Swain v Waverley Municipal Council [2003] HCATrans 500 (2 December 2003)

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Swain v Waverley Municipal Council [2003] HCATrans 500 (2 December 2003)

Last Updated: 8 December 2003

[2003] HCATrans 500

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S154 of 2003

B e t w e e n -

GUY EDWARD SWAIN

Applicant

and

WAVERLEY MUNICIPAL COUNCIL

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 9.32 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC: If your Honours please, I appear with my learned friend, MR D.J.S. JENKINS, for the applicant. (instructed by Beston Macken McManis)

MR J.R. SACKAR, QC: If it please the Court, I appear with my learned friend, MR M.T. McCULLOCH, for the respondent. (instructed by Phillips Fox)

McHUGH J: Both counsel have been informed that I own some properties in the Waverley municipality and I understand you have no objection.

MR MENZIES: That is so, your Honour.

McHUGH J: Yes, Mr Menzies.

MR MENZIES: Your Honour, there is one housekeeping matter, a misnumbering of pages of the application book. All the pages are there but the judgment of Justice Spigelman has been inserted slightly out of order. If your Honours turn to page 91 of the application book, that should be page 29 of the Chief Justice’s judgment.

McHUGH J: Yes.

GUMMOW J: It is.

MR MENZIES: It is?

McHUGH J: Yes.

GUMMOW J: There is a 30, but they are switched.

MR MENZIES: The next page should be page 30, it is in fact is page 31.

McHUGH J: Yes, we read these things.

MR MENZIES: Thank you, your Honour. That is a relief. As your Honours have already read, this is an application from a split decision of the Court of Appeal of New South Wales arising out of a catastrophic injury to a swimmer at Bondi Beach where he went into the water, suffered a spinal injury and resulted in quadriplegia. It was a decision of the jury where the parties had agreed that damages, if there was a verdict in favour of the plaintiff, would be $5 million subject to contributory negligence. The jury found contributory negligence of 25 per cent, hence a verdict and then judgment of $3.75 million.

The matter went on appeal and the issue on appeal before the Court of Appeal really ultimately turned on whether there was evidence sufficient to go to the jury of a breach of the duty of care, which was acknowledged in the respondent, with respect to the placement of flags on the beach at Bondi.

The matter has been dealt with at length in our submissions but I wish to take your Honours particularly to two parts of the application book to illustrate our point. The first is in the judgment of the Chief Justice at page 87 and following of the application book where his Honour deals with the placement of the flags. There had been an issue at the trial that the applicant was not between the flags. That was obviously rejected by the jury. The issue then became, as I have said, whether there was a breach of duty with respect to the placement of the flags. The evidence which the Chief Justice deals with at application book 89 with the placement of the flags makes clear that the first - - -

McHUGH J: The Chief Justice’s reasoning was that it was open to the jury to find that members of the public would assume that at the point in the beach where the flags were located and the water became deeper was suitable for flat dives and the placement of the flags involved an express indication that bathing between them was safe.

MR MENZIES: That is right, your Honour.

McHUGH J: That is the alternative and, speaking for myself, it seems quite a persuasive argument. But what is the special leave point? We are not a Court of Appeal, Mr Menzies. Where is the special leave point in the case? It is just a question of whether or not the majority or the minority was right in saying that there was evidence to go to the jury on breach of duty.

MR MENZIES: Your Honour, we attempted to identify a special leave point in as much as the majority seems to have done no more than paying lip service to the proposition that its role was supervisory rather than – what they have done is gone into the evidence and made their own decision about the adequacy of the evidence, and that was the part that I was about to take your Honours to.

Coming back to the sharp point, your Honour, if on that proposition you are against us on there being a special leave point, we obviously fall back to the proposition this was a catastrophic injury where a substantial injustice is done to the plaintiff.

McHUGH J: I do not think that will get you very far.

MR MENZIES: Your Honour, I will stick with what Justices Handley and Ipp had to say.

GUMMOW J: Well, you have to go to page 119, do you not?

MR MENZIES: Yes, your Honour. The starting point is at 175, where their Honours say:

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.

So the simple point that emerges between the Chief Justice and Justices Handley and Ipp is that the majority was not prepared to accept the proposition that the invitation to swim between the flags includes an invitation to dive.

