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High Court of Australia Transcripts |
Last Updated: 7 April 2005
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S493 of 2004
B e t w e e n -
ERNEST VAIRY
Appellant
and
WYONG SHIRE COUNCIL
Respondent
Office of the Registry
Sydney No S502 of 2004
B e t w e e n -
GARRY SEAN MULLIGAN
Appellant
and
COFFS HARBOUR CITY COUNCIL
First Respondent
STATE OF NEW SOUTH WALES
Second Respondent
COFFS HARBOUR JETTY FORESHORE RESERVE TRUST
Third Respondent
MR WAL HAMBLEY
Fourth Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY
J
HAYNE J
CALLINAN J
HEYDON
J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 APRIL 2005, AT 12.25 PM
Copyright in the High Court
of Australia
__________________
MR P.C.B. SEMMLER, QC: May it please the Court, in the first matter I appear with my learned friend, MR L.T. GREY, for the appellant. (instructed by Carroll & O’Dea)
MR B.W. WALKER, SC: May it please the Court, in the first matter I appear with my learned friend, MR D.F. VILLA, for the respondent. (instructed by Minter Ellison)
MR G. O’L. REYNOLDS, SC: May it please the Court, in the second matter I appear for the appellant, with my learned friends, MR R.J.M. FOORD and MR J.C. HEWITT. (instructed by Martin Bell & Co)
MR M.T. MCCULLOCH, SC: May it please the Court, in the second matter I appear with MR D.F. VILLA for the first respondent. (instructed by Phillips Fox)
MR J.E. MACONACHIE, QC: If your Honours please, I appear with MR B.M. GREEN for the second to fourth respondents in the second matter. (instructed by Crown Solicitor for New South Wales)
GLEESON CJ: I presume counsel have agreed on an order of addresses between themselves?
MR SEMMLER: Yes, we have, your Honour. If it is convenient to the Court, what is agreed is that the matter of Vairy should proceed and be completed before the matter of Mulligan, that is, they are not interwoven, but rather each is dealt with separately.
GLEESON CJ: Very well. Yes, Mr Semmler.
McHUGH J: You have agreed on times?
MR SEMMLER: We are agreed on times, yes, your Honour.
GLEESON CJ: Yes, Mr Semmler.
MR SEMMLER: Your Honours, the issue in the Vairy Case is whether the respondent Shire Council, which had an admitted duty of care, breached that duty by failing to erect warning or prohibition signs against diving into the ocean at a rock platform at the northern end of Soldiers Beach, a popular surfing beach on the North Coast of New South Wales, from which the appellant in fact dived, in consequence of which he struck the seabed and became a quadriplegic.
The respondent had powers under the Local Government Act and Ordinance 52 made thereunder to regulate the activity of people at that site, including by the erection of notices. The trial judge found that in failing to erect prohibition and/or warning notices, the Council was in breach of its duty of care to the appellant.
GLEESON CJ: Was there evidence as to the length of the coastline within the area covered by the Wyong Shire Council?
MR SEMMLER: 27 kilometres, your Honour.
GLEESON CJ: Thank you.
MR SEMMLER: The majority of the New South Wales Court of Appeal set aside the findings of the trial judge on the breach issue. The essence of their decision was that the risk confronting the appellant before he dived was obvious and that because of this, the giving of a warning was not within the scope of the respondent’s duty of care.
As your Honours would be well aware, questions of breach in this kind of situation are very fact sensitive, and before moving to identifying the errors which we say were made by the Court of Appeal in overturning the finding on breach of the trial judge, we consider it important to bring to your Honour’s attention six certain uncontested findings of fact which need to be understood in evaluating the breach issue.
The first is that the practice of diving from this particular rock platform was popular. It had been done for many years before the appellant’s accident, and - - -
GUMMOW J: And, according to Mr Walker, after.
MR SEMMLER: Yes. Certainly it was being done in the year following the - - -
GUMMOW J: And on the day.
MR SEMMLER: Yes, and a DVD video was taken of the very practice one year following the appellant’s accident. The popularity of the practice was well known to the respondent. The diving activity was taking place in a particular spot; this distinct and unusual rock platform at the northern end of the beach.
The second fact which we wish to emphasise at the outset is that the respondent not only knew that this practice was popular, but it also knew that due to an oceanographic phenomenon known as littoral drift, there could be significant variations in the depth of the water adjacent to the rock platform, variations which were found on a study done after this accident over 64 days between February and May of 1994 to be at least 1.6 metres. Those variations were due to this phenomenon. The respondent knew this, and the trial judge found that because of that, diving was safe at some times but not at others. The appellant, on the other hand, did not know of this phenomenon or this circumstance.
The third fact we wish to emphasise is that the respondent was found to have known, or ought to have known, that these variations caused by this phenomenon of littoral drift posed particular dangers for persons who were proposing to dive from this distinct rock platform. Those dangers included the fact that the depth of the water which was affected by these variations could not be accurately assessed from the rock platform itself. It was described by one of the people who knew the platform and the water adjacent to it very well as being “very deceptive”. That was a Mr Edwards, who was a Council employee for some years as a beach inspector.
The second danger that the trial judge identified was that persons who had observed others diving safely from the rock platform might be misled into thinking that the water was sufficiently deep to dive safely all the time based on those observations, when in fact it was not because of this phenomenon of littoral drift. The respondent also knew of the potentially catastrophic consequences, that is the potentially catastrophic magnitude of the risk which was posed to persons proposing to dive at that particular location. They knew that because 15 years before Mr Vairy’s accident, another young man of 22 years of age, a Mr Errol von Sanden, had dived from a position along the rock platform, not precisely the same place as Mr Vairy had dived from, about five metres further north, a higher position and, in that sense perhaps an even more dangerous thing to do. He had dived from that position and he had done so on many occasions before the unfortunate dive and on the day when he dived he struck the ocean bed and he also became a quadriplegic.
After a lot of evidence was adduced on this issue - and the point was not conceded in the plaintiff’s case in-chief but it emerged that it was clear that the Council was aware of this accident - the trial judge found that it was probable that one or more members of the respondent Council had read an article about that earlier von Sanden accident in a local newspaper, The Wyong Advocate, wherein one of the Council’s own employees, a beach inspector, a Mr Edwards, the man I referred to earlier, was quoted as calling for a sign with the words, “Danger, No Diving” to be erected at Soldiers Point at the very place where Mr Vairy’s accident was to happen some time later.
The final fact we wish to emphasise on this background to the breach issue, is that although local members of the Surf Lifesaving Club, that is, not employees of the respondent but voluntary surf lifesavers at weekends, although they took it upon themselves to warn people orally of the dangers of diving from this particular rock platform, the Council which had control over the land in question took absolutely no action by way of prohibitional warning. Now, your Honours, it is against that - - -
GLEESON CJ: If the Council puts a sign warning against diving from a particular rock, what does that imply about the safety of diving from other rocks along that 27 kilometres of coastline?
MR SEMMLER: We would say, your Honours, the answer to that question depends upon the level of activity. If it is recognised that many people are taking a risk at a particular location, then a sign is called for, we say, and certainly in the circumstances of this case. It may be that there is an implication that it is considered that at that particular point there is a particular risk in relation to the ocean bed or the level of activity, but it does not mean in the Shirt calculus exercise, that reasonably the Council is required to do something else at all other locations along the 27 kilometres.
Your Honours, in overturning the decision of the trial judge, it is our submission that the majority in the Court of Appeal made a number of errors on this key issue of what they perceived as the obviousness of the risk.
The finding by the trial judge that the risk in this case was not so obvious that the Council was entitled to do nothing was, as this Court has said, a finding of fact but which involved issues of evaluation and, to a certain extent, policy. Whether a risk is obvious is a question of fact, that is undoubted. It was open to the trial judge, we say, to make the findings that she did. The Court of Appeal overturned the critical factual finding, in their view, on the question of the obviousness of the risk. They did not have the advantage of having inspected the location, which the trial judge had. She went up during the course of the trial and spent three hours at that location – not all of that time actually looking at the rock lodge or the water, but she looked at it, spent time walking across the rock ledge, came back some time later to see how it looked in different tidal conditions. She had that advantage; the Court of Appeal majority did not.
The majority of the Court of Appeal’s decision in setting
aside the decision on obviousness was based upon a misapprehension
of the facts.
The critical elements in their decision that this was an obvious risk and that
accordingly there was no duty to warn
of it, or the content of the duty did not
involve an obligation to warn. The critical elements were those set out at
volume 3 of
the appeal books at page 898 at line 30. When Justice Tobias
was talking of the neutralisation of the knowledge of Mr Vairy and
Mr Mulligan, he said:
Mr Vairy and Mr Mulligan were aware that the water into which they were 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 defendants did not require a duty to warn.
Now,
your Honours, one of those two elements was missing in
Mr Vairy’s case. It was, I believe, present in
Mr Mulligan’s
case but not in Mr Vairy’s case. Because
the cases were heard together, his Honour had to, as it were, wrestle with
many different
facts in relation to each case, and it is our submission that he
erred in assuming what was a critical part of the decision about
obviousness
that Mr Vairy was actually aware of the variations in the water depth.
Mr Vairy was not aware of those variations. There was no finding by
the trial judge to that effect. Indeed, there was a finding
by Justice Bell
which can be found in the same volume of the appeal books, volume 3,
page 788, line 38. The learned trial judge
found that:
The Council was armed with knowledge that the plaintiff did not have concerning the danger of diving from the rock platform. The Council knew or ought to have known that there could be significant variations in the depth of the water adjacent to the rock platform meaning that a dive might be safely executed on one day but not the next.
In addition to that, it was never put to Mr Vairy in cross-examination that he was aware of this variation in the depth. I think, your Honours, as I read Mr Walker’s submissions, the respondent acknowledges that there was an error on the part – or I think they said “infelicitously expressed proposition”, we would say an error - in the premises on which Justice Tobias based the decision.
GLEESON CJ: Quite apart from littoral drift, there would be variations in depth as a result of variations in tide, would there not?
MR SEMMLER: Presumably, your Honour, yes, although there was no evidence about the extent of those. Might I say, your Honour, that the expert evidence showed that the littoral drift phenomenon was, to some extent, influenced by the tide. It was a result of what they called longshore currents that affected the whole of the eastern seaboard of this country. It may well be that there were variations due to the tide, yes.
Your Honours, in the critical part of the majority’s decision articulated by Justice Tobias it was not a question of Mr Vairy ought to have known that there would be changes, it was put that he actually knew something which he did not. The significance of that is highlighted by the evidence of Mr Dawson, the Council’s general manager, who testified - when he was cross-examined about this he said, “Well, yes, the Council would have known about littoral drift”, and he expressed the view that he thought that would be less prominent around headlands because they were protected to some extent. Indeed, the reverse was the case as accepted by the trial judge, that this phenomenon had its greatest effect in terms of raising the level of the seabed from time to time at rocky outcrops or promontories such as this one at the northern end of Soldiers Beach.
HAYNE J: The beach is a surf beach?
MR SEMMLER: It is publicised as being the most popular surf beach in the central coast.
HAYNE J: There is, therefore, ordinary swell and wave action, which again varies the distance between the surface of the water and the surface of the subjacent land.
MR SEMMLER: Yes, that would be true, although there was no evidence as to the extent to which that normal variation would occur. There was evidence that it was at least 1.6 metres variation because of this particular phenomenon, of which the Council was aware but Mr Vairy was not.
If your Honours are concerned at the notion that perhaps, as a matter of common knowledge, Mr Vairy should have been aware that there may be some differences, there is indeed some truth in that, but not anything like to the extent that one is dealing with in this case. At least. there is no evidence to that effect. This was a dramatic problem for divers, a dramatic risk that was peculiar to rocky outcrops such as one was dealing with here. Indeed, as I say, Mr Dawson believed that it would have been less significant at that place rather than more, and reasonable people might well have taken that view had they known of the phenomenon.
So that there was a failure to take into account the advantage enjoyed by the trial judge on the view, there was a misapprehension of the facts, and there was also an elevation of the significance of obviousness well beyond its rightful legal station. On the facts of this case, there was also a failure by the majority in the Court of Appeal to take into account the reasonable inference of safety which the appellant was entitled to draw from his observations of others. Whether a danger is obvious or not is ultimately a question of fact – that itself is obvious.
