to ultimate consumers. Other examples of particular categories of relationship include motor vehicle accident cases and cases of physical injury to workers where there is an unsafe system of work. Likewise, as indicated by Tepko Pty Ltd v Water Board[59], the special circumstances that call into existence a duty of care in utterance by way of information or advice can be articulated. But "diving cases" are not yet a discrete category. Nagle did not make them so.
[59](2001) 206 CLR 1 at 16-17 [47], 22-23 [73]-[75].
In a case such as the action brought by Mr Vairy, if the primary issue of the content of the duty of care is masked by a vague generalisation, the jury questions associated with breach tend to control the formulation of the legal criterion against which the allegation of breach is to be measured. While it is true that the trials giving rise to this appeal and to that in Mulligan were by judge alone, the day yet has to arrive where juries have been removed in all Australian jurisdictions in which these actions are tried. Swain v Waverley Municipal Council[60] is a recent reminder of the different considerations that apply in appellate review of the two forms of trial adjudication. In any event, whilst the distinction between duty and breach is most clearly understood in the context of trial by jury, preservation of the separation of the conceptually distinct issues of duty and breach is, as this appeal shows, of general importance[61].
[60](2005) 79 ALJR 565; 213 ALR 249.
[61]See Derrington, "Theory of negligence advanced in the High Court of Australia", (2004) 78 Australian Law Journal 595 at 602-606.
Shifts in authority
In England, particularly after the judgments of Lord Reid in Dorset Yacht Co Ltd v Home Office[62] and of Lord Wilberforce in Anns v Merton London Borough Council[63], acceptance appeared likely of an equation between reasonable foreseeability of injury and duty of care in negligence, at least in cases of physical injury; the equation would apply unless there was some justification or sufficient explanation for its exclusion. But that state of affairs did not come to pass. Instead, in England there has been a trek from Anns to the "incrementalism" of Caparo Industries Plc v Dickman[64] and Murphy v Brentwood District Council[65], and now towards a vision of adjudication of negligence cases as a dialogue between the muses of "distributive justice" and "corrective justice"[66].
[62][1970] AC 1004 at 1027.
[63][1978] AC 728 at 751-752.
[64][1990] 2 AC 605.
[65][1991] 1 AC 398.
[66]See McFarlane v Tayside Health Board [2000] 2 AC 59 at 82‑83.
This Court has insisted that a defendant will be liable in negligence for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff only if the law imposes a duty to take such care[67]. Nor has this Court adopted the requirement, also associated with Caparo[68], that the court consider it "fair, just and reasonable" that the law impose a duty of care of a given scope[69]. In addition, the case law in this Court[70] charts the rise, followed in the decade since Nagle by the decline, in the use of "proximity" as a distinct and general limitation upon the test of reasonable foreseeability, and as a necessary relationship between plaintiff and defendant before a relevant duty of care can arise. The quietus was delivered by McHugh J in Tame v New South Wales[71]. The same fate befell the fiction of "general reliance"[72].
[67]Sullivan v Moody (2001) 207 CLR 562 at 576 [42]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 555 [9]; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 524 [5]-[6]. The House of Lords spoke to the same effect in D v East Berkshire Community Health NHS Trust [2005] 2 WLR 993 at 1023‑1024, 1025; [2005] 2 All ER 443 at 474-475, 476-477.
[68][1990] 2 AC 605 at 617-618.
[69]Sullivan v Moody (2001) 207 CLR 562 at 579 [49].
[70]The authorities are collected by Gleeson CJ, Gummow, Hayne and Heydon JJ in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 528‑529 [18].
[71](2002) 211 CLR 317 at 355-356 [106]-[107]. See also the judgment of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody (2001) 207 CLR 562 at 578‑579 [48].
[72]See the discussion by Callinan J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 659 [310].
Reference has already been made to the fact that this respondent was the unsuccessful defendant in an action arising out of injuries suffered by a water skier on other waters in the Shire[172]. A jury before whom that case was tried returned a verdict for the plaintiff. In this Court, the Council argued that before a plaintiff could succeed he must show that the event or risk against which a defendant had failed to guard must be one that was "not unlikely to happen". This submission echoed what had been said and applied in this Court in Caterson v Commissioner for Railways[173].
[172]Wyong Shire Council v Shirt (1980) 146 CLR 40.
[173](1973) 128 CLR 99 at 101-102.
That submission was rejected. Mason J, with whom Stephen and Aickin JJ agreed, said that a risk which is not far-fetched or fanciful is real and therefore foreseeable[174]. Murphy J was of a similar opinion, and drew an analogy between the conduct of road users, saying that although almost every car is driven unsafely close to the car in front, few accidents occur because of that conduct[175], an example which may have as much to say, in our opinion, about the futility of some prohibitions on the part of the authorities, as it has about the question of the likelihood or unlikelihood of the occurrence of an accidental injury.
[174](1980) 146 CLR 40 at 48.
[175](1980) 146 CLR 40 at 49.
