Waverley Council v Lodge [2001] NSWCA 439 (29 November 2001)

Last Updated: 13 December 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: WAVERLEY COUNCIL v. LODGE [2001] NSWCA 439

FILE NUMBER(S):

40180 of 2001

HEARING DATE(S): 15/11/2001

JUDGMENT DATE: 29/11/2001

PARTIES:

Council of the Municipality of Waverley - Appellant

John James Lodge - Respondent

JUDGMENT OF: Meagher JA Heydon JA Bryson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8758 of 1997

LOWER COURT JUDICIAL OFFICER: Judge Phegan and Judge Finnane Q.C.

COUNSEL:

P.R. Garling SC & S.P.W. Glascott - Appellant

J.J. Graves SC & R.J. de Meyrick - Respondent

SOLICITORS:

Phillips Fox Solicitors - Appellant

T.D. Kelly & Co. Solicitors - Respondent

CATCHWORDS:

NEGLIGENCE - Local council - control of beachside promenade, pools and steps - bather left rock pool and walked across rocks towards concrete steps - rocks not under control by Council but gave access to area under control - slipped and fell on marine growth on rock - scope of duty and whether breach of duty - findings of breach based on failure to erect warning sign were set aside - scope of duty did not extend to erecting warning sign.

LEGISLATION CITED:

DECISION:

(1) Appeal allowed with costs.

(2) Verdicts and judgment of the District Court set aside and in lieu thereof give judgment for the defendant.

(3) Order that the plaintiff appellant pay the defendant respondent's costs of the proceedings in the District Court.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40180/2001

DC 8758/1997

MEAGHER JA

HEYDON JA

BRYSON J

Thursday 29 November 2001

THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY (APPELLANT) v. JOHN JAMES LODGE (RESPONDENT)

Judgment

1 MEAGHER JA: I agree with Bryson J.

2 HEYDON JA: I agree with Bryson J.

3 BRYSON J: The appellant, defendant in the District Court, appealed from decisions of his Honour Judge Phegan and his Honour Judge Finnane Q.C. After hearing the question of liability on 27 and 28 May 1999 Judge Phegan in an ex tempore judgment on 28 May 1999 found that the appellant was liable for a breach of duty of care in failing to warn the respondent adequately of the danger which caused his fall, found that there was contributory negligence and determined that damages should be reduced from those otherwise recoverable by 30 per cent. After a later hearing Judge Finnane Q.C. on 23 February 2001 gave judgment for the respondent for $434,056.08. When the hearing began the appellant's counsel abandoned the appeal on damages. There was no cross-appeal and no notice of contention against any finding of Judge Phegan.

4 The respondent's claim arose out of severe personal injuries which he suffered in a fall on 2 January 1989 at about 6.30 pm at the northern end of Bondi Beach near the rock pool called "Warrie Weeks Pool". The respondent fell on an area of rock between the rock pool and the wading pool or Children's Pool which is to its west, as he was walking towards concrete steps which led to a landing, then to further steps up to the promenade near Ramsgate Avenue East. He was making his way along a strip of sand and rock between the two pools after leaving the rock pool. The respondent was then 37 years of age. He came by car to the north end of Bondi Beach in the company with his brother and another man; the car was parked somewhere at the northern end of the beach and the respondent remained at the northern end while the other two went along the surf beach. After he spent a little time walking along the promenade at the northern end of the beach the respondent decided to go to the rock pool below the promenade. He proceeded down to the level of the sand at the wading pool; it is not established what path he took to get down but it was not by the steps towards which he was walking when he fell. He walked along the edge of the wading pool at the foot of the promenade, and at the end of the wading pool removed his street clothes and left his clothes, shoes and glasses at the end of the wading pool. He was then wearing his swimming costume which had been under his street clothes.

5 It was found that the respondent after removing his clothes and leaving them at the end of the children's pool "... stepped down from the edge of the children's pool and made his way across a sandy area to the adult rock pool some short distance away." (Red 36) It is not clear from the findings nor can it be made clear from the evidence at what point he stepped down from the edge of the wading pool. He made his way across a sandy area to the rock pool, climbed over the wall of the rock pool and spent a short time, possibly up to about 10 minutes, in the rock pool, walking in its western end. He found this uncomfortable as the floor of the pool was covered with rocks and debris; it was not a sandy area. He climbed back onto and over the dividing wall where he had entered the rock pool, and set out to return to where he had left his clothes. He could have reached that point by walking up the first four steps to a level area or landing at the level where he had left his clothes.