McHUGH J: Mr Semmler, although the trial judge I think made a finding that the Council took no steps to prohibit people from diving, did the Court of Appeal deal with the question of prohibition? I mean one thing that intrigues me about the use of the obviousness of risk is that it cannot be a device for doing nothing. If an employee is working alongside or with unfenced – dangerous machinery, it is obviously dangerous, and one might say, “Well, you don’t have to warn about it” but it does not mean that the defendant is not required to fence the machinery.
MR SEMMLER: No. Your Honour, the answer to the first part of your Honour’s question is the Court of Appeal did not go into the question of prohibition notices. There was a passing reference, as it were – and I mean no disrespect to the Shirt calculus at I think page 830 of the appeal book – early in Justice Tobias’s reasons, and after that pretty well the whole of the judgment was based on obviousness, what it means, what the American authorities say - and incidentally, the American authorities did not get a mention in the course of the hearing before the Court of Appeal.
GLEESON CJ: It is not just a question of obviousness; it is a question of how a public authority in charge of land to which people have a right of access ought to respond to obviousness.
MR SEMMLER: Yes, and your Honours, could I say to that we absolutely accept that that is a factor that needs to be taken into account in the whole equation, that they are not a private occupier, they cannot necessarily forbid people to come onto their land, they have other responsibilities and so on, and in due course I propose to attempt to deal with the balancing factors in this case, and that would be one of them of course.
GLEESON CJ: Was this one of those cases in which evidence was given about what I might call standards relating to signs and warnings and things like that?
MR SEMMLER: Yes. Certainly, an expert engineer who had served for eight years with the Warringah Shire Council talked about the Australian standards, which signs would be used to identify this particular risk and to warn against it.
GLEESON CJ: Is that a convenient time, Mr Semmler?
MR SEMMLER: It certainly is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15
PM:
GLEESON CJ: Yes, Mr Semmler.
MR SEMMLER: Your Honours, the next error
that we contend was made by the Court of Appeal on this obviousness issue can be
found at volume 3 of
the appeal books at page 899, commencing at line 22, where
his Honour Justice Tobias said:
In my opinion, the response to this submission –
and that was the submission about the fact that Mr Vairy had
seen many other people diving –
is that the fact that Mr Mulligan on the one hand, and other people to Mr Vairy’s observation on the other, 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 –
and so on.
Now, your Honours, apart from that observation being contrary to the findings of the trial judge on a key issue, that the obviousness of the risk was not so great that reasonable care did not dictate a warning or a prohibition, what his Honour Justice Tobias says there, with the greatest respect to him, offends common sense. It cannot be the case that the obviousness of a risk involved in a particular human activity is not at the very least detracted from, is not diminished by an observation that that activity is performed time after time after time again in safety. That is, without any risk being realised.
That is what happened in this case, your Honours. Mr Vairy observed this practice that was popular of diving into the ocean from that particular unusual location and he did not see any adverse risk eventuating. It is, with respect, putting it far too highly to say that that circumstance cannot detract, at the very least, from the obviousness of the risk.
Your Honours, in one of the important cases that this Court has decided in this general area recently, Brodie v Singleton Shire Council, it was that very inference that, as a matter of common sense, may be drawn from the behaviour of others which does not bring about the risk. It was that very inference which was really determinative of the view that the plaintiff should succeed where a truck driver had observed and was aware of the fact that other trucks with similar loads had crossed a bridge safely. He drew what the majority in the Court described as an inference of safety from that observation and he was entitled to succeed there because of that inference, notwithstanding that he had overlooked a sign warning against the very activity which he carried out.
The next point we make is that there was a reasonable belief in the plaintiff which should have been known as a possibility at least to the defendant in this case that, by reason of the fact that the diving was popular at this particular location and by reason of the fact that there was no sign there, even though this practice had been going on for years and years, there was a reasonable belief that the practice was condoned by the respondent Council, that is that there was, in a sense, a tacit approval of what was happening at this particular location with this degree of popularity.
GLEESON CJ: What did the trial judge say the sign should have said?
MR SEMMLER: It should have said, “No diving”.
GLEESON CJ: Prohibition.
MR SEMMLER: And also a warning – this is based on the evidence of the expert – explaining why it is that no diving was appropriate. As I said earlier, there was detailed evidence as to the standards, and there were signs – if your Honours go to page 714 of appeal book No 2 your Honours will see a sign erected by the respondent Council - - -
GUMMOW J: This is after the event, is it not?
MR SEMMLER: It is not – no, this was not erected at the place. I do not know – as I understand it, no sign was erected at this location for many years, and I am told that there is now a sign saying that “There was a decision of the Supreme Court of New South Wales that says we should warn you about dangers” and that is the sign they put up. My junior observed that a couple of weeks ago.
GLEESON CJ: See Nagle v Rottnest.
MR SEMMLER: So at 714 you see a sign that is erected by the respondent Council at another location, where obviously they deemed it appropriate, and at 715, yet another sign. There was no doubt that signs are commonly used by councils, but no sign was ever erected at this location.
Your Honours, the next submission we make is that the danger in this case was relevantly concealed. It was not apparent. A distinction has been drawn in the authorities between dangers that are obvious and dangers which may not readily be perceived, including concealed dangers. It was concealed because the depth could not be accurately assessed standing on the rock platform. The risk - - -
KIRBY J: Give me an idea of the change that occurred in the depth. I mean what was the evidence?
MR SEMMLER: Due to littoral drift, the change was at least 1.6 metres, at least.
HAYNE J: And is there any evidence of the change occasioned by tide and by swell?
MR SEMMLER: There was no precise evidence as to swell, although the evidence accepted by the trial judge was that on the day of the accident it was a calm day and relatively little surge or swell. That is important of course because the plaintiff stood there for five minutes or so observing what was happening, at a time when the influence of tide, for instance, would have been minimal.
Evidence was given by a number of witnesses, and it was not contradicted, including fishermen who had 30 or 40 years of experience at this particular site, and Mr Edwards, the Council’s own beach inspector, that it was very deceptive attempting to assess the depth from the rock platform. In effect, there was an optical illusion no doubt created by the diffraction of light.
GLEESON CJ: What was it about what the plaintiff did that was different from what all the other people were doing that resulted in his being injured?
MR SEMMLER: The inference is that he struck a portion of the seabed which was elevated, where - - -
GLEESON CJ: But why? Did he dive more vertically than they did?
MR SEMMLER: He dived at a 45 degree angle, in a manner that was not regarded by the trial judge as inherently dangerous. He was just unlucky, your Honour. Obviously, it would be most unusual if each diver went in to precisely the same part of the water and he was unlucky enough to have struck the very hazard that the Council was aware of; that is, that there can be this build-up of sand – not in any particular uniform distribution – particularly located at a headland such as this.
GLEESON CJ: And the others were all lucky enough to miss it?
MR SEMMLER: They were, and Mr von Sanden many years earlier, had dived – he was, I think, the captain of the local rugby club and they used to run along the beach and then go up and dive from this rock platform – from higher up, admittedly, probably perhaps in a sense in a more dangerous way, and he had done it many times before. This time he was unlucky enough to strike the sand.
KIRBY J: Is that not part of the problem, “unlucky enough”? Because Mr von Sanden did it many years before, and the evidence seemed to suggest that lots and lots of people did it, the question is then presented on issues of reasonableness as to whether or not a sign would have had much impact.
McHUGH J: Was there not evidence that there were other people with dislocated shoulders, fractures?
MR SEMMLER: Yes, at least once every year there would be an injury of some significance. According to one of the surf lifesaving people, dislocated joints and fractures and various other injuries and - - -
KIRBY J: Do you think a little sign is going to have any effect on the exuberance of youth?
MR SEMMLER: The trial judge found that it would have had a significant effect on the level of activity on this platform.
McHUGH J: This plaintiff’s uncle had become a - - -
MR SEMMLER: His ex-wife’s uncle.
McHUGH J: He had become a quadriplegic, a tetraplegic, as a result of it?
MR SEMMLER: That is right, yes. He was very mindful of that. That went, in our argument, to - - -
KIRBY J: Not very mindful. If you were very mindful of it and you had an uncle who had suffered such a profound injury, it just seems a – I know I am being wise after the event, but it seems to be a bit foolhardy to be jumping into the sea. I mean, everyone knows the sea is unpredictable.
MR SEMMLER: Yes, your Honour, we accept that, and we are not attempting to say that what he did was not, to some degree, foolhardy. If your Honours just look at D9 which is a photograph of the site – that is in appeal book 2 at page 556 - one sees what was happening there. This is taken a year after the event.
HEYDON J: The circle is where the plaintiff jumped from?
MR SEMMLER: Yes, that is correct, where the gentleman with the red board-shorts is standing is the approximate location, and they used to line up to dive from there. Indeed, the plaintiff’s evidence was on the day when his accident happened, people were lining up to do it. It was a very common practice. In fact, the Council’s general manager said that he was aware that up to 15 people at a time would be there engaging in this. That was his personal understanding. Another witness, Mr Jones, the lifesaving person, said anything up to 30 people on a nice hot afternoon would be engaging in it.
GLEESON CJ: Was this one of those places where there is a sort of surge in and out of water and to dive safely you have to time the arrival of the water?
MR SEMMLER: It is affected by surge, but the evidence was on the day of the accident, it was relatively calm and there was little surge.
GLEESON CJ: It is hard to judge just by looking at a photograph. What is the distance between the circle and the water?
MR SEMMLER: That is very difficult to judge, although all of the evidence that was given at the trial was that the distance was a lot less on the day when Mr Vairy’s accident occurred than is depicted in this photograph.
KIRBY J: After Woods, when you have a ball with a special porous capacity to mould into the eye that an ordinary person may not know and no notice or sign was required of that, it is hard to say that - - -
MR SEMMLER: Yes, but, with respect, your Honour, a different situation entirely. The risk there was inherent in the activity being - - -
KIRBY J: Why is it not - - -
McHUGH J: That is why I cannot understand why more emphasis was not placed on total prohibition. I mean, just even looking at it, you would expect more injuries than at the battle of the Somme.
MR SEMMLER: Absolutely, your Honour. As Mr Browne said when he looked at the DVD, he was horrified at what he saw. He said this is extremely dangerous. The lifeguards knew that, they would do their best from rubber duckies, as they called them, to warn people; the Council did nothing.
KIRBY J: Well, lawyers are very horrifiable, but young people are full of exuberance.
MR SEMMLER: Yes.
McHUGH J: Mr Browne was not a lawyer, was he? He was an engineer, was he not?
MR SEMMLER: Yes, Mr Browne was an engineer, he was chief engineer at Warringah Shire Council which is responsible for all the northern beaches in Sydney apart from Manly. He had an intimate knowledge of risks and rocky locations and so on. But your Honour Justice Kirby’s point, with the greatest respect, is not apposite to the issues we are dealing with. It may be that despite a sign, many macho young men would do this anyway. That may well be the case, but Mr Vairy would not have done it, and that is according to the trial judge’s finding and that is not in dispute, the causation issue. And many other people - - -
HAYNE J: It does raise this question of what is meant by warning as distinct from prohibition, namely are you conveying to the reader something that is not known to that person? It may not be present to the mind of that person. What are you doing?
MR SEMMLER: Yes.
HAYNE J: If it is a warning case, it might be very bad communication, but a sign that read, “Stop, think. You don’t know how deep this water is. It may not be safe to dive” is conveying, is it not, precisely the thought that is encompassed by notions of warning. That is, at least at first blush, it seems to me, radically different from saying, “You are prohibited from doing it and the force of the law will be brought to bear if you do it. What you are doing is unlawful”.
MR SEMMLER: Absolutely, your Honour.
HAYNE J: Well, what is the case below, warning?
