Vairy v Wyong Shire Council; Mulligan v Coffs Harbour City Council & Ors [2005] HCATrans 196 (8 April 2005)

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Vairy v Wyong Shire Council; Mulligan v Coffs Harbour City Council & Ors [2005] HCATrans 196 (8 April 2005)

Last Updated: 8 April 2005

[2005] HCATrans 196

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 FRIDAY, 8 APRIL 2005, AT 10.02 AM

(Continued from 7/4/05)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in a critical passage of her Honour’s reasoning found in volume 3 of the appeal book commencing relevantly at page 784, there are drawn together important factual matters to which I wish to make brief reference in supplement of our written submissions. They are the supposedly distinctive nature of the location, they are the depth or perceived depth or lack of knowledge about depth and they are this phenomenon of littoral drift about which reference has been made.

At 784 in paragraph 157 a submission, which is still the position of my client, is recorded. Immediately in paragraph 158, going over to page 785, the quotation from Justice Hayne’s reasons in Romeo is set out of a kind which her Honour then addresses, seeking to meet the requirements of principle adverted to there by Justice Hayne. In paragraph 161 some of Mr Dawson’s evidence is referred to and it is referred to, with great respect, accurately:

twenty-seven kilometres of coastline.

Your Honours have already heard there are six patrolled beaches but they have headlands. He described the coastline as:

“largely sandy beach, with intermittent prominent headland with rocky foreshores” –

a description typical to anybody who is familiar with the eastern coast of New South Wales – the coast of New South Wales in fact. Then, of course, there is the Tuggerah Lakes system as well, covering an area of what ought to be understood to be approximately 25 square kilometres. The circumference of that internal coastline or shores, I should say, was not able to be estimated, but, as the witness says, obviously large.

Then Mr Browne – he is the Warringah man – is said to have described the rock platform and the area of flat rock that adjoins Soldiers Beach as “most unusual”. I am going to take your Honours to some of the evidence. This touches on the contention point that is raised in our written submissions. As I understand from discussion with my learned friend, there is no opposition to that contention being entertained in this Court.

We contend that there was nothing shown relevantly to be unusual or distinctive about this location which had anything to do whatever with the conduct of the appellant or the reasonableness of response by my client. However, her Honour accepted the evidence of a man who said he did not know anything like this in Warringah and said it was:

a distinct and unusual natural formation –

Your Honours will not find any detail about that except for the in shore channel that can be seen in some of the photographs, of which this can be said: (a) anybody seeing the photographs will recognise that it is typical of a New South Wales rock platform; and (b) the channel was not where the boys were jumping. They were jumping onto the ocean side.

In paragraph 162 her Honour refers to her acceptance that it is a “distinct and unusual natural formation” and that may evoke recollection of what one of the experts described as the attractiveness of a feature such as the Kiama Blowhole, but there is no evidence that people came, as it were, to see or admire something unusual, geologically or topographically.

McHUGH J: Mr Walker, why it is irrelevant to be talking about 27 kilometres of coastline and 25 kilometres of Tuggerah Lakes is because you have a known danger here.

MR WALKER: On 27 kilometres.

McHUGH J: This spot must be in competition for one of the most dangerous places. Its record is two quadriplegics or paraplegics in 15 years. I doubt if there is any speedway, racetrack, stadium or football field in Australia that could boast as many paraplegic injuries as this area has in the space of 15 years.

MR WALKER: Your Honour, before one were to ascribe some “black spot” status to this, you would need to have some statistics – there are none – and you would then need to ask how have the matters come about. Just as with traffic “black spots”, you would need to know whether you were talking about somebody doing something quite outside the expectation of any traffic engineer or whether it is more or less ordinary traffic before you say that it is what the traffic engineers have done or not done which made this dangerous. In other words, to pick two episodes and to say that concludes the issue that is raised by the considerations discussed by Justice Hayne in Romeo is impossible on the evidence in this case. There was no attempt at any comparators at all, and your Honour certainly cannot call in aid references to boxing stadiums, football fields or anything.

McHUGH J: No, but the onus is on you. It can only go to what is a response and you say, “Well, we’ve got these other risks and we’ve got to deal with those as well and the expense of dealing with them all is so great that we can’t do more than what we happen to have done.”

MR WALKER: It is more than expense, as your Honour knows from our argument, much more than just expense.

McHUGH J: I heard what you put about it.

MR WALKER: I do not want to repeat what is in writing and what I have already said but your Honour appreciates it is by no means only expense, by no means only.

McHUGH J: Yes. You have to face up to this fact that you just cannot walk away. There seems to be a rejection of the notion of paternalism. Duties of care carry with them a notion of paternalism. You have to take care of - - -

MR WALKER: Your Honour, there is a reason why that word “paternalism”, depending on context, is also a derogatory term. The reason is that it can be overdone. It can call for too much either tolerance of those who are being paternalised and also too much on the part of the person in the paternal position, depending on context.

McHUGH J: Yes, but the common law could have accepted the Darwinian view of nature – “nature red in tooth and claw” – done nothing, leave people to their own device and let them look after themselves. The common law rejected that view. It imposes duties of care and with that a requirement that some people in relationships have to look after other people, and one of them is an occupier of land.

MR WALKER: Yes, and the whole jurisprudence has come from and is for a population of more or less free people and, in our submission, it is the freedom to run risks without having criminal offences created in order to satisfy the calls of one’s litigators is a very important freedom. This is all about reasonableness and that balance of care for people who may be, either by foolhardiness, stupidity or inadvertence, on the one hand, does properly call to be balanced with the freedom, on the other hand, not to have, in particular, offences created as a matter of legal form in order to deflect liability.

As your Honour well knows, if the requirement, in effect, deduced by risk managers from a factual decision in accordance with the appellant’s case here were to fall out, that it required prohibition, creating criminal offences, the next step is “And you have to show that you are enforcing this by a staff of people who are, in effect, arresting – that is, using their power to remove people – and, furthermore, they are prosecuting so as to show that this is really serious”. In our submission, that is unreasonable.

McHUGH J: You do not have to do that. Have you read Hudson v Venderheld overnight?

MR WALKER: Yes.

McHUGH J: It shows that councils - - -

MR WALKER: But, your Honour, that case is construing, for the purposes of a notice before action time limitation provision, the expressions with which this Court is very familiar in a number of contexts, be they judicial review statutes, be they statutes in relation to jurisdiction - - -

GUMMOW J: Section 580 of the old Local Government Act, is it not?

MR WALKER: Quite, and Puntoriero comes to mind, and that preposition “under”. In our submission, if there is one thing that is clear it is that one acts “under” the statutory provisions to which I drew attention in opening our response when one prohibits and creates offences. Your Honour correctly then draws to attention, what about the possibility of warnings without criminal prohibition? To which the answer is, when it comes to erecting signs on headlands, then that is precisely what these statutory provisions permit.

So we do not have to worry about the question considered in the decision to which your Honour has referred, namely, is there any call for implication – Mr Justice Kitto’s point in Ardouin’s Case – when it is already lawful to do something? This is a case where there is express provision for the provision of warnings and the like, and/ furthermore, there is then set up a regime by which, if they are done in a certain fashion, criminal offences follow.

So, in our submission, that case says nothing about our main argument, which is that we have to be judged and the reasonableness of our response as people with general local government powers under the Local Government Act as well as the specific “care, control and management” public reserve powers and duties. It is when you are considering that that the evidence in this case simply failed to show that this was a black spot.

May I remind your Honours that if one was to count incidents, then you cannot count the second one, because the calculus has been performed before it happened.

McHUGH J: That can be accepted, but, if there is any argument about the danger, which to my mind there could not possibly be - - -

MR WALKER: It was not an argument about danger - - -

McHUGH J: No, I know that.

MR WALKER: - - - and I am going to take your Honour to the evidence in a moment that embraces danger.

McHUGH J: Yes.

MR WALKER: It is dangerous. So is surfing in a steep swell dangerous, which notoriously makes people paraplegic.

McHUGH J: Apart from closing the beach, there is no practical alternative of dealing with it. There is a practical alternative of dealing with this.

MR WALKER: Your Honours will recall that the evidence contains the raising and ready rejection, for reasons not completely articulated, of things which, we would submit, are self-evidently unreasonable. One was demolishing the headland, taking explosives to the natural formation, presumably, and the other was fencing it off, presumably with razor wire at the top to stop boys from treating the fence as just another part of the thrill. In our submission, when you think about this platform as a point of access for people who may want to be snorkelling, people who may want to be gathering pipis, people who may want to be getting into the break off the point on their surfboards, the variety of ways in which could be used carefully, not carefully, by the mature people, by immature people, in our submission, at the end of the day, this is a natural feature which, according to the evidence I am about to take you to, does not differ materially from what else is to be found whereby one cannot say, in the prospective position in which it all must be done, that this required something to be done in the nature of a warning just at this spot.

Her Honour was well aware that was the difficulty and that is why the passage which I am halfway through concentrates on trying to say something special about this point, and it comes down to what is an immaterial reference to an unexplained unusualness and, as I say, the only evidence about the actual characteristic that rendered it unusual is this channel that has nothing to do with where they jump. It is not the kind of a blowhole that people come to or postcards are printed about. It is:

readily accessible to members of the public attending a popular surfing beach.

This is not the only popular surfing beach; there are at least six of them. There is certainly no evidence to suggest that it is the only one that is readily accessible. Headlands are in the nature of those things that embrace at the end of each beach and it is said at the foot of 785:

It provides an attractive and ready means of entering the ocean by diving, jumping or bombing.

That is true of every rock platform.

GLEESON CJ: What, if any, significance was attached at trial to the evidence that the plaintiff regularly used this area, this platform, himself for snorkelling, that, although this was the first time he had ever dived in, he regularly, and indeed quite recently, eased himself into the water and snorkelled in the area.

MR WALKER: And the day before had to rescue or salvage a bit of jewellery or something, yes. The significance on the plaintiff’s case as to prior acquaintance was more or less confined or concentrated on the assurance to be gathered from having watched others dive. The significance on the defendant’s case, of course, was much more general, namely that he did not have any sensible prospect of being put in a class of requiring special solicitude by reason of, for example, being a Japanese tourist, that he was familiar with the beach. As your Honours know, we called in aid as well the special circumstances, in terms of his thinking about the risks, of his former uncle-in-law’s disaster.

GLEESON CJ: But he had the day before gone down to the ocean bed off this platform.

MR WALKER: Yes, off the platform and it has to be asked: does his case really say that that should have been an offence? Of course, that is so unreasonable that the question then is: would a warning without prohibition be a reasonable response just in this spot? Implicitly or perhaps explicitly in the passage that I am looking at at the moment in this part of her Honour’s reasons, it is accepted that it is a world of difference between saying just “signs here”.

Of course that expense is ridiculous to speak about in the context of this accident if it was just the “signs here”, or the whole exercise for the 27 kilometres, including invidious distinctions as to where you put and where you do not and the great importance of understanding that signs warning speak about two places at least.

McHUGH J: What do you say about Lord Reid’s dictum in Wagon Mound (No 2) that a reasonable person would eliminate a risk that did not cause that person any cost or inconvenience?

MR WALKER: The first thing we would say is that, like many generalisations in this area, it is dangerous and wrong to take it out of context or to treat it as a sure guide to a factual determination in any other case at all. The second is that that is well illustrated by the entirely inapt use of the word “eliminate” with respect to all risks, it being I think accepted by the appellant here that this risk could never have been eliminated. In our submission, a good thing too, because the risk is concomitant with that which provides pleasure, namely, being in the sea, being next to the seaside and, in our submission, it is a matter of no particular alarm at all that many ordinary activities end in disaster for certain individuals who are, to use my learned friend’s own expression yesterday, “occasionally just unlucky”.

That does not mean that it called for in advance of such occasions a response which retrospectively can be seen on a causation theory likely to have produced a different result. In our submission, dicta of that kind ought never be used as a gloss on the fundamental requirement that one prospectively asks once the foreseeability question has been answered favourably to the plaintiff, as it was obviously in this case, what was the reasonableness of the response, including doing nothing?

Your Honours, page 786, paragraph 163 is where her Honour then answers the considerations required to be addressed for the reasons that Justice Hayne had pointed out in Romeo and the list of factors are:

The accessibility of the rock platform from the beach –

that is not unique or special -

the car park, and its known popularity for diving –

What that means is nothing more than the fact that it is known that people do this. There has been one bad accident in the past.

McHUGH J: There is evidence about dislocated shoulders, fractures, cuts.

MR WALKER: Yes, indeed. Volume 2 of the appeal book, page 703 between lines 30 and 35:

there has usually been one injury of some consequence . . . each year.

KIRBY J: What page is that?

MR WALKER: Page 703. As I said yesterday, it defies credulity that there was less than one injury per year just from the surf. There was no attempt on the plaintiff’s part to show that there was something special in relation to this rock platform, compared to all the other risks about which Mr Dawson did speak in the passages to which I am about to come.

This is simply not capable of having a black spot affixed by evidence of that kind at all. The descriptions there are of injuries which anyone familiar with surf would know do not require the presence of a rocky headland, let alone jumping in or diving in. In paragraph 163 one then sees that what her Honour has said, that the foreseeable risk raised questions about the reasonableness of response, different from considerations for the whole of the 27 kilometres – that completes, really, her reasoning, which is said to turn on this being a special spot which, without any retrospectivity, can be the only one there to be considered in relation to reasonableness of response.

That passage of reasoning – I do not wish to skip over it, but it is very important that it be understood that her reasoning then continues on to different factors up to the top of page 789 in paragraph 176. At the foot of page 787 in paragraph 170 over to the top of the next page, and in paragraph 174 on page 788, there is the particularly important reference to the Council being armed with knowledge that the plaintiff did not have.
Now, this is where there may or may not have been some use by her Honour, perhaps implicit, of the littoral drift material to which your Honours were referred yesterday, and our position on that is simply this. Whether or not the plaintiff knew about the phenomenon of littoral drift was completely irrelevant to adjudging the disparity of knowledge or advantage as between plaintiff and defendant for the purposes of considering the reasonableness of response.

First, in this case, there is not any evidence at all, not a shred, to suggest that littoral drift had done anything to the bottom, the sandy bottom, which her Honour held, on the probabilities, was what the plaintiff had hit. Littoral drift leads to what is called variable bottom seabed. Variation can occur over time and space. We are not talking about variation in space here. There is no case saying that he had been misled into diving into a place which was not as deep as where the others were apparently safely diving, so it must be over time. But there was no case here that littoral drift had raised the bottom so as to reduce the water depth between the last dive he saw safely executed and his dive. That would be absurd – no one suggested that. Littoral drift is a complete red herring, if you will forgive the expression. Littoral drift describes why a sandy bottom undulates, fluctuates, changes, and therefore has an effect on water depth from time to time and place to place along the coastline. It does not explain why he hit his head.

It is no more relevant to this case than somebody who suffers terrible injury because they go into the snow country and the weather changes and the temperature drops precipitously, it is no more relevant they knowing about snow, they knowing about weather, that the national parks service has a far more detailed meteorological and scientific understanding of why that happens than does the hiker. In our submission, the whole littoral drift thing has been inserted into this case so as to find something, so as to identify something that the Council knew about that Mr Vairy did not, and yet there is no variability in this case which explains why he hit his head at all.

Littoral drift can both lower and raise the seabed. There is no suggestion that anybody has any evidence in this case that it had either lowered or raised it from any date and point for comparison, and in particular that it was any higher or lower by reason of littoral drift or any other influence between the time of the accident and any antecedent time in the past that say Mr Vairy had observed people being safe or not. He jumped in, he said, mostly that day because he saw other people jumping in that day. Littoral drift has nothing - - -

KIRBY J: It just seems as though you are making a bit light of the fact that such a profound injury as paraplegia or quadriplegia happened, and you have the power, you have the knowledge, you have the extra knowledge of a littoral drift and yet you do not do anything.

MR WALKER: Your Honour, littoral drift cannot be shown to have done anything in this case at all.

KIRBY J: You can dissect it and take little bits and pieces. What I am looking at is the whole picture, which is what the primary judge did. You have the power, you have statutory responsibilities and such a profound thing as this type of injury had happened. Your officers knew of the risks, employees were trying to caution, and yet you did not even put a sign up. It just does not seem reasonable to me.

MR WALKER: Your Honour, a sign that attached to what I will call the littoral drift issue would have said something along the lines of, “The sandy bottom around the headland, and indeed all over the beach, may vary over time and space in an unpredictable fashion”.

McHUGH J: These are debating points about terms of notice. The real question is whether you prohibit people from diving or tell them not to dive.

MR WALKER: That is right, your Honour. Littoral drift, in our submission, has absolutely nothing to do with any of that.

KIRBY J: Except that it is the reason why you might prohibit. It is a reason why you might – the combination - - -

MR WALKER: But littoral drift is a phenomenon along the whole coastline. May I take your Honours - - -

KIRBY J: Yes, but this is not the whole coastline. This is not 27 kilometres. This is a place where you know that people are jumping off in large numbers, and then at least you put it in their minds and then the responsibility is theirs.

MR WALKER: Is your Honour asking me about littoral drift or depth of water? The two are - - -

KIRBY J: No. The littoral drift is one of the reasons why, on occasion, the water is not deep enough. Sometimes people can jump in and they are safe. Sometimes they can jump in and they are not safe and, unless you know these things – for example, I did not know these things before this case. I would never jump off a promontory but I did not know this phenomenon. It was not in my mind, at least.

MR WALKER: Your Honour, littoral drift is an explanation by hydrographers or geographers of which there is evidence in the papers, to which I will take you in a moment, which causes sandy bottoms to change. They change, if one likes, relevantly up or down. The depth of water, however, is not so much a function of littoral drift as a function of the position – the elevation, if one likes – of the sea bottom, the tide and the swell.

KIRBY J: It is a bit like Swain - - -

McHUGH J: Yes, but it explains why it might be safe just to dive in one day and not the next.

MR WALKER: But it cannot be shown to have explained that in this case at all.

McHUGH J: No, but it goes to the question of risk and what you have to guard against.

MR WALKER: Your Honour, if one is talking about the variability of the sea bottom, there is no evidence whatever in this case to show – and I am going to go to the figures in one moment – to show any particular relation between littoral drift and the entering in, from time to time, of periods where it was too shallow to jump off, dive off, from this part of the platform. No evidence at all. It is a red herring, because the depth of water involves the tide, involves the wave, and also the absolute elevation of the particular bottom.

McHUGH J: Exactly.

MR WALKER: And, if people are diving in safely, one inference is, the bottom is far enough below the surface of the water for that to have been accomplished safely. Unfortunately, according to the finding on the probabilities that he hit his head on the sandy bottom, unfortunately, that was not so for the plaintiff. That does not mean that littoral drift had on that occasion, or on any of the occasions in the past, operated so as to elevate the sea bottom more on that day than it had been the week before, the month before, or for most of the year before. There is no evidence of that kind at all.

Now what one does have, is what I will call the Australian Height Datum evidence, that is, which actually puts figures on things. If one goes to volume 2 of the appeal book, pages 584 and following, you have at the foot of 584 Mr Miller’s expert evidence:

Variations in water depths at the site are the result of changes in water level, principally due to tidal variations, as well as possible changes in sea bed level due to sand movements.

That is brought about by littoral drift. Your Honours will see that discussed on 586 under the heading “General Coastal Process Mechanisms”. But on page 585 about line 40 under the heading “Variations in Sea Bed Level and Water Depth”:

The results indicate that the sea bed at the site of the diving accident is varying by at least 1.6m –

that is the information you were given by my friend –

from around RL -0.9m down to approximately RL -2.5m AHD.

that is, elevations or depressions below a fixed reference point. So the variation there you get is the 1.6 by a subtraction.

During the period of record, water depths –

water depths are different, they are the height between the water surface, they are the distance between the water surface and the sea bed wherever the sea bed is –

varied from a minimum of 0.5m up to a maximum of around 2.9m.

We do not know, her Honour tells us – we do not know what the water depth was on the particular occasion, we do not know what the water depth was on any of the other occasions. We do know that people were apparently successfully diving.

HEYDON J: When the plaintiff was observed to have been injured, did not the rescuers find the water coming up to about here on their bodies?

MR WALKER: Yes.

HEYDON J: Well, does that not show what the water depth was?

MR WALKER: Yes, but could I take you to that passage that your Honour correctly recalled, page 749 in volume 3, paragraphs 49 and following. The particular passage Justice Heydon has referred to is in paragraph 51 about line 40 or thereabouts:

thought that the water was probably around 1.5 metres deep at that point.

now, that would make it, of course, towards the deepest end of the range that the expert found –

The water was around the height of their nipples.

That is the reference in question. But one finds in paragraph 49, second sentence on page 749:

It is not possible to identify the depth of the water adjacent –

The point where the men were observed standing with that level of immersion is described at about line 38 on 749 as being “some metres to the south of the dive location”.

GLEESON CJ: Was the plaintiff questioned in cross-examination about his own observations of the ocean floor and depth when he had been snorkelling the previous day?

MR WALKER: He was asked about his observations – or non-observations – just before he dived. He was not asked in relation to depth from the snorkelling exercise, so that there was no evidence revealed that he had formed an assessment of depth from the snorkelling exercise.

GLEESON CJ: Those photographs we looked at yesterday show that at least on the day when the photographs were taken, apparently the normal method of exiting from this locality after having dived into it was to walk out.

MR WALKER: To stand up and climb out, yes. Given those facts concerning depth, in our submission, it is not possible to say that knowledge about littoral drift added anything which affects the reasonableness of a response concerning people who do not know how deep it is, diving into water, they knowing they do not know how deep it is and drawing conclusions from what others have done.