6 The area between the two pools which he had first crossed was essentially sand, but in order to get to the four steps which he intended to negotiate he had to cross an area which was largely covered by rock. As he was walking over the rock his right foot slipped on the surface below him and he fell backwards onto his right side. The fall caused very extensive injuries including a broken right leg and a broken right shoulder.

7 The place where the respondent fell is a rock or rock shelf covered in part with sand and covered at the place where he fell by moss and algae and also by water. To the respondent the cover appeared black although he observed after he fell and was waiting for assistance, which took some 20 or 30 minutes, that there was also some green material. There is no evidence or finding establishing the distance between the place where the respondent fell and the lowest step; this can only be vaguely assessed from the photographs and markings made on them by the respondent, and may have been in the order of two or three metres.

8 The learned Judge's findings describing in detail the area where the respondent fell were in these terms: (Red 47 to 49)

I have indicated that this is an area which lay between the children's pool on the west and the rock pool on the east and ran in a north/south direction to the point where it joined the bottom most of the three or four steps that led up to the top level of the wall surrounding the children's pool.

The area closest to the steps is a mixture of what appears to be concrete by way of an extension of the retaining wall on the eastern end of the children's pool beyond which and running all the way then into the rocks which form part of the rock pool itself is the area of mixed sand and rock where the plaintiff fell. Beyond that area is a stretch of sand which runs out in a southerly direction towards the beach.

In his description of his fall, the plaintiff referred to the fact that when he reached the rocky area, that is after he had crossed the section of sand immediately adjacent to where he exited the rock pool over the retaining wall, he made his way as carefully as he was able through the rocks below, trying as far as possible to place his feet on what he could still discern as sections of sand amongst the rocks. But there were points where this was simply not possible and it was at one such point that he slipped and fell.

He slipped, according to his evidence, on the side of a rock which as far as he could see was black in colour. However, it was his evidence that after he fell and while he was lying alongside the point where he slipped, he discerned a strip of green coloured moss and algae on the side of the rock where he had slipped and it was his conclusion from the sensation on the sole of his foot immediately before he slipped that it was the mossy side of the rock with which he had come into contact immediately before he fell.

9 After referring to a credit issue which was decided in favour of the respondent his Honour said: (Red 50)

I am satisfied that the plaintiff consistently recalled that what he saw and what he thought he was stepping onto, that is at least onto the side of, was a black rock which gave him no reason to fear any danger as far as its surface was concerned. But what he actually came into contact with was the mossy side of the rock which even without the assistance of Mr Nicolson's expert report on [coefficients] of friction, I would be quite content to accept provided a very unstable and very slippery surface and one which one could reasonably foresee could cause a person to lose their footing and fall quite heavily as the plaintiff obviously did.

10 These findings were based on acceptance of the respondent's evidence. The Trial Judge commented that the respondent's evidence "... did not provide all of the facts which one might have hoped to have available in order to come to a definitive conclusion." (Red 38) The appellant did not lead any evidence apart from five photographs, and also two documents on which the Trial Judge did not rely. The Trial Judge found that the photographs in evidence could only be relied on in a very general way. They were taken over 10 years after the event. Inferences adverse to the appellant relating to its exercise of control over the place where the respondent fell in January 1989 may readily be drawn if on the evidence generally they are available.

11 The Trial Judge also found: (Red 60) "This was an area which at least every time the tide was high was underwater ...". And at a later point (Red 64) made a finding to the effect that the rocks which the respondent walked across were "underwater at that stage,". The Trial Judge also found (Red 65) referring to an Expert's Report: "It was, on the evidence of Mr Nicolson, close to high tide and therefore most of the area of the pool, with the exception of the raised walls was underwater, that is including the approach to the pool itself." Evidence of the respondent shows that the time he fell was about one hour after high tide. Photographs show clearly that the place where he fell is within the ordinary range of wave action and, depending on the state of the tide, would often be under water; and the pools are tidal.