MR SEMMLER: The case below was both. Mr Browne’s recommendation was you have both a prohibition and an explanation for the prohibition, a warning, that conveys something that does not just leave the Council in the position of, as it were, a killjoy - that was the word he used - stopping activities for no good reason. You have both - - -
HAYNE J: Because, when I turn over past the photographs you have shown us and look at 564, at the moment I am uninstructed about what 564 really is showing me but what it seems to show me is a man standing upright, immersed only to his hips at the point where somebody diving would have gone in.
MR SEMMLER: Yes, there is no evidence of anything like that on the day of Mr Vairy’s dive.
GUMMOW J: This is the site, is it not, 564?
MR SEMMLER: That is correct.
GUMMOW J: And the square is the diving point.
MR SEMMLER: It is not as easily visible, your Honour. If I could take your Honour back to 567, that is where it is undoubtedly shown where the gentleman in the red board shorts is standing, that is the diving point. Where the young man is plummeting from, that was, as Mr Vairy put it, the spot, that is the known spot, that is where it was safe, as he said in his evidence.
GLEESON CJ: Was the photograph at 566 taken on the same day as 567?
MR SEMMLER: Yes.
GLEESON CJ: Indeed, is the person diving in 567 the person who is standing in 566?
MR SEMMLER: There was no evidence to that effect.
GLEESON CJ: He seems to have the same board shorts on.
HAYNE J: There were a lot of boardies sold that day.
GLEESON CJ: If he is, what he is doing on 567 is diving into the location where he can see somebody in 566 standing up with water only up to his hips.
MR SEMMLER: Your Honour, that is one of the problems of this. Your Honours, Mr Edwards was the beach inspector, an employee of the Council to whom I have referred. On the day of Mr von Sanden’s tragic accident, Mr Edwards went along there and helped pull him out of the water and Mr Edwards testified that he dived in – he is a Council lifeguard – in order to get Mr von Sanden out and he dived in in circumstances where he could see somebody in the water and the water was up to about his neck and he deemed it is safe enough for me to dive in – this is the Council’s own beach inspector. After Mr von Sanden’s accident he stopped diving and perhaps there was a causal relationship between the two but of course Mr Vairy did not know about Mr von Sanden’s accident.
To come back to your Honour Justice Hayne’s inquiry about was it a prohibition or warning, it was both that we said were required and your Honour asked, are you telling the reader something that they do not know. That is of course the theory behind a warning sign. It is one of the unusual aspects of the Court of Appeal’s decision in this case that at once the Court of Appeal decided that the trial judge was correct in concluding that a sign would have prevented Mr Vairy diving, there were compelling reasons why a sign would have stopped him diving, but on the other hand and in the same breath, the danger was so obvious that he should have realised that it was unsafe to dive. Now the two, with respect to the Court of Appeal propositions, do not sit comfortably together.
MR SEMMLER: Yes. Regardless, as it were, of the nuances of the theory, the theory is a warning sign, if it is properly worded, will stop someone, a reasonable person, but, according to the Court of Appeal, so will the obviousness of the risk. Where the Court of Appeal’s reasoning really breaks down is that the whole rationale behind obviousness as a reason why the person in charge of the land should not warn is that the obviousness will itself act as its own warning. That is all very well in situations where the Council might be saying, “Well, we’ve got some dangerous spot out in the far-flung reaches of our Shire and nobody ever goes there, and we can rely upon people having the good sense to see that there’s an obvious risk in not diving or doing something else that’s silly”, but it does not work in a situation where you have knowledge that, despite what the Council says is an apparent or obvious risk, people are, day after day, week after week, year after year, taking that risk. The inference may be, “They’re all crazy, they’re all foolhardy”, or the inference is, “They don’t see the risk the way that we see it. They don’t see the obviousness the way that we see it”, but which - - -
GLEESON CJ: I notice from these photographs that there is one thing they have in common: they are all young males.
MR SEMMLER: That may appear from the photographs, your Honour, but her Honour’s finding based on all of the evidence was that the range of people was – it was not just young males. It was people of all ages. Mr Vairy testified he had seen people up to aged 35, I think. Somebody else testified up to aged 50.
GLEESON CJ: They are young males.
MR SEMMLER: Possibly all males, I do not know, your Honour. That is critical to our submissions, your Honours, that the rationale behind – and this is the rationale that used in the United States, “Well, the obviousness is itself a warning. You don’t have to warn about something that people already know about”, but if the landowner or occupier knows that people are still subjecting themselves to the risk, then the whole rationale for the obviousness being a warning breaks down. It is a question then, applying the Shirt calculus, as to whether what they are doing is reasonable, despite the obviousness of the risk, which is not preventing people from diving.
Your Honours, the importance of a warning about something which
some people might regard as obvious was emphasised in a symposium
that the
New South Wales Government organised in 1984 called “Survive The
Dive”. Some of the papers from that seminar
are included in the appeal
books. One of the papers was given by a well-known spinal injuries specialist
in Sydney, Dr John Yeo,
now Professor Yeo, and in that paper – this is at
appeal book 2, page 685, line 35 – in that paper, which was given to
a
collection of people interested in this very worrying phenomenon – it may
be 688, but in any event he used these words:
There is obviously a great need to emphasize the dangers of diving into water where the depth is unknown.
It is at 688, your Honours, at line 33.
Now, it may be he is being unnecessarily cautious, but this symposium was called by the government - it took place at the Opera House - because of a recognised problem, a real problem where people obviously – like the people in the photographs that your Honours have in front of you – are ignoring what some others would say were obvious risks. Representatives of local government were there. Mr Dawson, on behalf of the Wyong Council, said, “It was likely that they would have had somebody there”, and that is the kind of point that is made, that there is a need to warn, to place emphasis on the risks of diving into water where the depth is unknown.
Your Honours, we say that the risk in this case was concealed. Based upon the evidence of the lay witnesses and the expert witnesses, Mr Kiernan and Mr Brown, it was a hidden danger, because it was deceptive in assessing the depth from the rock platform. There was, as it were, an optical allusion.
In the Western Australian decision of Prast v Town of Cottesloe Justice Ipp expressed the view, with which we would respectfully agree, that a misleadingly shallow bottom of an area of water is not an inherent part of diving, but is a hidden danger about which there is a need to warn. He distinguished that danger, for instance, from other dangers which are not hidden, such as the danger that a surfer might be dumped as in Prast v Town of Cottesloe.
Chief Justice Spigelman in the Court of Appeal’s decision in Waverley Municipal Council v Swain, which your Honours recently heard and determined, took the view that in Mr Vairy’s case, where he had the trial judge’s decision, that the danger in Mr Vairy’s case was hidden, as opposed to the kind of danger that one may get in other situations such as - - -
McHUGH J: But does it matter in this case? The question is obviousness can only be relevant on the question of what precautions ought to be taken. I mean, blind Fred could see that there was a risk of injury to human beings in this situation. So the question is, was it reasonable for a council to say, “Notwithstanding that risk, it is so obvious that I need not do anything about it, because people will protect themselves”, when all the evidence shows that people did not protect themselves.
MR SEMMLER: That is the essence of our submission, but, your Honours, the problem is that that is the approach the Court of Appeal took. They said, “Look, this risk is so obvious, that is the end of it”. In a sense, they were misled, we would say, by a misunderstanding of, for instance, the position in the United States. Justice Tobias said that in general terms the position in the United States is this, that if there is an open and obvious risk, that is the end of it, the plaintiff loses.
Now, that is not the position in the United States. In support of that proposition he referred to one article and seven decisions, four of which were from Illinois. Now, Illinois with the Great Lakes and so on is generally recognised, we would respectfully suggest, as being a very conservative state when it comes to this kind of risk and the role of obviousness, but there are 49 other states and the reality is that what Justice Tobias perceived to be the position in the United States has not been the position at least since the second Restatement of Torts in 1965, where there was a qualification placed on the previous common law rule in the United States that if there is an open, obvious risk, that is it, the plaintiff loses. There was no apportionment, no comparative fault legislation, and, in days before 1965, that was the situation.
McHUGH J: But in understanding the American cases, American doctrine, you have to take into account that it is driven by the fact that juries can award punitive damages for negligence in the United States, and, secondly, the control device that the judges use is summary judgment, to prevent cases going to the juries. So an obvious risk device is a great device to make sure the case does not get to the jury.
MR SEMMLER: Yes, that is true, your Honour, but the
approach – as it were, the guillotine stopped coming down after
the Restatement in many
states, because the Restatement said:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
So the Restatement incorporated the very thing that we say this Court, and certainly the Court of Appeal, should have taken into account, that is, all of the circumstances, and the fact in this case that the Council was well aware that this risk of harm was continuing, notwithstanding their view that the risk was apparent to the people or obvious.
McHUGH J: Your opponent puts against you that it is a public authority, but maybe that is against it. Maybe a higher degree of care is required, because a public authority ought to be a protector of the public, a teacher for the public and therefore - - -
MR SEMMLER: Setting standards.
McHUGH J: Setting standards.
MR SEMMLER:
Yes, and that was the next point I was going to come to. The second part of
the second Restatement is this paragraph:
In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
The very point that your Honour has just made is embodied in the second Restatement.
KIRBY J: Where is that?
MR SEMMLER: It is in some documents that we had provided to the Court - - -
KIRBY J: I have the Restatement, but what paragraph?
MR SEMMLER: Section 343A(2) on page 218 of that document.
KIRBY J: Yes, never mind, I will find it.
MR SEMMLER: The fact is that there is a wide variety of approaches taken in the United States. It is not, with respect - - -
GUMMOW J: A number of states have recreational purposes statutes, do they not?
MR SEMMLER: That is true, your Honour. There is legislation in a number of states that really covers the field, but more state - - -
McHUGH J:
I notice in the Reporter’s Notes in the comment to 343A that they say
that such a defendant that is, a defendant:
such a public utility, government, or government agency . . . may therefore be subject to liability in some cases where the ordinary possessor of land would not –
be liable.
MR SEMMLER: That is the very point your Honour made.
KIRBY J: That sounds like a breath from an earlier age.
GUMMOW J: That has stimulated the recreational purposes statutes.
MR SEMMLER: Yes.
GUMMOW J: That has stimulated – that is the reaction.
MR SEMMLER: The intervention of - - -
GUMMOW J: Yes.
MR SEMMLER: We accept that.
GUMMOW J: The reaction to that has been these recreational purpose statutes.
MR SEMMLER: Yes, and we have seen reactions in States in this country as well.
GUMMOW J: Yes, indeed.
KIRBY J: But this was just a headland. It was not an admission park or somewhere where you had to pay to get in. It was just an open headland.
MR SEMMLER: No, it was a headland where there was a car park at the top. It was not a long walk from the car park down to the place where this accident occurred. There is a track leading down. Indeed, the Council has now gone so far as to make the track nice and concrete, and they have improved it to a great degree. There was a car park there with a kiosk next door to it. There is no issue in this case there was a duty. There was actual encouragement, there was a recognition that headlands like this constitute an attraction. One of the experts said - - -
McHUGH J: Well, in the old terminology, an allurement.
MR SEMMLER: An allurement, yes, although they were not children but some of them were, I suppose.
GLEESON CJ: Is there any evidence about how many similar allurements there were up and down the coast?
MR SEMMLER: No, and that is the point. I notice that Mr Walker in his submissions has said they are a council and what are the implications of this? We might have to do it all over the place.
GLEESON CJ: I was only wondering something slightly more specific. If you put up a sign prohibiting people from diving here, where would they go? What makes you think they would stop diving?
MR SEMMLER: They may go to a swimming pool facility.
GLEESON CJ: Might not they just go up the road?
MR SEMMLER: Your Honour, this is the point. There was no evidence on this issue. There was a cursory reference to it by Mr Dawson, the Council’s general manager. He said, “Oh well, this is similar to other parts of the 27 kilometres”, and that was it.
KIRBY J: Yes, but this is the sort of thing that was concerning me in Romeo, that we have a huge coastline, it goes on for thousands and thousands of miles. There are a tremendous number of promontories; many of them are used at recreation times. Where do you stop?