McHUGH J: I just do not know how you can rationally say that, Mr Walker. It goes to the question of risk. It goes to the question as to whether the Council would know that the depth would vary from time to time.

MR WALKER: But, your Honour, there was no variation from time to time in this case caused by littoral drift even suggested, let alone demonstrated.

McHUGH J: We are talking about what the Council is going to do. We are not fixing on what the Council was going to do the moment this man dived. We are looking at what they are doing, looking at the question of risk, the chance of it occurring, the nature of the injury that might suffer and what would be a reasonable response to those possibilities.

MR WALKER: Your Honour, they are not looking at only that point. Can I go to the evidence of Mr Dawson to which reference was made yesterday, in volume 1, page 391. He was being cross-examined, in effect, about the content of the duty of care. Your Honours have already had a reference to the foot of page 391, lines 40 and following. He refers to beach fishing, surfing on unpatrolled beaches, then at page 393 he is asked about concealed risks. He says at 20:

There’s a concealed risk right along our waterfront for non swimmers.

Lines 25 and following:

The water depth changes several times a day.

That is called tides.

The sand moves.

Caused by littoral drift, but people know that sand moves -

That’s a risk that any swimmer takes when they go into the water.

Could I take your Honours then to page 403 at the foot of that page about line 35, asked about an obligation to warn concerning rocky outcrop:

A. No, I don’t concede that at all. You are referring specifically to rocky outcrop, and you are referring specifically to that location. And I do not concede that at all . . .

A. It comes back to the council’s duty of care. You have to draw the line somewhere because it is a physical impossibility for the council to warn every user. We have 27 kilometres of coastline, all of which is dangerous –

danger was conceded –

all of which is accessible to the public, and all of which contains specific dangers from sand moving, to rips, to sharks, to blue bottles, to sun bathing if you like . . . it is a physical impossibility for anyone to signpost all of those risks, because most of them ought to be evident to the user, and council attempts to deal with that issue by having of beaches which are patrolled in the major swimming seasons.

So, if you want to swim in the water, swim between the flags.

McHUGH J: Yes, but that does not eliminate your need to deal with particular situations. Risks are inherent when they cannot be eliminated by the exercise of reasonable care. Talk about 27 kilometres seems to me as irrelevant as saying, “I own eight blocks of flats. If I had to do this in respect of one, I’d be put to expense in respect of the other eight”.

MR WALKER: Your Honour, can I take you then to 384, 385 in the same evidence. The coastline in question is described there in passages your Honour is already familiar with, at the foot of 384:

A. It’s largely sandy beach with intermittent prominent headland with rocky foreshores.

Q. Is the rocky area to the north of Soldiers Beach an example of that configuration?
A. I believe so, yes.

Your Honours, this is not the private rentier with eight blocks of flats. These are people with statutory authority and powers in relation to, among other things, controlling the recreation of free people in the natural environment.

McHUGH J: But what you will not face up to is the likelihood of the risk occurring.

MR WALKER: That is foreseeability, your Honour.

McHUGH J: When you have a thousand people congregating at one spot the risk is a thousand times greater than one person diving in somewhere along the 27 kilometres of coastline.

MR WALKER: Mr Dawson addressed that as well, page 441, lines 25 and following:

Q. Would you agree that the variations which can take place in the sea-bed adjacent to the rocks at the northern end . . . could constitute a risk...
A. That is a risk that prevails along the 27 kilometres of our coastline.

McHUGH J: Yes, but not the number of people who were exposing themselves to the risk. The more people that expose themselves to the risk the greater chance that the damage or the injury will occur, and that calls on you.

MR WALKER: And reasonableness of response involves that as well as all the other matters, including, “Why would I select here of other places but if I do it here, where else must I do it and what risks do I warn of?” One does not construct that retrospectively by reference to the accident which occurred to the plaintiff.

McHUGH J: Of course you do not, but if you are the occupier of land you have to do it and the - - -

MR WALKER: And so in this case the question is: would you prohibit people entering the water at all from this rock shelf? Our submission is, for reasons I do not wish to repeat but have put - - -

McHUGH J: That argument may or may not be right but it does not seem to me that you can just simply say there are 27 kilometres.

MR WALKER: We do not just say - - -

McHUGH J: You have to look at the frequency with which the activity occurs. What is required of the suburban dweller who has 10 visitors a weekend is quite different from what is required of the grazier who has 100 square miles of property that nobody may ever go in certain parts of it and some person might go every 10 years. That is the question of the likelihood of the risk occurring that has to be taken into account in the calculus and here you have this what I will call an allurement. People are queuing up to dive.

MR WALKER: People queue up to enter the surf, as it were. That is, there are serried ranks of people walking into the surf.

McHUGH J: Yes, but the risks that are involved there, subject to Swain, cannot be practically eliminated.

MR WALKER: Nor can one even begin to dream of eliminating people wanting to enter the water from a vantage point like a rock platform. It is not true that people need to be told that the bottom of the sea cannot have its depth safely gauged and changes from time to time, because it is not true that people need to be told about tides, and tides, we know, are the major determinant of the depth of water. In our submission, what happened in this case could have just as easily be put down to the tide – the height of the tide – as the bottom. There is no evidence about the bottom. There is some evidence, not very satisfactory, suggesting the tide might have been quite high on this day, which makes the whole thing even more difficult to sheet home to the defendant, in our submission, but the risk of lots of people queuing up to dive off a place where the tides will make it too shallow or too deep cannot possibly result in the response being that Council has to put up a sign, “Beware, tidal variation of depth”, in our submission.

He has been going to the beach, he knows that the water is sometimes higher and sometimes lower against that rock shelf, or, if he did not, it is not reasonable for the Council to have taken into account the mentation of somebody familiar with the beach, not knowing about tidal variation of water level. In our submission, there is really no satisfactory answer to the tidal influence in whatever may have occurred to cause the head of this diver to hit the bottom compared to so-called littoral drift.

It is utterly irrelevant to indicate that some people will know more than others about the scientific explanations of phenomena that everybody, nonetheless, understands. Most people do not understand why the sky is blue or why rain falls when it does, but it does not mean that they do not know both things well and truly, and they certainly do not need to be given a scientific explanation by a person who does have the scientific explanation when rain brings about a risk.

Now, bearing in mind the time, if your Honours just forgive me, I will try and shorten this. Perhaps I should conclude simply by taking your Honours to some of the plaintiff’s evidence, or, I should say, to references to the plaintiff’s evidence. At 746 in volume 3 her Honour records – with respect, accurately – the effect of evidence given by the plaintiff about his conduct immediately before his dive. Paragraph 38:

The plaintiff was able to see the water. He said that he could not see the bottom.

Paragraph 39:

The plaintiff did not take any steps to assess the depth of the water adjacent to the rock platform before he dived. He assumed that it was safe to dive from the rock platform because he saw people on that day diving and jumping from it and coming back to have another turn.

And then she refers to other occasions as well. Then over to page 749, if I can go and refer to paragraph 49 – cannot ascertain the depth – and then over to 755 paragraph 73. Her Honour says:

I think it likely that the plaintiff could have seen the ocean floor had he looked . . . The plaintiff indicated that they had stood –

he and his niece –

had stood on the rock platform in a position somewhat to the rear (west) of the dive location. I accept –

as the plaintiff had said –

that from this position the water appeared to the plaintiff to be quite dark blue.

Now, in relation to those matters, which are critical to a decision whether you will “take the risk” – a phrase that he briefly entertained before rejecting in cross-examination – of diving in, there can be no sensible suggestion that he appreciated something considerably less than the Council appreciated about the safety of the manoeuvre he was about to perform. Everybody, Council, plaintiff, all the other people doing the same thing knew that you could not assess the depth by looking at it. In our submission, nothing in the Council’s appreciation of that matter concerning geographical explanations for one of the not major explanations for that, produces the result that there had to be a sign.

One cannot avoid, in this case, the question of what the sign should have said, if one steps back from the criminalising option. Once one discards the criminalising option, one just has a warning. One is left with, in our submission, the danger of fatuity entering, namely, pointing out the reasons why water depth may differ.

GLEESON CJ: Mr Walker, an impression I got from reading the evidence, but perhaps a false impression, was that on the day in question, and, indeed, usually, most of the people who went into the water jumped rather than dived.

MR WALKER: I do not think I am able to suggest any numerically reliable evidence for that.

GLEESON CJ: No. That was just an impression I got from the plaintiff’s description of what was going on that day.

MR WALKER: We would certainly accept, we are bound to accept, that he saw people diving.

GLEESON CJ: Yes, I thought the evidence was that he saw some people diving, but most of them jumping or bombing.

MR WALKER: Your Honours will - - -

GUMMOW J: Page 746, paragraph 39, it does say:

he saw people on that day diving and jumping - - -

MR WALKER: Yes, there is a - - -

GUMMOW J: That is an account of his evidence - - -

MR WALKER: The reference turned up, there is also a colourful description by the plaintiff, his word is “yahooing”. That is presumably a variety of manoeuvres.

GLEESON CJ: A lot of the discussion has proceeded on an assumption that safety is an absolute concept.

MR WALKER: Yes.

GLEESON CJ: I have some difficulty with that.

MR WALKER: Yes. That is why - - -

GLEESON CJ: I should have thought that safety is a relative thing and that there are aspects of entering any water – and certainly aspects of entering this water at this place – that would involve some kind of risk to some kind of people. There was a tragedy on Bondi Beach about two weeks ago which indicates the relativity of the concept of safety when you are dealing with water.

MR WALKER: Yes. That is why, in our respectful submission, I am - - -

GLEESON CJ: What does it mean to say it is safe to dive?

MR WALKER: It does not mean that no risk attends the activity. It is a shorthand way of summing up a complex decision-making process which would paralyse activity if it had to be entirely rational and fully thought out and articulated, but it is a statement, in effect – assuming it is a tolerably acceptably accurate statement – about a balance between the nature of an adverse outcome, the likelihood of the adverse outcome, the expectation of the competence or proficiency of the manoeuvre to be carried out and the chances.

GLEESON CJ: This may be part of the significance of the difference between a prohibition and a warning. It may be that what I will call safety considerations mean that in a particular place there should be a prohibition against a particular kind of activity.

MR WALKER: And may we interpolate, that might only be out of paternalism for the person wanting to run the risk. It may be another form perhaps of paternalism but of social theory that denies the reasonableness of subjecting emergency personnel to the risks of trying to save people, for example.

GLEESON CJ: Or it might be concerned to protect the ratepayers from the risks of litigation.

MR WALKER: Yes.

GLEESON CJ: There might be a number of subjective considerations going to it, but putting to one side for the moment a prohibition which may be absolute or limited, “No diving” or “No entering the water from this point”, or something in between, put that to one side, when you have a form of activity of which bathing is one example and skiing is another example that involves degrees of risk and degrees of safety, do you warn people about the objective facts, if any, that make this an unusually risky place or do you warn in general terms by saying, “This is a risky activity”?

MR WALKER: Neither, in our submission. Both become a form of tokenism or lip service to the notion of a reasonable response to the accepted perceived risk. For example, if one were to treat this particular spot, contrary to all our argument, as justifying a spotlight approach, would it have been appropriate to say of all the people on a warning, in effect – of all the people who had dived from this spot only one has suffered a fatal accident? Surely not, because that would be to encourage presumably
rather than deter people from running the risk, but it would have been accurate.

GLEESON CJ: Would a prohibition on diving be a prohibition on jumping?

MR WALKER: That then suggests the possibility of devising warnings that say, “Don’t dive head first”, which of course amounts to a very invidious judgment as to the differential possibilities of spinal injuries depending upon whether you strike first with one end of your body rather than the other.

McHUGH J: Yes, but Mr Walker, in every swimming pool associated with every hotel in Australia and every public baths, you will see a sign, “No diving at this end”. It is not a prohibition about jumping in; everybody understands what it means.

MR WALKER: But, your Honour, very few of those hotel pools are tidal and very few of them have got natural sea bottoms and very few of them are part and parcel of a completely non-artificial coastline.

CALLINAN J: Mr Walker, every physical recreational activity, even ballroom dancing, carries some risk.

MR WALKER: Your Honour devastates me.

CALLINAN J: There is no doubt about it. We are talking about recreational activity. People are testing themselves against the elements or against other people. I do not think there has been enough emphasis placed upon the fact that this is recreational, frankly. We all know the risks associated with extending your body in any way.

MR WALKER: Yes, your Honour. I hope the, as it were, word count of my use of “recreation” and a free citizenry makes it clear that we very much adopt, with respect, the observation your Honour has made. Your Honours, I am conscious of the time. The other matters are contained in our written submissions. May it please the Court.

GLEESON CJ: Thank you, Mr Walker. What was the agreement, Mr Semmler, that you would have a reply?

MR SEMMLER: It was, your Honour, yes.

GLEESON CJ: Go ahead.

MR SEMMLER: Thank you, your Honour. Can I deal with the matter raised by Justice Callinan. We accept that many recreational activities, not necessarily ballroom dancing, although perhaps it does, involve some risk. Obviously, that is apparent. But the difference is that some risks are inherent in the recreational activity in question such as there is a risk, for instance, in the Woods v Multi-Sport context that if you are playing cricket in a confined space you may be hit by the ball. That is a risk inherent in the activity voluntarily undertaken, in the words of Lord Hoffmann in Tomlinson, and, as Justice McHugh said, in certain circumstances such as risks on the beach of being dumped by a wave, there is not a way in which the exercise of reasonable care will eliminate that risk.

So a decision in favour of the plaintiff in this case does not carry implications for that situation. We accept that, but we are dealing with a different situation here. We are dealing with a risk not inherent in the activity of diving. We are dealing with a risk inherent in the state of the land adjacent to the rocky platform, which was controlled and occupied, in a sense, by the Council. That is the difference. The difference was made by Justice Ipp in the case of Prast v Town of Cottesloe. He decided, just as Justice McHugh has said, that the risks of surfing are inherent risks. They are different, in Justice Ipp’s view – and we respectfully adopt it – they are different from the risks inherent in the state of the land, when the occupier well knows of a specific problem that affects a particular part, not the whole coastline, this is focused on the headlands. This is where littoral drift has its greatest effect, the occupier is aware of a particular problem that confronts people that would not otherwise confront divers who are diving.

CALLINAN J: But does not the seabed move all the time? Particularly on and close to beaches?

MR SEMMLER: It does, your Honour.

CALLINAN J: Sandbanks develop and go away.

MR SEMMLER: It does, but we are not dealing with just a movement, we are dealing with at least 1.6 metres of differential, at least on a carefully conducted study over 64 days in the year following this accident. And we are dealing with a phenomenon that is – even Mr Dawson, the general manager of the Council, he knew about littoral drift. He thought, “Oh, it is probably less around the headlands because they are protected”. He was wrong, just like the reasonable members of the public, who know nothing about it, might be wrong in believing that there would be a lesser movement of sand around the headland.

So that that is the difference, and that is an answer to most of my learned friend’s submissions, when yesterday he was invoking this spectre of in effect, if this Court decides that the Court of Appeal did not err in overturning the trial judge’s decision, and upholds the decision for the plaintiff, that carries implications for people playing volleyball or engaging in other activities along the beach. In effect, that will be a problem for that kind of culturally acknowledged recreational activity in this country. It does not. It carries no implication for those things, because the things those people are doing are, like the activities in Woods v Multi-Sport, things that carry risks inherent as part of the activity and not as part of the land which you are doing the activity on.

CALLINAN J: Do you agree that if you do not make that out, you must fail?

MR SEMMLER: No, we do not accept that, your Honour, but that is one of the answers to your Honour’s inquiry. We do not accept that because, ultimately, it is not a question of just having some broad-brush approach to it and saying, well, it will have implications for this or that. The law of negligence has implications in every case, but it deals with them on the merits, on the evidence, as to what is reasonable and what is not. It cannot be that with all the decades of development of the law of negligence, that we get to a spot where we say, “Well, look, that has implications for this, this and this, and therefore, on the facts of this case, they were entitled to do nothing”.

It is all a question of reasonableness. That is what the Shirt calculus is all about. And for my learned friend to come along and say, well, it was all too difficult because Mr Dawson made a reference – and those were the only references he made in my learned friend’s submissions this morning – he made a reference to some other problems, the bluebottles and sharks – therefore, this Court is, in effect, prohibited, there is some kind of immunity that should be given to a council with these diverse responsibilities in respect of 27 kilometres.

It should be prohibited from looking at the facts of this case and should somehow or other assume that there was evidence to support this assertion, and that is all it was, that the risks in relation to those matters such as bluebottles, sharks, sunbathing, that those risks were, under the Wyong Shire Council v Shirt calculus, of the same magnitude and had the same prospect of occurrence. There was no evidence of that. My learned friend cannot say there is no evidence, therefore the plaintiff loses. The reality is the reverse.

There is no obligation on a plaintiff in a case such as this, having adduced the evidence that was adduced in this case, to discharge an evidentiary burden that falls on the defendant as to whether something is too difficult or inconvenient to achieve, given the circumstances. We did not carry that onus, the defendant did, and the defendant failed to discharge it and the trial judge was entitled, having been there, having seen it, having heard the evidence not just of Mr Dawson but of Mr Browne as well who said, “Look, you don’t have to put up signs all along the coastline. When I was Warringah Shire Council chief engineer I took it upon myself to walk across the whole of the territory occupied by the Warringah Shire Council.”

He went to every beach, to every headland on the northern beaches of Sydney, except Manly, which was not under the Warringah Shire Council. He said, “I did it. It took me six months but I wanted to make sure that I was familiar with what was going on throughout the shire.” He did it and he said that was what was reasonable. That was what was required. He was not cross-examined on that. It is our submission that it is just insufficient for a defendant in a case of this magnitude to come along and say to this Court, “Well, all we need to do to defeat the Court looking at the question of what was reasonable is to invoke this spectre of lots of other accidents in different kinds of activities like volleyball or different parts of the 27 kilometres” when first of all we do not know that they owed a similar duty in respect of those 27 kilometres. The evidence is silent on that. The only evidence about duty – we know there was a duty and that arose from their control as trust manager of the Norah Head Trust. This Court knows nothing about the duty or the powers or anything else in relation to the other 27 kilometres.

Secondly, we do not know anything about the facts of the risks. In Romeo Justice Kirby indicated that the inquiry looks at risks of a similar kind related to equivalent activity, and the implication of that would be perhaps in this case that you do not have to look at bluebottles and sunbathing, you look at diving. You look at diving in the context of whether there are other similar locations in this case as there were, for instance, in Romeo where Justice Hayne pointed out that the photographs themselves showed that the headland was not unique. The part of the headland from which Ms Romeo fell was not unique. There were other parts.

Now, there is not that evidence in this case. All that Mr Dawson said was he thought that this was an example of other headlands. We have no evidence as to how popular they were, what was the means of access. Had the Council, in effect, encouraged people to go to some unidentified allegedly similar spot where there were people every day lining up to jump off? There is no evidence of that. In our submission, that is the answer to all of my learned friend’s submissions on the question of the difficulty, inconvenience and expense of a public authority having to take steps in relation to other dangers of a similar or dissimilar kind.

It is notable, your Honours, that in Mr Walker’s very skilful submissions, I do not recall one word being addressed to the errors that we identified in our submissions, both written and oral, errors of principle which we say were committed by the majority in the Court of Appeal on the question of how one should approach the balancing exercise and the paramountcy or otherwise that should be afforded the principle of obviousness.

Mr Walker did touch upon the case of Nagle and seemed, from my understanding of what he said, to be suggesting that somehow or other it might be appropriate to adopt the approach taken in Aiken in this case rather than the approach taken by the other four judges in Nagle. First of all, that is contrary to the authority of Nagle, to the ratio decidendi, and, secondly, it is contrary to what this Court said in Romeo when it reviewed the differing approaches taken by Justice Brennan and the majority in Nagle and when Justices Toohey and Gummow at paragraph 49, Justice Gaudron at page 458, your Honour Justice McHugh at page 460, Justice Kirby at 474 to 475 and Justice Hayne at 489 all rejected the proposition that the approach taken by Justice Dixon in Aiken, that is, that when one is dealing with a public authority, all you need to do is take reasonable care to ensure there are not any dangers in respect to people taking reasonable care for their own safety which are not apparent. All of those passages, all of those judgments, rejected that approach.

HAYNE J: Mr Semmler, does your argument in the end hinge about these propositions: the Council knew or ought to have known that the area, the headland, was popularly used, knew or ought to have known that in the past it had sometimes been used without a safe outcome, therefore, the Council had to warn or prohibit the use of the kind that had produced adverse results?

MR SEMMLER: The circumstances that your Honour identified certainly go to that conclusion but they are not the reason necessarily for the conclusion. They are part of it but, as we know, the balancing exercise is just that. It is a balancing exercise, and the conclusion does not simply follow that because there was a foreseeable risk, therefore there was a breach of the duty, but the conclusion in this case was - the trial judge took great care in her judgment to weigh up the competing considerations. She did not do what, with respect, Justice Tobias did, which is to pull out one item in the balancing exercise and elevate that, and say this was so obvious, that is the end of it.

She carried out the balancing exercise required by Shirt and she reached a conclusion. The balancing exercise, we would agree, takes into account that the defendant was a public authority. It had conflicting responsibilities, but for reasons I have indicated, it is not enough just to invoke the spectre of these responsibilities. There should be some evidence, and in any event, even if there were evidence, that is not determinative either. It is a question of what reasonable care dictates.