12 The Trial Judge's finding of contributory negligence was: (Red 64 to 66)

There is no doubt that he was especially careful about where he placed his feet. In those circumstances one aspect of his evidence which I did not find persuasive was the assessment which he made of the alternatives facing him when he was making his way back to the steps after leaving the rock pool.

As he admitted, and he is to be commended for his frankness, he was looking for the quickest way back and therefore eliminated the alternative put to him of making his way along the section of concrete immediately adjacent to the children's pool. That he was persuaded that one was just as safe as the other. It seems to me that the comparative safety of a section of concrete alongside a concrete wall which provided immediate physical support if a person threatened to lose their balance was a far safer course than the one which the plaintiff chose to take across rocks, underwater at that stage, which while they might have appeared safe, clearly could not be assumed to be entirely free of the risk of losing one's footing.

In those circumstances there was a failure on the plaintiff's part to take reasonable care for his own safety in making that particular choice.

There is also in my view a more general lack of care on the plaintiff's part for his own safety in his decision in the first place to use the rock pool in the circumstances confronting him. He had only been to this location once before and on that occasion had not used the pool. It was, on the evidence of Mr Nicolson, close to high tide and therefore most of the area of the pool, with the exception of the raised walls was underwater, that is including the approach to the pool itself. The plaintiff only investigated one means of access to the pool. The suggestion was that he could not reasonably be expected to make his way to the other end of the rock pool in order to see whether there was a more secure means of access, but again I do not accept that that in all of the circumstances was an unreasonable suggestion to make.

In those circumstances, I am satisfied that there was a measure of risk which the plaintiff knowingly undertook in using the rock pool at all in the circumstances in which he used it and that that combines with the more immediate judgment which he, in my view, negligently exercised in choosing to take the particular path which he took in making his way back to the steps.

In those circumstances his contributory negligence I find was significant and I assess that for the purpose of apportionment at thirty per cent.

I accordingly enter a verdict for the plaintiff against the defendant and find that for the purpose of the apportionment of damages, when assessed, those damages should be reduced from those otherwise recoverable by thirty per cent.

13 The first part of these findings shows that if the respondent had crossed the area between the pools instead of proceeding across the rock he would have reached a section of concrete immediately adjacent to the wading pool alongside the concrete wall of the wading pool and he could have proceeded along that strip towards the steps. There is very little in evidence to show what the concrete strip was, although part of it can be seen, with difficulty, on the photograph Exhibit L (Blue 43).

14 The presentation of the appellant's case first directed attention to whether there was a duty of care and to the exercise by the appellant of control over the place where the respondent fell. The allegation in the Statement of Claim in para.(2) was to the effect that the appellant was the occupier of and had the care, control and management of the swimming pools and adjacent areas. In the judgment under appeal and in the submissions there were some references to occupation, and the term is difficult to avoid, but analysis in terms of Occupiers Liability is no longer appropriate, the subject matter for consideration in relation to the existence of a duty of care is the existence and exercise of control by the appellant over the place, and the Trial Judge appreciated this and did not apply an incorrect test for the existence of a duty of care.

15 Remarkably little material was put in evidence which could have any bearing on the existence or exercise of control over the place where the respondent fell. The Statement of Claim did not refer to any legislative provisions or Ordinance or By-laws relating to responsibilities of the appellant for the place, whether for the safety of the public or in any other respect. No legislative provision was said, in the pleading or elsewhere, to give rise to a cause of action or to be relevant to the existence and exercise of control. There was no evidence dealing with construction or maintenance of the promenade, or of the steps or of the pools, although there are signs in the photographs, which were taken a decade after the event, that some maintenance is carried out, for example by providing ropes and chains, and painting steps and other areas near the wading pool. No evidence showed if or how the area is managed by the appellant or any other public authority. It is of course notorious and I must take notice that local government authorities concern themselves with facilities at bathing beaches, and sometimes erect notices relating to public safety, but this knowledge was not carried, by the conduct of the proceedings, to any detail defining powers or responsibilities, or any discretionary choices, the places where notices relating to public safety may be erected or what duties or choices there may be. There was no evidence precisely defining the municipal boundary, and that may be an important matter for what the appellant could have done or should have done in the context of its powers. Clearly a great deal of potentially important material was not put before the Trial Judge, or before the Court of Appeal.