MR SEMMLER: Where you start is looking first of all at the situation that the Court is concerned with. It is legitimate, as this Court said in Romeo, to consider the wider ramifications of requiring a sign at this location but there has to be some evidence on which those ramifications can be considered. In Romeo, I think as Justice Hayne pointed out, there were photographs of the cliffs in question and it was noted that the place from which the young lady unfortunately fell was not particularly different at other parts of the cliff and there was a whole range of cliffs. We do not have that here. We have a reference, almost a throwaway reference, by Mr Dawson to the fact that there were other similar cliffs. In the plaintiff’s case there was an abundance of evidence that this was most unusual. This was not to be compared to other locations. There was no evidence that at these other locations facilities had been provided that enhanced the likelihood that the risk would become a reality.
HAYNE J: Can I just understand that a little better by reference to this plan at 732. Do I read that plan correctly as identifying the car park in about the centre of the page as serving, at least among other things, those who wish to go to Soldiers Beach where there is a surf lifesaving club and presumably a patrolled beach?
MR SEMMLER: That is correct, your Honour, yes. It does but it serves both purposes. There is a track leading down form the car park with steps - - -
HAYNE J: There seem to be steps down to the beach.
MR SEMMLER: Yes, with steps down. Your Honour, it was not as though this was the only activity that was carried out on this rock platform, there was an abundance of activity.
HAYNE J: It was a surf lifesaving beach with a patrolled beach at which you would ordinarily expect people to swim between the flags. Is that right?
MR SEMMLER: That is true. That is absolutely correct, your Honour, but the Council had noted in its own memoranda that the headland itself posed a particular attraction; it was used for a variety of purposes and it was very commonly used. On the day when this accident happened there was a surf carnival occurring at the southern end of the beach, there were a lot of people on the beach, it was one of the most popular beaches in the shire. This activity that we are referring to is not something that is concealed in any way from the beach. You can see it from the clubhouse, the surf lifesaving clubhouse, the very place where the flags are put; it is very obvious.
That was one of the reasons why Mr Vairy’s niece asked him to go there, because she was aware of it. You could see it. You could see people were diving off there. It was the spot to do it.
So, your Honours, we say that the Court of Appeal misunderstood, with due respect to them, the American position. More states than not in the United States adopt the Restatement attitude that openness and obviousness is not a complete defence.
KIRBY J: How do we know that?
MR SEMMLER: Well, I can only tell you that my learned junior’s researches reveal that, but there is no neat summary of it. I have referred in our written submissions to some of the recent cases where they analyse the position in different parts of the United States, on page 15 of our written submissions. The Coln v City of Savannah Case in Tennessee, the Tharp v Bunge Corporation Case in Mississippi, Groleau v Bjornson Oil Co in – I think that is in New Jersey. There is - - -
KIRBY J: All right, well, you have given some references there.
MR SEMMLER: We have, yes, and we have given copies to the Court. So that we say, even in accordance with the American position following the second Restatement, the Council would have been under a liability here, not only because they were a public authority, but also because they had actual knowledge of what was going on.
HAYNE J: Is it a consequence of your argument that in the area outside the patrolled area – that is, patrolled by the Surf Life Saving Club – the Council should have a sign which says, “If you go surfboarding here you may be struck by a board and suffer catastrophic head injury”?
MR SEMMLER: No, your Honour, it does not follow at all.
HAYNE J: Why not? What is the difference?
MR SEMMLER: Well, because - - -
HAYNE J: First, it is known that people will use boards, one would hope, outside the flag area.
MR SEMMLER: Yes.
HAYNE J: What is the difference?
MR SEMMLER: Because that risk is inherent in going to the surf where there are surfboards. If there are people riding boards in the area where you are surfing, it is an inherent risk, perhaps not as great as the risk in Woods v Multi-Sport, but it is inherent. The risk we are dealing with here is not inherent in the activity, nor was it obvious in the same way that the risk of being struck by a surfboard, if you are surfing in an area where there are surfboards, would be obvious. This was a concealed risk, and it was a risk where the likelihood of it occurring was high, because of the numbers who were engaging in the dangerous pastime.
It is only ultimately, your Honour, when one applies the Shirt analysis, the Shirt calculus, when one applies it, recognising that obviousness is only one consideration, that one can arrive at the result that the law of this country dictates; that is, what did reasonable care require in the factual circumstances in this case?
KIRBY J: Was there any evidence that apart from the previous injury, which was profound, the Council had notice of the other injuries? Did you have discovery or not?
MR SEMMLER: No, your Honour. There was no direct evidence of that. A lot of time was spent on discovery and interrogatories in this case. There were a lot of fights over – there was no evidence of a direct connection, but there was evidence that there was a close connection. There is a close connection between surf lifesaving associations and local councils. The councils employ the lifeguards five days a week, Monday to Friday. The surf lifesaving associations take over on Saturday and Sunday. They share the same facilities. They have a daybook that is kept in the same facilities. Mr Browne, who had intimate knowledge of this from Warringah Shire Council, said the relationship was very close.
McHUGH J: Mr Browne said the Council and the association are sort of joined together and the Council bills the surf clubs and maintains them and provides large financial grants.
MR SEMMLER: Yes, a kind of symbiotic relationship.
McHUGH J: They also endeavour to bring them under the general insurance blanket cover.
MR SEMMLER: Yes. The point we make is that we did not have any direct evidence that the Council knew about these other significant injuries, but the inference was overwhelming that they must have. Indeed, in the course of our case, the plaintiff’s case, I suggested to one of the witnesses, “Look, you were aware of a previous incident involving Mr von Sanden, and counsel for the defendant leapt up and said, “That can’t be said. It can’t be established”. Then the defendant went into evidence and it was Mr Dawson, the general manager of the Council, who said, “Look, this was well-known. Everybody knew about it, that Mr von Sanden had had this catastrophic accident”. So, although we could not prove the point that your Honour makes, the inference was overwhelming that they knew about these other accidents.
Your Honours, it is our contention that the common law in this area requires that account be taken by the person owing the duty of the possibility of a failure to take reasonable care by the person to whom the duty is owed. There is a long of authority to that effect: Webb v South Australia, Bankstown Foundry v Braistina, Bus, Nagle itself.
In Nagle itself, contrary to the gravamen of Justice Tobias’ decision where he said, “Look, if you dive into water the depth of which you don’t know, that’s an obvious risk and that’s the end of it” – that is effectively what his Honour said – that is contrary to the very thing that was said in Nagle, that one of the things that the law requires the person owing the duty to do is to take account of the fact that other people may not take reasonable care for their own safety, and, on the facts of Nagle, that included the possibility that persons intending to swim in the Basin might dive into the water without ascertaining whether it was safe to do so.
GUMMOW J: Sooner or later, we are going to have to look at Nagle, I suppose.
MR SEMMLER: Well, with respect, no, but that is another issue. All that Nagle does is apply Shirt and Hackshaw v Shaw and Zaluzna. Nagle is not authority for anything - - -
GLEESON CJ: Except that the point of departure between the majority and the minority, or between the majority and Justice Brennan, in Nagle, as I understand it – and I am looking at page 442 of 177 CLR – is that Justice Brennan came at the problem not by concentrating on the duty of the authority to the plaintiff as an individual, but the duty of the authority to the public of which the plaintiff was a member. He emphasised, for example, on page 442, that if you were going to embark on a course of requiring an authority to give a warning – and perhaps the same would apply to a prohibition, I am not sure – you would have to ask in advance of the event, “What were all the dangers against which the public ought to have been warned?”
MR SEMMLER: Yes.
GLEESON CJ: And in relation to that particular case, for example, you would ask yourself, why on earth would the authority, in advance of the accident, warn the public about that particular rock? There were rocks all over the place that people might hit their heads on.
MR SEMMLER: But the distinguishing characteristic, the thing that reasonableness would require a warning about is the level of activity at that rock. There was no evidence that along the other 27 kilometres of coastline there was anything like this activity. This was the most popular beach in the Shire, according to the publicity material of the respondent. This was a very popular spot. It was a distinct and unusual natural formation. The judge found it to that effect. She found that it was attractive to people, it did attract people, and they lined up to dive off there.
GLEESON CJ: That is why I asked the question I did earlier about whether any attention was paid to what would be the consequence of prohibiting diving from this particular location. If you take the approach of Justice Brennan and say, “We are asking about the reasonableness of the authority’s conduct towards the public”, then if you prohibit diving from this particular rock, without prohibiting diving from the next rock along the coast that they will go to, what have you achieved?
Now, I do not know whether any attention was given to that in the evidence or whether we know anything about it, maybe it just was passed over, but what would be the point of stopping diving from this rock if they would just go 200 yards up the road to another rock?
MR SEMMLER: There are a number of answers to this. There was a risk manager employed by the Council as at 1993 when this accident happened. He had all the answers, it would seem. If you read the cross-examination of Mr Dawson, who was the general manager, he had all the answers to these issues. He was not called. He was the man who could really inform the Court as to what the real situation was along the rest of the coastline. He was the risk manager, he was not called.
Secondly, your Honour, ultimately, if your Honour is concerned, as was Justice Brennan, about the notion that the public authority, which has a lot of conflicting responsibilities and a lot of the area under its control, is in a different position to a private landowner, and who is to say that people who are diving there, if they are prohibited, will not go up to another place - - -
GLEESON CJ: Yes, if you are in control of a public park and there are 10,000 rocks in the park and one of them is dangerous, why on earth would you warn people about that particular rock?
MR SEMMLER: You would. According to the Shirt calculus, reasonableness would require you to do it if the level of activity, the extent of the risk, the likelihood of its occurrence, is great, as it was in this case, if the magnitude of the consequences is great, as it was in this case, and if there are not any other considerations that militate against doing it. That is what the calculus requires.
GLEESON CJ: You may have a valid answer on the facts and on the evidence in this particular case, but the moment you say, in relation to a council that has 24 kilometres of coastline, “They ought to prohibit diving from that rock”, the question that arises in my mind is, where are people who want to dive going to go, after they are prohibited from diving from that rock?
MR SEMMLER: The answer to that is each case must be determined on the facts. As Mr Browne said on this very issue, he said, look, the reason why you needed a sign there as opposed to anywhere else was the level of activity, and the known danger of the Council, and the fact they knew there had been a previous catastrophic injury and lots of other injuries. Those were factors that required, in his view – and we would say in accordance with the law – that a sign be erected there. Other locations would need to be assessed on their own merits.
Your Honour, it may well be – we would not necessarily argue to the contrary – that if Mr Vairy had gone, as I said, I think, earlier, if he had struggled his way through the undergrowth to a place where the access to the location was not easy but nevertheless possible, and, without seeing anybody else diving, just said, “Well, look, that looks all right to me”, and dived in, and he was the only one to have done it there, no other people known to be doing it, no other significant injuries, it may well be that when his case came to this Court or to the Supreme Court in New South Wales, the decision would be “No, all of the Shirt factors suggest that it was not reasonable for the Council to do something”.
GLEESON CJ: You may have a sufficient answer in this case by saying, if the Council had wanted to conduct a case which said, “There was no point in prohibiting diving from this rock, because there are so many similar rocks in our locality from which they could have dived”, then - - -
MR SEMMLER: Absolutely. It is an evidentiary onus question, we would say, just like in Swain in some respects. No way was it discharged, your Honour, there was no attempt to discharge it. Mr Dawson’s evidence on this was a couple of paragraphs at most. He said, “Oh look, there are bluebottles, there is a risk from sunbathing, there are sharks, what are we expected to do?”. He threw his hands up. In another breath, he conceded their policy was “We’ll put up a sign if we’ve created the danger or if the danger is not apparent”.
Where the mistake was made by Wyong Shire Council was that this danger was not apparent to all the people that they knew were diving off there. He also conceded that if danger was foreseeable to the Council at a particular location, then there was an obligation on them to do something about it. Now, there was nothing more foreseeable to this Council than this activity that was going on day after day, particular in the summer.
GLEESON CJ: I would imagine another obvious risk of swimming away from the patrolled area is sharks, because one of the features of a patrolled area is that there is somebody keeping a lookout, or supposed to be keeping a lookout, for sharks.