My learned friend emphasised in this matrix of considerations – he referred to the dilemma of public authorities dealing with public funds. We would accept that that is a factor. Expenditure, the cost of doing something is a factor. It was not a big cost. Mr Dawson recognised that it was cheap and easy to put up signs and, with respect, what about the bigger picture cost. What about the bigger picture cost when the Council knows that just one accident like this can cause perhaps not just the ratepayers but the public at large an enormous amount of expenditure on health care and attendant care. In those circumstances, the very question of cost of doing something or not doing something may well militate in favour of taking steps to ensure that someone else does not suffer what Mr von Sanden suffered. Leave aside all the personal consequences. On a purely economic basis, that kind of consideration should have been brought to bear.

But in this case we had not one shred of evidence as to how the decision-making process went. What considerations were taken into account? Mr Dawson was the only person called - he was the general manager - in effect to explain the Council’s response. There was a risk manager in 1993, Mr Booth; he was not called. There were people who Mr Dawson said would have looked at the von Sanden accident and would have deliberated and made a decision as to whether something needed to be done. Mr Dawson could not give us the answer as to why that decision was made. He said he assumed that the decision was made that nothing needed to be done, given the fact that a man had just become a quadriplegic at that point.

Your Honours, my learned friend made this submission. There is not one iota of comparison, in terms of injuries suffered, between the injuries suffered from diving from the rocks and these were his words:

what happened with people playing tip football on the grass, playing beach volleyball . . . braving the breakers.

He said there is not one iota of comparison. We would say, how do we know that and if we need to know it, who has the obligation of telling us?

My learned friend also said that this Court should not encourage the approach of taking token precautions - in effect, we took some precaution, that was better than doing nothing and therefore that is a defence - or pay lip service to the need to do something. But we are talking here with risks of possible catastrophic consequence. This is not a question of lip service or token gestures. The judge found that a warning would have prevented the paralysis that Mr Vairy now suffers from. It would have done it. He was careful for his own safety and for the safety of the little girl that he had with him who had asked him to go up there in the first place. It is simply inappropriate, we would suggest, to talk about lip service and tokenism in those circumstances.

GLEESON CJ: What about a sign that said, “Dive at your own risk”?

MR SEMMLER: Probably, with respect, a different situation.

GLEESON CJ: But why might that be an appropriate response, “Dive at your own risk”?

MR SEMMLER: No, it would not, your Honour, not on the evidence in this case. Mr Browne made quite clear, from his extensive experience, not only, I might say, in Warringah but on the Mornington Peninsula in Victoria, that if you want something to be effective, something more, in effect, than a token I suppose, if you are going to prohibit the activity you have to explain why.

GLEESON CJ: I understand that but suppose somebody from the Council had said – and I know it is not this case – “We are not minded to criminalise risky recreational activities but we want to force people, before they engage in these activities, to bring their minds to bear on the fact that they are taking a risk and we want to produce the result that if they desire in the exercise of their free choice as citizens to take that risk, they’ll do it without any legal recourse to us, so what we’ll put up is a sign saying, ‘If you choose to dive, it is at your own risk’.” Would that be a reasonable response?

MR SEMMLER: Could I answer it this way, your Honour, on the facts of this case, it would have been a response which would have avoided this accident, given the trial judge’s findings as to Mr Vairy’s attitude to any kind of warning sign, including the danger of sharks when he was water-skiing. The evidence was quite clear he was very, very careful about these things in relation to signage, so that is part of the answer. But the other part is, we would say, for the reasons I have already given, that that would not be an adequate discharge of the respondent’s duty in the circumstances of this case, given the expert evidence in particular.

GLEESON CJ: Thank you.

MR SEMMLER: My learned friend said that Mr Dawson was justified in not – these were his words:

not embark[ing] on the exercise of cataloguing all the obvious risks of playing by the sea and then deciding to criminalise that conduct.

Those were his words. As I have already indicated, Mr Browne had a completely different approach. He said, “Look, what you do is you familiarise yourself with these risks”, and he did it by spending six months walking around the shire. But, in any event, even if it were reasonable to adopt the view that that was just totally over the top as a response, the reality is, in this case, the shire had already done it.

It is not a question of “They did not put up any signs anywhere, because it was all too complicated. If we do it here, what are we going to do there?”. There is abundant evidence in volume 2 of the appeal books of the signs they actually put up. They put up a whole load of signs criminalising the innocent, recreational, culturally accepted recreational activity of taking dogs to the beach with their signs, or of lighting fires in places where it was not appropriate, or of drinking alcohol. They criminalised these things in the same way that my learned friend raises this spectre of criminalising this innocent activity of diving, when you might become a quadriplegic.

So the whole basis for this notion that it was all too difficult and expensive and “If we do it here, where else do we do it?” is exploded by that circumstance. They had made their decision. As a reasonable council, it was quite appropriate. They had looked at places where there were risks or problems and they took action, and that is what the common law requires. But, in this case, they made a mistake by saying that the risk there was not one, in the reasonable response of a council, with all our powers and duties – that was a risk that did not require some kind of warning, even despite the fact that a man had already become a quadriplegic.

GLEESON CJ: You showed us yesterday a “Diving Prohibited” sign in the evidence.

MR SEMMLER: Yes, that was - - -

GLEESON CJ: Was that in the Wyong locality?

MR SEMMLER: Yes, those are signs from the Wyong Shire Council.

GLEESON CJ: I am not asking for the details, perhaps you could just give a reference. Did the evidence show where those signs were located and why?

MR SEMMLER: Terilba Reserve at The Entrance, which is not far away from – it is not very far away at all from Soldiers Beach. And they were only examples, your Honour, there were signs all over the place. As we all know from our common experience, activities are criminalised all the time, if that is the correct way of categorising it. That does not mean that it is all too difficult in respect of a particularly significant risk with consequences of high magnitude.

In any event, your Honours, it is not a question of whether your Honours take the view, as your Honours would know, that something should or should not have been done. It is a question of whether the Court of Appeal erred in their approach to it, and, in turn, whether the trial judge was justified in what she did. To invoke notions of a well-known, traditional, Australian, culturally understood risk-taking – they are the words that my learned friend used yesterday afternoon – deployed in the form of mockery of the criminal law, when it is well-known that it is not going to be enforced, is unnecessary.

To use those words about a situation that we see in exhibit D9, the photograph of the young man plummeting headlong into the water, a year after Mr Vairy has had his accident and 15 years after Mr von Sanden has had his accident, and to say that somehow or other the need to warn about the risk that that young man faces is something that is not reasonable, because this was a well-known, traditional, Australian, culturally understood risk-taking, is, in our respectful submission, inappropriate.

Your Honour Chief Justice Gleeson yesterday asked about the difference between looking at the problem after the event and before, and your Honour referred to the Bartlett Case. One would reach the conclusion that care required that action be taken in this case on a prospective, as opposed to a retrospective, analysis, because of the level of activity known to the Council and because of the earlier significant accident. That is the reason.

It may be in a case like Bartlett it is not appropriate for a person looking at a factual situation of land to isolate a particular problem prospectively, not knowing that an accident is about to happen. That is a completely different situation where you are fixed with knowledge of popular dangerous practices in relation to a particular part of the land. Mr Dawson himself acknowledged at page 419 that in 1993:

prohibition signs played an important role in minimising risk in areas occupied by council –

and he acknowledged that the use of the warning signs:

could save the ratepayers . . . millions of dollars possibly in respect of any one accident –

That was his evidence at 419, and that is our answer to this notion that the conflicting responsibilities, in effect, mean that you do not have to warn at a particular place. At 406 line 40 Mr Dawson accepted that:

At the end of the day it gets back to could council reasonably foresee that a person might be injured. And if the answer to that is yes, the council has an obligation –

to do something about it. I appreciate what Mr Dawson says is not what the Court decides reasonable care requires, but he is the general manager of the Council. He determines whether or not something should be done by reference to foreseeability, and what could be more foreseeable than the possibility of injury at this particular location?

Now, your Honours, I am conscious of the time, I will just very briefly touch on the matters raised by my learned friend this morning. My learned friend challenged the judge’s conclusion that this was a distinct and unusual platform. She found it to be attractive, she had been there, she walked all over it, she looked at it from different angles, and she also relied upon the evidence of somebody who had considerable knowledge of the topography of the coastline, Mr Browne.

Mr Walker said the evidence in this case failed to show that this was a black spot, but it did not need to show it was a black spot, although we would say it did. As the article that Justice Tobias referred to as somehow or other indicating a trend in the United States authorities, as that tells us, the Connaughton article, the American authorities at least are agreed on one conclusion, and that is that if there has been an accident at a particular location, there is an obligation to warn about it. That is what the very article that Justice Tobias referred to concludes.

KIRBY J: What do you say the Court should infer from the fact that some of the lifesavers, when they attempted to tell young people of the dangers, they just told them to “Bugger off”?

MR SEMMLER: Really, that would accord, we would say, with common experience in certain situations.

KIRBY J: But at least you have in this case the finding of the judge on the issue of causation, which is in your favour, in relation to this man.

MR SEMMLER: Yes. We also have – and because of time, I cannot refer to it, but there is a very telling report from one of the beach inspectors employed by the Council in 1978 in volume 2, Mr Crouch. He complains in 1978, the year before, I think, or the year of Mr von Sanden’s accident. He complains that the Council has not put up enough signs, that there is a real communication problem between the people using the Council’s beaches and headlands and the Council itself.

KIRBY J: He complains to whom?

MR SEMMLER: He complains to the Council. It is his report, 1978 - - -

KIRBY J: You had better give us that reference, then.

MR SEMMLER: Yes, I shall. I will get you the appeal book – he says, look, we need to warn, and he uses the words:

for what other reason does a council exist for.

They are his words – but to give some warning, to help people. He said there were not enough signs. They needed signs not only on the beach, but on the headland, the very headland that we are dealing with here. That was one of their beach inspectors. The other one, Mr Edwards, specifically told or at least was quoted in the local paper as telling the Council that is what they needed, a sign at this particular location. Mr Crouch’s report – his annual report for the year of 1978-79 is found at volume 2, page 509 and 510.

My learned friend suggested that littoral drift did not have anything to do with this case. There was an overwhelming inference available on the evidence that it did. That is the inference that the judge adopted and was entitled to draw. The fact was, tide did not play a part in this. The other people who dived in the five minutes before Mr Vairy dived were diving into water which was essentially the same, in terms of tide, as the water into which he dived. It was a calm day. There was not a lot of surge or swell. He dived and the reason why he hit the ocean bed was, overwhelmingly, by inference, the littoral drift phenomenon of which the Council was fixed with knowledge.

Your Honours, I am conscious of the time. The final submission we wish to make is this, that this Court deals with legal principle - it is trite to observe that - and notwithstanding what my learned friend said in his submissions, for the reasons we indicated, there was an error in the adoption and implementation of legal principle in a number of respects demonstrated in what the Court of Appeal did in focusing on one factor in the Shirt calculus to the exclusion of others. But in addition to this Court - - -

HEYDON J: Have you run over your time?

MR SEMMLER: I possibly have.

HEYDON J: Well, I think what you just last said and quite a number of the other things you have said, you told us in-chief.

MR SEMMLER: Yes, right. The final thing that I wanted to say - and it will only take 30 seconds - is that in addition to legal principle, this Court has often observed that the common law should reflect the views of ordinary Australians, and our submission is that if ordinary Australians were confronted with this basket of facts, all of them, they may well say that what he did was foolish, but they would also inevitably say why did not the Council - - -

GLEESON CJ: How do we test that? Do we conduct an opinion poll?

MR SEMMLER: I appreciate it is difficult, your Honour. Those are our submissions.

KIRBY J: Did you have a right to jury trial in this case?

MR SEMMLER: Yes, there was. Those are our submissions, your Honours.

GLEESON CJ: Thank you, Mr Semmler. Yes, Mr Reynolds.

MR REYNOLDS: If your Honours please. There have been quite extensive written submissions filed in this particular case, particularly by my client. In my submissions to your Honours here this morning, I wish to do two things: first of all, take your Honours briefly through the circumstances surrounding this particular injury and, second of all, to review some of the key points in our submissions.

To try and illustrate how this injury occurred we have taken a copy of volume 10 of the appeal books, page 3738, and your Honours’ tipstaves should have a copy of that page onto which we have transposed some grid references. Perhaps if I allow your Honours a moment just to have a look at that document which shows the area of the accident.

CALLINAN J: Where is the channel, Mr Reynolds?

MR REYNOLDS: If your Honour sees the rock wall at about E11, the channel runs right under the bottom edge of that rock wall. I will be coming to that in a moment.

CALLINAN J: At the left extremity of that, looking at the plan, is that where the water starts to race quite fast, is it?

MR REYNOLDS: Yes, exactly. The route the plaintiff took, if your Honours imagine starting down at the bottom left-hand corner of the page, if your Honours go up to about J2, he and his fiancée get onto that concrete pathway and they follow that, turning right then due east. At about I3, they take a turn through a little sandy path onto the beach area and they have what has been called their first swim around about G3. So they go into that area there which is fairly shallow and they have a swim there. Now, at that point they both see - - -

GUMMOW J: Do we know the significance on the particular day of the mean high and low marks?

MR REYNOLDS: It was mid-tide, your Honour, when this accident occurred. I see people are swimming in the channel under the rock wall. There are about 15 to 20 people, and both the plaintiff and his fiancée saw people diving into the channel. The plaintiff makes that observation at volume 1, page 49 line 35, and his fiancée, there is a passage in appeal book volume 2, pages 496 to 498.

GLEESON CJ: What do you mean by “diving” in that context, Mr Reynolds?

MR REYNOLDS: Your Honour, I cannot elaborate it further because I would be elaborating on evidence which was not elaborated upon. They see that there are people who are diving into this channel ride down under the rock wall and riding it down towards the ocean. So what they do is, having seen that, they take their gear and they move it to approximately grid reference G9 and they put it on the sand there. They then walk north from G9 into the water at about F9 and about the bottom of E9, that is, about a quarter of the way along the rock wall, they come to a fairly sharp gradient where this channel is and that is where they both proceed to dive into this channel in a shallow fashion as everybody else had been doing.

GLEESON CJ: Does “diving” in that context mean wading into about waist depth and then flinging their arms forwards?

MR REYNOLDS: Yes, your Honour. It was, as the trial judge found, a very shallow dive, a fairly safe form of diving.

GLEESON CJ: It has very little in common with the dive that we have been looking at in the preceding case.

MR REYNOLDS: Exactly, and one of the points that I want to underline about this case is that you could not on any view say that what the plaintiff and his fiancée were doing was foolhardy. The reaction of most people at the way this accident occurred would be “There but for the grace of God go I”, not that this was an act of gross stupidity, something that, to use the vernacular, only a mug would do, and we would like to stress that as a most important part of this case, that is, on the issue of the extent to which reasonable care would result in the avoidance of the risk. As the plaintiff’s accident showed, you could exercise, as the Council said in their submissions in the Court of Appeal, very great care and yet still this accident could occur.

So they come to this downturn in the gradient and do the shallow dive, and they then float east along the channel ride just underneath that rock wall. As one gets towards the beach, and this is approximately G15, the water gets shallower, and you can hop out. In theory, one can go back to do the ride again on either bank, but it is easier to do it on the southern bank, because, if you were to do it on the northern bank, you would have to walk all the way around the rock wall, back through the safe swimming area, which I will come to in a moment, around the rocks, wade out and do it that way. It is easier if you want to do the ride – and there are other people, as the trial judge said, doing this – to walk back along southern bank. That is what they did, and, of course, they had their gear as a marker. They were concerned about their valuables and they went back to their gear as a marker, and then walked back in each time at approximately the same spot, and did the same sort of dive, and again floated down.

Now, importantly, the plaintiff gave evidence, which was accepted by the primary judge, that on this activity, which took somewhere between half an hour and an hour, depending on whether one accepts the plaintiff’s version or his fiancée’s, on numerous occasions, he tried to touch the bottom of this channel with his feet and on no occasion was he able to do so, and on no occasion did this man experience what had been described as “sand forms” either in the shallows or, alternatively, in this particular channel. The final dive your Honours know about. He hit a sand form, again, in the proximate spot where he had been diving on previous occasions.

KIRBY J: Which is?

McHUGH J: E9, is it not?

MR REYNOLDS: E9 – to be fair, it is probably about the bottom right hand corner of E9, perhaps even slightly into F9. Do your Honours see at the top right hand corner of F9 there is a squiggle there? That is probably the spot, thereabouts, maybe a bit further north of there.

Now, your Honours, this accident did not occur on some ordinary stretch of the coastline. It happened immediately adjacent to an area which has been described all the way through the judgment as a safe swimming area for children and families. That safe swimming area is located, if your Honours go to C6, that is, about the middle of it, and there are various features I would ask your Honours to observe. The first is that it is bounded at both ends by this training wall. If your Honours see the rock wall at about F3 rising up to about D2, and then, of course, there is the rock wall that I took your Honours to earlier on at about E11.

Now, this safe swimming area has a retaining wall – your Honours see the word “Timber Retaining Wall” there – and your Honours can see how there are steps that go down to it, and there is a little area of sandy beach. Your Honours see where the low watermark is, and your Honours will see that at the low watermark, one can walk down, if one goes to the western extremity of the rock wall near where the plaintiff dived, you can walk at low watermark right down there to the edge of the channel.

So this channel ride, that we have talked about already a little, is immediately adjacent to this safe swimming area for children and families, which was – there is no issue about this – constructed by the Council. It is there in a crescent shaped alcove. It has the effect, when there are waves that come down the creek on a particularly stormy day, it provides a refuge for mothers, perhaps, and their young children. There was an observation by Justice Whealy at volume 12, appeal book 4363 at line 30 – there is a reference to a document noting that this area was attractive to children and families, as your Honours would guess, as a matter of common sense.

When the sea is rough, that is the sort of area where young mothers would take their children when they were concerned about them going into the surf. In fact, that is what happened on this occasion. The plaintiff and his fiancée were concerned about swimming in the surf, which was rough on this day, and that is one of the reasons they said they swam in this creek, although not, of course, from the safe swimming area.

Just pausing there, your Honours have been referred already in this argument to Nagle’s Case [1993] HCA 76; (1993) 177 CLR 423. Can I take your Honours briefly to that. The particular passage that I would take your Honours to is at page 430. There is an extensive passage that goes from the top of page 430 down to about point 4 on that page, where their Honours talk about how the defendant in that case “encouraged the public to use” the facility. Then at about point 3:

by encouraging the public to swim in the Basin, brought itself under a duty of care –

and, importantly, at about point 4:

by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them –

and these are the words I would stress –

and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated - - -

GUMMOW J: What does “naturally” mean? What is masked by the use of the word “naturally”?

MR REYNOLDS: What is masked is a statement: “[I am here expressing a view as a juror or member of the tribunal of fact]”. We accept, I think, what Mr Walker said about this issue, that one of the things about Nagle is that there are some statements of law, many of which we have tried to extract in our submissions, but, inevitably, and this is something that judges do not always emphasise – if your Honours have done any reading for this case, you may have looked at a decision of Mr Acting Justice Gyles, which I will take your Honours to or refer to very briefly later on.

In that case, which was a case Saroukas, your Honour the Chief Justice will remember, his Honour at various points was eager to distinguish between when his Honour is acting as the tribunal of law and when he is acting as the tribunal of fact. This is a situation where their Honours are expressing a view not on a matter of law, but, I would suggest, as members of the tribunal of fact - - -

GLEESON CJ: I do not remember ever having gone into a children’s playground in which there was a warning of all foreseeable risks associated with activities that could be conducted in the playground.

MR REYNOLDS: But your Honour is aware of many areas that are designated swimming areas which contain warning signs in relation to diving risks. As your Honour Justice McHugh said in relation to hotel swimming pools, that is something which one observes all the time. It is also something one observes all the time in designated swimming areas, whether they be created completely artificially or carved out to some extent from a natural environment.

GLEESON CJ: It is just the generality of that proposition of fact on page 430 that is concerning me. I have never seen a child’s playground which had a sign saying, “Warning, if your baby falls off this swing it might hurt its head”.

MR REYNOLDS: Again, your Honour, there may be all sorts of reasons for that. There may be practices involving playgrounds about supervision by the people that run the facility or, alternatively, telling parents that they have to supervise their kids that may make that unnecessary.

GLEESON CJ: I agree. I only take that example because I cannot think of a better illustration of an allurement and a situation requiring care on the part of the person who provides the allurement, but they do not, in my experience, warn of all foreseeable risks of injury associated with the activity.

MR REYNOLDS: Again, I will not repeat myself. The situation of a designated swimming area which is artificially carved out of the environment or purpose built we say is something which traditionally has been an area where these sorts of warning signs have occurred. That is on breach, and in conjunction with the observations about taking account of the possibility of inadvertence at page 431 point 3, they are the principal observations made by their Honours in Nagle on breach which are relevant to this case.

The point I would make at this point of my argument is that my client has these findings of encouragement and more. There are a number of other features of this case which my client can point to. Picking up on a question your Honour Justice Hayne asked of my learned friend, Mr Semmler, your Honour talked about one particular factor or two which summarised the case. I submit that my client has one of those factors and several more and I wish in my brief observations to your Honours this morning to emphasise what those points are leading eventually to a submission that, on the issue of breach, this is the strongest case that your Honours will see in the case law for a warning sign in a safe swimming area.

GUMMOW J: What do we do though if you are right, Mr Reynolds, because you lost at the trial. Unlike in the other case, there is nothing to restore, as it were.

MR REYNOLDS: Your Honour, in the special leave application I put various arguments to the Court about some difficulties we perceived in the reasoning of the Court of Appeal.

GUMMOW J: Assume you are right about that.