16 The conclusions of the Trial Judge were based in part on findings relating to the ownership of nearby land; two parcels of land which together constitute most, though perhaps not all of Lot 1, Section 1 Deposited Plan 786 forming a roughly triangular parcel of 1 rood 10 perches between Ramsgate Avenue East Bondi and the concrete promenade. The metric equivalent is 1265 square metres, about the size of a large suburban housing lot. This land is now open parkland running between the promenade above the pools and Ramsgate Avenue. The Trial Judge found that title to that land was vested in the defendant Council; with respect, this finding was erroneous as the Certificates of Title (Blue 4 and 6) show that the land is Crown land, and became Crown land within the meaning of the Crown Lands Acts by a Government Gazette Notification of 6 March 1981; earlier the land, in two different parcels acquired in 1955 and 1957, had been owned by the appellant. Memorials on the Certificates of Title clearly show that the land is Crown land and the Gazette Notification is in evidence (Blue 1) and shows the same. To my mind the ownership of the land in the Certificates of Title is not important for deciding whether the appellant exercised control over the area where the respondent fell, but the Trial Judge regarded it as significant, and his finding on ownership was not correct.

17 It is not easy to see what impact the erroneous finding had on the Trial Judge's conclusion because he said (Red 40) "I am not satisfied that there was any sufficient connection established between the land described in the relevant certificates of title and the deposited plan and the location of the plaintiff's fall. It is equally possible, it seems to me, that the fall occurred somewhere outside the area defined on the deposited plan and the related certificates of title and in those circumstances I find it impossible to come to any conclusion as to the ownership of the area in question."

18 The plan endorsed on one of the Certificates of Title (Blue 4) shows that the part of Lot 1 Section 5 DP 786 in the Certificate of Title is bounded on the south-east by "Concrete Esplanade". The Certificate of Title and the Plan are dated 1943, and it cannot be known from evidence whether the concrete esplanade on the plan is the same structure as the concrete promenade which existed in 1989 and at the time of trial. The plan on the other Certificate of Title, and the Deposited Plan do not establish anything clearly. In my finding it is altogether clear that the tide-swept area where the respondent fell is not part of the land in the Certificates of Title, and is separated from that land by the concrete promenade.

19 While not unknown it is most unusual for tidal land below high water mark to be granted by the Crown, and the only reasonably available view of the probabilities is that the place where the respondent fell was not owned by the appellant. As I understand his Honour's reasons the Trial Judge proceeded on the same basis. However his findings on whether the appellant should be said to have exercised a sufficient degree of control over the place where the respondent fell to give rise to a duty of care were affected by the erroneous finding that the Council owned the land in the Certificates of Title. The Trial Judge found: (Red 41 to 45):

I am satisfied this represents, at least in part, an area which has now been converted by the council into a public park and that it provides, amongst other things, access from Ramsgate Avenue to the pool area where the plaintiff was injured. Immediately alongside the pool area and either dividing the land owned by the council or at least abutting the land owned by the council is a promenade used by the public that leads from the western end to the eastern end of the pool area.

There is no doubt that, the area of public park which I have described falls within lot 1 in the deposited plan and it is most likely that the promenade area also at least in part falls within that lot and is therefore vested in the council.

In those circumstances, apart from access from either the water or the sand at Bondi Beach, the only means of public access to the pool area is across the area that I have just described.

While there was no direct evidence as to either ownership or even control of the pool area and certainly this was not conceded by the council, I am satisfied that on the balance of probabilities it is possible to draw an inference with the assistance of at least some other evidence that does lead to the conclusion that the pool area had been assumed as an area under the control of the defendant council.

I come to that conclusion partly because of the matter of access to which I have referred, partly because there is no doubt on the evidence that quite apart from providing access, the council has assumed control of all the land up to and including the retaining wall immediately behind the pool area which divides it from the promenade above and the park beyond.

Along that area, but again this is evidence which arises from photographs taken very recently, the defendant council has placed two signs which read as follows and both bear the coat of arms and insignia of the defendant council. The first states:

"BONDI BEACH, CHILDREN'S POOL, WATER QUALITY.

The water in this pool is tested once a week for its suitability for swimming by the New South Wales Department of Health. Council does not recommend swimming in this pool for three days after heavy rain."