MR SEMMLER: Yes, that is certainly a risk and I think it depends on the circumstances, but some risks, for instance, the risk of being dumped in the surf and becoming a quadriplegic – that was put to Mr Browne, the Warringah Shire Council man with responsibility for all these beaches in Sydney. He said, “Look, in my time, we did not warn about that. The level of likelihood was too low”. He had never heard of anybody – no doubt he did hear of Mr Swain, but he had never heard of anybody else becoming a quadriplegic from being dumped or from diving. So that he made these decisions, and he made them reasonably and he made them in accordance with the law, which is, you consider all the factors. You do not just say, “I take the view that’s obvious, therefore, we don’t have to do anything about it at all. Even though the lifesavers are trying to do their best, even though somebody has become a quadriplegic, we’ll do nothing. All we’ll do is when there is a court decision against us, we’ll put up a sign saying the court decided this against us”, and that is what they did. And this is the same shire council that was found liable for a deceptive sign, an ambiguous sign, in Shirt’s Case.
McHUGH J: What is this, similar fact evidence, is it?
MR SEMMLER: No, your Honour.
HAYNE J: Reading up the priors.
MR SEMMLER: Your Honours, we say that Justice Tobias erred on behalf of the majority by denying that the respondent had an obligation to take into account the possibility of negligence, and that is what he did. Your Honour, Justice Gummow reminded us in the Swain decision that that is a requirement, that one must take the possibility of negligence by the entrant into account. Justice Tobias did not simply say, “Look, that’s one consideration. I don’t give it much weight. In all the circumstances it was obvious and that’s the end of it”. He said, “Negligence is different to inattention. They went beyond inattention. We don’t have to take that negligence into account”.
We are not arguing here that Mr Vairy was not negligent, but this is a situation in terms of comparative fault that is dealt with by the contribution legislation, Law Reform (Miscellaneous Provisions) Act 1965. This is not a situation where you see some negligence on the part of the plaintiff, therefore he loses, but that seems to be the approach that is adopted by the Court of Appeal.
KIRBY J: I see you have a ground contesting the increase in the contributory negligence.
MR SEMMLER: Yes, we do, and on that issue, your Honours, we would ask this Court – although there was no order to that effect by the Court of Appeal because they upheld the defendant’s appeal, we would ask this Court to – and I think Mr Walker may join me in this application, to decide that issue as well.
McHUGH J: I notice the plaintiff only got $325,000 for general damages. Is that the norm these days? It does not seem much.
MR SEMMLER: It was not much, your Honour. We did not appeal, and that is all he got. I am reminded it was actually a negotiated figure. We were trying to save court time in agreements on – perhaps it was our fault, your Honour. Your Honours, we ask that this Court should consider the contributory negligence issue because it is unresolved. It was the subject of the notice of appeal by the defendants in the Court of Appeal. It has not been determined by the Court of Appeal yet, although the Court of Appeal expressed its view on this, but in the - - -
KIRBY J: What is wrong with Justice Tobias’ figure?
MR SEMMLER: We are not happy with it, with respect.
KIRBY J: I know you are not happy with it, but it looks a bit closer to the mark to me than the 25 per cent - - -
MR SEMMLER: Yes.
KIRBY J: If the plaintiff is entitled to succeed.
MR SEMMLER: In some of these cases your Honour, and obviously the facts of each are different, the courts take the view there is no contributory negligence by the plaintiff. Now, we accept there was some here because he failed to do more than he did to ascertain the depth, although he no doubt did what many other reasonable people did in the many years that they were engaging in this activity, that is, see that other people are doing it safely and take the same steps.
GLEESON CJ: On that, Mr Semmler, those photographs that we looked at show a group of people and they do not seem to be swimming away after they have dived. They seem to get up and walk away in those photographs.
MR SEMMLER: Some of them do, yes.
GLEESON CJ: All I wanted to ask you was, did the evidence indicate whether on the day in question the other people who were diving in, who were being watched by your client, got up after they had dived into the water, got up in the water.
MR SEMMLER: No.
GLEESON CJ: Stood up in the water and walked away or they did swim away?
MR SEMMLER: No, absolutely not, there was no evidence to that effect at all. Indeed, the evidence was that the level of water was significantly higher relative to the rock platform than it is in the photograph that your Honour was referring to.
GLEESON CJ: My question was prompted by the fact that as I see those photographs, it would be very difficult for somebody on that occasion standing on the rock ledge, not to see how deep or shallow the water was.
MR SEMMLER: Yes, absolutely.
GLEESON CJ: Because as far as I can see from those photographs, all the people who went into the water, having gone into the water, stood up and walked away.
MR SEMMLER: What those photographs tell us is just how dangerous the situation was that was being left alone by the Council, but that was not the situation that obtained on the day of this accident. There was absolutely no evidence that there was any indication from people in the water that that is just how shallow it was.
HAYNE J: Could I take you back to Nagle.
MR SEMMLER: Yes.
HAYNE J: And particularly page 442 of Nagle. Recognising that Justice Brennan dissented in that case, that may itself be a sufficient answer to my question, but what is wrong with his Honour’s reasoning commencing at line 4? What is the error in the reasoning that his Honour there deploys?
MR SEMMLER: The error is that the overriding constant in these cases is reasonableness. That is a point that has been made so many times. Trial judges cannot be called upon to speculate about the level of the risk or the magnitude of the risk in relation to other possible problems in the general area that the defendant says, look, they might need a warning about those. Ultimately, it is a question of what is reasonable on the evidence, not on speculation that look, if we put a warning sign here about this risk then we have to make a decision about a warning sign in relation to a whole lot of other risks. That may be right, but it does not mean that they will have to warn about those risks.
HAYNE J: Because the reasoning appears to proceed from the premise identified at 440 at about point 5, that in considering a public authority, you consider the duty it owes “to the public at large”. Now, is that a false premise do you say, or is that premise correct?
MR SEMMLER: No, it is correct, with respect. It is one of the things that one takes into account, but as we see in the American Restatement, that is a factor in favour of them being more conscious of their social obligation to have regard to acts of prevention.
Your Honours, if I could just make this submission. The notion that underlines the essence of what the Court of Appeal said in this case is that, in effect, if the danger is particularly obvious, you do not need to warn about it. The reductio ad absurdum of that is that, if you have a really, really, really dangerous situation the law allows you to do nothing about it and what the Supreme Court of Mississippi said about that in Tharp’s Case, one of the cases we gave to you, is this Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms.
The way that the law of this country does that is not to have this, as it were, this guillotine test of is it obvious or not, but is to take into account all of the factors, including the need to warn about other risks, but take them into account based on evidence, not on speculation from Mr Dawson that there is also a risk about sharks. Well, deal with that risk on its merits, and have some evidence that shows that, yes, that is something that you would have to have many, many signs warning of all these risks because all of them reasonably require a warning. There was not that kind of evidence in this case.
KIRBY J: Can I just understand, is your ultimate case in this Court prohibition as well as warning?
MR SEMMLER: It is, your Honour.
KIRBY J: Do you say, therefore, that this promontory should have been fenced off?
MR SEMMLER: No. There is no consideration such as arose in Romeo.
KIRBY J: Well, how can you prohibit without fencing off, given the exuberance of young people to jump in the water?
MR SEMMLER: You do your best, you do what is reasonable. There is no requirement to make it absolutely safe. You do not have to enclose it so that people cannot get in, but you do what is reasonable, and if people after you have done what is reasonable do something foolish, well, then, so be it.
McHUGH J: Surf clubs, beach inspectors, year in and year out put up signs, “Beach Closed”. It does not stop people going in.
MR SEMMLER: That is true, yes.
McHUGH J: They are at their own risk.
MR SEMMLER: But that is not a reason for not erecting the sign.
McHUGH J: No, I appreciate that, but that is what I am saying, you put the sign up, that is your response - - -
MR SEMMLER: You do what is reasonable.
McHUGH J: - - - and if people disobey it, so be it.
MR SEMMLER: So be it, and they will not succeed when they come to this Court, because they have behaved so unreasonably that there was no duty reasonably on the Council to do something more, but, in this case, they did not do enough. Your Honours, we ask your Honours to take - - -
KIRBY J: They did not really do anything, did they?
MR SEMMLER: That is true, although - - -
KIRBY J: They had their lifesavers, who would warn the people.
MR SEMMLER: They did not even know. There was no direction from them to do that. The lifesavers took it upon themselves to do it.
KIRBY J: Anything else that they did?
MR SEMMLER: The lifesavers?
KIRBY J: No, the Council.
MR SEMMLER: No, they did nothing, absolutely nothing. All they have done is put up this sign now that says there is a court decision that requires us to put up a sign.
KIRBY J: It seems an unenthusiastic sign.
MR SEMMLER: It does, your Honours. Your Honours, on the contributory negligence aspect, before I sit down, our submission is that in the circumstances of this case your Honours should do what was done in a case your Honours gave a decision in in December last year, Anikin v Sierra, a similar situation to this, where the plaintiff won at first instance, lost in the Court of Appeal. The Court of Appeal took it upon themselves to decide that, in addition to losing, even if he had won, he should have lost more for contributory negligence. This Court overturned the Court of Appeal and, on the application of both parties, also determined the question of contributory negligence to save the matter having to go back to the Court of Appeal.
The reason why we say in this case that that is important is that in the event that your Honours were to find that the Court of Appeal erred and find for the plaintiff, in effect, the special leave application in this case was expedited, because of the parlous circumstances of this plaintiff, particularly in relation to - - -
GLEESON CJ: I think we were actually invited in Anikin to do that, and I gather we are invited in this case to do it also.
MR WALKER: If my friend wishes that to happen, we do not oppose it.
MR SEMMLER: We do, your Honours, yes, and on the contributory negligence what we have to say is set out in our submissions. It is a question of comparing culpability and causative effect. On the culpability issue, Mr Vairy did no more than what other, we would say, many other, people were doing.
True it may be that in the overall scheme of things they were foolish, but he did not impetuously dive without any indication that it was safe to do so. He drew a reasonable inference just like Mr Brodie did, even though Mr Brodie overlooked a warning sign that he should not do it. There was no warning sign here. Mr Vairy went up there with his niece. This was not his idea to go there and be a macho person diving in. His 11-year-old niece asked him to do that. Nobody else wanted to take her, so he took her up there. He said in his evidence his first priority was her safety and he said he was not going to dive in in circumstances where it was unsafe. He did not say why but the inference would be that perhaps his niece might follow suit. He said that was his first priority.
There was a
lot of evidence that he was a very responsible person. He was the No 1
babysitter for his sister. When he did go water
skiing at one stage he would
stop if there were any signs saying “Sharks in the
water”, he
would stop when others would keep going. There was a lot of evidence to that
effect. The trial judge, according
to the Court of Appeal, was amply justified
in finding that he would have been stopped by a warning sign. Causation is not
in issue.
The relevance of all of that is that in terms of his culpability, not
moral culpability but departure from the standards of reasonable
people, he did
not depart to that great extent.
KIRBY J: Yes, but what are we to do in the Court when we know that legislatures all around Australia have enacted laws? They do not apply here because of the time but they were responses to the contentions of the courts and they seem to suggest that the courts did not pay enough attention to the obligation of personal responsibility.
MR SEMMLER: In relation to that for the appellant, we do not accept that the civil liability legislation in New South Wales or anywhere else in this country reflects the mood or the sentiment or the values or the mores of the Australian people.
KIRBY J: It was enacted by the representatives of the Australian people. It is like other things, like the mandatory detention of refugees.
MR SEMMLER: It may have been enacted but we say not because that was what was – we say it was a short-term reaction to other circumstances, to the collapse of a major insurer, to the events of September 11, and circumstances referred to by the Chief Justice of Queensland in his recent speech at the Law Asia Conference, that was the cause of the reaction that resulted in the tort reform legislation. It is not the common law of this country. What Justice Tobias on behalf of the majority in this case has done is to say not just that there has been a shift since Nagle, he has simply, with respect to him, contravened what was said in Nagle. He said if you do not know the depth of what you are diving into, that is the end of it. In Nagle the Court said that the person in charge of the land takes that into account. They take it into account that somebody might not ascertain the depth before they dive. What the Court of Appeal did in this case is it flagrantly disregards the decision of four or five Justices of this Court in Nagle. That, beyond anything else, is the reason, in our respectful submission, why the appeal should be upheld.