MR REYNOLDS: I am getting to your Honour’s question. In this case, on the special leave application, your Honour the Chief Justice said to me, “Well, what about Justice Whealy’s reasoning? What do you say about that?”. We have tried to respond to that question in our written submissions, and we have set out, I hope your Honours will think clearly, the difficulties which we maintain arise from that reasoning. Now, underlying - - -

GUMMOW J: Assume you are right about that.

MR REYNOLDS: If we are right about that, we say that we have, as it were, vacated the field. If we show there is error in the reasoning of the Court of Appeal, then that goes. If we show there is error in the reasoning of Justice Whealy, then that goes, and then we are in a situation where we are inviting your Honours – as happened in Nagle – to say that the plaintiff succeeds in this case on breach, which is relevantly, on the appeal, as opposed to the notices of contention, the only issue.

GLEESON CJ: What was the cross-appeal about, Mr Reynolds?

MR REYNOLDS: Apportionment, I think.

GLEESON CJ: How did apportionment arise on Justice Whealy’s findings?

MR REYNOLDS: I have to confess, it is not an issue which I have looked at, because it does not concern me.

McHUGH J: He notionally assessed it, did he?

GLEESON CJ: All right. I can understand that somebody might want to disagree with that part of his Honour’s reasoning, but why would it be the subject of a cross-appeal if he never made any orders about it?

MR REYNOLDS: Your Honours, that is really something, if I may say so, that your Honour should perhaps raise with my learned friends.

GLEESON CJ: Yes, we can ask your opponents about that.

GUMMOW J: But the bottom line is that you want judgment entered for your client by us?

MR REYNOLDS: That is the order we have sought at the end of our written submissions, just as the plaintiff in Nagle’s Case sought that. Just while I am talking about the difficulties which we have raised in relation to Justice Whealy’s reasoning and the written submissions filed by my learned friends, I think I am correct in saying that there is almost no response at all to the difficulties which we have attempted to identify and his Honour – and I will be saying this later on – in his judgment - - -

GUMMOW J: Well, you seem to be winning, until about five minutes to midnight, and then you do not win.

MR REYNOLDS: Your Honour, with respect, that is an acute observation, because what Justice Whealy found on breach was that the case was “very evenly balanced” – I think they were the words he used, and particularly on the issue of obviousness it was very evenly balanced, and his Honour talked about a legitimate sense of grievance which the plaintiff may feel, given the results of other cases. The point we would make in relation to the submissions which we have made is that if there is no response to all of these difficulties which we have isolated and Justice Whealy found the case was teetering on the cusp of success for the plaintiff on the issue of breach, then that is a very good reason why, if your Honours accept that there are problems with the reasoning of the trial judge, your Honours would find negligence established by my client in this Court, as I say, just as Mr Nagle did.

Now, the next thing that I would like to stress is what we have called in our submissions the effect of the training wall on the creek. I need to refer back briefly to a key portion of our written submissions and if your Honours could perhaps have that to hand.

The relevant passage is at paragraphs 4.55 to 4.58. This was a very hot issue in this case, your Honours. There was a substantial fight between two eminent experts on the effect that this training wall, which was constructed by the Council in the state of New South Wales, had on this creek. If your Honours go to paragraph 4.56 first, your Honours will see that the effect of the training wall – these are findings – was to stabilise the creek generally, and the creek entrance, in particular, preventing the previous meandering of the creek entrance and the sand blockages which had previously existed. Now, your Honours can get a handle on the meandering by looking at appeal book volume 10 at page 3614, and get a feel for the effect that this training wall had on the creek entrance.

KIRBY J: Which page?

MR REYNOLDS: Page 3614 volume 10. That is a diagram of the various changes to the entrance, and your Honours will see all sorts of channel flows there, sometimes up to the north, sometimes to the south, sometimes to the north east, sometimes a little bit up to the north and then down to the south again, and sometimes just going to the south. Sometimes the creek was completely blocked with sand.

At appeal book volume 4, there is some further illustration of this at volume 4 page 1589 to 1591, and your Honours have there diagrams of the entrance there at various years from 1890, 1942, 1969, et cetera. If we just move very quickly through these, your Honours will see at the bottom of 1589 that the channel or the entrance to the creek is tracking south of that point. On the particular date over the page, in 1969 at page 1590, it is travelling a little bit south from a pool of water. Then in 1973 on that particular day, it is going north. Importantly, your Honours see in 1977, this is – the rock wall was initially built in 1977, extended in 1986 – it starts to track, at the top of 1591, basically due east, and then in 1986 much the same.

That is not the only effect that this wall had on the findings – and I stress that – the findings made by the primary judge. If your Honours go to paragraph 4.57, there are findings there referred to that the wall improved the hydraulic conveyance characteristics of the channel and tended to increase tidal prism. Tidal prism is the volume of water and channel velocities. One would guess that, almost as a matter of common sense, that if a large rock training wall is put in, it would have the effect of concentrating the entrance at a particular point, increasing the water volume, increasing the speed of the water and the general conveyance characteristics of the channel.

At paragraph 458, we referred to – and I stress this – it is not a finding but is a matter of agreement between both experts in a joint memorandum which we refer to there, exhibit T, the wall increased the depth of the channel. Finally, if I can go up to paragraph 4.55, there was a finding by the primary judge that the wall clearly had an impact on the size of the bed forms in the channel. They remain within normal and naturally occurring limits, but they had more than a minimal impact on the variability of the depth of the creek. Of course, there were also findings made by the primary judge about the size of bed forms, sometimes large, sometimes rogue values and they are referred to in our submissions at page 4.36. The plaintiff only hit a moderately elevated sand form, but on occasions there were larger sand forms in this particular creek.

The point we make, of course, is that this building and this training wall had a marked effect on the creek but, more importantly, on the area which was the subject of this accident. Before this training wall was built, there was meandering and sand blockage of this area, sometimes the water could not get out at all, it was shallower, it was slower and, as I said before, it meandered around. What happened is that this training wall consolidated this channel right next to this wall and it meant that the water travelled faster, there was more water and it was deeper. That is the effect of this artificial structure, the western edge of which is part of this and immediately adjacent to this safe swimming area for children and families, because this channel ride, as I have called it, which everyone seemed to be riding on the day of the accident, which the primary judge found was a pleasurable experience, which was ridden many times by the plaintiff and his fiancée, was effectively created by this artificial structure. Certainly, the conditions were exacerbated, relevantly, by the building of that structure.

Now, your Honours, I really do not even need to refer to case law on this for the obvious proposition that, on the question of reasonableness, if the defendant creates or exacerbates the risk, then that is of critical importance to the issue of breach. Even Justice Brennan in Nagle made that observation at page 435 at point 8 and there was a case, your Honours, decided a couple of days ago called Edith Cowan – I do not have it to hand, but I have made a note for myself that at paragraph 14, your Honours, on the issue of breach in that case referred to the creation of the risk. It is bread and butter law that that is important, and what we have here is an area – one thing I did not mention before is that this - - -

GUMMOW J: Was that paragraph 14, Mr Reynolds?

MR REYNOLDS: Yes, your Honour, that is my note. I do not have it to hand. If we go to that, that is the unreported decision of Czatyrko v Edith Cowan University.

GLEESON CJ: That was a safe system of work case?

MR REYNOLDS: Quite, and this is an area involving a safe swimming area for children and families designated as such, and this is a channel that runs right next to it with – I did not mention this before – if your Honours go back to the map, there are very extensive amenities and facilities in this recreation area of the north, which are summarised by reference to findings in paragraph 4.11 of our submissions. There is a kiosk, the public lavatories, car parks, barbecues and what have you.

GLEESON CJ: Did your client hit his head as he dived in, bearing in mind the meaning of “dive” with which we are concerned, or when he was being carried along in the water?

MR REYNOLDS: He dived in with his arms in front, and, as I understand it, he pulls his arms like that as he is going downwards and hits his head on the sand floor. That is the mechanism as found by the primary judge.

I do not want to put this in language which is too extravagant, but, if one looks at this particular facility, there is a ride which is an obvious allurement, not only to children but also, as happened on the day, to adults, immediately adjacent to this area. It is not something within my experience but, apparently, these days, there are a variety of theme parks that parents can take their children to that have various water rides where you can either swim or hop on a mat or a surfboard or something. It is something of that ilk that we have here just in this restricted area, right next to the safe swimming area.

I will spare your Honours what might be called a jury address on that point, but those of your Honours who have addressed juries in cases like this are no doubt licking your lips at the notion of talking to a jury about this facility, this particular ride, this small area, this artificial creation, this training wall, which exists in this particular spot.

KIRBY J: Did your client have a right to a jury trial?

MR REYNOLDS: It is not something I have looked at. Certainly, on my recollection, not without the agreement of the defendants. It is not something I have ever inquired into, your Honour. Just pausing there, if one compares this case with, for example, Nagle’s Case – and I will come briefly to some others – this case has at least those two extra elements, that is, this artificial creation of the risk and then a feature similar to the Vairy Case, namely, that you have people having fun, doing the ride, just as they do the jump or the dive in the Vairy Case and, importantly, diving into it as the relevant mode of entry.

Those are two factors which, I submit, my clients have, over and above the situation which four Justices of this Court, looking fundamentally at the issue of reasonableness – we have those two factors, which are over and above the situation which obtained in Nagle, plus a third, and that is what I will call the “absence of foolhardy conduct” element, because there is a reference within the judgment in Nagle, at page 430 at about point 9, that what the plaintiff did was foolhardy. No one has suggested that what my client did on this particular day or what his fiancée did was foolhardy, and that is a third factor which, I submit, makes this a stronger case than the case which appealed to four Justices of this Court in the Nagle Case.

KIRBY J: What was the second point, I am sorry, the second factual distinction? The first was the artificial creation, the third was the lack of foolhardiness, what was the second?

MR REYNOLDS: Then there is the ride, the what might be called a “water world by the sea” factor – perhaps putting it a little extravagantly.

GLEESON CJ: If you put your case on the basis that, as a factual assessment of reasonableness, you begin with Nagle and then you add three additional elements, you require us to form our view about Nagle.

MR REYNOLDS: Certainly, I would not deny that this case raised for your Honours the consideration of whether if your Honours had been, as I have put it, the tribunal of fact in Nagle, your Honours may have come to a different view. I accept that.

GLEESON CJ: Mr Reynolds, is it your case, or was it your case at trial, that any aspect of your client’s conduct should have been prohibited?

MR REYNOLDS: Justice Whealy at one point notes at paragraph 271 of the judgment that this was not a prohibition case, although he makes the observation elsewhere that it was originally pleaded as such. It did not proceed in that way, so I have assumed that we are dealing here with a warning case. If one comes back to the - - -

HAYNE J: Warning against what? Diving, diving with added propulsion, diving at all, what?

MR REYNOLDS: In substance, a warning that diving is dangerous in this area.

GLEESON CJ: If uninstructed, I would have had a bit of difficulty categorising what your client did as diving.

MR REYNOLDS: That is something which is – that idea is something raised in one of the American cases which my learned junior, Mr Hewitt, found on the issue of obviousness, that is, that it is more difficult to suggest that it is obviously risky him performing a dive from a standing position, but - - -

GLEESON CJ: How else do you get into this? I mean, let us suppose that one wants to go on this ride – chute, if I can use that expression – how else do you get yourself in a position to do it other than by the means adopted by your client?

MR REYNOLDS: Your Honour, the only evidence that exists as to how one gets on the ride is that people did it in the way that my client did it, but, as a matter of common sense, there are at least some other possibilities. For example, there is this rock training wall which provides an elevated platform from which, for example, some 10 or 12 year old boy is there with his two younger sisters and mother and, looking with a friend for a little bit of adventure, could dive straight in, off the training wall. That is another form of entry. Another is, as I said before, to go straight in, down to the low watermark, say, out of the safe swimming area. That is another way of doing it, and another way of doing it is if one, for example, wants to ride the channel on one’s board or surf mat - - -

GLEESON CJ: Assuming you are not using a bellyboard or a surfboard.

MR REYNOLDS: No, but somebody could ride it and stand up and then dive off the board is another way it could occur, as a matter of common sense.

GLEESON CJ: Yes, but I suppose there may be some people, who did not want to get their hair wet or something, who would go on this ride with their head sticking up out of the water like a duck but most people would do it with their face in the water, I imagine, and I cannot quite work out how you would get into that position without doing something like what your client did.

MR REYNOLDS: Your Honour, we would not disagree with that.

GLEESON CJ: I am not suggesting this is against you.

McHUGH J: Can you not jump in? Looking back on it, I used to do some dangerous things when the Bowen River, in North Queensland, floodwaters were receding. We used to jump in the water and get carried downstream by the floodwater and hope we would stop ourselves by grabbing hold of the overhanging branches from trees. I mean, we just jumped in and just got carried down by the water.

CALLINAN J: Justice McHugh was very adventurous.

GLEESON CJ: But unless you are going to be carried along in a sitting position - - -

HAYNE J: With a couple of attendants.

GLEESON CJ: - - - at some stage, you are going to be face down in the water, with your head going first and your feet going last, at quite a speed, presumably.

MR REYNOLDS: A variety of positions could be adopted, your Honour.

McHUGH J: I mean, the water just carries you along.

MR REYNOLDS: It does.

McHUGH J: You can be almost in a perpendicular position.

MR REYNOLDS: One might, for example, jump in, initially being risk averse, and then, as one floats down the channel, one discovers, as this fellow did – acting prudently, he tries to touch the bottom on numerous occasions, about six or seven times, and he cannot touch the bottom. That point – and we are dealing here with a channelling effect as well, you have got fast running water next to a stone wall, which would give most people the impression that the bottom is being flattened out through this fast running water. He goes down a number of times, perhaps even more prudently jumping, perhaps lowering himself – like an elderly matron into her evening bath – on the first occasion, but, having discovered that he cannot touch the bottom, he then makes an assumption, as this fellow did, that it is safe enough to dive and then performs a shallow form of dive.

That is why this area is dangerous, because you have this illusion that it is safe enough to dive, but you have these obstacles located sporadically within it, which are sometimes moderately elevated and sometimes even larger, as we have said in our submissions.

The magnitude of the risk, obviously, is high. There is little expense, difficulty or inconvenience involved in putting these signs up at access points. Can I remind your Honours briefly of an observation that is oft quoted of Sir Harry Gibbs, which your Honour Justice McHugh referred to in one of the cases on the list called Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460. At page 482, your Honour Justice McHugh, referred to this decision in Turner v The State of South Australia where his Honour said that:

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

A very similar statement to the one your Honour Justice McHugh referred to from Lord Reid in Wagon Mound. There is no suggestion here, we submit, that could be made about conflicting responsibilities, so - - -

GLEESON CJ: That word “possible” in that passage cannot mean physically possible, can it? Bearing in mind the meaning that has been given to “foreseeability”, if that word “possible” means physically possible, then there are many foreseeable risks that are not guarded against in circumstances where people do not ordinarily regard that as unreasonable.

MR REYNOLDS: Your Honour, here we are dealing with a very high magnitude of risk and we are dealing with the other factors to which I referred, and the reason that I am referring to that statement is not so much to hang my hat on it for the purposes of saying my client comes within that principle, but to make the observation that that is an oft-quoted statement of principle, that if that is enough for a plaintiff to win, just as it is enough, so this Court held in Nagle, for there simply to be encouragement, we have these other factors to which I have pointed over and above those matters.

GLEESON CJ: I think you were asked by Justice Hayne about the warning and the content of the warning you were proposing, accepting that this was not a prohibition case.

MR REYNOLDS: Your Honour, can I perhaps come to that in the context of some evidence which I will be dealing with a little later on, and I will respond to it. If we pause at this point and look at these various factors which I do submit establish a reasonably strong plaintiff’s case on breach, certainly compared with the decisions, what is it that the defendants are able to point to to, as it were, exculpate themselves from a finding of breach? Now, just about the only thing - - -

HAYNE J: But how do we get to consider breach if you resolutely wait to tell us what this warning is going to be? We have salamied up “breach” in a way that is apparently not especially helpful.

MR REYNOLDS: If that is the case, your Honour, I - - -

HAYNE J: Well, is it? How can there be a breach unless we know what it is that the reasonable response would require?

MR REYNOLDS: Your Honour, it is fair to say that counsel for the plaintiff in this case at trial kept his case fairly broad on the issue of what the appropriate warning should have been.

GLEESON CJ: Like the plaintiff in Nagle.

MR REYNOLDS: No, your Honour. That, with respect, would be unfair to my predecessor. On my reading of Nagle that appears to be something which was not looked at at all. That is not the case here. What happened here is that there was a great deal of stress placed in the case on a case called the Gunnamatta Bay sign. That is found at volume 10 of the appeal book at page 3711A. That is a - - -

GLEESON CJ: I am sorry to harp on this question of what constitutes diving, but the activity that is depicted with a line through it on that sign has very little in common with the activity that your client was engaged in.

MR REYNOLDS: That is a matter which Justice Whealy focused upon, because that argument was put against my client at the trial. At volume 12, page 4473 at about point 8 - - -

GUMMOW J: Paragraph?

MR REYNOLDS: Paragraph 307 of the judgment of Justice Whealy. His Honour says at about point 8 on 4473:

While there may be an element of ambiguity in the sign –

he is there talking about the Gunnamatta Bay sign –

it seems to me that given the layout of the southern and northern banks of the creek and the creek bed itself, such a suggested ambiguity is not a prohibition on the plaintiff’s success in the case, if he were otherwise entitled to succeed. As a matter of factual evaluation in the circumstances of this case, it seems to me that the sign would have been likely to have been construed by the plaintiff and others like him, as a warning against jumping or diving in any fashion while swimming in the creek.

So, although the plaintiff did not tie himself to that particular sign, there is an observation to that effect by the primary judge that, if I may put it this way, that sign would have done the job.

Now, the reason that I wanted to defer this question a little was not that I was not willing to answer it, but rather because I wanted to deal with it in conjunction with some fresh evidence which I was going to come to later on but which I will deal with right now. After the hearing of this case there were some warning signs erected by the Council. If your Honours go to volume 12 there is an affidavit of Mr Bell that goes from pages 4538 through to 4557.

There is also a further affidavit on page 4559 which goes over to page 4560 for three lines but I should point out that your Honours should strike the whole of paragraph 5 there on page 4560 because it was not read and likewise the annexures at pages 4561 through to 4569 were not tendered before the Court of Appeal, so they should not be before the Court.

If I can go back to this affidavit, Mr Bell on his inspection - if your Honours go to page 4541, your Honours will see there are some markings, N1, N2, N3 and S1, on the southern side about the location of these particular warning signs which I will come to in a moment.

HEYDON J: N1, N2, N3 and S, did you say?

MR REYNOLDS: I am sorry, I think it is S1, your Honour. If your Honours go to page 4551, your Honours will see this sign that was ultimately erected. That sign is important for a couple of reasons. First of all, on the findings as to causation made by the primary judge and made by the Court of Appeal, if that sign had been there on the day of the accident, then we would not be here today.

HEYDON J: Because of “Submerged Objects”?

MR REYNOLDS: That is the second matter that I am coming to, your Honour. The second matter, as your Honour Justice Heydon has raised with me, is the particular warning which is located there on the bottom left-hand corner and, dealing with the query your Honour the Chief Justice raised about diving from above the water, that is a sign which perhaps is slightly more appropriate to deal with a situation where a plaintiff is diving from within the water rather than from above it.

KIRBY J: It is not very specific. It is very general and has an awful lot of information on it.

MR REYNOLDS: It does.

KIRBY J: Did the trial judge in this case accept that had there been a sign of that kind that the plaintiff would not have proceeded as he did?

MR REYNOLDS: He accepted that if there had been a sign warning that diving was dangerous that the plaintiff would not have dived.

GLEESON CJ: But he never looked at that sign. That sign was not before the trial judge.

MR REYNOLDS: No, he did not. No, it was not. We have referred in our submissions to a case of Nelson v John Lysaght which establishes that if a precaution is taken after an accident occurs, then a plaintiff may put it into evidence to show the practicability of the relevant precaution, and we rely upon this fresh evidence after the trial - - -

GLEESON CJ: Was that received by the Court of Appeal?

MR REYNOLDS: It was, and for some reason they never even mentioned it. I should say this. Your Honour says, “Was that received?”. I need to be clear about that. My recollection is that their Honours deferred ruling on it and it has never actually been the subject of a ruling. They seem to have forgotten all about it.

GLEESON CJ: You would not need to prove, would you, that it was practical to erect a sign?

MR REYNOLDS: Not to erect a sign - - -

GLEESON CJ: There would never have been any doubt, would there, that it would be possible and inexpensive to erect a sign that said “No Diving”?

MR REYNOLDS: Your Honour says that to me, but, for my sins, on at least half a dozen occasions in the Court of Appeal I have had that point taken against me, that there is no evidence about the cost of erecting a sign. But, with respect, I would embrace what your Honour says to me.

GLEESON CJ: I would have thought that the problem or the issue of practicability in a context like this would not so much be the physical and financial practicality of putting up a piece of metal with some words on it, it would be the question that we looked at in the last case, that is, exactly what do you say and where do you say it?

MR REYNOLDS: Quite. That is the other aspect of practicability. We say it is a nonsense to talk about expense and inconvenience, that the practicability of having a sign, since your Honour the Chief Justice raised it with me, which deals perhaps more particularly where they dive from within water, although Justice Whealy found that the Gunnamatta Bay sign or something very similar to it would be okay and would relevantly telegraph to a swimmer what the risk was – that is a finding we rely on. There is this other practical way of doing it.

GUMMOW J: Did the trial judge not have some environment reservations about signage?

MR REYNOLDS: Yes. That is - - -

GUMMOW J: Which were fatal to you in the end, were they not?

MR REYNOLDS: Your Honour, we have dealt with that in our written submissions in some detail, if I can find them. This very point is raised in our written submissions at paragraphs 5.95 through to 5.101.