They deal with that at 175 and 176. At 178 they deal with the proposition that “a broken wave may obscure a channel”, et cetera, and a sensible swimmer will dive in a certain way. That really goes to, if anything, contributory negligence. This was a case where there were three swimmers who went into the water all at the same time and who all were confronted by the sandbank only by kicking it or falling over it or, in the applicant’s case, diving straight into it. So it was obscured and it was obscured in circumstances where the respondent, through its lifeguard, had acknowledged that from his position of vantage above the beach he could tell where the water was, where it was deep and where it was shallow. A critical finding of the majority is at 181, where they say:

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

There was absolutely no evidence at all to support that proposition and it ignores the evidence referred to at 157, which was the evidence of the applicant’s lifeguard expert in what he says in the last sentence, that is:

The position and shape of the channels (and sandbars) would vary during the day and from day to day.

Now, the evidence in this case is that the flags were put up at 6.00 am. They were not moved at all during the course of the day. The accident occurred at about 5.00. It would seem inevitable that during that 11 hours the position and shape of the channels would vary.

GUMMOW J: Now, what do you say the Council should have done?

MR MENZIES: What the Council should have done was, being in a position to observe the variation of the depth of water, move the flags – simple.

McHUGH J: It is an Indermaur-type case.

MR MENZIES: Yes.

McHUGH J: It is an invitation to enter at this particular point.

MR MENZIES: Yes.

McHUGH J: What do you say about paragraph 172? Do their Honours place the burden on you too highly in that paragraph, where they talk about “unusual or more dangerous than those which would be encountered on other” - - -

MR MENZIES: Indeed, your Honour, they do. The evidence called by the Council relating to the conditions on the beach was limited to the evidence of one witness, of the lifeguard who actually assisted in treating the applicant at the water’s edge. He was a man who had been there all day. He gave no evidence at all - - -

McHUGH J: And that was Mr Nightingale?

MR MENZIES: That is Mr Nightingale, yes. That was the extent of the Council’s evidence. So there was no evidence led of what the conditions of the beach were during the day other than in a general sense that it was a calm day and the conditions had not changed.

GUMMOW J: Now, who controls the placement of the flags?

MR MENZIES: The Council. There was no issue at the trial that that was the Council’s obligation.

McHUGH J: Paragraph 171 the Court of Appeal seems to – well, not seems to – it took the view that:

It is common knowledge that variations in the sand floor of surfing beaches can include channels and sandbars of the dimensions which . . . existed at Bondi Beach when and where the respondent was injured.

MR MENZIES: There was no evidence of that, your Honour.

McHUGH J: I know that, but the court said it was common knowledge.

MR MENZIES: Of course it fails to recognise that the jury might well have considered that issue and considered that, in the light of the particular circumstances that existed on the day, the burden still remained upon the Council - - -

McHUGH J: But the issue here was whether there was any evidence at all of negligence to go to the jury.

MR MENZIES: That is right, your Honour. In our submission there was. There was evidence certainly more than a scintilla.

GUMMOW J: Yes, but what is the Council supposed to do? You say move the flags, but move the flags when and in response to what stimulus?

MR MENZIES: There can be two stimuli. There can be, one, an observation by the lifeguard from his position of vantage up in his life tower - - -

GUMMOW J: Yes. So it becomes the duty of the Council to maintain a lifeguard system, does it?

MR MENZIES: The Council have the lifeguard system there. They were certainly using it.

GUMMOW J: What time of the day was it?

MR MENZIES: About 5.00.

GUMMOW J: What time of the year?

MR MENZIES: Summer – November. There was a significant number - - -

McHUGH J: 7 November, was it not?

MR MENZIES: Yes, and there were significant numbers of people on the beach.

McHUGH J: And there was no issue at the trial about duty?

MR MENZIES: No.

McHUGH J: The only question was whether there was any evidence of breach.

MR MENZIES: That is so, your Honour. Mr Nightingale’s evidence was that the flags are moved if conditions require it.

McHUGH J: Yes.

GUMMOW J: Where do we see that?

McHUGH J: And Nightingale was not on duty at 6.00 am when the flags were placed, was he?

MR MENZIES: No, your Honour. The evidence was, as I recall it, there were two or three people on duty. One was overseas at the time of the trial. There was no evidence with respect to the other. The flags were placed about 6.00 am. Mr Nightingale was there from about 10.00. There was no evidence at all, save his evidence that the conditions did not change during the course of the day, as to inspections or any need to move the flags. Mr Nightingale’s evidence is summarised in the trial judge’s charge to the jury at page 36 and at page 37. At line 40 he deals with the flags. They were there when he arrived, two sets:

They indicate to people a reference which they can swim safely and if they stay between the flags ideally they should come to no harm. It is safe swimming. Apart from the flags the lifeguards, he said, patrolled the beach.