GLEESON CJ: Thank
you, Mr Semmler. Yes, Mr Walker.
MR WALKER:
Your Honours, my client is a creature of statute and so is a consideration
of the reasonableness of its response at common law
also governed, that is
hemmed in, by indications to be gathered from the statute.
The relevant
statute is the Local Government Act 1919, that is, before the
1993 complete reform. Your Honours will find that in the
supplementary written submission lodged by us,
and I wish to take
your Honours first in that to page 12. There is the beginning of the
matter and that is the source of the duty
of care. The Council was a fictitious
legal person made by statute for certain purposes and did not, in any private
way, occupy
this land which was adjacent to the water and the submarine land
which caused the plaintiff’s disaster. Section 344(1):
The council shall have the care, control and management of –
relevantly –
public reserves which the Governor by proclamation places under the care, control, and management of the council.
We have traced the
title through in our written submissions. On page 14, in Part XIII of the
Local Government Act, one sees that in relation to public reserves there
is, by section 349, a power, perhaps discretion, to “improve and
embellish”
them. In section 350, they may “provide, control
and manage” a large range of activities, not all of which are what
might
be called recreation au naturel, but a lot of it involving those
things that do not involve a lot of implements and are the
mark, one would have
thought, of a free citizenry recreating in their leisure time.
Then, could I take your Honours over to page 20, still in Part XIII, Division 3, “Baths and bathing”. Some of the language is quaint, but its meaning is obvious. We see, in section 353, that:
in any public reserve under its care, control, and management –
and I ask your Honours immediately to note that by
section 356, those powers extend to the:
water below high-water mark on the foreshores of the area –
So in any public reserve, as so understood:
the council may provide control, and manage –
(a), (b), (c), (d) and then:
(e) works and appliances for the protection of bathers from injury, drowning, or sharks –
Again, that is a power or discretion, and section 354,
which is the one particularly in question here:
(1) The council may control and regulate public bathing and the conduct and costume of bathers –
. . .
(d) in the sea adjacent to though outside the area;
. . .
(2) The council may prohibit bathing in any specified locality by notices erected in the vicinity of such locality.
Emphasis needs to be given to the word “specified” because, as will be seen later, this leads to the creation or imposition of criminal liability. As a prosecutor, one cannot imagine, surely, turning up with a photograph of a sign and saying, “This sign means that someone commits an offence at a certain place but I don’t have to tell you or show you that the sign says how far from the sign is the criminal zone and how far beyond the sign you are now free without committing a crime to bathe”, including the subset of bathing, which would be diving, jumping or otherwise entering the water.
McHUGH J: That does not seem to be a problem on most beaches.
MR WALKER: It may be they are all invalid and it may be that it is a mark of a massive pretence with signs that use prohibitory rather than warning language, that no one ever gets prosecuted unless there has been on the sign or by other suitable marking - I am going to come to those expressions in a moment - of a locality other than by the general expression “vicinity”, by which you can know where you are committing a crime and where you are not. For example, if it is a swimming pool, no diving in this swimming pool, you have it physically bounded, but a sign on the coastline of the Pacific Ocean in New South Wales that says, “No Diving”, simply “No Diving” with a pictogram if one likes, “Penalty $500”, or whatever, would, in our submission, not satisfy subsection 354(2). A fashion for such signs is to be deprecated rather than used in aid against defendants in positions such as my client.
So there is prohibition, but there is also control and regulation in section 354 that would not appear in section 354 to encompass warning signs, but I would concede that section 353 with its reference to management and works and appliances may involve some devices which themselves would include some aspect of warning, but that is not relied on in this case and the specificity of those provisions rather tends against some generalised obligation, local parens patriae style, to look after people.
HEYDON J: You did erect some signs.
MR WALKER: We did, indeed.
HEYDON J: Yes, it is not ultra vires to erect a sign.
MR WALKER: Quite a lot of signs, yes. Page 22, I have
already drawn to attention, I am sorry, it is section 356 which is necessary.
Could I
then come down to page 28. That is the provision which links back
to section 354 because under section 367:
Ordinances may be made for carrying this Part –
that is part 13 –
into effect –
Now, the particular heads thereafter do not include anything which is particularly germane, and you can see that they include what would obviously impact upon bacchanalian picnics, but it does not, in terms, say anything which carries as a statutory duty anything like the securing of individuals against the dire consequences of taking enjoyable risks in the water.
We then come to the ordinance. We have included at page 33 and following Ordinance 48. I do not wish to spend a lot of time on that. Could I then - - -
McHUGH J: What is the point of going to these? Hudson v Venderheld in this Court holds that councils do not need statutory powers to do things that they can do under the common law. They do not need statutory powers to have vehicles driven along the street, and they do not need statutory powers to put up signs.
MR WALKER: Your Honour, the reason I am taking you to this is because, in our submission, aspects of the appellant’s argument in this case would have the consequences of the private law of negligence subvert, or run contrary to, the scope of public law discretion and authority granted by these provisions.
McHUGH J: Why?
MR WALKER: In our submission, that relates closely to matters of concern that we have raised in our written submissions. In particular, your Honours will have seen the comments made at the end of paragraphs 32 and 36 on pages 8 and 9 of our written submission, concerning the implications of the appellant’s argument for the exercise of the statutory discretions, controlled, as they would be, by success for the appellant on those aspects of their argument, by the consequences of a private law tort decision.
McHUGH J: They are not being sued for breach of statutory duty. They are not being sued for failure to exercise powers. They are being sued for breach of a common law duty, and 353(e) seems to indicate that it is a policy goal of this legislation that councils should protect bathers from injury, strengthening the application of the second paragraph, paragraph 343A of the US Restatement.
MR WALKER: Your Honour, first of all - - -
McHUGH J: Why should not public authorities be more concerned than ordinary individuals with accident prevention?
MR WALKER: Your Honour, that cannot be right.
McHUGH J: They should at least be equal to, should they not?
MR WALKER: That cannot be right.
McHUGH J: Why?
MR WALKER: The ordinary individuals include - - -
McHUGH J: They should be the teachers.
MR WALKER: The ordinary individuals include parents, and to suggest that councils have a higher duty to protect young boys from foolhardy behaviour at a beach than their parents is, with respect, antisocial. That would have us all in compulsory crèches while in swaddling bands, with respect.
McHUGH J: We are talking about diving into what is obviously quite a dangerous area.
MR WALKER: Yes, your Honour, and I need - - -
McHUGH J: And you say, like Pontius Pilate, “I wash my hands of this. I have got nothing to do with it”.
MR WALKER: No, we say, placed in somewhat of a dilemma by the fact that we have public duties, discretions and funds and we owe obligations at private law in the tort of negligence, for all the reasons that your Honour has, with respect, correctly emphasised, we are faced with somewhat of a dilemma as to what happens when, by reason of private litigation, a particular omission – either a lack of thought or certainly a lack of decision – is drawn to attention as if retrospectively that has become something which ought to have been the object of expenditure of public funds.
Now, those expenditures of public funds are not able to be done dehors statutory authority, and no case in this Court has ever held that a council can march the land, spending public funds, without statutory authority to do so.
McHUGH J: It can put up a sign saying “Diving is prohibited on this headland”.
MR WALKER: That will be because there is statutory authority to do so.
McHUGH J: No, it does not have to do that.
MR WALKER: Your Honour, councils cannot, for example, authorise their officers to arrest people without statutory authority.
McHUGH J: That is another factor. Why can they not put up signs?
MR WALKER: They have statutory authority to do that.
McHUGH J: Hudson v Venderheld in this Court holds councils do not need statutory authority to drive motor vehicles along the public highway, so why do they need statutory authority to put up a sign?
MR WALKER: But they in fact have it.
McHUGH J: No, but that is the point. They should have.
MR WALKER: I am saying they had the - - -
McHUGH J: Look at the risk here. It would be a miracle if there were not half a dozen injuries a year, and apparently - - -
MR WALKER: Your Honour, that miracle must have occurred.
McHUGH J: Apparently they did.
MR WALKER: No.
McHUGH J: There were fractures, dislocated shoulders.
MR WALKER: That evidence contains not one iota of comparison with what happened with people playing tip football on the grass, playing beach volleyball on the sand or, much more likely, braving the breakers. We have no idea whether they are any more serious or any more numerous or run by people with more or less testosterone coursing through them than the platform.
McHUGH J: You are diving into an area where the depth of the water is difficult to judge, where there are rocks and where people are doing it all the time.
MR WALKER: Your Honour, this Court knows that when you are in a breaker you cannot gauge where and how quickly the seabed will meet your head, arm, shoulder, leg, whatever, when you are being dumped, and one can say that of coastal dwellers. What everybody knows is that you do not know.
McHUGH J: No, and the reason that you are not negligent is because there is no reasonable practicable alternative other than closing the beach, which is not regarded as a practicable alternative. You are in a different - - -
MR WALKER: On the appellant’s argument, you put up a big placard.
McHUGH J: You are in a different area here. This is a headland. I would have thought the danger was so powerful that it would move anybody to take some action. It shocked Mr Browne, the Warringah engineer. It shocked me when I saw the photographs. I could hardly believe it.
MR WALKER: Australian boys have been jumping off trees in the bush into billabongs and taking li-los down rapids and jumping off rock shelves into the ocean, as the Chief Justice either remembers or knows, timing it for a swell coming into it so that you can actually hit water rather than rock, for a very long time and it has always been foolish.
McHUGH J: For 30 years I saw boys every day jump off the rocks at Tamarama Beach into the surf but they were not jumping as far as you have to jump here.
MR WALKER: Your Honours do not need or want evidence from the Bar table, but suffice it to say that different sensibilities have different reactions to those photographs. We would accept that no prudent person looks at those photographs and thinks simply, “Gee, that looks fun”, that a prudent person might, most generous to these activities, say, “Gee, that looks like dangerous fun”.
KIRBY J: But is it fair for this Court to test your proposition by saying, let that be the standard of the law? It means that a local authority with powers and with staff can simply turn a blind eye, can simply do nothing, because you did nothing, did you?
MR WALKER: No, doing nothing is not the same as turning a blind eye. It may be one result of - - -
KIRBY J: It does not seem a very good standard to lay down that you with statutory responsibilities such as you have shown us can just do nothing at all, though this is a clear risk.
MR WALKER: I will come back to that, because it is obviously an important part of our whole case but at the outset, unless this Court says that you must always do something in order for a response to be reasonable - and this Court would never, with respect, venture so far – then doing nothing as a reasonable response to a risk understood by a tort defendant is one of the possibilities to be judged according to its reasonableness, that is all.
KIRBY J: But where you had one case – the earlier quadriplegic case – it just seems a very neglectful thing to do nothing at all. Was there any revelation in the evidence as to any consideration in the committees of the Council or something of that kind as to what, if anything, they should do in a resolution: “Well, it’s just not going to work; we won’t do anything”?
MR WALKER: Yes, and the references are in our written submissions but one of them – I am not going to go to it – is volume 1 of the appeal book 396, but other references are collected in our submissions. My point about doing nothing is this, that in applying the test of reasonableness - and that is all the law requires, reasonableness, and decided cases are not precedents of fact – it ought nonetheless be a cardinal point of caution by trial judges. It ought to be perhaps something that juries would bear in mind that lip service or token things which can be produced in evidence to say, “Look, we did something”, rather than, “Look, on balance we decided doing nothing was fine and cheaper than token or lip service”, it would be a very, very dangerous thing, and in this particular case, this comes to a particular point, namely, signs.
Now, everybody accepts it seems to be common ground in warning or prohibition cases that no one wants to get to the position where the last sign you put up is, “Warning, don’t bump into the signs”. So everyone seems to agree you can have too many warning signs.
GLEESON CJ: If you put up warning signs warning of all the risks on a ski field, your biggest risk of skiing would be being impaled on a warning sign.