GUMMOW J: Yes, that is it.

MR REYNOLDS: Your Honours perhaps can have a look briefly at what we have said there. Certainly, Justice Tobias, as we note in paragraph 5.97, at least by implication, thought that there was some difficulty with this reasoning, because he simply said that it would have been simple and inexpensive. We put this submission in the Court of Appeal. His Honour does not refer to it in terms, but says, “Well, yes, I agree here it would have been simple and inexpensive”, yet Justice Whealy has these qualms about this issue. I submit that there are very grave difficulties for the defendants in advancing this argument in this case - - -

GLEESON CJ: You may be right on this, but the issue, I think, goes a little beyond aesthetic considerations. A problem that is frequently raised in this context to relate it to, for example, Nagle’s Case, is why on earth would you give a warning about that rock? Why would you not then seek out all the rocks submerged and warn about them all? What was there about that rock? Now, your predecessor in Vairy said there was something special and particular about this particular rock formation, but that is addressing the problem. The problem is not that the signs are not pretty. The problem is that there is not any particular reason before the event why you would direct your attention to this particular problem or, as it was put in Jones v Bartlett, why would you have warned about this particular door? The house was full of doors made of this kind of glass.

MR REYNOLDS: I would just be repeating my submissions on that point. Here, there is something very special about this particular area, for the reasons that I have attempted to outline in my submissions, which distinguishes this area from what I might call the broad reaches of the creek up to the west. But, your Honour, the defendants’ problems in this case on this issue are much more fundamental than that. For the argument to run that if you have to put a sign here the defendant would also have to put a sign up into yonder and thousands of signs, which is the flavour of this, at a minimum, you would have to make findings which would establish that the defendants had a duty of care in relation to those other areas of the creek. That, first of all, is not possible in this case, to apply the duties that were found in relation to these defendants in relation to other areas. For example, the Council is the trustee and has the care, control and management of the northern section of the creek and encouraged people to come and swim there. Now, there is no finding in relation to any other area of the creek that the Council had a similar responsibility.

So the first thing you would have to do if you were a judge addressing that submission is say if there is a duty in this area that the plaintiff is talking about, there is also a duty up.....into the upper reaches of the creek for these reasons, and his Honour has really, with respect - this is more of almost a throwaway remark rather than a considered evaluation of that issue. His Honour says at one point in this quote that “there is considerable force in the notion that”, but does not really grasp the nettle and make two findings, first of all, that the defendants have duties in relation to areas in the upper reaches of the creek; more importantly, if they are in breach in this area, then they would also be in breach in relation to those other areas. Finally, as I said before, there are vital points of distinction between this particular area to the east of the bridges and those areas to the west of them.

GLEESON CJ: How long had this facility – if I can use that expression – been in operation?

MR REYNOLDS: The training wall was built originally in 1974 and then in 1988 it was extended. That is the ride.

GLEESON CJ: Was there evidence in this case as there was in Vairy of any similar occurrence?

MR REYNOLDS: No, your Honour, we say that this is not a situation where a single accident had occurred but rather it was a situation where there was an accident waiting to happen. Before I forget, the other aspect of this fresh evidence on what has been called the festoonery argument is that part of this fresh evidence notes that the Council did not put signs up in any other place other than at the four access points in relation to this swimming area, and we rely also on that to show that this Council made that evaluation and formed the view that their duties in this particular area did not require them to put signs west of the bridge.

So putting it another way, in response to your Honour the Chief Justice’s concerns about Justice Whealy’s judgment, one short way of deciding this case, given that his Honour found that it was very evenly balanced on breach, would simply be to say that in two respects this fresh evidence tips the scales in the plaintiff’s favour (a) on what is called the festoonery issue; and (b) on what is called the practicability issue, the practicability of displaying a sign that would deal with this risk. We submit that one has, as one must - your Honours must, as my learned friends say, give some general allowance for the advantages that a primary judge has in a case like this. We accept that to some degree. But where a judge minutely – and we submit, with respect, very competently – evaluates in great detail the issue of breach, exposes his reasoning process, unlike, with respect, many other judges on this issue of breach, and then says, “This is a very 50:50 case”, then I submit that your Honours can with more confidence put to one side the difficulties that might otherwise exist in evaluating a case in this Court where the plaintiff has not previously succeeded on the issue of breach.

Your Honours, I have this difficulty, that I said to my learned friends before that we could really only each occupy an hour and 15 minutes both in-chief and in reply and I am now down, on my count, to about 6 minutes for my reply. Considering that there are all sorts of issues raised on the notice of contention, can I very quickly race through – and I mean race through – the remaining points that I wanted to make?

Can I make these points, first of all, in relation to obviousness, we all seem to agree, on the written submissions in both of these cases, that this is a matter to be assessed as a matter of fact and degree in all of the circumstances. Here the danger was not easily - - -

GLEESON CJ: Mr Reynolds, we will adjourn from 1.00 pm till 2.00 pm today, not from 12.45 pm to 2.15 pm, so just take that into account.

MR REYNOLDS: Would your Honours just allow me a moment? I still unfortunately have to move very, very quickly, your Honour, but thank you.

GLEESON CJ: Yes, you will, whatever time we give you.

MR REYNOLDS: First of all, this danger was not easily detectable. Second of all, a person exercising a high degree of reasonable care for their own safety may well not perceive the risk. Thirdly, the presence of others diving into this channel might well lull a diver into a false sense of security. Fourthly, there is what I will call the channel effect, which I have mentioned before, flattening out the bottom.

Next, there is – and this is also referred to in this Edith Cowan Case at paragraph 18 – the likelihood of repetitive use of this particular ride, the fact that bed forms are only located sporadically. Next, there is a high likelihood of inadvertence, as referred to in paragraph 5.25 of our submissions. If one evaluates this case as a matter of degree, there is a high likelihood that some swimmers would not fully or readily appreciate the risk.

I was going to examine, or hope to examine, some of the case law. We have compiled a list of cases, which your Honours’ tipstaffs should have, and it is perhaps a pity that we do not have the opportunity of looking at some more of these cases. These are all cases where the plaintiffs have succeeded on duty and breach. There were a number of things I wanted to say there, but, moving through as quickly as I can, in general terms, my submission is that this case on breach is stronger than the cases upheld on duty and breach by these courts in all of these cases.

In particular, I would ask your Honours to read – it is unreported, but No 7 on that list is a case your Honour the Chief Justice and Justice Kirby will recall, a case of Boylan, where your Honours found that the defendant was – that was a case where the plaintiff dived into Manly Dam and a case nowhere near as strong as this case was on the issue of breach. He simply walked in. He had slept from three o’clock until 6.00 am after a night out on the drink and walked in the water up to about his thighs and dived straight into a rock.

KIRBY J: Did not Justice Meagher dissent in that case?

MR REYNOLDS: Not at all. Now, that was a case post-Nagle. The other case that I would ask your Honours to look at is No 2 there, where your Honour the Chief Justice, admittedly rejecting the plaintiff’s case on causation – that was the Gunnamatta Bay Case - - -

GLEESON CJ: This is the person who went over the wrong side of the fence.

MR REYNOLDS: Yes, but, importantly, your Honour the Chief Justice before Nagle found that the defendant’s conduct in not putting up a warning sign – I might add, right away from the swimming area but in a walking area on a pathway – was unreasonable.

GLEESON CJ: I notice paragraph 8 in Manly Municipal Council.

MR REYNOLDS: I am sorry, your Honour?

GLEESON CJ: Manly Municipal Council really began with Nagle, but the case you are talking about of Saroukas, was that before Nagle?

MR REYNOLDS: It was, and that is the point I am making.

GLEESON CJ: Have we got that?

MR REYNOLDS: Your Honour the Chief Justice has looked at this issue twice, on both occasions has found that (a) there was a duty to warn, (b) that the defendant was in breach, in cases involving, on one view, very foolhardy conduct, which had none of the other elements. I might add that in the Saroukas Mr Acting Justice Gyles, now Justice of the Federal Court, also upheld the whole of the plaintiff’s case, and, again, that was before Nagle. None of these - - -

KIRBY J: Boylan seemed to have been a case where the Court of Appeal was not convinced that error had been shown on the determination by the primary judge, whereas your problem here is that the primary judge did not find in your favour.

MR REYNOLDS: No, but said, “This is a very evenly balanced case”. Your Honour Justice Kirby, in a case of Joslyn v Berryman, reported in 2003 – I am afraid I have lost the reference, but I assume your Honours have the - - -

HAYNE J: 2003, yes.

MR REYNOLDS: At page 584 your Honour talked, about point 3, about issues of – your Honour was talking about contributory negligence in that case being always questions of fact. But your Honour made this observation, that where these “questions fall to be made by judges”, this is at paragraph 100:

it is probably inevitable and in the interests of judicial consistency (which is a hallmark of justice), that trial judges and appellate courts should look to the way earlier decision-makers have resolved like factual questions.

That is probably why your Honour the Chief Justice and your Honour Justice Kirby made observations in Boylan such as that Nagle required the conclusion your Honour has reached. Not because, obviously, your Honours were formally bound, but because, in the interests of consistency of judicial decision making, your Honours felt that that was appropriate.

GLEESON CJ: If this is to be regarded as a borderline case, what is the significance of the fact that you have concurrent findings of fact against you on the issue of reasonableness?

MR REYNOLDS: Well, your Honour, we have gone in our written submissions to great length to try and isolate – I hope your Honours will think with some clarity – the specific errors of law made by both the Court of Appeal and the primary judge. Now, if your Honours agree with even some of our submission, then, if your Honours are able to do so, your Honours will look afresh at the issue of breach.

Can I say one other thing about that and it is this, that one of the unusual aspects of the decision of the Court of Appeal is that, instead of looking at the errors articulated by my client as appellant, and, as it were, readjusting the primary judge’s reasoning to take account of any errors that have been upheld, their Honours in effect look at the whole issue of breach as if it were res integra. They start afresh and say, this is our reasoning on breach and do not just adjust the reasoning of the primary judge. My point is that we do not have a situation where, in effect, two levels of courts have basically found the same conclusions. We have different forms of reasoning, in relation to which we have articulated various errors.

Insofar as consistency of decision-making is concerned, I submit that it is important that there be that consistency. I have said to your Honours that this is a stronger case than all of these other cases, and particularly stronger than Nagle, Saroukas and Boylan, and it is difficult to explain to a lay person like my client why it is that these men – and they are men, all of them – won their cases and yet he has lost his. These are only questions - - -

HAYNE J: Because the answer lies in the articulation by you of why this is a stronger case, not the bare assertion.

MR REYNOLDS: Quite.

HAYNE J: And true it is that like cases are to be treated alike. The question is: are the cases alike?

MR REYNOLDS: Your Honour, as I have said before, these are cases where, in my submission, there are a number of significant stronger factors here which did not exist in those earlier decisions. If your Honours please, those are my submissions.

GLEESON CJ: Yes, thank you, Mr Reynolds. Yes, Mr McCulloch.

MR McCULLOCH: Your Honours, the first point to be stressed is that there were concurrent findings of fact, as we have set out in our written submissions, and all of the submissions which my learned friend has made - - -

GUMMOW J: What do you mean by “concurrent findings of fact”? The Court of Appeal’s attitude is completed slanted by their view of “obviousness”? This is just a mantra, this phrase.

MR McCULLOCH: Not quite, your Honour. In that respect, what their Honours did in the Court of Appeal was having, we submit, approved the findings of fact made and the conclusions reached by the trial judge, then took a further step. So in that respect, there is concurrency between the trial judge and the Court of Appeal. The fact that the Court of Appeal went further in dealing with the obviousness issue does not detract from the submission.

GUMMOW J: What are the disputed facts as distinct from conclusions to be drawn from them?

MR McCULLOCH: Your Honour, the disputed facts, for example, include what was observed by the plaintiff as to the activity that was going on on the southern bank, what his fiancée saw, his observations made at various points along the creek as to whether the water was of one depth or another. There was nothing at all, as far as I have been able to find in the judgment, any finding that this was a ride, as it has been presented to your Honours today to be, in the sense that the Council had some pre-existing knowledge of it or it was notoriously used as such.

There was no evidence at all that anyone was resorting to the current adjacent to the rock training wall from the northern reserve. All of the persons who were observed by the plaintiff and his fiancée were seen to be entering the creek from the southern bank approximately adjacent to the rock training wall which was to the seaward side of what has been described as the safe swimming area.

One or two matters in that respect need to be emphasised, your Honours, and that is that the aide memoire that my learned friend handed up, the crosshatch plan, goes some way towards describing the boundaries of the relevant portions of land, and if I could ask your Honours to focus on the point at about G1, which is the beginning of what is described as the “mean low water mark” and which I will describe as the northern mean low watermark, that was the southern boundary of the northern reserves that was described in the judgment. The northern reserve relevantly then terminated at its western point where the railway bridge is shown, and included at the eastern end Park Beach. The portion of Park Beach which was to the south of the creek formed part of what was described in the judgment as the jetty reserve.

Now, the plaintiff and his fiancée went to the porpoise pool; they did not go to this area as a destination for the purpose of swimming. It was their evidence that they went to the porpoise pool with the aid of a brochure they had obtained from the local tourist bureau and, having completed viewing the show there, decided to have a swim at the beach. There was some evidence about this in addition to some interrogatories that were administered to the plaintiff in this respect. The brochure was exhibit M at the trial and it showed quite clearly, if your Honours will go to volume 10, page 3532, and it is perhaps the first page of the - - -

KIRBY J: What are you seeking to get out of the brochure?

MR McCULLOCH: What I am seeking to illustrate by use of the brochure is what it was that the plaintiff had regard to and the relevance later in the judge’s findings of the encouragement which his Honour found was constituted in part by the northern reserve.

KIRBY J: He is not likely to sit down and study it with great care; it is just a brochure.

MR McCULLOCH: Perhaps I should pause in view of your Honour’s comment to address these points. The submissions which I am about to address deal in part with the notice of contention which relates to whether or not my client relevantly owed a duty of care at all to the plaintiff, because the plaintiff approached from the south and then entered the creek from the southern side, an area over which my client was not the corporate manager of the reserve trust and therefore did not have the recognised duty of care that would exist in those circumstances. Instead, the trial judge focused on the encouragement which his Honour found was constituted by the facilities on the northern side of the creek and by the Council’s role in facilitating the construction of the pathway which appears on the grid map at about I3 and I4. What I will be endeavouring to do by way of submissions very briefly is to illustrate that those matters alone or in combination could not give rise to a duty of care in the circumstances.

KIRBY J: What are you seeking to get out of the brochure?

MR McCULLOCH: What I am seeking to illustrate by use of the brochure is what it was that the plaintiff had regard to and the relevance, labouring the judge’s findings, of the encouragement which his Honour found was constituted in part by the northern reserve.

KIRBY J: He is not likely to sit down and study it with great care. It is just a brochure.

MR McCULLOCH: Perhaps I should pause, in view of your Honour’s comment, to address these points. The submissions which I am about to address deal in part with the notice of contention, which relates to whether or not my client relevantly owed a duty of care at all to the plaintiff, because the plaintiff approached from the south and then entered the creek from the southern side, an area over which my client was not the corporate manager of the reserve trust and therefore did not have the recognised duty of care that would exist in those circumstances.

Instead, the trial judge focused on the encouragement which his Honour found was constituted by the facilities on the northern side of the creek and by the Council’s role in facilitating the construction of the pathway, which appears on the grid map at about I3 and 4. What I will be endeavouring to do by way of submissions very briefly is to illustrate that those matters, alone or in combination, could not give rise to a duty of care in the circumstances.

Now, we have dealt with these in our written submissions and what I will endeavour to do, because the time is limited, is just to try and focus on one or two of the points for this purpose. Returning then to exhibit M in volume 10 at 4533, what is remarkable, we submit, about this plan is that it assists your Honours to find an area called Englands Park, which is referred to – unfortunately there is no grid reference to it. It is just underneath the figure of the person in the canoe.

GLEESON CJ: What page number is this?

MR McCULLOCH: I am sorry, this is 3533.

GLEESON CJ: You said 4533.

MR McCULLOCH: I apologise. It shows, relevantly, the western portion of the creek, because your Honours will see Orlando Street where it intersects with the – there is a reference to the “Coffs Creek Walk” that your Honours will see, which proceeds around the northern edge of the creek and in part on the southern edge of the creek. So there was to the west of the creek area a mangrove boardwalk. These are all matters which were observed by his Honour at the view that was taken, and those areas are significant in terms of the question of practicability that my learned friend adverted to earlier in his submissions.

Returning then to the final matters relating to the geography, it is true, and it is not disputed, that the northern reserve, of which my client was the corporate manager, was improved and was improved significantly and had a grassed area, barbecues, kiosks and the other matters that have been referred to. There was to its south, and as your Honours will see from the northern mean low watermark, almost wholly within the reserve area, an area which was described as a safe swimming area, because parents could resort there with their children, where the children could wade in safely, because the water was generally, when it was flowing through there, relatively level and shallow.

There was no evidence that anyone had ever used the rock wall as a means of projecting themselves into the water, whether by jumping, diving or otherwise. The learned trial judge, we submit, in terms of the notice of contention, erred in his focus upon areas which were across a clear and natural boundary marker, that is, the creek, in finding that those features, those improvements, could somehow be regarded as an encouragement to use the southern bank. In fact, we would submit the contrary would apply, that is, to the extent that people wanted to use facilities, they should resort to the northern part of the creek, which is obviously an attractive and complete area – that is, an improved area – whereas the area of the southern bank was left in its natural state.

I see the time, your Honour.

GLEESON CJ: All right. We will adjourn until 2.00 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ: Yes, Mr McCulloch.

MR McCULLOCH: Thank you. May I just return to the question that Justice Gummow asked me before lunch, and point out the other errors in the way in which we submit the case has been presented here in terms of factual dispute. The case was never run in the court below, that is, the court of trial below, as a ride case. It was never run as a case involving an artificial structure causing some form of risk, except the case that the training wall caused some monster dunes, unusual sized dunes, to be created. The trial judge dealt with that latter matter conclusively at paragraph 213 of the judgment. This is referred to in our written submissions, but perhaps it bears a moment now. It is at 4431 of volume 12.

GUMMOW J: Paragraph?

MR McCULLOCH: It is paragraph 213. Regrettably, it takes the whole page, your Honour.

McHUGH J: The judge said it would have been a very small increase, but 6.75 centimetres is 15 inches. In fact, it is more. I mean, it is not small when you are talking about - - -

HEYDON J: 6.75 centimetres is about an inch and a quarter, is it not?

McHUGH J: Is it? Oh, an inch and a quarter – centimetres, yes. Yes, you are right, sorry.

MR McCULLOCH: At line 20 on that page, the trial judge found:

In the end, I am not able to conclude that the training wall brought about an abnormal or unusual situation so far as the impact on bedforms size was concerned.

and there is a finding to like effect at line 45, concerning the conditions which obtained on the day of the accident, where his Honour says:

By this, I mean that on the day of the accident or, more precisely, at the time of the accident, it has not been demonstrated that the impact of the training wall resulted in any significant variation to the size of sand dunes in the creek beyond those that might be naturally occurring there as a consequence of the tidal flow conditions.

The speed of the current and the way in which the plaintiff moved himself down the creek was limited, in terms of evidence at the trial, to the plaintiff saying that he observed other people doing the same sort of thing and he found it to be a pleasurable experience. No evidence was ever led to suggest that this was something that was done habitually or was notorious, in that relevant sense.

HAYNE J: What has obviousness got to do with this at all?

MR McCULLOCH: Obviousness, your Honour, has this to do with this case. At one level, the case could have been determined against the plaintiff without the question of obviousness even being determined, because the action of diving into the creek, as the plaintiff did, was an ordinary activity which anyone could undertake and which anyone who chose to undertake that activity would have to accept the risks that were involved in it. It is like diving into the surf.

In this respect, this area of the creek was an estuary, it was tidal and so it was, to all intents and purposes, like diving into the beach in that respect. Obviousness is relevant both to the fact that everyone would be taken to know that the bottom of creeks are not flat, that they change, they vary in height, they vary in texture and feel and so on, every minute of the day, every hour of the day and each day, because the tide comes in and out twice in the day. The heights of the tide vary according to the moon and so on.

McHUGH J: It may be obvious that the height of the water in the creek would vary with the tide, but it seems to me a large proposition to say that everybody knows that the creek bed itself undergoes change. We are talking about creek beds, we are not talking about surf.

MR McCULLOCH: This is not a creek bed such as the one that your Honour might have ridden in your Honour’s childhood in Queensland. Because it is part of an estuary, twice a day it receives the action of waves from the surf pushing through the estuary area, which extended west beyond the bridge, and there was evidence that the sand which existed in the area of the creek west of the bridge, for a particular distance, and east of the bridge, was marine sand. In other words, coming from the sea. So it was not a creek that might be expected to have some sort of normal or habitual bottom to it, but every creek would vary from time to time, depending on the flow and what was flowing down the creek.

GUMMOW J: What is the distance – does the evidence show – from the railway bridge to the sea?

MR McCULLOCH: I think it is about 100 metres, your Honour. I will try and get a more accurate measurement. I will ask my learned junior to find that and give your Honours a reference, if we are able to, later. There is a reference to 350 metres that your Honour might be considering. That is a measurement relating to a waterway study that was undertaken on behalf of the Council in part in its role as manager of the northern reserve, and that extended 350 metres west of the bridge, with the bridge being the starting point of the study area. I need to say one other thing about the facts, lest it be - - -

McHUGH J: What is your answer to Justice Hayne’s question? What has obviousness got to do with it? It is one thing to say that given the possibility of risk and danger that no response was called for, but this introduction of obviousness of risk seems to be almost a backdoor way of getting in volenti non fit injuria without requiring the addition that a person not only takes the physical risk, but also the legal risk of injury, that is to say, gives immunity to the other party.