As Callinan J recently pointed out in Koehler v Cerebos (Australia) Ltd[176], the fact that the test of foreseeability as stated in Wyong Shire Council v Shirt is so undemanding has the consequence that too much emphasis has come to be placed upon some of the other elements of liability for negligence. Having concluded that an event is foreseeable, as almost every occurrence can be, a court then has to consider as a related matter "the reasonable man's response" to it, having regard to the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant[177]. These are all matters in respect of which the maintenance of absolute objectivity and the statement of norms or standards are very difficult. Included in those matters is an assessment of, in effect, the extent of the non-fancifulness of the occurrence, or, as is put, "the degree of probability of the occurrence"[178]. It might have been better to retain the law as it was stated to be in Caterson[179] by Barwick CJ and before Wagon Mound (No 2)[180] was decided, the case which was very influential in the reasoning of the majority in Wyong Shire Council v Shirt[181]. On the basis of the law as it was propounded in Shirt, which was not challenged in this appeal, there could be no doubt that an injury of the kind, and the circumstances in which he might sustain it, here were foreseeable.
[176](2005) 79 ALJR 845 at 854 [54]; 214 ALR 355 at 367-368.
[177]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J.
[178]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.
[179](1973) 128 CLR 99 at 101-102.
[180]Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617 at 642-643.
[181](1980) 146 CLR 40 at 46-47 per Mason J.
What then was the response that a reasonable council was obliged to take in fulfilment of the duty of care which the respondent correctly conceded it owed to the appellant? In our opinion the duty did not include an obligation to erect a warning sign or signs, to prohibit entry into the water from the platform, whether by signs or otherwise, or to construct, as it was at one stage suggested, a fence or other barrier to seek to deny access to the platform entirely.
The Council was not obliged to adopt any of these measures to protect the appellant for these reasons.
The appellant was engaged in a physical recreational activity. This does not mean that the respondent owed him no duty of care but it does mean that the duty was conditioned very much by the fact that the appellant set out to extend himself physically, albeit not in any excessive way, against the elements, in particular, the sea. Callinan J said in Agar v Hyde[182], that when adults voluntarily participate in sport they may be assumed to know the rules, and to have an appreciation of the risks of the game. The same may be said of diving into the sea from a rock platform, particularly when the dive is undertaken by a person of mature years, with a considerable experience and knowledge of the waters which he was entering. The game in which the plaintiff in Agar v Hyde injured himself was notoriously a dangerous one, but the seas too are dangerous and have been understood to be so for thousands of years[183].
[182](2000) 201 CLR 552 at 600 [127].
[183]Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161; see footnote 329 at 229-230 [184].
And, despite their allure, the sea waters of Australia, notoriously, are far from benign. Depending on how far north the traveller goes, sea lice, flotsam and jetsam, weed, blue bottles, stingers, quicksand, sea snakes, crocodiles, unpredictable waves, sand bars, sharks, absence of effective netting, shifting sea beds, broken bottles on the beach or in the water, sunstroke from sun bathing, and unpredictable tides and currents constitute a non-exhaustive catalogue of the risks a bather runs. Indeed, swimming itself, without more, can be hazardous. Much was made in this case of the tragic case of another tetraplegic within the relatively recent corporate memory of the respondent, but it would be interesting to know how many people have suffered injuries of different kinds from one or other of the risks to which we have referred, including merely swimming itself, an activity in which people of greatly varying abilities participate. We do not think it could be seriously suggested that a shire should erect a multiplicity of signs in the vicinity of its beaches saying "swimming can be dangerous". But the point in particular that we wish to make here is simply that the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be a dangerous thing to do. It is not without significance that according to the appellant, he had never dived there before, and had on other occasions chosen to enter the water from the platform in what clearly was a more cautious manner. Again, as Callinan J pointed out in Agar[184] places of recreation are not places to which people are compelled to resort, and nor are they obliged, if they do, to participate in physical activities there.
[184](2000) 201 CLR 552 at 600 [127].
We have already touched upon the second reason why we do not think the respondent was obliged to erect a warning or prohibitory signs. It is that it has within its control 27 kilometres of coastline along which there inevitably would be many places of natural hazard. Just how many of these there are was not, and would not in the nature of things be likely to be able to be proved: it would be very difficult, and probably in the end fruitless to attempt to do so. Some of the hazards are likely however to be greater hazards than the platform, and capable of causing injuries as serious as those suffered by the appellant. Having regard to their existence, and the other demands upon the respondent, and in the light of the other matters that we have referred and will refer to, the respondent should not be seen as having been negligent in not singling out the platform for a special warning, or prohibition of diving.