MR WALKER: Exactly, and if you took the approach that because we have the first part, as it were, of Shirt’s Case, that one does not too brutally say, “Well, these are the risks that we will be warned about and these other ones we won’t bother warning about because fewer people will be killed”, and if you simply said that reasonableness always requires something to be done, a defendant is going to lose if the plaintiff can say, “And they did nothing”. In our submission, you should rather start from the proposition - particularly on authorities spending public funds. You should rather start with a proposition - - -
GUMMOW J: I thought, Mr Walker, you were using these statutory provisions and so on in a way to have a jumping off point akin to that of Justice Brennan in Nagle, is that right?
MR WALKER: Yes, it is, and that
there ought to be a congruence, there ought to be a match, and that the content
of reasonableness in the reasonable
response requirement, that is why these
statutory powers, the purposes that can be detected in them, the fact that they
regulate
and permit the expenditure of public money including the creation of
criminal offences, and also the matter to which I am going to
come, the danger
of an over proliferation of warning signs. I will come to that in a moment, but
to finish off the references, page
48 in Ordinance 52, which is the more
important one, defines “public bathing reserve” in a way which
captures this land
and water. Page 50, clause 8, there is a prohibition by the
delegated legislation of bathing:
in any public bathing reserve or in any part thereof in respect of which a warning has been given that it is dangerous to bathe therein.
KIRBY J: That implies that somebody has to give the warning.
MR WALKER: Yes, quite.
KIRBY J: It might be you.
MR WALKER: Yes, that is:
by an inspector, or by a flags, signal or notice exhibited or given in or in the vicinity of the bathing reserve or part thereof.
Now, contemplate what that power would permit. It could criminalise everybody who swims at Tamarama. It is dangerous to bathe at Tamarama. See, if you put up a permanent sign, “It is dangerous to bathe at Tamarama”, there is a criminal – and there is a very sound public policy reason why doing nothing in response to the self-evident risks of Tamarama is preferable to putting up a sign which criminalises - - -
KIRBY J: What are the risks at Tamarama? What are the risks?
MR WALKER: Your Honour has obviously never tried to get out beyond the breakers at Tamarama, I would say.
GLEESON CJ: Well the most obvious risk is drowning if you cannot swim very well, and that is a risk that attaches to all the water around the entire Australian coast.
MR WALKER: And at Tamarama in particular, if you can swim that may only be the means of getting yourself into trouble.
GLEESON CJ: I suppose as a matter of construction you would have to read that Ordinance 8 as limiting the offence, or limiting the prohibition to the particular nature and time of the danger.
MR WALKER: Yes, but it may be that it is a time which is continuous and indefinite, such as dangerous if you are not an expert swimmer, or dangerous if you are younger than a certain age, or dangerous if you are over a certain age, or dangerous if you may have a certain health condition. After all, we have all seen warnings for thrill rides that says, “Don’t go on this if you have cardiac problems”. Now, your Honours, in our submission, clause 8, there it is sitting there, it is a statutory power to make people criminals for swimming at dangerous beaches or doing dangerous things at beaches.
GLEESON CJ: The most obvious warning I would imagine you would have to give is, do not go in water over your head if you cannot swim.
MR WALKER: Yes, and in our submission, it is a perfectly good reasonable response to use the private law tort formula for a public authority with these potentially Gilbert and Sullivan powers, which would lead to ridicule, disrepute of municipal regulation - - -
KIRBY J: At least in my mind, Mr Walker, a very important fact is that you had an earlier injury of such a profound seriousness and you did nothing.
MR WALKER: Your Honour - - -
KIRBY J: I mean, I can understand a complaint if there had never been such an injury and you had not turned your mind to it.
MR WALKER: If your Honour is putting to me that it should have been prohibited then, in our submission, that would lead to, by now, had it been in force, that policy for say the last 50 years, very, very few enjoyable recreations still being legal because if one disaster, death, would be if I could actually say, if one death was enough to acquire a prohibition, there would certainly be no skiing, no abseiling, no football, no cricket. In our submission, it cannot be enough to say this is a tragedy, this is awful, if only we could wind the clock back. We can wind the clock back, put up a sign which this careful person would not have observed. Therefore, that is what should be done from now on. In our submission, that is a fallacious approach and - - -
KIRBY J: Yes, that would be fallacious, but what is said to be significant here is that there is a hidden danger. There is a trap - - -
MR WALKER: Can I come to hidden danger quite separately? We say this is not only not hidden, this was as plain as the nose on your face.
KIRBY J: Well, the question is whether it was open to the primary judge and erroneous for the Court of Appeal to disturb her conclusion that it was a hidden danger.
MR WALKER: There is absolutely no credibility based or fine balanced judgement about that matter, but may I come back to that in a later sequence?
McHUGH J: Well, when you do, you will no doubt deal with my “so what?” query. So even if it was obvious, why was - - -
MR WALKER: Yes, that is a very important hurdle for me to jump, yes.
GUMMOW J: Now, this question of relationship between statute and duty of care was involved in Crimmins, you will remember.
MR WALKER: Yes, and explains the failure on some counts and success on other counts.
GUMMOW J: Well, paragraphs 159 and 270 to 274, the views of Justice Hayne and myself, we were in dissent. So are you trying to subvert Crimmins in some way?
MR WALKER: No, no. Can I come back to that in a moment?
KIRBY J: There was some reference to this in Nagle, I think, and maybe in that Pyrenees Case, because we were referred – not Nagle, in Romeo, because we were referred to a series of Canadian cases where they have explored this question of what is reasonable to impose on local authorities, given their statutory powers and their limited funds.
MR WALKER: In a brief response to Justice Gummow, can I point out that in Crimmins part of the result was to reject a claim which alleged negligence in relation to the quasi-legislative conduct. That part of Crimmins ratio we rely upon, obviously, in relation to the decisions as to broad public regulation, including the creation of offences, in particular, with which the first and main part of our friend’s case against us is concerned - - -
McHUGH J: Is not the distinction between this case and Crimmins this, that in Crimmins the plaintiff had, so to speak, to pull a duty of care out of the air. He had to look at various facts and say, “They give rise to a duty of care”. But as Commissioner of Railways v McDermott, decided in the Privy Council, and many other cases, occupation of premises is itself a source of a duty of care. So your duty arises not out of the air, but from your very control of this land.
MR WALKER: Your Honour, that is why I went to the statute. Why would one go past the proposition that at law we have the care, control and management of this? One does not need anything else.
McHUGH J: But one it is vested in you, once you have that care control, that in itself imposes duties on you, common law duties.
MR WALKER: Yes, there is no question about that. That is why I said this is what the common law duty of care springs out of, imposed on this artificial entity, created for purposes including the care, control and management of certain public reserves.
Your Honours, I just simply wanted then to draw to attention on page 50 of the supplementary submission there is clause 9, there is another indication of some powers to do things which are given to bodies such as my client and that is done by their agent or officer called the inspector and that is to prohibit what is there called “surf-shooting” with certain devices turning on the inspector’s perception of a likelihood of endangering or inconveniencing other bathers and empowers the confiscation of the implement by people who proceed. That, in our submission, again is something which one can well imagine there are things to be said pro and con, certain approaches to what one would do by way of supervising such conduct.
At page 62, section 29, paragraph (a) provides a penalty and paragraph (b) provides a statutory authority for what is presumably reasonable physical force to be employed. In our submission, though the penalty is obviously not a large one, the authorisation of physical force is certainly a big inroad on liberty and, in our submission, at what is called a public beach – we are not analogous to a private landowner who could choose just to fence everything off - at a public beach in a free country with a cultural bent for recreation in the sea and next to the sea, it is a perfectly reasonable response to say that rather than have signs which will have the legal effect of creating offences for things which we know not only young boys but also a whole range of people want to do knowing that at any moment a shark may snatch them, a wave may unpredictably break, sand bar collapse, a rip take them out when they are tired, et cetera, et cetera.
In our submission, that is a perfectly reasonable response to have and Mr Dawson’s evidence, which is brushed aside by my learned friend as if it was only a little bit, or an afterthought, it was his direct response to the direct challenge by my friend in cross-examination, and it is a pithy, complete and convincing explanation of why you would not embark on the exercise of cataloguing all the obvious risks of playing by the sea and then deciding to criminalise that conduct.
GLEESON CJ: Whereabouts is that?
MR WALKER: It is best found - - -
HEYDON J: It is page 403, and page 391 and page 412.
MR WALKER: Yes. Can I come back to the penalty. Let us assume the penalty is small and let us assume that the Council has better ways to spend its money, its officer’s time, than attending in court to be informants and witnesses. What that means is it rapidly becomes known that you can commit this offence and nothing is going to happen to you. Why that would be regarded as so self-evidently a good thing and a warning or prohibition which employs the statutory mechanism of making it an offence to scare off careful people like Mr Vairy, why it would be regarded - - -
McHUGH J: It is not unknown in New South Wales, you know. There were ordinances concerning bathing suits – they should have been neck-to-knee. They were in existence for 50 years and not - - -
MR WALKER: Your Honour, when legislation in New South Wales was more in tune with the way people should conduct themselves and confine their leisure activities there was lots of gambling that was illegal. Since then there has been - perhaps with reluctance and sorrow – a move by the legislature to conform the law to the pre-existing conduct rather than to maintain the vain attempt to conform the conduct to the law.
In our submission, these are important reasonable things for the possessor of what is in effect a delegated or sub-delegated form of legislative power of a large kind because it brings criminal sanctions in its train and permits the application of physical force, the confiscation of personal property. It is large thing to say that reasonableness of response to well-known traditional Australian culturally understood risks required deploying in a form of mockery, really, the criminal law when it is well-known it was not going to be enforced.
In our submission, that means that the main case of the plaintiff really depended upon saying, “We wanted the Council to prohibit this particular risk and because I am only one plaintiff in my argument I am going to disavow an implication to that and that means there are all sorts of other risks, the running of which should also have been prohibited”. But for the reasons we have sought to explain in writing that is an impossible proposition, given that this is a Council with public duties that would not permit it in some pointillist style just to look at one spot on the coastline, giving rise to the implication that the Chief Justice has already made inquiries about.
Our answer to the Chief Justice’s questions about what is implied by a sign that says, “Don’t jump from this rock” or, more to the point, “It is prohibited to jump from this rock”, in our submission, it is perfectly proper, and Mr Dawson’s evidence really amounts to this by saying, “Well, look, once you start on that slippery slope you are going to have to do a proper job otherwise the sign”, ironically, like another ambiguity, the sign in Shirt’s Case – “the sign is going to be sending a message about two places at once, about one place where it is prohibited it is going to say, “Don’t jump” and about the other place where it is not prohibited or, we should say, all the other places where it is not prohibited, it is going to say, “It is not prohibited. Draw your own conclusions”.
GUMMOW J: How does one square all that regulation 21 of Ordinance 52, which I do not think you took us to. That seems to contemplate a power to do just that, does not it?
MR WALKER: Yes, it does, but when it comes to the common law of reasonableness of response, and after all we are – for some reason the appellant does not refer to any of the statutory powers which would permit us to prohibit. One can forget about the prohibitions - - -
GUMMOW J: Regulation 21 is notices.
MR WALKER: Yes, and the fact, which is true, that a valid exercise of that power would result in a notice that says, “Jumping prohibited from here”, and somehow specifying the place so that would be a valid criminal - - -
HAYNE J: Would it, or would it permit only a notice indicating where bathing shall be prohibited or perhaps generally regulating the use of - - -
MR WALKER: But, your Honour, my point about the sign with indications or specifications, depending on the clause you are looking at, is that it would have to say where the criminal conduct is committed and where the conduct is not criminal, otherwise it would be a wholly ineffective exercise of power.
Now, once it does that, it would be saying opposite things or at least different things about different places. It must do that because, as I say, one cannot contemplate a sign that simply criminalises entering the water at any place on the coastline of 27 kilometres long on the ocean. That is an outrageous possibility, so it must say where it is criminal and where it is not, and everyone knows surely that when certain conduct is prohibited, there are a number of possible responses to be observed by the community to whom the prohibition is relevant.