MR McCULLOCH: Obvious risks in that respect would be understood as ordinary risks of everyday life, we would submit, your Honour, and understood that way they do not introduce any element of volenti non fit injuria at all. They are the sorts of risks that people should and are expected to understand, such as the fact, as Justice Spigelman said in Swain in the Court of Appeal, that no one diving into the beach could expect the level of the sand to be the same at all points. It is variable.

McHUGH J: That is one thing to talk about beaches. I am not persuaded at the moment that you can say the same thing about creeks.

MR McCULLOCH: Your Honour, the evidence in that respect, there were many, many days of expert evidence from experts marshalled on behalf of the plaintiff and the defendant, which was pored over at great detail by the trial judge and which enabled him to reach the conclusions that he did, namely, that - - -

GUMMOW J: It was expert evidence, that is the point that is being put to you.

MR McCULLOCH: Yes, it was, your Honour, but the expert evidence established that what occurred at this creek at this point at this estuary was no different and in fact was the same to creeks and estuaries everywhere around the world. That was the evidence of Mr Nielson who was the expert called on behalf of the plaintiff.

McHUGH J: You do not need much experience of creeks to know that over a period of time the sandy bottom will change and there will be different formations but if I have understood this evidence properly, these creek beds are continually undergoing significant change during the course of the day. Is that right or wrong?

MR McCULLOCH: No, that is wrong, your Honour. In the time that is available, it may be more efficient for Mr Maconachie to deal with that, as I understand he is going to in any event, so that I can move to the other things I need to deal with. Without avoiding your Honour’s question at this stage, it will be duplicating the submissions as Mr Maconachie ran that portion of the trial before his Honour.

HAYNE J: Can I just persist one moment on that question of obviousness because it seems to me to be of radical importance. Do I understand the centre of the reasoning of the Court of Appeal to lie at paragraphs 206 to 209? I cannot pick readily up in my copy of the appeal book where - - -

HEYDON J: It is 4656.

HAYNE J: It is 4656, is it? My appeal book is misbound, but paragraphs 206 to 209 founds it on obviousness. Can I just show you where the knife in the napkin lies because you have to deal with it.

MR McCULLOCH: Yes, your Honour.

HAYNE J: If obviousness is not of relevance to the case of Mr Mulligan when Mr Mulligan, on one view of the facts, did not dive but launched off as if to swim and began to swim with the single stroke he took, are you not left in the position where the Court of Appeal has gone off on a point that is not relevant in his case and you are thrown back to defending the trial judge’s judgment?

MR McCULLOCH: No, your Honour, that is so for this reason, that the obviousness that his Honour Justice Tobias was dealing with was that it must be obvious to everyone that diving into water - - -

HAYNE J: And it is this characterisation of what he did as diving which masks in truth what happened. This man standing there launches off into the water and takes the first stroke of a breaststroke action. Do I accurately describe what he did?

MR McCULLOCH: Not quite, your Honour, and I will take your Honour to the transcript reference so that if there is a difference between us it can be clarified. It is volume 1. We have dealt with this in our written submissions, your Honour, but it is a matter that – 197 at line 19. Perhaps before I take your Honours through this relevant portion of the transcript - - -

HAYNE J: Well, tell me what you want to establish by it.

MR McCULLOCH: Yes.

HAYNE J: What is the point you want to make about it?

MR McCULLOCH: First, that the action which the plaintiff undertook was a dive. He described it that way and the description he gave with it would constitute a dive as it is ordinarily understood. It was not a dive from an elevated platform but it was a dive from a standing position.

GUMMOW J: With the water up to his thighs?

MR McCULLOCH: With water up to his thighs. May I just digress to say that it really matters not whether it is characterised as a dive or not for the purposes of the findings of both the trial judge and the Court of Appeal, and for the resistance which we undertake in this appeal, because it matters not how he entered the water or how it is described. What is important is that his head went in first in circumstances where he could not see the bottom, the water was cloudy and he did not know the depth of the water into which he was diving. It was of uncertain or variable depth, facts which he knew. I do not wish to be overly pedantic when I made this point, but everyone at the trial, including the plaintiff and everyone in the intermediate courts, have referred to it as a dive.

At 197 at line 19 the plaintiff described what he did:

I waded into the water up until the water, as I say, came up to my thighs, around my swimming shorts and from then I proceeded to do a dive into the water.

GUMMOW J: This is not the accident.

MR McCULLOCH: At 204 about line 12, this is the description of the actual dive that led to his injury:

I proceeded to wade into the water, again the water was up to around my thighs, around my swimming shorts. I launched myself into a dive, I had my arms out in front of me, I hit the water. As I was in the water I would have brought my arms to my side and then I remember just hitting something –

The attitude of the body towards the top of the water was at an angle which his fiancée described to be about 30 degrees, and the cross-examination of the plaintiff revealed that the breaststroking was an action taken to project himself further under the surface of the water at about that angle. If your Honour pleases.

The only role that obviousness has to play, but it is significant, is that the risk of diving into water of uncertain or variable depth is an obvious risk. In the sphere of negligence, it becomes relevant to when one addresses the scope of duty, and at the breach of duty stage, the question of probability of the occurrence of the risk, to name two. There may be others but perhaps I will just focus on those two for now.

GLEESON CJ: But the water could not have been deeper than the distance between his thighs and his feet.

MR McCULLOCH: Could not have been deeper?

GLEESON CJ: Did you say he was standing up in water that came up to his thighs?

MR McCULLOCH: Correct.

GLEESON CJ: Okay, the depth of the water could not have been greater than the distance between his thighs and his feet.

MR McCULLOCH: Yes. Could not have been greater? One of the questions that was put to him, with which he agreed, was that he did not know whether the water was 4 feet or 14 feet deep.

GLEESON CJ: All I am saying to you is, unless he has very long legs, the depth of the water could not have been greater than the distance between his thigh and his feet, whatever that was.

MR McCULLOCH: At that point, yes.

KIRBY J: There can be a fallacy in that, because that depends on the contour of the bed of the creek.

MR McCULLOCH: Quite so.

KIRBY J: Because if, immediately in front of him, the creek falls away, no problem. If, immediately in front of him, the creek bed rises, problem.

MR McCULLOCH: Yes, and what he - - -

GLEESON CJ: That is why I said “no greater than”, not “no less than”.

MR McCULLOCH: Yes, I apologise for being obtuse. The evidence which the plaintiff gave to describe this is not in contest, that is, that he walked down to the point where he commenced his dive from. To that point he could see, to some extent, the bottom of the creek, but from THE standing point he could not. It was cloudy, and he had no idea how deep it was. So, for all he knew, it could have been the same depth, it could have been a little deeper or a lot deeper, and this simply amounts to his acceptance of the obvious risk of diving into water unless you know how deep it is.

McHUGH J: What has it got to do with it? What about your responsibility? I mean, this notion of obviousness is a great forensic device, piece of rhetoric, that defendants have been able to get hold of and it just distorts negligence doctrine. The question is, did you reasonably foresee a risk of injury? Answer, yes. The question is, what response should you have taken to it? And whether he knew or took a dive or not seems to me to have nothing to do with it.

MR McCULLOCH: Your Honour, at the level of scope of duty – for the moment accepting the correctness of Nagle – it is relevant to consider whether the activity that is foreseen as giving rise to foreseeable risk of injury is likely to occur and, if so, with what level of occurrence.

McHUGH J: Exactly, but assuming that there is a reasonably foreseeable risk of injury, which the trial judge found in this case, and you cannot see the bottom, you have to say, “We are entitled to do nothing, because it is reasonable for us to assume that nobody will dive under the water”. You have a duty of care remember?

MR McCULLOCH: It is reasonable for?

McHUGH J: For your client to say, “It is reasonable for us to do nothing, notwithstanding we know there is a risk there. We need not do anything, because nobody will dive under the water”.

MR McCULLOCH: No one exercising reasonable care for their own safety, your Honour, and having regard to the assessment of the obvious risk.

McHUGH J: See, this is another heresy that has been introduced in the last couple of years, exercising reasonable care for your own safety. That comes from Indermaur v Dames. When Commissioner for Railways v Anderson [1961] HCA 38; 105 CLR 42 came before this Court, it was an Indermaur v Dames case. The plaintiff knew there was a barrier, and he bumped his head on it. Justice Fullagar wrote the leading judgment. He said that did not prevent him from succeeding in the action.

MR McCULLOCH: The law does take account of inadvertence. We are not submitting that, your Honour, but, at the scope of duty and breach of duty stage, it is acceptable for the occupier of land to have regard to the fact that what is presented to the person who enters upon that land is a natural attribute – a creek – and that the person’s decision to enter the creek is a voluntary one and that the person’s decision how to enter the creek at what speed, from what height, is a voluntary one, and that people who make misjudgments are not guilty of this sort of inadvertence that is spoken about in the contributory negligence cases. It is a different sort of test.

McHUGH J: I can understand an argument in accordance with the principle that says, “Well, sure, there is a risk there, but it is really so small that there is no need to do anything about it”, but that is not the argument you are putting. You are saying you do not have to do anything because of the obvious, or “He took the risk by diving under the water”.

MR McCULLOCH: That is part of the argument, but the trial judge found that it was not within the scope of the Council’s duty to do anything inter alia.

McHUGH J: That is the conclusion. The question is, how do you get to the conclusion?

MR McCULLOCH: You get to the conclusion this way - - -

McHUGH J: And, with great respect, the trial judge, whether you agree or not with his analysis, seemed to me to have gone about it the right way. It is another question about the Court of Appeal’s approach.

MR McCULLOCH: Yes, and that is the reason why we submit this Court ought not interfere at the Dovuro level, because it is quite plain that this trial judge spent a very long time analysing the evidence. He had the benefit of a view, which your Honours do not have, so as to perceive all of these various attributes, including the fact that from the southern bank of the creek, which is left in its natural state, the area has not been designated or set aside for swimming, it is left in its natural state. Contrast what has been referred to as the safe swimming area within the northern reserve.

GLEESON CJ: There is obviously a major factual difference between you and Mr Reynolds that we are going to have to look at. He paints a picture of a person launching himself into water of unpredictably variable depth. You seem to say, relying on what the trial judge found at page 4431, in particular at line 25, which you did not read us, that this was nothing more than a case of a person diving into shallow water. The judge found that the land forms beneath the water were within normal and naturally occurring limits appropriate to a tidal estuary of the dimensions of Coffs Creek.

MR McCULLOCH: Yes.

GLEESON CJ: You, as I understand it, start from the proposition that when this plaintiff launched himself into this dive, he was standing in water that was less than waist deep.

MR McCULLOCH: Correct. I think my learned friend and I agree to that point.

HAYNE J: Which then tips you over in Shirt analysis as to what is the reasonable response. It does not tip you off into some taxonomy that says risk, obvious, not obvious or the like. It does not tip you off into an argument based on classification. Response to the risk then becomes an assessment of whether the Council (a) should inform persons of things of which either they do not know or to which they may not advert. You say not the former, because everybody, if they stopped to think, would know.

Should they inform them of something to which they should but may not advert, “Careful, do not dive in shallow water, check how deep the water is”, that sort of information, or is tipped over into prohibition, “No diving”. What does that mean? “No swimming”. That is a different kind of classification, but it is at that level of analysis, not at the level of analysis of “Well, I’ve got this taxonomy which begins with risk divided into obvious/non-obvious”.

MR McCULLOCH: In our submission, your Honour, before one goes to what seems to be regarded from time to time as almost a box-checking exercise in the second portion of the Shirt test, one is required to ask: what is the scope of the duty and does the duty require the occupier to do anything at that point?

HAYNE J: And as Nagle reveals, that is an ex-ante, not an ex-post inquiry.

MR McCULLOCH: Precisely. Your Honour, it is at that point, in our submission, as the trial judge found, that the person in the position of my client, or Mr Maconachie’s client, is entitled to have regard to the risk and to determine whether it is one that requires any action at all before the next number of steps are taken into account. That is where, we submit, the question of having regard to the ordinariness of the risk, obviousness being another way of describing the same thing, is to be had regard to.

McHUGH J: What you are saying is that this risk is like the cricket ball in Bolton v Stone.

MR McCULLOCH: Precisely.

HAYNE J: Or risk of falling off the playground swing.

MR McCULLOCH: Yes, and that that is so is to some extent underscored by the absence of any evidence of any other incidents of this sort or other incidents at all at this location, particularly in circumstances where, on the northern - - -

McHUGH J: I can understand this argument, as I put to you earlier, but it does not seem to me to have anything to do with obviousness.

MR McCULLOCH: No, I have digressed away. I will come back.

HAYNE J: You are being pushed off.

MR McCULLOCH: As long as I was not pushed off the wall, your Honours. At this point it is probably relevant for me to revert to the notice of contention because so far as the scope of duty is concerned, my client wishes to submit by way of notice of contention that it did not owe at all a duty of care to the plaintiff and that if it did, on the findings of fact made by the trial judge in the Court of Appeal, the scope of the duty was very limited.

GUMMOW J: Was this a ground in the Court of Appeal?

MR McCULLOCH: Yes, it was, your Honour.

GUMMOW J: But not dealt with.

MR McCULLOCH: No, this was a ground that was dealt with by the Court of Appeal and determined in about two lines against my client. The Court of Appeal did not investigate, with great respect to them, other than to embrace broadly what the trial judge had found and we have given your Honours the reference to the Court of Appeal judgment in that respect.

HAYNE J: Does it come to more than the point that you could not put a sign where it would have mattered? Is it more than that?

MR McCULLOCH: Relevantly, that is probably what it comes down to, your Honour, because that is the only duty that seems to have been advocated in this case, a warning sign. But it stems from the fact first that we did not own, control or occupy the relevant land, and that is why I took your Honours to the aide memoire plan to illustrate that where we had had an interest in land vested in as a statutory controller, we performed our obligations and they were all to the north relevantly of the creek and I am dealing at this point only with the portion of the creek on the seaward side of Orlando Street. There was, and this is against the argument that I am putting, as I recognise, the role of the Council in facilitating, as we have described it in our submissions, to try and give it a neutral term, the construction of the Rotary Club initiative, which was the walkway through to the jetty. I do not shy away from the fact, lest it be thought otherwise, that in a holistic sense, the Council had in interest in this area and was interested in, in that sense was a stakeholder, in having the walkway constructed because it would link up a number of other walkways that existed within the Coffs Harbour area, which I accept was a popular tourist destination. None of those matters are at issue before your Honour at all.

What is in issue is whether the trial judge and the Court of Appeal’s basis for finding a duty which seems to have been wholly underpinned or based upon a finding of encouragement, was open to it on the law. At a factual level, the encouragement existed primarily in the trial judge’s reasons, from the activities of the Council on the northern reserve. In our submission, they were a wholly irrelevant consideration. As I submitted before lunch briefly, the passage of the creek through the land split it physically into two and gave two contrasting areas. One was in its natural state, the other was highly developed in the tourist or recreational sense.

One would have thought the only encouragement that was being offered was to drive over to the north side, park the car in the huge car park that was there, go to the beach that is, the Park Beach north of the creek, or use the barbeque facilities, use the grass and use the wading area for children. It could not be the case that those facts could amount relevantly to encouragement.

Secondly, so far as the pathway was concerned, it could not, in our submission, amount to encouragement because all it did was to provide a means of access from Orlando Street through to the jetty. There was further evidence at the trial and before the Court of Appeal about six lay-bys which were on the southern side, or the south-eastern side of Orlando Street, approximately opposite the porpoise pool. They were within the road reserve, they were part of the roadway effectively, and it could never be said, in our submission, that the provision of a roadway within a road reserve amounts to an encouragement to use a distant water feature. So for those reasons, your Honour, and for the reasons we have set out in our written submissions, we would submit that there was no basis for finding a duty. There was no recognised or well-accepted relationship, and his Honour’s attempt, embraced by the Court of Appeal, to rely upon the promotion of the area and the promotion of the facilities to the north was entirely misplaced, in our submission.

I just will try and move very quickly through the last matter I wanted to deal with. In our submission, your Honours, there is nothing in the reasoning of the trial judge which would warrant this Court entertaining and having to reconsider the vast evidence that was led before the trial judge. There is nothing to demonstrate, in our submission - and we have dealt with this in our written submissions also - any significant extent or any extent at all to which the trial judge fell into error in addressing the correct legal principles and in addressing the facts and applying them as he did. The fact that members of this Court might have a different appreciation in the limited time that is understandably available when these appeals are brought before this Court is a factor which we submit militates very strongly in favour of no appellate intervention. Those are my submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr McCulloch.

MR McCULLOCH: There is one matter, I am sorry. At a procedural level, I need to deal with two matters. There is what has been described as a notice of cross-appeal.

GLEESON CJ: Yes, what is that all about?

MR McCULLOCH: There was some consternation about what the appropriate form of process should be. No order was made by the Court of Appeal and so, ordinarily, a notice of contention would be the appropriate document. The Court of Appeal did, however, adverse to my client, relevantly make findings, as trial judges sometimes do, in relation to contributory negligence, and in the Court of Appeal both the Council and the State interest filed what were termed cross-appeals against one another in relation to the apportionment of liability.

GLEESON CJ: But there was no order apportioning liability, was there?

MR McCULLOCH: Your Honour is quite right.

GLEESON CJ: I would have thought the usual way of dealing with that is by oral complaint from the Bar table. I do not know how you can cross-appeal against something that is not an order.

MR McCULLOCH: We had rather taken something that Justice McHugh said in a recent judgment, that that was the view which he favoured, and - - -

GLEESON CJ: But, at all events, you have your application on board - - -

MR McCULLOCH: Yes, I understand it is not opposed.

GLEESON CJ: - - - and we can take note of that and we can deal with it in due course in our reasons.

MR McCULLOCH: Wholly in writing, insofar as the submissions are concerned.

GLEESON CJ: The main object of the exercise is so that people affected by it – in this particular case, Mr Maconachie – would not be taken by surprise.

MR McCULLOCH: Yes, we have exchanged submissions.

GLEESON CJ: And he is a very difficult person to surprise, for one reason or another.

MR McCULLOCH: Yes. The last matter, before I sit down, is that your Honour Justice Gummow asked me – I think it was Justice Gummow, asked me for a measurement from the bridge to the sea. The best we can do is 100 metres. I cannot find an evidentiary reference for that, but it is a matter which I do not regard as being really bone fide in dispute.

GLEESON CJ: Thank you, Mr McCulloch. Yes, Mr Maconachie.

MR MACONACHIE: I am about to find out whether I am easily surprised or not, I fear. We make no bones about our position. We say this case turns on whether or not the response or lack of response of the State interests was reasonable. However, we have put on a summons made returnable for the commencement of the hearing, to put on a notice of contention.

We wish to adopt nominated submissions in Mr McCulloch’s submissions. It is contingent, as it were, upon this Court determining what it might do about Nagle. I do not want to say anything more about the summons. My learned friend complains and says we should not have leave, it is too late. I did tell him before Easter that we intended to take the same position on duty as Mr McCulloch took – or as I understood he was going to take – with respect to obviousness, to use a word that I am going to have to deal with a little later.

My learned friend has some complaint about the form of the affidavit, but I make no bones about it. I said to him – over a period of time, we had some discussions about what might or might not be an issue. I said that I wished to adopt so much of Mr McCulloch’s submissions as dealt with the obviousness duty point, not his – not my part of the land point. I do not want to say any more about it than that.

This appeal, in my respectful submission, will be resolved at a factual level and the question is whether or not a response was called for. We say it was not. Whether one calls obviousness a taxonomic mantra, it is a factor to be taken into account, we would submit, that is, whether a risk is or is not an obvious one, and this risk was – that is, however you cut the mustard, diving into a creek. There is no question that there was a dive. The plaintiff’s complaint was that he was not warned against diving.

At this level, after the trial judge has spent 21 days, some of it in Ireland, some of it in Sydney, listening to experts, living with the trial, spending months writing a very careful judgment, to start trying to characterise what was done as something other than a dive would be a little unreal, in our respectful submission. That is the case that was put at trial. That is the case that was put in the Court of Appeal and it is the case that was put here.

In any event, the real question is, was a response called for? His Honour found that it was not. The Court of Appeal found that it was not. They are, in my respectful submission, questions of fact and they depended upon cold, hard questions of fact. What was the state of the creek bed at the time on the day when the plaintiff dived? Nothing unusual about it, said the trial judge. We agree, said the Court of Appeal. Absolutely no difference of any relevant kind between this creek and any other creek anywhere in the world.

Mr Lex Nielsen was called by the plaintiff. He was asked by me at page 479 of volume 2 some questions about a report that he was asked to provide with respect to signage. I am sorry, your Honour, I may have given you the wrong reference. It is at appeal book 947, volume 2 – no, that is not it – I will find the passage. It is a very, very short passage. The effect of it is this. He gave evidence that he had been up and down the New South Wales coastline many times, looking at training walls. I have found it. It was in fact 947, which is in volume 2.

I asked him these questions, starting at line 51 or thereabouts:

Q. You have told us in your material, I think in the second report, but in any event in your evidence and in your curriculum vitae, that there are other training walls in New South Wales estuaries, correct?
A. There are.

Q. You have done work on some of them, have you not?
A. I have.

And then at the top of page 948 in the appeal book:

Q. When you were asked by Messrs Twemlow and Company –

the original solicitors for Mr Mulligan –

to provide a report with respect to signage, you made no attempt at all to make any investigations or give any examples relating in any way to any of those training walls, or the areas near them, did you.
A. I did not.