The primary judge seems to have been impressed by a submission by the appellant that he had seen other people diving safely from the platform on the day of his injury, and on earlier occasions. That submission says as much against the appellant's case as it does for it. As we have noted, Murphy J pointed out in Shirt that drivers of motor cars customarily follow too close behind cars in front of them[185]. That is true, but his Honour could equally have pointed out that this conduct, prohibited and criminalized by law as it was, demonstrated that people will continue to do it, and are not deterred by the relatively infrequent, but nonetheless occasional catastrophic accident that it causes. Having regard to this, and to the other matters to which we have referred, the respondent was not obliged in our view to erect a warning sign. The same reasoning refutes the view that there should have been a prohibitory sign or signs, and the consequential criminalizing, pursuant to, for example, cll 8 and 29(a) of Ordinance 52, of diving from the platform. There is a further reason why a prohibitory sign was not warranted. It is that authorities should not lightly criminalize recreational conduct, particularly conduct, unlike that of the motorist driving too close to the preceding vehicle, which is unlikely to harm others. Even in times of increasing intrusions by governments and local authorities upon personal autonomy, some degree of latitude of choice in conduct must be allowed.
[185](1980) 146 CLR 40 at 49.
In a similar vein to what we have just said, and of relevance to any question of contributory negligence also, we would seek to make the point that it is not right to say, without qualification, that the difference between the duties of an injured plaintiff, and those of a tortfeasor, is that the former owes absolutely no duties to others including the defendant[186], while the latter owes duties to all of his "neighbours". The "duty" to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilized and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.
[186]cf Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570-571 per Mason J; Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 per Viscount Simon.
Because it can be disposed of shortly, it is convenient to deal at this point with the suggestion that access to the platform should have been prevented by the erection of a wall, fence or barrier. That is not a response which the respondent was required to make. It is not clear by any means that it could have been done completely, and if it could, at what cost? Access may still perhaps have been available from the water itself at low tides, unless in some way, as seems unlikely, a wall within the sea could have been built around the headland, as well as across the access to it from the shore. But in any event it would seem to us to be unreasonable, that careful recreational users should be prevented from using the platform.
It was argued by the appellant that even if the risk could and should have been obvious to him, he was still entitled to succeed. A corollary of this argument was that to attach too much weight, indeed all the weight, to obviousness, was to disregard, among other things, and in particular, the possibility of inadvertence. As to that, we would point out first that the dividing line between inadvertence and negligence, indeed even gross negligence, can be very much in the eye of the beholder, and is often assessed almost entirely subjectively. This was, on no view however, a case of mere inadvertence. It was a very clear duty of the appellant, and one which any responsible authority would expect him to fulfil, to make some soundings at least of depth, and accordingly of risk to himself before diving from the platform.
As to the question of obviousness generally, and its significance to the attribution of liability in a negligence case, we have nothing further to add to what we say in our judgment in Mulligan v Coffs Harbour City Council[187].
[187][2005] HCA 63.
Some reliance was sought to be placed by the appellant on the decision of this Court in Crimmins v Stevedoring Industry Finance Committee[188]. That reliance is misplaced. Crimmins was a case of a workplace injury and not a recreational one. It was in other respects also a very different case. In particular, the plaintiff there was effectively incapable of taking any steps to protect himself or indeed of even knowing of the risk to which his employment subjected him. The industry in which he was working was a uniquely organized one and the defendant was in a special relationship with the plaintiff[189].
[188](1999) 200 CLR 1.
[189](1999) 200 CLR 1 at 114-117 [345]-[360].
The law has always been alert to the difference between omission and commission, in an appropriate case taking a more critical view of the latter[190]. Despite the fact that paths led from various places to the platform, it largely remained in a state of nature. This is a relevant, but far from decisive, consideration in favour of the respondent.
[190]Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 784 [156 ER 1047 at 1049] per Alderson B who said:
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
There is only one further matter to which we should refer. The trial judge held that had warning or prohibitory signs been erected, the appellant would have been likely to have seen, heeded and obeyed them. Accordingly, causation had, the trial judge held, been made out. In Rosenberg v Percival[191], Callinan J referred to the very limited utility, indeed practical uselessness, of reliance by a court upon an answer by a plaintiff denying that he or she would have run a particular risk had he or she known about it. Her Honour here did not rely simply upon such a denial. Quite properly, she looked to supporting objective factors such as an innate cautiousness on the part of the appellant, and his awareness of a serious accident in water in which a relative had suffered injury. We are not convinced that these factors provide a complete answer to the essential anterior question, whether the appellant would have actually seen or read the contents of the sign or signs on the day, however many there were and wherever they were located. The appellant was, he said, influenced by the sight of others diving from the platform, a matter which the trial judge accepted. There was also uncontradicted evidence that other divers on other occasions had rudely rebuffed requests by lifesavers that they cease diving from the platform which might suggest that they would equally have ignored prohibitory signs and might be seen to be diving despite them. Her Honour did not weigh up these matters with the potential deterrent effect of signs had the appellant seen them. Nor was the question of the enforcement of any prohibition by signs, its expense, and practicality explored in this particular context. These are by no means decisive matters but they are relevant ones which detract from the appellant's arguments.
[191](2001) 205 CLR 434 at 504-505 [221].
For the reasons that we have given, we would dismiss the appeal with costs.