The other sign contains the warning insignia of a dog inside a circle with a cross across it and the words, `dogs prohibited'. And there are telephone numbers of impounding officers and rangers below that.

While I accept the argument which was put by Mr Barko on behalf of the council that no conclusive weight can be attached to those signs and certainly no conclusive weight applicable to the circumstances prevailing in January of 1989, they do have some bearing on the conclusion I have reached to this extent. The title to which I have referred was finally gazetted in 1981, that is the title to the land immediately adjacent to the pool. From that time it can be assumed the council had occupation and control of that area of land. Furthermore it is, in my view, highly unlikely in those circumstances that at the time the plaintiff was injured in 1989 the relationship between the land owned by the council and the area in which the pools were situated was significantly different from that which prevailed at the time the photographic evidence was taken.

There was certainly nothing in the plaintiff's evidence to suggest otherwise and there was no evidence called by the defendant to suggest otherwise. It is therefore not an unreasonable conclusion to draw that even though the council may not have similarly indicated by way of signage, at the time it assumed responsibility for the safety of persons using the children's pool, nonetheless it had assumed a sufficient degree of control over that area to expose it to responsibility as an occupier.

There was also the plaintiff's evidence that he did remember seeing in the vicinity of the stairs which led down to the area where he slipped, a sign of a kind similar to the `dogs prohibited' sign which I have already referred to and which was photographed much more recently.

I do not attach any independent significance to that but it is just one further factor in an accumulated set of circumstances which point to the conclusion which I have reached. In coming to that conclusion I acknowledge that the evidence falls short of any direct evidence pointing to actual acts of control by the council in the early part of 1989, but that would seem to me to be an unnecessarily unrealistic imposition to place on the plaintiff in order to establish the degree of control which in my view is sufficient to give rise to a duty of care.

20 These findings cannot be upheld. The land in the Certificates of Title is not owned by Council. There is no evidence that that land has been converted by the Council into a public park. The fact that the public park provides access from Ramsgate Avenue to the pool area (in the sense in which the Trial Judge speaks of the pool area, which sense includes the area where the respondent fell) does not have a bearing on the existence or nature of control by the Council over the pool area. There is no basis for finding that the promenade falls in part or at all within the land in the Certificates of Title. There are very ample means of access to the pool area by way of the promenade, along the sand of Bondi Beach, and from the water. There is no basis on which it would be correct to regard control by the Council of means of access to the pool area as existing in an effective way or if it did exist, as showing control over the pool area. The scant material in evidence upon which any finding relating to control of access could be made does not support the conclusion that Council had assumed control over the pool area. There is no basis for the finding that the Council had assumed control of all the land up to and including the retaining wall immediately behind the pool area; in so far as that finding can be related to evidence, there is no land other than the promenade between the pool area and the park beyond. The presence of a notice, 10 years later, notifying the public about water quality in the Children's Pool has no bearing on exercise by the Council in 1989 of control over the pool area. It does not show exercise of control over the pool area at the time when the notice was displayed, but does no more than notify the public about water quality and does not control any human activity. The evidence of the respondent shows that there was in 1989 a notice controlling dogs, not the notice illustrated in the photographs but another notice to a similar effect. The respondent's evidence was that the sign said "Dogs prohibited by order" (Black 9) and that the sign was next to the stairs which the respondent went down leading down to the rock pool. It was a square sign on a pole. It is not established which stairs he went down but it is improbable that they were the stairs immediately above the four steps he was approaching when he fell. His evidence appears to mean that the sign was displayed on the promenade. As an indication of exercise of control over any place it is faint indeed, but it has no relation to an exercise of control over the pool area.

21 There is no evidence and there was no finding about who built the steps or the promenade, when they were built or any maintenance of them. There is no evidence of any activity of management or maintenance carried out by or on behalf of the appellant in the area of the rock shelf, or in relation to the steps, or the pools. Indeed there is no evidence establishing that the appellant carries on any activity of control, management or maintenance on the promenade or in the park above, and the Court is left to the limited and highly general notice which it may take of the existence and general nature of the activities of Local Government authorities.