Q. But you knew that they were there, did you not?
A. Yes.

Q. And you knew the general layout of them, did you not, correct?
A. Of?

Q. Of many of the training walls?
A. Yes.

The plaintiff called, apart from Mr Nielsen, absolutely no evidence on common practice, absolutely none. What he put into evidence was a number of photographs from Wanda Beach and from Gunnamatta Bay swimming pool where Mr Saroukas was injured, a case in which the Chief Justice presided and Justice Kirby and Justice Handley, I think – Mr McCulloch and I were both in that case with Mr McAlary for the defendant. That was an entirely different situation and circumstance. It is a little instructive at one level - - -

KIRBY J: Do we have reference to this case?

MR MACONACHIE: You do. It is referred to, amongst other places, in the list that has just been handed up by my learned friend. It is the first case or the second case, Public Trustee v Sutherland Shire Council 75 LGRA 278. It was the Chief Justice, Justice Priestley and Justice Handley. That was a man who dived from a structure into six inches of water, and he dived outside the area occupied by Sutherland Shire Council into Maritime Services Board land. He did so by hanging onto the pole of one of the warning signs that said, “Do not dive”.

GLEESON CJ: He dived from the warning sign?

MR MACONACHIE: Holding onto the warning sign. He complained that the sign was not a pictogram, that it was in English. He was Greek, he could not read it. Lots of Greeks came there and he said it should have been three-sided. Why? Because after the event, three-sided warning signs were put up. It is the best example of what signage cases are all about.

If you put up a sign, all that tells you is that there is a foreseeable risk. The plaintiff will say it is too high, it is too low, it is the wrong colour, it is the wrong height, it does not have a pictogram. It does have a pictogram and I did not understand it; there should have been writing. It is a question of fact as to whether the response is a proper one or not, but the plaintiff called no evidence about what other people who control, manage or the like, estuaries in New South Wales or anywhere else did. Called Mr Nielsen on the signage issue, and all he did was to say the signage at Gunnamatta Bay or at Wanda Beach would be appropriate – utterly different situations, utterly different risks. There was just no evidence of common practice.

Secondly, the trial judge observed that some ten volumes of material, he complained about it being undigested and not spoken to. There was a lot of reasons for that. One of them was that they went back over decades. Those ten volumes of material which his Honour looked at with some care and from which he drew a number of conclusions and to which he paid careful attention from about appeal book 12, 4360 at line 40 right through to 4376 at line 55, what that material demonstrates is that both the Council - it demonstrates a lot of things, but one of the things it does demonstrate is that the Council and the State government interests over a period of some decades undertook a number of careful studies of the creek, principally the creek west of the bridge or bridges, but also there were activities such as the pumping of sand from the western side of the bridges at the porpoise pool to Park Beach to replenish it, so that the area of interest extended on the proved documents, to the east of the bridge, as well as the west of the bridge.

GUMMOW J: The answer to my question appears at paragraph 36 of his Honour’s reasons:

It is approximately 250 to 300 metres . . . to the point where the creek meets the sea.

MR MACONACHIE: I thought it was more than 100 metres, but we could not find a reference, but thank you, your Honour. That material demonstrates that Mr Bruce Fidge, an engineer, a Mr Andrews or Anderson, another engineer, and no doubt countless other engineers or persons interested in looking after this creek, had spent decades looking at it. Not one of them ever suggested that there ought to be signage of the kind that the plaintiff says ought to have been there. That material, as his Honour demonstrates, included complaints from residents to the local Council, at least to the local Council. Never a complaint about the eastern end of the creek having any danger or difficulty about it. Lots of complaint about mangroves growing and causing infestations of mosquitos and the like, but there was just nothing to suggest that this was other than an ordinary creek.

Somebody from the local Council and/or the State government interests, standing on the bank of Coffs Creek, the southern bank of Coffs Creek, some time in 1997 or 1998 looking at it saying “What do I have to do about this area?” would in all of the circumstances plainly say, “Well, nobody’s ever been hurt; nobody’s ever complained about this being dangerous; it is a normal, natural creek. Why do I have to do anything?”

Right outside this Courthouse is Lake Burley Griffin. From Commonwealth Avenue Bridge to Kings Avenue Bridge there is a man-made lake with a natural diving platform almost for its full length. The only sign I can find is on the High Court Jetty. The first thing it says is “High Court Jetty”. I do not know whether that causes your Honours any concern in terms of whether there is an acceptance of responsibility, because you have not put up a sign saying, “But not the High Court of Australia’s responsibility”. I say that somewhat flippantly, but there is a sign suggesting that mothers should take care of their little daughters, in a pictogram form, and there are two very small pictograms that say, no swimming, no diving and, underneath it “between Commonwealth Avenue Bridge and Kings Avenue Bridge”.

That is a sign, more probably than not, likely to be taken, because it is on the pontoon, the jetty, as meaning “Do not dive off pontoons between Kings Avenue Bridge and Commonwealth Avenue Bridge”. But nowhere along almost two kilometres of this natural diving platform is there a single solitary sign which says, “Don’t dive, don’t swim”. You cannot see how deep the water is. It is not terribly inviting, perhaps, but on a hot day it might be very inviting. There are many points of access.

GUMMOW J: I am beginning to see why this case has gone so long.

MR MACONACHIE: I am addressing the question of response, your Honour. There is an attractive area in which to dive and swim. The response of the people responsible for it is to do nothing, relevantly, at the very many points of access. There is nothing about this creek - - -

McHUGH J: Well, they may be negligent. Along that path, if you are running along it, it is full of tree roots. You have only to be a bit inadvertent and over you go.

MR MACONACHIE: Evidence of common practice is not decisive, but it is strong evidence of no negligence. There was no evidence in this case that common practice was to signpost this kind of risk. None.

GLEESON CJ: Mr Maconachie, can I just come back again to this creek bed. The man is up to his thighs when he executes the manoeuvre.

MR MACONACHIE: Yes. When he dives, your Honour.

GLEESON CJ: Was he diving off a kind of sand platform alongside a deeper channel into the deeper channel?

MR MACONACHIE: The evidence was, from him, that he walked out five or six paces, the water came up to about the bottom of his swimming trunks and he was wearing those short-like swimming trunks, not Speedos, so it is about mid thigh. At that point, or at about that point, it became much deeper very quickly. From that, one might conclude that there was a diving point, if you like, but it got more:

literally from nothing straight down to my thighs –

that is at page 197 of the appeal book here at line 10 or thereabouts.

McHUGH J: I have got to say, there are some problems about accepting the trial judge’s findings. In fact, there seems to me to be some inconsistency. First of all, the trial judge found that the plaintiff was shallow diving and yet he found that it was consistent with him having struck his head on a moderately elevated sand dune. So you have this impression, the water is going down, he is up to his waist, he does a shallow dive exactly the same as he had been doing before and yet he hits a moderately elevated sand dune.

MR MACONACHIE: Ergo, he could not have dived in the same place as he had done on the other five or six times.

McHUGH J: I know, but the judge seemed to indicate that he would not have thought the sand dunes were very high.

MR MACONACHIE: No, he did not. He found they were very low.

McHUGH J: That is what I am saying, that the judge did not think they were very high.

MR MACONACHIE: I am sorry, I thought you put the opposite proposition to me. Your Honour, the first area in which he says he gambolled around with his girlfriend up near the bridge was only up to knee height. He recognised that was very shallow. The area where he got out down near the gravelled bar, down towards the exit of the stream into the ocean, was also shallow. It was, in between those points, deeper, but the plaintiff knew, from the way in which he entered the stream and got to a point where it dropped down very quickly and from the fact that it was shallower to his left and shallower to his right, that this was no flat bed creek, this was no flat bed swimming pool, and, accordingly, he had to be on his guard against there being something in the water with which he might collide. He was careful, he said, to check to see whether there were any bed forms on the way down the creek. Mr Neilsen, when cross-examined, said he was unable to explain how the plaintiff could check over a 30 or 40 metre distance - - -

McHUGH J: The plaintiff said he could not feel the bottom.

MR MACONACHIE: Quite. Mr Neilsen said, “I can’t explain that, I just don’t know”. The trial judge accepted the plaintiff and we do not - - -

McHUGH J: Does the evidence indicate which direction – I have been under the impression that the plaintiff dived, in effect, in a southerly direction.

MR MACONACHIE: No, he dived in, effectively, a northerly or north-easterly direction and as he entered from the southern bank, walked through water to a point, then dived either straight out or at an angle to get into the faster flowing water. There was no “ride” like a waterworks, playfield, or whatever. It was a tidal creek, but twice a day the tide went out and twice a day the tide came in. For some period of that time, the water would be flowing not at all. At the turn of the tide, it would be just very still, at the peak of the run out or run in, it would be moving more quickly than it otherwise would. No different from any other creek anywhere in the world that is a tidal estuary.

GLEESON CJ: You mean, it was good fun but not a thrill-seeking expedition?

MR MACONACHIE: No. And to categorise it as other than an ordinary creek, where the water flowed out and the water flowed in, is to fly in the face of the findings of fact of the trial judge, who spent hours walking around Coffs Creek, not only on the southern side but on the northern side west of the bridge. He spent a lot of time looking at that and spent over seven or eight days listening to the most complex technical evidence about how sand forms, bed forms, sand dunes, call them what you like, naturally occur in tidal estuaries. There was all sorts of evidence about Albert Einstein’s cousin’s theory about bed form and - - -

GLEESON CJ: Was this an outlet for a stormwater channel?

MR MACONACHIE: No, it is a natural creek. Well, my learned friend says no, it was a stormwater channel. Yes, there were stormwater outlets that from time to time in various places entered the creek but they, the evidence was, had no significant impact at all upon the volume of water. Indeed, the evidence was, as I recall it, even when it rained heavily and there was a lot of water coming not just from stormwater outlets but into the creek itself, except in times of torrential rain and flood, that really did not have any impact upon the amount of water in the creek or the effect upon the creek bed. It was the natural ebb and flow of the tide, the same as anywhere in the world.

GLEESON CJ: This word “creek” has different meanings as it happens in different parts of the world. We got into this in a case in Western Australia concerning estuaries.

MR MACONACHIE: Yes, indeed.

GLEESON CJ: It is a word that has quite a different meaning in Scotland, for example, and for all I know, Ireland.

MR MACONACHIE: Quite. But we were talking to two Australians who were experts in the field and used the words “creek” and “estuaries” as Australians use them, but they were talking about creeks and estuaries elsewhere in the world, but they were talking Australian, your Honour, they were not talking in broad Gaelic accents.

The very short point, we say, is that the trial judge had an enormous amount of evidence. He considered it with great care. With respect, Justice McHugh is right when he says he approached the question of breach properly. He directed himself in accordance with Wyong Shire Council v Shirt, he considered the relevant materials, the relevant issues and the evidence relating to it, and came to a conclusion unfavourable to the plaintiff that, given the nature of the risk and given the nature of the creek, given that the plaintiff was an experienced strong swimmer and an experienced diver, there was nothing about this place that required him or any other normal average person to be warned. And one of the factors that affected - - -

McHUGH J: It really comes down to this on your argument, does it not, that there is nothing to differentiate this particular creek from any other creek and that if the plaintiff is to succeed, then those who control areas of creeks that are the subject of swimming will be negligent unless they put up a notice.

MR MACONACHIE: Yes, that really is the critical issue. Just what do people living in the world have to be warned against? Your Honour I think said this morning that the common law is paternalistic. We would respectfully submit no, the concept of that is neighbourliness. That is, duty owers, when they owe a duty, do have to be careful that people exercising autonomy in a free society – and I am not going to travel over the ground that Mr Walker did – they also have responsibilities, and it is a question of balance. It is a question of what kind of world do we want to live in.

McHUGH J: Yes, but their responsibilities go to contributory negligence.

MR MACONACHIE: No, it does not, with respect. You look at the question of the duty-ower from his perspective and ante-post you hypothesise the horny-handed leading hand in overalls and working boots standing on the banks of Coffs Creek and saying to himself, “What is it about this that I have to do something about, if anything?” He sees a creek. Well, people can drown in it, children can drown in it, cannot fence it off, cannot stop bed forms from occurring. There is nothing about it that is different from any other creek, and he says, “Well, I can expect that people will be normally careful. There is nothing about this creek that the average man will not be able to handle. I do not have to warn him”.

McHUGH J: But the assumption in that is nobody will dive under the water. That is what you have to say.

MR MACONACHIE: No, you do not, your Honour. You have to say that if somebody in the exercise of free choice - - -

McHUGH J: That does not mean that you must fail in this case, but that is what your proposition seems to lead to.

MR MACONACHIE: No, it is not. With the greatest of respect, it is not. It is somebody who determines as a matter of free choice that he or she will dive into the creek, will first check to see that where they dive it is safe to dive. Now, this man dived successfully six or seven times. He dived unsuccessfully the last time. It must be that he dived somewhere other than he dived on the first few occasions.

McHUGH J: The first question is: was there a reasonably foreseeable risk of injury?

MR MACONACHIE: Absolutely, and found against me.

McHUGH J: Found against you. Now, the question is, the man on the bank says, “Well, there is a reasonably foreseeable risk of injury here. Is it reasonable for me to do nothing?”, and what has he got to - - -

MR MACONACHIE: He says yes in this case.

McHUGH J: Why does he say yes?

MR MACONACHIE: He said yes because there is absolutely nothing about it – absolutely nothing about it – that a person, not a Paris v Stepney Borough Council one-eyed man, but an ordinary average person will need to be warned against. Never ever a problem before, and people have been swimming there for decades - not even a grazed nose, on the evidence.

McHUGH J: You cannot see the bottom.

MR MACONACHIE: No, you cannot see the bottom in Lake Burley Griffin.

McHUGH J: No. That just shows how dangerous it is.

MR MACONACHIE: No, it shows what the common response is, your Honour, what the usual and ordinary response of usual and ordinary Australians is, and that is the test. It is not some elevated concept of “I have to warn against every risk”. It is “I have to take reasonable care and reasonable care in respect of people who are acting themselves reasonably”. That is the foresight of the reasonable man. He does not have to take into account extravagant behaviour. Even if he can foresee that it might be so, he is entitled to say, “Well, if somebody carries on like a fool” – and I am not suggesting that Mr Mulligan did; that is not a finding made against him – but the reasonable man says, “Well, there is nothing about this place that is unsafe or unnatural or that requires a warning. It is just a creek”.

If you are going to have to warn in that situation, as the Chief Justice said, we will be hearing cases about people who are bumping into warning signs. There will be a proliferation of warning signs that will make this place even less attractive than it is now – Australia, I mean. We seem to be overwhelmed with - - -

GLEESON CJ: This is one of the problems about these catastrophic diving cases. It is a very serious problem.

MR MACONACHIE: Your Honour, it is.

GLEESON CJ: If you go to any beach in Sydney on a weekend, you will see a whole lot of people – you will see tens of thousands of people diving into shallow water.

MR MACONACHIE: Yes, and in places where people have been doing it for a long time, not being injured, and there being no signs warning them about it, and places where people have been injured and there is still no signage about it. You just cannot warn against every possible eventuality. You get, as you drive into the Eastern Distributor in Sydney, about five or six or seven signs telling you what you can and cannot do and how fast you can go and what you can carry and what you cannot. You have passed it before you have even begun to absorb the information. Some of these signs are not for the protection of the public but for the protection of the liability insurers, because an unrealistic, with respect, attitude is taken to signage and warning.

McHUGH J: Supposing the man on the bank said, “I wonder whether people might dive in here and hit their heads on a elevated sand dune?”. Supposing he asked himself that question, what do you say he should say? “Oh, well, they might, but nevertheless no need to give them a warning”.

MR MACONACHIE: “It has never happened before” he would say to himself. “It has never happened before. It is a creek no different from anywhere else in the world. I know of no other place where, as a matter of common practice or experience, warnings are regarded as necessary”.

McHUGH J: But might he not also say, “My God, councils have been held liable again and again for paraplegic injuries. If somebody does dive in, they are likely to end up a paraplegic. It would not take much to put up a sign”. Why would not that be the reasonable response?

MR MACONACHIE: Because, your Honour, if he did it there, he would have to do it all over New South Wales under State Government.

McHUGH J: Only where people are going to dive in.

MR MACONACHIE: I beg your pardon?

McHUGH J: Only where people are likely to dive in.

MR MACONACHIE: And where does he draw the line, as Justice Whealy asked himself. Where does he draw the line?

McHUGH J: This is the floodgates argument, always trotted out by defendants.

MR MACONACHIE: No, it is not a floodgates argument, your Honour. It is a reasonable response argument. There has to be a point, in this free and autonomous society of ours, for people to take responsibility for their own actions.

McHUGH J: You keep injecting this free and autonomous society, but you have a duty of care.

MR MACONACHIE: Of course, and so does he, to look after himself.

McHUGH J: No, he has the duty to himself, that is right, but not to you.

MR MACONACHIE: No, but I am entitled - - -

McHUGH J: Your duty is to look after him.

MR MACONACHIE: In a neighbourly way, not a paternalistic way. That must be so, your Honour. That is what Lord Atkin said. Neighbourhood, not paternalism. Neighbourhood.

McHUGH J: What does that mean, neighbourhood?

MR MACONACHIE: What that means is that there is an interaction between people in this society, whether they be - - -

McHUGH J: Some people say it only meant reasonable foreseeability - - -

MR MACONACHIE: I am sorry, your Honour?

McHUGH J: Professor Stone, for instance, says it only meant reasonable foreseeability.

KIRBY J: The tide has certainly come in from that.

GLEESON CJ: I thought you were going to say it meant proximity.

MR MACONACHIE: No. Your Honours, at the end of the day, it is a very short point.

KIRBY J: The Court of Appeal dealt with these two cases together, but in fact there are significant differences, are there not?

MR MACONACHIE: Absolutely.

KIRBY J: In the first case, there had been a serious injury.

MR MACONACHIE: Yes.

KIRBY J: There had been some record of injuries in between. There was a knowledge in the employees of risks of injury by people jumping off. The employees themselves had warned those people and the primary judge found for the plaintiff. None of those elements are present in this case.

MR MACONACHIE: Mr Semmler started yesterday by saying there were six findings of fact which formed the background to the breach question in his case. Can I remind your Honours of what they were, that it was a platform that was popular to take dives from - not this case.

KIRBY J: Well, that is not much of a distinction because here you have a brochure and this is a popular environmental feature - - -

MR MACONACHIE: Not my brochure. That is Mr McCulloch’s brochure if it is anybody’s brochure, and it was not proved where it came from. It might have been from the local coffee shop.

KIRBY J: You want to have a fight amongst yourselves but I am looking at it from the - - -

MR MACONACHIE: No, he is a good friend of mine, your Honour.

KIRBY J: I am looking at it from the point of view of the duty owed to the plaintiff.

MR MACONACHIE: Well, of course. Yes, there was a brochure, but never established from whom it came or what its purpose was, who distributed it and how regularly it was distributed. It is picked up by Mr Mulligan over breakfast in a coffee shop. It was known to the respondent that it was a place that was popular to dive from.

Secondly, he said littoral drift gave rise to significant variations - not this case. He said thirdly that that Council knew or should have known that the monolith from which the diving occurred posed problems for the divers because the depth of the water could not be assessed from the platform. Some similarities, but of course, he has his 1.6 metre littoral drift variation, which is different from this case. The judge found after seven or eight days of very careful evidence 6.7 centimetres was the increase above normality and within the range of the usual. Fourthly, he said there was Mr von Sanden, not this case. Fifthly, he said employees had called for a sign - not this case. Sixthly, he said surf club members warned people but Council did nothing - not this case. They are so different as to be chalk and cheese.

My learned friend gave you a list of cases which included as its last entry the case of Dederer. A great deal has been said about whether there should have been a warning or whether there should have been a prohibition. In Mr Dederer’s case, decided by Mr Justice Dunford at first instance just a few weeks ago, in fact about three weeks ago, Mr Justice Dunford found that a man diving from a bridge, I think, into shallow water where there were bed forms should have been protected by a warning sign, not a prohibition sign which was there, because the prohibition sign did not tell him why it was being prohibited. He should have been warned.

KIRBY J: I sat in a special leave case with some similarities to this – jumping off a bridge in a country town.

MR MACONACHIE: There is a lot of them, unfortunately.

KIRBY J: And the Court of Appeal reversed the primary judge who I think had been Justice Dowd and the court refused special leave in that case.

MR MACONACHIE: I do not remember that case, your Honour, but the Court of Appeal will have before it on 26 September this year a case from Broken Hill where Justice Bell who decided Vairy found against the plaintiff on a causation issue in a local swimming pool case that was heavily signed, but she found that there had been breach because, notwithstanding that diving was prohibited, the prohibition on diving was not sufficiently enforced.

So that many of your Honours have said, in the course of this hearing, “All you have to do is prohibit, and then they are on their own”. Well, you might be surprised in a little while to find yourself hearing cases in which it is said there should have been a laying on of hands and an ejection from a particular area, all sorts of questions about arrest and false imprisonment.

HAYNE J: What do we get out of this tour of other facts, other cases, decided elsewhere in the judicial hierarchy?

MR MACONACHIE: Absolutely no more than my learned friend does, absolutely no more. This is a question of fact, decided at two levels as a question of fact, with the trial judge applying proper principles. The point I am trying to make by reference to them, your Honour, is that the reasonable man, looking prospectively at what he has to do, is not getting a lot of help. It has to be left to the trial judge who saw the witnesses, who had a view, made findings of fact and came to the conclusion that there was nothing that needed to be done. In my respectful submission, the appeal should be dismissed.

GLEESON CJ: Yes, Mr Reynolds.