And that is an accurate summary of that part of Mr Nightingale’s evidence, your Honour. He identified where they were on the beach at 37, 25 to 35, and then at 40 he deals with the setting up of the flags. He did not do it; “not shifted during the course of the day”. That is the extent of his evidence on that issue. We do not feel that - - -

McHUGH J: Well, your client dived through a wave. That was his evidence, was it not?

MR MENZIES: Yes, your Honour. He was in water which was about waist deep. He saw a wave coming towards him. He dived forward. That is all he remembers, until he was fished out of the water. He gave no evidence as to precisely how he dived. Implicit in the judgment of the majority was that he dived in a dangerous way, and there was no evidence about that. Those are our submissions, your Honour.

McHUGH J: Thank you. Yes, Mr Sackar.

MR SACKAR: Your Honour, we say there is no point of principle and it is not an appropriate vehicle, but more to the point the Chief Justice in paragraph 126, a view concurred in by the majority and a view not challenged by the applicant was that in his opinion:

There was no evidence before the jury which could justify a finding that the Council was in breach of its duty of care to users of the beach by failing to warn them of dangers involved in diving arising from sand formation.

McHUGH J: There was a unanimous view about warning. The division of opinion was on placement of the flags.

MR SACKAR: Quite so, but in the context of warning his Honour went on to say:

In particular, there was no evidence to determine the number, location and content of signs that would be required and whether a reasonable Council would have done so. There was no proper basis upon which the jury could determine that reasonable conduct on the part of the Council required warning signs.

McHUGH J: Yes, but you seem to be putting up a straw man, because it is not of relevance here. It is not the real issue. At page 118 in the majority judgment they agree with the Chief Justice:

“That placement involves an express indication that bathing between the flags is reasonably safe.”

Now, I would imagine that 85, perhaps 95, per cent of people who go to the beach dive through waves and surely reasonable safety encompasses an assumption that you can dive through the waves. That is what people do. Now, if that is the case, why was there not a case to go to the jury?

MR SACKAR: For this reason, that the Chief Justice and the majority again observed that:

no person attending an Australian beach could fail to know that there were sudden variations in sand level under water.

That was accepted by the Chief Justice in 116. If I can take your Honours briefly to that. What he says is:

Relevantly to the present case, in my opinion, no person attending –

et cetera. Now, the - - -

McHUGH J: Well, one can accept that, but it still does not answer the problem whether it was still safe to dive through the waves.

MR SACKAR: It does answer this problem, that if it was common knowledge that there would be sudden and inevitable variations in the sand and no amount of warning signs could assist, the question is: could the flags be any more than an assumption that it was safe to swim, not to dive?

McHUGH J: But why? It is safe to go there. People go there to surf. If they want to swim, they go up to the Icebergs at Bondi. They go there to surf and it is reasonably safe to surf. That is that you are safe from rips, safe from sandbars.

MR SACKAR: It is not a pleading point. The question is - - -

GUMMOW J: There is slippage in language between surfing, swimming and diving.

MR SACKAR: There is a slippage and it is important to draw the distinction because they are two different activities. There is no doubt that the flags act as an assumption, or at least the bather is entitled to assume, that so far as rips are concerned and dangerous currents are concerned then it is safe to go in between those flags. But because the Chief Justice said there at 116 – and the majority concurred in that in 178 – that it was a well-known risk that bathers would know that the level of the sea and the sand bed is something you just cannot predict what is going to happen. The variations, as the Chief Justice said, could be sudden. How could the Council possibly do any more? It could not place warning signs all up and down the beach. It is important to draw the - - -

McHUGH J: That is a different issue.

MR SACKAR: Well, it is a related issue though because it goes to - - -

McHUGH J: It might go to causation. If this bank had just suddenly appeared, it would go to the issue of causation, but these signs were there since 6.00 am in the morning.

MR SACKAR: Yes, that is true.

McHUGH J: Never moved.

MR SACKAR: That is true, but the question is again – and my repeating it does not make the point any better – if you accept for the moment that swimming is a very different kind of activity to diving, then we say, with respect, the flags do not mean you can cartwheel into the water; they do not mean you can stand on your head and do anything you like. It is not an invitation for the bather to engage in any conduct at all that he or she thinks is amusing or entertaining near the water. It simply is not a carte blanche. It is not a blank cheque. What it is, is it invites the bather to assume that there is no rip or current or matters of that sort.

McHUGH J: But given the history of this beach, why would one not assume that one had safety in respect of sandbanks? After all, in 1938 there were a lot of drownings at Bondi Beach because the sandbank collapsed and people were swept out to sea.