22 This general knowledge of activities of Local government bodies shows that it is probable that Council exercised some functions and control in relation to the promenade which gave access to the pools and the steps down from the promenade. A thin thread of probability extends to the exercise also of some functions and control in relation to the pools and steps, but nothing specific is known or can be found about the nature of that control. There is no basis for a finding that that control extended to the area between the pools including the rock shelf where the respondent fell.

23 The respondent's counsel contended that the Trial Judge found that the slippery rock on which the respondent fell was a hidden danger. This contention was based on the following passage: (Red 50) "I am satisfied that the plaintiff consistently recalled that what he saw and what he thought he was stepping onto, that is at least onto the side of, was a black rock which gave him no reason to fear any danger as far as its surface was concerned. But what he actually came into contact with was the mossy side of the rock ..." I do not understand this passage as a finding to the effect that the respondent encountered a hidden danger. Passages in cross-examination establish altogether clearly that the respondent was well aware of the slippery nature of submerged rock. His evidence in chief shows (Black 10) "My intended route was to go to the left of the rock and thread my way past the other rocks up to the stairs, either to the left or the right. I was looking for sandy areas." He later explained looking for sandy areas as "It's extra caution" and also said "Well, I don't like walking on rocks usually. I'm pretty much afraid of different surfaces and I like to be extra very careful."

Q. Is it because sandy bottom would give you a better foothold?

A. Correct.

24 He also said under cross-examination: (Black 12) "Well I think anybody would know that algae and moss was slippery" and

Q. You were aware, weren't you, on 2 January 1989 that this black colour that caused you concern on these rocks was in fact some form of algae or moss?

A. No I wasn't sure about that.

Q. What did you think the black colour was?

A. I thought it was a black rock.

25 The effect of the finding, and the finding justified by the evidence is that the respondent did not advert to the danger, not that it was a hidden danger.

26 The learned Trial Judge addressed two alternative allegations of breach of duty. One was a failure to treat the rock area chemically in order to eliminate any algae or moss formation of the sort that renders rocks slippery. The Trial Judge was not satisfied that a breach had been established on that ground, and the Court of Appeal was not asked to depart from this conclusion. The Trial Judge also said: (Red 60 to 61)

There is alternatively the absence of a sign. The defendant's submission in this regard was that the plaintiff on his own evidence was a particularly cautious individual and indeed had admitted that he was alert to and extremely wary of the risk of slipping. It was the defendant's argument therefore that a sign would have been of no causal effectiveness in those circumstances had it been observed by someone as cautious as the plaintiff.

On the other hand, it was the plaintiff's own evidence which was not in any way disturbed, that if there had been a sign warning of the possibility that the rocks which he negotiated were slippery, or might be slippery for reasons which I have held existed, he simply would not have taken that particular path.

I accept that evidence and I am equally of the view that the erection of a sign to this effect would have been a relatively simple and comparatively inexpensive measure and that it certainly would have been sufficient to have avoided this particular incident.

27 In this passage the Trial Judge treats together two stages of the process of decision which I prefer to separate. One is the decision on the scope of the duty of care, on what the person in control of the place of the accident would reasonably do in response to foresight of a risk of injury; the other is whether the omission so to act caused the respondent's injury.

28 A decision on the scope of the duty of care is to be reached by applying the tests stated by Mason J in The Council of the Shire of Wyong v. Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48:-

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

29 This passage, in which a majority of the High Court concurred, shows that decision on foresight of risk of injury is quite distinct from decision on reasonable response. Mason J's expressions show that foresight of risk is readily available, but they also show that foresight does not commit to action. Shirt's case does not in my view show a short pathway to a ready conclusion but requires the Court to address the degree and magnitude of the risk, its degree of possibility and other relevant factors, with openness to a possible outcome that no response should be made, even though simple and cheap measures can be suggested; those measures though simple and cheap may not be the response of the reasonable person. The facts of the instant case are to be addressed, and generalisations of outcomes cannot be reliable.

30 To spell out the foresight of the risk of injury which I find, a reasonable person in the position of the appellant, exercising some undefined functions and control over the promenade the pools and the steps, would have foreseen that his conduct in making available the promenade pools and steps involved a risk that a person approaching them over a nearby area of rock which the appellant did not control would be injured by slipping on the rock; if there are facilities to which people will want to have access, people will have access.