GUMMOW J: We have been told that this is just a creek like any other creek.

MR REYNOLDS: Yes, that is the point from which I am about to jump, your Honour. This is not just your average, plain, ordinary creek at all. There are several features that distinguish this from just the normal stretch of creek that is found throughout the country. The first is that there is this recreation area located there on the northern bank, which, according to the trial judge’s findings, is part of a vast tourist facility with all sorts of attractions, particularly on the northern bank. It is highly developed and it acts like a funnel to draw people who come to Coffs Harbour to the banks of this very small section of creek of no more than 250 metres in its length from these bridges, which is approximately where the area starts, through to the sea. We are not talking here about some vast area of national park and having to deal with an area of creek that is no different from any other area.

GLEESON CJ: Do you criticise the findings made on page 4431, in volume 12 of the appeal book at paragraph 213? I have in mind in particular the sentence at line 25 and the sentence at line 50.

We have not sought really in any of the submissions that I made in-chief or in our written submissions except with – there can only be a couple of examples of this - to challenge the findings of fact made by the primary judge. Now, the submissions that I made prior to the luncheon adjournment on the effect that this training wall had on the creek, are to be found in our written submissions at paragraph 4.55 through to paragraph 4.58, and in those paragraphs I am picking up what the primary judge said in relation to the effect which this training wall had on the creek, and I do not deny for a moment that the impact which the training wall had on the bed forms in the creek was not enormous. All we have said in paragraph 4.55 is we have referred to the findings made by the primary judge at paragraph 208 that they had more than a minimal impact on the variability of the depth of the creek.

GLEESON CJ: Apparently at the trial, experts set out to actually measure the impact.

MR REYNOLDS: They did, and we had what may be called on this particular issue a very small victory indeed, because all we were left with at the end of the day was a finding that they had more than a minimal impact with the findings that your Honour refers to at page 4431. I do not seek to escape from that. I cannot and I have not run a case in this Court or elsewhere trying to upset those findings of fact, but I do rely on the findings in our submissions at paragraphs 4.55 through to 4.58 to make the points that I made earlier on today about the effect that this training wall had on the creek and about the fact that it created this channel ride.

Now, can I develop further the proposition I started with that this is not just a normal section of creek. We have also – and I took your Honours to this before the luncheon adjournment- this special safe swimming area designated as such and carved out there of the northern bank, a special facility built in a crescent shape to shelter people from the waves with all this tourist area surrounding it, as I said, drawing people into that particular area.

Then we have the building of this training wall which on any view is an artificial structure which had, on the submissions we have made in paragraphs 4.55 to 4.58, a substantial effect on any view in relation to this creek. Without that training wall there, there would not have been this ride and without this ride there would not have been this accident. It is also - - -

GUMMOW J: Where do we see his Honour dealing with this question of ride?

MR REYNOLDS: Your Honour, that is a point that my learned friend have taken against me, in effect a point not taken below. I think it is correct to say that my predecessor, Mr Murray, did not use the expression, the shorthand expression that I am using, namely, the channel ride, but he put submissions in relation to the way this current running against the training wall was used on the day of the accident by reference to both the plaintiff’s activities and also his fiancée’s activities and the activities of others who were in the area.

GLEESON CJ: What is the finding about the speed of the current?

MR REYNOLDS: The findings are summarised there in these paragraphs 4.55 to 4.58 and the relevant finding is at paragraph 208 in relation to speed:

4. The construction and reconstruction of the rock training wall on the northern side of the channel stabilised the channel location and had an impact on stabilising the creek entrance. As a consequence there was an improvement in the hydraulic conveyance characteristics of the channel thereby tending to increase tidal prism and channel velocities. This would, and did, have an impact upon the subsequent formation of dunes in the creek bed near the rock wall and extending southwards towards the southern bank of the creek in that location.

GLEESON CJ: At some stage in your submissions in-chief you made this sound like Luna Park.

MR REYNOLDS: Your Honour, that is perhaps a way that I have sought to colour slightly your Honour’s view of this case. However, I submit that - - -

HAYNE J: It is a characterisation of what the trial judge describes in paragraph 5 of his reasons, is it not, at page 4338 where he describes the plaintiff allowing “himself to be carried by the current towards the sea”.

MR REYNOLDS: Yes, and he refers on the previous page to “15 to 20 people”. At line 14, “He dived in” and at line 25:

He had seen other people in the creek at this point acting in a similar manner –

At line 24 ,“a pleasurable experience”. Again, a bit higher up, “he could not touch the bottom”. I referred your Honours earlier on to the findings that the plaintiff and his fiancée saw people diving into the current. Obviously, I am taking this topographical feature and trying to do whatever I can to persuade your Honours in relation to the facts of this case. I am putting a particular label on it but I submit that that label does not distort the way the case was presented to the primary judge and it is, as your Honour Justice Hayne said, consistent with some findings made by him.

If I could just try and develop a little matter that your Honour Justice McHugh raised earlier, which is, with respect, the hard-headed question of, well, what would the reasonable response have been of, say, a Council officer going down with a colleague to the banks of this creek and addressing the issue of whether or not warning signs should have been erected. That was not something which happened in this case, it was not a situation where any of the defendants actually put on evidence that consideration had been given to that issue. What would be the reasonable response of a Council officer going down there and having a close look at this particular area?

McHUGH J: Yes, but can I just put this to you, so you can deal with it. He goes down there and he says, “Now, what risks are there? I do not think there is any great risk of drowning, but one risk is the possibility of injury to the head or neck of swimmers by diving and hitting the bottom”. He says, “What is the magnitude of that risk? Well, if it eventuates, it can be very severe. What is the probability of it occurring? A lot of people come here, but I think it is extremely small, there is no known incident. In the circumstances, I do not see why we should put a sign up. I really do not think it is sufficiently likely to occur to require a sign”. That is, in effect, the reasoning of the trial judge. What is wrong with that?

MR REYNOLDS: It is wrong for a number of reasons, because it does not take into account the dangers which are presented by this particular area. One can understand, perhaps, that if all that existed here was just an ordinary area of creek, undifferentiated from any of the other portions of the creek, that perhaps a Council officer could take that view. But the response that I place in the mouth of the reasonable Council officer considering this issue is along the following lines.

Perhaps in response to his colleague, who says exactly what your Honour Justice McHugh says, his reaction would be this, “Well, I can understand you saying that in relation to these areas away from the safe swimming area, because they are shallow and you can easily detect what the depth is” – and, using colloquial language – “And I can see that only a mug would go and dive straight in there and break his neck. So I agree with you about that, but I will tell you what concerns me. What concerns me is that we have created this facility where we are brining all sorts of people here, we are encouraging, inter alia, mothers with young children, we are encouraging tourists, who may or may not have much experience at all, whether they be Australians from inland or people from overseas, about swimming in these creeks”.

“We have an area here, we encourage them to come in and swim in and right, smack bang next to it we have this current, which we know people are riding every day, and not only are they riding it repeatedly, they are entering into that current, into that channel, by diving into it. And what worries me is the particular difference between that area of channel and the rest of this creek, because it is pretty apparent to somebody going into the shallower sections that it would be most unwise to dive, but the fact of the matter is we have people here who are diving into this channel every day, they are doing that repeatedly, they are treating it as a ride, we know that is happening, we have created this area here, we have built this training wall, which has produced this ride here, what concerns me is that people will do that repeatedly and they will see others doing it and they will be lulled into a false sense of security by that”.

“Not only that, what concerns me is that, as you and I know, and we have gone down this channel together, you can drop straight into it off this gradient, you can try and touch the bottom of that channel on numerous occasions and still find that it is over your head, and after you have done that three or four times the impression you have, even if you entered the creek initially in a very cautious way, the impression that you have is that this is an area, a discrete area, a fast channelled out area with a flat bottom that is safe to dive. What I am worried about is that when kids come down here or people that are tourists or normal adults, even, who are diving into that area, they might start off gingerly but after they have done this two or three times they are going to think that it is safe to dive”.

“Now, the problem is, it is not safe to dive and the reason it is not safe to dive is that we have these sand forms there in approximately, say, 2 metres of water. They rise to about 0.5 metres” – on the evidence I took your Honours to – “They are larger than that from time to time. There are occasionally rogue values, but what is even more worrying to me is that they are located sporadically throughout that channel and that presents to me a very dangerous situation because what you have there is an area of about 2 metres of water, with bed forms at least of 0.5 metres high – using the old imperial measurements, 6 feet of water with about 18 inch bed forms – with people diving in there off the edge of a gradient with the water coming up to their knees. Sometimes these bed forms are bigger and you can go down there six or seven times trying to touch the bottom and never detect them once”.

“That to me is like having a swimming pool area, in effect, where the whole thing is 6 foot deep, but a handful of obstacles are placed there at 18 inches or higher throughout that pool next to the area on the edge where you can dive in. And if you say to me that that is reasonable and that you say that if they dive into that channel, then serve them right, they can break their necks, I say that your response to me is unreasonable and that reasonable care demands that we take the simple set of erecting four signs at access points to tell them that there is nowhere here in this area that is safe to dive”.

I am sorry, your Honour, it is an extended answer, perhaps unduly extended, to your Honour’s question, but, with respect, that is the bottom line in this case. It is a matter of fixing - - -

McHUGH J: That is the practical answer you give to what is a practical question.

MR REYNOLDS: Quite, and that is the response of the reasonable man. The reasonable man does also focus – if your Honours will pardon me for a moment.

KIRBY J: Let us still say, “reasonable person”, even though Justice Gaudron is not here.

MR REYNOLDS: “Reasonable person” does focus on the magnitude of this risk and the fact of quadriplegia, and the reasonable person’s reaction is not one of lack of compassion, it is not “Let them break their silly necks”. It is “If I can avoid that by the simple expedient of erecting four signs, then I will do it”. I had not put this on our list, but can I give your Honours the reference – Justice Mahoney, in a case on a list I handed up called Inverell Municipal Council v Pennington, which is - - -

KIRBY J: What is this for? What is this saying?

MR REYNOLDS: I am about to tell your Honour. In Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 273, he said, at about point 2:

The danger from diving into shallow water is well recognised: it is the kind of thing of which a public pool owner must be conscious. The damage apt to result from the danger, if it eventuates, is apt to be very great: it is well known as a source of paraplegia or quadriplegia . . . In these circumstances, the response of a reasonable person who has set up or conducts a pool facility would, in my opinion, be to guard against the risk of inadvertence in this way.

The obvious response to that is to say that this is not a public pool, Mr Reynolds, but, your Honours, it is the next best thing and not only that, not only do we have this safe swimming area, we also have this ride immediately adjacent to it and this idea that this notion of obviousness rebounds automatically to the detriment of a plaintiff in these cases, I submit, does not hold water.

It is a double-edged sword. because it is also a problem for defendants, it is also a well known risk of this type of facility, whether it be a public pool or whether it be a designated safe swimming area. Now, your Honours - - -

McHUGH J: But you are painting the creek bed as if it looked like Frank Lloyd Wright’s stance in the Johnston building in the United States, but the impression you get from the trial judge’s findings is that, basically, you just have an ordinary creek bed with some undulations, and they rise to half a metre, and it is a few centimetres here and there. It is just basically an ordinary creek bed with a few rises in it in different parts.

MR REYNOLDS: Well, your Honour, we submit that is not the effect of his Honour’s findings. What we have here is a shallow area which, where you walk in it, is below your knees and to your knees, and then you come to a point where it is about thigh height on a man of 6 foot tall as this fellow was, and then there is a dropdown. We know that and I will take your Honour the Chief Justice raises for my friends and I will go to the references.

But what we have here, if you were to look at it, say, beneath the water from the west looking east, you have an area which is very shallow and then it drops down and there is a channel where this ride goes flat up against the wall. And that is the special feature of this creek. It is that you have this area of shallow water, then you have this down drop on the gradient, and that is what people are doing. They are going to the edge and jumping into the ride and being carried down. So it is not just a normal creek, it is a creek that has this artificial construction on the edge of it, which has had this quite pronounced effect.

Your Honour Justice Kirby put to one of my learned friends that a comparison could be drawn between this case and Vairy in a way that perhaps was not favourable to my client - - -

KIRBY J: The most important thing that is missing in your case, apart from the primary judge’s finding, is the absence of an earlier and profound and repeated history of injuries.

MR REYNOLDS: That list of cases that I gave your Honours is full of cases where there was no fire accident.

KIRBY J: I realise that. The fact that there has never been an accident does not mean that you never have the first case of negligence, but - - -

MR REYNOLDS: But going back to the response that I gave to Justice McHugh, I submit that the response that the reasonable man would give if his colleague said, “Yes, well we have never had an accident here”, is “We should not have to wait until one happens, because when you look at this particular area, it was an area of particular danger”.

KIRBY J: Well, you have some things going for you and they include the fact that, in a way, this was a more developed area than the headland was, just in raw nature.

MR REYNOLDS: Quite. That is one point that they do not have. We also have, as I said to your Honours before, a situation in common with Vairy, which is that people are using this particular area, we say, to the knowledge of the defendants, in a dangerous way, namely, by diving into this creek channel.

KIRBY J: Bu it looks to me very dangerous to jump off that headland into water, given what we know about the variable size of seawater.

MR REYNOLDS: But if your Honour could see this creek bed without any water in it, your Honour would make, I submit, exactly the same comment about jumping into that channel. That is the thing. Just because you cannot see it, when you see an aerial photograph from on high, does not mean it is not just as dangerous. The comparison that can be made between this case and Vairy, I submit, is favourable, more favourable to my clients because of the encouragement that was given. There had been findings about that in the same way as occurred in Nagle. The safe swimming area, the fact that people are regularly engaging in dangerous conduct to the knowledge of the defendants, is the same.

They do not have, though, this artificial structure, the exacerbation or creation of the risk, and they do not have a factor that we have, which is that this risk was not avoidable by – I cannot say was not avoidable, but one could exercise a very high degree of reasonable care in confronting this risk and still be injured, whereas I think Mr Semmler conceded that what his client did was foolhardy. I do not make that concession and there was no finding made by the primary judge to that effect, so I did want to make that response briefly to your Honour.

Can I deal with some other issues of reply briefly. My learned friend’s, Mr McCulloch’s, notice of contention about duty of care I have responded to in writing. There is a document entitled “Appellant’s Submissions in Reply to First Respondent’s Submissions” and at paragraphs 4.1 through to 4.3 we raise a series of difficulties for my learned friend in relation to his arguments about the existence of a duty of care which, we respectfully submit, he has not confronted in his argument and I simply rely upon those submissions.

Your Honour the Chief Justice raised the question of exactly where this launch took place. Can I give your Honours some references in that regard. Probably the best reference is at page 4338 where, at line 5, the water comes up “to his thighs”. Sorry, above that:

it went from “quite shallow down to his thighs fairly quickly”.

Then at about line 14 he dives in, tests to see the bottom and he cannot touch the bottom. So we have an area there, drops down sharply so that it is up to his thighs and then there is an area where, when he dives in and tests the bottom, he cannot even touch the bottom at all. So it is a fairly sharp drop off that has this channel effect.

There are some other references I can give your Honours, using paragraph numbers in the judgment, paragraphs 86, 220 and 341, which say similar things, but the main reference is the one to which I have taken your Honours.

The third thing that I would like to raise in reply, your Honours, is the submissions that have been made to your Honours certainly by the Council, and I thought also by the State, submitting to your Honours that there was not a single error in the judgment of Justice Whealy.

Our response to that is, why is it that there is not a line in the written submissions, nor a word in oral argument, that has been addressed to all of the difficulties which we have raised in our written submissions in relation to that judgment?

The next matter that I would like to deal with in reply is the notion of this case not being put below. I dealt with that a little bit earlier on. I have had copies made of all these submissions which my predecessor, Mr Murray, made in this case and I have copies of those for your Honours so your Honours can see exactly what his submissions were, both orally and in writing. If your Honours want more particular assistance from me in terms of exactly where everything that I have said today – or, rather, where I have said the things which it is alleged Mr Murray did not – then I will really need leave to give your Honours references at least to those passages. Can I hand up, perhaps not now, but in a moment, copies of, as I say, all of the submissions which were made by him.

The next matter is that my learned friend, Mr Maconachie, said there was no evidence of what others had done in relation to a warning of risks in swimming areas like this. In volume 11 of the appeal books at pages 4130 to 4183m – I will not take your Honours to that, and I can give you the reference to 4183m. There is a variety of evidence of signage in swimming areas, which your Honours can see.

The next matter that I would like to deal with is an observation that your Honour Justice McHugh, made in relation to some difficulties that your Honour had in relation to the findings made by the primary judge, as I understood it, particularly in relation to the size of the bed forms. Can I take your Honours – in relation to that there is another document in reply that we composed called “Appellant’s submissions in reply to second to fourth respondent’s submissions”, if your Honours have a copy of that.

We dealt with this issue in paragraph 3.7 of that document, where we refer to his Honour’s statement at paragraph 223 of the judgment:

It is highly unlikely the plaintiff hit the bed of the creek given the depth of the water in which he was standing and diving, especially having regard to the method of dive and the state of the tide on that day.

The statement there is highly unlikely that the plaintiff hit the bed of the creek and yet his Honour, in that same paragraph, states that, in all probability, the bed forms would have been less than 0.5 metres. So he is saying it is highly unlikely he would have hit the bottom, but seems to indicate that his view is that he hit something which was about, say, 18 inches higher. His Honour did not, as we have said in our submissions, make a finding. He said he could not make a finding about the height of the bed form, other than that it was a moderately elevated sand form.

What I am raising before your Honours is simply this. In our submissions in paragraph 4.36, that is, our original submissions in-chief, we have listed a whole lot of findings about larger sand forms, which his Honour made, that is, said there were rogue values and larger sand forms and large dunes from time to time. What his Honour says there in his Honour’s judgment at paragraph 223, as we have said, and in our reply submissions at paragraph 3.7, tends to indicate that what the plaintiff hit was, in fact, a somewhat larger sand form than one at about 0.5 metres. The reason I wanted to stress that is, given the absence of any finding by his Honour on that, it does tend to underscore the danger of this particular channel, because from time to time there were not just moderately elevated sand forms in it, but larger sand forms, as we have set out in our submissions by reference to the findings of the primary judge in paragraph 4.36.

McHUGH J: Yes, but I am not sure that they accurately reflect what the judge found, because on this issue he preferred Mr Druery’s evidence. This was the one area where he preferred Druery to Neilsen.

MR REYNOLDS: Well, if your Honours look at page 8 of our written submissions, there are a whole lot of findings we list there.

HAYNE J: Maybe, but the critical findings are in paragraphs 219, 221 and 223 of the judge’s reasons, are they not?

MR REYNOLDS: I do not remember the numbers, but where he says he could not make a precise finding, that what the plaintiff hit he found was a moderately elevated - - -

HAYNE J: Paragraph 219 line 40, “more probably than not it was a bedform which the plaintiff struck”. Paragraph 221:

The totality of this evidence . . . supports the probability that the plaintiff’s head struck a sand dune beneath the water, that is, a transient bedform –

Paragraph 223, last sentence:

consistent with his having struck his head on a moderately elevated sand dune.

MR REYNOLDS: We do not disagree with that, your Honour. Your Honours, can I give you one more reference, before I sit down, on the
issue of knowledge. It is a reference to Nagle [1993] HCA 76; 177 CLR 423, in particular at page 436, where Justice Brennan deals with the defendant in that case being taken to have had full knowledge of the topography of the area and of the circumstances which might affect the safety of the public using it. If your Honours please, those are my submissions.

GLEESON CJ: Thank you, Mr Reynolds.

KIRBY J: Mr Reynolds, just one small question. Have you, in your researches, looked at all of the Supreme Court of Ireland? Have they had any diving case - - -

MR REYNOLDS: No, we have not looked at the - - -

KIRBY J: We share the common law with Ireland, probably a bit closer to them than to the United States in these matters.

MR REYNOLDS: Possibly. If your Honour would like, I can conduct some research - - -

KIRBY J: I do not want to add to your burdens, but I will have a look at that, and I do not want anybody subsequently to say that you were not on notice.

MR REYNOLDS: If your Honour pleases.

GLEESON CJ: Thank you, Mr Reynolds.

MR MACONACHIE: I can help your Honour with that. There is a judgment of the Supreme Court of Ireland, decided on 25 January 2005 by Justice Hugh Geoghegan in the Supreme Court. It does have something to say about the common law position, but they do have an Occupiers’ Liability Act there. I thought it to be of marginal interest, but I can give your Honours to it. Indeed, we might even - - -

GLEESON CJ: Well, you can make it available to our associates.

MR MACONACHIE: It is upstairs. I will make it available to your Honours this afternoon, I hope.

GLEESON CJ: Thank you.

MR REYNOLDS: Your Honour, there is one matter I forgot to raise, which I did raise but I then forget about, which is the provision to your Honours of all of Mr Murray’s oral and written submissions which I have.

GLEESON CJ: That can be made available to our associates also.

GLEESON CJ: We are not likely to be looking at it overnight.

MR REYNOLDS: I am sorry, your Honour?

GLEESON CJ: We are not likely to be looking at it tonight.

MR REYNOLDS: Thank you, your Honour. The only other thing is, I raised with your Honours whether your Honours would like some assistance with some references to particular pages in this collection, which we are happy to provide, or otherwise to leave to your Honours.

GLEESON CJ: Give us a note about that within seven days.

MR REYNOLDS: Thank you, your Honour.

GLEESON CJ: Thank you, Mr Reynolds. We will reserve our decision in this matter, and we will adjourn until 10.15 on Tuesday, 19 April in Canberra.

AT 3.58 PM THE MATTERS WERE ADJOURNED