MR SACKAR: I hear what your Honour says. This beach, as the Chief Justice points out, is over a kilometre long. What, one may ask rhetorically, does the Council have to do to measure the depth of the sand and the variation in the sand? There is not even a suggestion it would have the means to be able to do that, on an hour by hour basis, let alone on a half-day by half-day basis. If it cannot do that - - -

McHUGH J: But there is a beach inspector there all day, in an elevated position.

MR SACKAR: Of course there is, but what do you do when the wind changes? What do you do when the current changes? How would you possibly know where it is in the water that the bather is going to choose to dive?

McHUGH J: Mr Sackar, I can understand that if this had arisen just shortly before the accident, but my understanding is that the evidence indicates this may have been there for some time.

MR SACKAR: Well, even assuming that be so, what the plaintiff himself agreed, insofar as it is relevant, is that he was quite familiar with irregularities in the sand. The Chief Justice records that in paragraph 30. He knew that even on a calm day there could be steep irregularities in the sand under the water. Now, the fact of the matter is it is a case of judgment and assessment, that when one considers the size and the length of this beach the notion that the flags are an invitation, if the plaintiff is correct, to engage in any form of activity at all in relation to the water that the plaintiff chooses to engage in, we say, with respect, that is unreasonable. Therefore, if the flags are not an invitation to do any more than swim - - -

McHUGH J: No, but that is not what all the judges said. They said it was safe for bathing.

MR SACKAR: That is right.

McHUGH J: For bathing. Now, bathing does not mean you just go and get wet.

MR SACKAR: Of course it does not. It involves swimming. But everybody knows in Australia - - -

McHUGH J: And diving.

MR SACKAR: But everybody knows in Australia that a beach, or the water in or near the beach, is not the same as an Olympic pool which has an end which is dedicated to diving. Everybody knows, when you walk into the water – and every Australian has done it – everybody knows that there are variations underfoot.

McHUGH J: But does your proposition not come to this, that if this decision stands, anybody who dives into a wave on a beach in Australia is at risk?

MR SACKAR: Absolutely.

McHUGH J: You say absolutely?

MR SACKAR: Yes.

McHUGH J: Well, that is a far-reaching proposition.

MR SACKAR: It may be, but the point is it cannot be correct, in our respectful submission, that the flags invite any bather to assume that they can do anything they like, any type of dive they like, and that the Council - - -

McHUGH J: That is different.

MR SACKAR: Why is it?

McHUGH J: Diving through a wave is quite different from doing anything you like.

MR SACKAR: If your Honour defines “bathing” to encompass every activity, that is one thing. It is a matter of commonsense that swimming is a very different activity to diving. The risks are very different. If you walk
into the water, float and swim, apart from a shark or something else, you are usually pretty safe. But everybody knows that the sand underfoot is unpredictable in terms of its level and that it may move. Everybody in - - -

McHUGH J: Your concession does seem to me to have converted this into a special leave case and there is a question of public importance involved.

MR SACKAR: Your Honour, the concession was frivolous in one sense, but we say, with respect, for all those reasons it is not an appropriate vehicle in any event. It is a sufficiency of evidence point and we, with respect, say that the majority in paragraph 182 was correct. There was no evidence to go on the issue to the jury - - -

GUMMOW J: What do you say about 181? It is said against you there is no evidence for all of this.

MR SACKAR: Yes. I cannot answer that, your Honour. I was not in the trial. It is a pathetic excuse, but I cannot answer whether there was or was not. We would say, with respect, that it probably would not matter. They are our submissions.

McHUGH J: Thank you. Yes, Mr Menzies.

MR MENZIES: Your Honour, this is strongly against me as a special leave point but of course this is a jury verdict. The decision in this case is not going to create any particular environment for the safety or otherwise or the responsibility of councils on beaches. It relates to this matter. As I say, it cuts both ways for me, but that is the position.

Of course we are not suggesting that this applicant went there to do whatever he liked. He went there to do, as your Honour says, what everyone does when they go to the beach and that is dive through the water. Importantly, none of the three people who gave evidence knew of the existence of this sand wall, sandbank, sandbar, describe it how you like, until they collided with it. Also, importantly, Mr Nightingale said, sitting out there on his vantage point, he could tell the depth of the water by the colour. It would have been a very simple thing in those circumstances for him to have dived. Thank you, your Honour.

McHUGH J: Yes, there will be a grant of special leave in this matter.

AT 10.01 AM THE MATTER WAS CONCLUDED