One is that it is just ignored and the law falls into disrepute. The other is that it is ignored by some and obeyed by most others so as to achieve an overall beneficial public purpose. That is probably the case with most prohibitions. Another, yet again, is that it causes people to change their conduct, which is after all why probably somebody imposed the prohibition, so as no longer to be caught by it. Thus, for example, people’s conduct in relation to organising their affairs in relation to taxation of income.
Now, in our submission, it is perfectly proper for a man like Mr Dawson, speaking with massive experience and with a portfolio that embraces that of the risk manager not called, it is perfectly proper for him to say, “There are too many, so many ubiquitous and constant risks of a kind that I assume, I think, everybody knows about, for us to embark upon a program invidious in the choices to be made between the objects of benevolence, the feared dangers, et cetera, et cetera and the locations of putting signs up”.
It is to be recalled that this is all in a case where the plaintiff seeks to avoid ever confronting that aspect and simply says, “But this spot was special.” In our submission, there is simply no ground whatever that justified that approach being taken, if it truly was, by the trial judge.
KIRBY J: Can I ask, is it common ground that you owed a duty to the plaintiff - - -
MR WALKER: Yes.
KIRBY J: - - - and that causation is not in issue?
MR WALKER: Yes.
KIRBY J: Right.
HEYDON J: Do you challenge Nagle’s Case?
MR WALKER: No.
GUMMOW J: You seem to be willing to wound, but afraid to strike.
MR WALKER: Well, allow me to strike. Was the factual outcome wrong? Yes. Does that - - -
GLEESON CJ: That is what I was going to ask you about Nagle.
MR WALKER: Yes. Was the factual outcome wrong? Yes. Is any of the law in it of a kind that we dispute? No, not at all.
GLEESON CJ: Did Nagle involve the majority overruling the Full Court of the Supreme Court of Western Australia on a factual assessment?
MR WALKER: Yes.
GLEESON CJ: But what was the significance, as you understand it, in Nagle, of the different approach taken by Justice Brennan, of which there has been some discussion already?
GUMMOW J: And which you adopt.
MR WALKER: Yes. That is an example of a common law judge reasoning factually about evidence. Now, that is not precedential, whether it be in a majority or a minority.
HAYNE J: His Honour directs attention to the duty as a duty owed by a public authority to the public. That, I think, is perhaps not reflected in the judgment of the majority.
MR WALKER: Quite. May I go straight to that passage at 177 CLR 431. There is a heading, conveniently, “Breach of duty”. They refer to the conclusion already reached of foreseeability, then turn to consider - - -
GUMMOW J: You have to start at 430, have you not?
MR WALKER: I am sorry, your Honour?
GUMMOW J: You have to start at 430, about line
15:
the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care - - -
MR WALKER:
Brought itself under a duty of care.
GUMMOW J:
As occupier under the statutory duty - - -
MR WALKER: Yes, and that was a statutory duty that permitted it to exploit for its funds the tourist and recreational capacity of the island.
GUMMOW J: Now, that is a different starting point, perhaps, to Justice Brennan.
MR WALKER: Not when one looks at 434, the first paragraph of - - -
GUMMOW J: It
is a trifle confused perhaps, because, if you go to the top of 430, it
says:
As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public.
MR WALKER: Could I take your Honour to compare that immediately to the first paragraph of Justice Brennan, 434 - - -
GUMMOW J: Yes, quite.
MR
WALKER: - - - which really is to the same effect. If that
is a starting point, it is the same starting point, there is no disagreement
between
the members of the Court as to the high significance – perhaps the
crucial question, as one would expect with a statutory emanation
like the
Rottnest Island Authority – of the statute. My point about the
majority is that when one comes to breach of duty,
because my argument is about
the reasonableness of response, one finds at page 431 that there is attention
given to the arguably
defective nature of the particularised allegation of
negligence, which, of course, does not tell you how they reasoned to breach.
Then they say about seven lines down that paragraph:
In our view, the giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed.
That is a jury answer, with respect. Now, it is a jury question too, which is why there is no precedential value to it at all. But it is also, with great respect to their Honours, expressed as tersely as a jury might. It is really saying, “guilty”. Then they revert to talking about the particulars.
Now, with respect, there is no challenge being made by us to the authority of Nagle of the kind which would require leave from this Bench in us saying that for this Court, for the factual issue which was reviewed by the Court of Appeal under its statutory powers on appeal from Justice Bell in this case, that an approach more akin to the far more elaborate factual reasoning of Justice Brennan in Nagle is to be preferred to the simple statement of a conclusion in jury terms as to what is reasonable that one finds in the majority in Nagle. That is what I mean when I say the factual outcome in Nagle was wrong but that is an impertinence in the sense that it does not matter whether it was right or wrong. All that one gets from it is the way in which the common law dealt with the problem, but you do not get factual precedent.
GUMMOW J: The majority do not explain why Justice Kennedy was wrong.
MR WALKER: No.
GLEESON CJ: And, on page 432 a little over halfway down the page, they, if I may use this expression, walked around the question of the content of the warning sign by saying that was not a matter that was agitated before the trial judge.
MR WALKER: Under the heading “Breach of duty” it is fair to say that if one counted the lines, well in excess of 50 per cent have to do with highly particular forensic events of that case, what was pleaded, particularised, and what was the subject of dispute or argument. In our submission, that only highlights the caution this Court has uttered many, many times about using reported tort cases as having any factual precedential value and, in any event, one needs to look at reasoning.
GLEESON CJ: It might be thought that, looking at the matter before the event rather than after the event in Nagle, if you said some warning should be given, there would be a very large question as to where you would put the warning and what its content would be because you would not be entitled to concentrate on the particular risk that ultimately eventuated.
MR WALKER: Exactly, so that in this case, for example, the assertion by the plaintiff is, “Some warning should have been given. I’m a careful man, I would have complied with it.” The Council, before the event, when somebody like the plaintiff suggests that says, “Why?” The plaintiff is not allowed to say, “Because next week I’m going to otherwise suffer a terrible disaster here”, and that raises of course the question that Justice Kirby has asked me, that I have tried to answer, about whether it is the case here that the Court of Appeal erred by overturning Justice Bell who did call in aid the von Standen earlier episode and I have given my answer to that already.
HAYNE
J: On that point made by the Chief Justice, is that the reasoning which we
find at 440 from line 2 in Justice Brennan’s reasons
where
his Honour concludes in that paragraph, in determining in a particular case
the measure of the duty of a public authority:
the better assessment is likely to be made by reference to the test expressed by Dixon J.
That is, go back a sentence:
focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised - - -
MR WALKER: Yes, it is.
HAYNE J: Is that out of step with what the majority did or said in Nagle?
MR WALKER: Had that been applied, I respectfully submit the majority, it may be thought, might have reached a different result from the result they reached, but what cannot be said is that the reasoning of the majority on breach gainsays anything in that approach. That approach, it also has to be said with great respect to the author, was scarcely breaking new ground and, in our submission, in any event, “is reasonable”, that is the legal test.
GLEESON CJ: That approach has been applied by this Court in a number of recent cases, including Jones v Bartlett.
MR WALKER: Yes. And the Oysters Case is an example with different statutory constitutional emanations. The Oysters Case is also an illustration of the application of that kind of components of reasonableness of response by a public authority being considered.
McHUGH J: How
do you face up to the problem that Justice Brennan’s starting point
was a departure from principle. At page 440 point
6 he said:
I would hold that the question whether the Board was under a duty to the plaintiff to erect a warning sign depends on whether such a duty was owed to the public at large –
Now, that is wrong.
MR WALKER: Your Honour, I am not adopting that. I am talking about the reasoning - - -
McHUGH J: Duty is owed to the plaintiff personally and it - - -
MR WALKER: Yes, but, with respect, there is a danger that his Honour is being misunderstood in the way your Honour has just read that to me in this sense. The warning in question is not one that says, attention Mr Vairy, and the defendant in question is not someone who can spend public funds for the benefit of an arbitrarily narrow section of the community.
In that sense, understood, really, as meaning this is a public authority that does things for public purposes with public funds and a warning is for everyone who may come along, in that sense, what his Honour is there saying – I would certainly not adopt any abolition of the private duty by a concurrent public duty – I am not suggesting that at the moment – but the private duty is owed to members of the public, because it is members of the public who come onto the public beach.
GUMMOW J: His Honour made that point at 437 in the middle of the page.
MR WALKER: Yes. So there is no departure from principle in that particular passage to which your Honour draws my attention, if it is to be understood as I have just suggested. If it is to be understood as suggesting that first you ask whether there is a duty cognisable as a matter of public law and, if there is not, there is no duty with the same alleged content as a matter of the private law of negligence, then that is obviously not right.
GLEESON CJ: It is all following an analysis of what Justice Dixon said in Aiken v Kingborough Corporation.
MR WALKER: Yes, and, in our submission, it is not discordant with what his Honour was then discussing.
HAYNE J: And that ex ante approach rather than an ex post approach, which Justice Brennan emphasises, is, I think, consistent with what Justice Mason says in Shirt, is it not?
MR WALKER: Yes, quite so, in the famous passage that produces the calculus, yes.
GLEESON CJ: But the famous passage must imply something in addition to what is expressed, must it not?
MR WALKER: Yes.
GLEESON CJ: If you look at 47 to 48, it does not expressly advert to the possibility that the reasonable response to the risk is to do nothing, and yet I would have thought that most people’s response, or many people’s response to many risks is to do nothing.
MR WALKER: Yes.
GLEESON CJ: I would have thought that, for example, many householders’ response to the risks in and around their dwelling houses is to do nothing.
MR WALKER: Quite.
McHUGH J: I said in Dovuro that inaction may well be a reasonable response.
MR WALKER: Yes, and we repeat seriously, with a public authority, the fact that public funds are being used is a not unimportant matter. One virtue of not doing anything is you do not incur expenditure.
GLEESON CJ: Presumably, that passage in Wyong
Shire Council v Shirt at the bottom of 47 ought to be read on the basis that
the second last sentence means:
If the answer be in the affirmative, it is then for the tribunal of fact to determine what –
if anything –
a reasonable man would do by way of response to the risk.
MR WALKER: Yes, English, in any event, permits
of the absurdity of saying that I am doing nothing, and so, even without such an
addition to the
sentence, the answer to the question “What should I
do?” will always include, should always include, “Nothing”.
Hence the point I was trying to make in answer to Justice Kirby’s
question earlier, that, in our submission, this Court or
the common law should
certainly not do anything to encourage
the cynicism of lip service or token
things in order to be able to say in a later court, “Look, I did
something”.
That would be not only to litter the coastline with things that should not be there, but, as we have put in our written submissions, in a case about failure to prohibit – and, when unpacked, “prohibit” means failure to criminalise – what that means is, in our submission, doing nothing means making a political and social choice that people will be able to recreate themselves in a vast range of manners, with a vast range of individuals, some of whom will ski so as not to injure themselves, some of whom will certainly ski so as to hurt themselves terribly, without putting a cloak of officious officialdom over it.
In short, we, with great respect, do challenge head on Justice McHugh’s inquiry, the suggestion in that inquiry, that a local government does become a kind of parens patriae for people within its area, though why it would go beyond ratepayers and their dependants is perhaps a little difficult to understand. In our submission - - -
KIRBY J: Well, it is not really – I did not take Justice McHugh to be saying that. I took him to be saying, “You are the neighbour” for the purposes of the law.
MR WALKER: We have acknowledged that being the neighbour - - -
KIRBY J: You are the occupiers, you have the powers, you have the knowledge, you know of the previous profound injury, you have employees who can tell you of other injuries. There was a relatively cheap way – at least you could put it in the minds of people. You take people to that promontory by your car park and - - -
MR WALKER: Your Honour, the relatively cheap way is if you can, by dint of the evidence and permissible findings of fact in this case, restrict the prospective, rather than retrospective, exercise to signs in this one spot.
GLEESON CJ: I would like to understand the evidence of Mr Dawson a little better than I do at the moment and the remedy for that is in my own hands, but perhaps you could just show us tomorrow morning how the trial judge dealt with Mr Dawson’s evidence.
MR WALKER: May it please your Honour.
GLEESON CJ: We will adjourn until 10.00 am
tomorrow.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL
FRIDAY, 8 APRIL 2005
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