31 Mason J's test, to which the appellant's counsel referred as "The Shirt calculus", cannot be and has not been a ready avenue to findings of breach of duty. The decision of the Court of Appeal in Phillis v. Daly (1988) 15 NSWLR 65 illustrates this and shows the integration of Shirt's case with Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479. This Court reached the conclusion that on the facts of that case the occupier was not required to respond. A notable instance is Romeo v. Conservation Commission of the Northern Territory [1998] HCA 5; (1988) 192 CLR 431; see 447 (Brennan CJ), 455-456 (Toohey & Gummow JJ), 478-482 (Kirby J); 488-491 (Hayne J). The breaches contended for included failure to erect a fence or barrier as well as failure to erect warning signs; the High Court did not depart from but in my understanding applied the test stated by Mason J in Shirt, and in applying that test had regard to the influence on response to foresight and risk of the obviousness of the risk to entrants; see Kirby J at 478 and Toohey & Gummow JJ at 455-456, and Hayne J at 489. Romeo's case illustrates, as does Phillis v. Daly, that there may well be room for different conclusions when determining reasonable response.

32 Allegations of breach of duty based on omission to erect warning signs, or on the terms of warning signs are frequently considered; I refer particularly to Department of Natural Resources and Energy v. Harper [2000] VSCA 36, where Batt JA addressed obviousness: see paras [47] to [50] and Prast v. Town of Cottesloe [2000] WASCA 274. There is no evidence and there was no finding of any conduct in the nature of promoting or encouraging use by the public of the rock pools as a venue for swimming, such as was an important element in the facts in Nagle v. Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 430 and cf Prast v. Town of Cottesloe at paras 9 to 13. There can be few cases where there is so slight a connection between the place where the risk exists and control exercised by the defendant, or where the presence of the risk is so obvious, as in the present case. A significant element in a decision on breach is the unchallenged finding that the respondent failed to take reasonable care for his own safety.

33 The effect of the Trial Judge's holdings is that the reasonable response was to erect a sign containing a statement to some such effect as the following "Warning - rocks may be slippery with moss and algae". The bases for the Trial Judge's conclusions were affected by erroneous findings about the appellant's ownership of land nearby and about which particular pieces of land were subject to that ownership, and by consideration of the kinds and terms of notices displayed 10 years later. The Trial Judge's conclusion should be set aside, and I should address the question of reasonable response in the light of the very slight exercise of control, and very slight opportunities for its exercise, if they can be called as much, which existed. Only very limited findings can be made about control, in the paucity of material available. What is available is general awareness that Local Government authorities have some responsibilities relating to the management of swimming beaches, including this one, and the very limited illustration of the working of those responsibilities presented by the display of a sign forbidding dogs, apparently from the promenade. This general awareness is heavily qualified by the facts that the place where the respondent fell is not itself within the area of control, and is swept by the tide, and that it has not been established that the appellant has any powers or exercises any functions there.

34 I impute to the appellant through responsible officers knowledge that in the area where the respondent fell, as with other areas to which access can readily be gained from the promenade and from the beach, rocks which may be covered by water according to the state of the tide may well be slippery, because they are wet and because of moss, algae or other marine growth, and that slippery rocks may well be dangerous to persons walking on them. This knowledge can readily be imputed to the appellant and its officers because the likelihood that rocks may be slippery for those reasons is obvious to any reasonable adult with even elementary knowledge of the physical world and the margin between land and sea. The kind of danger which may be present is, for practical purposes, obvious to all. Further, when there actually is marine growth on rock, it is optically evident.

35 Everyday experience does not support attributing talismanic force to signs as means of averting dangers. It is commonplace to see warning signs ignored. An attempt to analyse considerations supporting and adverse to erecting warning signs of this kind is made difficult by the obvious nature of the information which they would convey. The respondent's counsel did not appropriately address the difficulties of the situation by claiming that consideration should be limited to the erection of a sign near the place where the respondent fell. What is under consideration is not so simple as what a reasonable person in the appellant's position would have decided to do about erecting a sign at that one spot; the same considerations present themselves wherever there is ready access from the beach or the promenade to rocks which may be covered by the tide and on which persons may walk. A decision to erect signs would lead to consideration of how many signs were to be erected and their spacing; to be effectual the exercise would have to be complete and the erection of one sign could not be enough. Little would be achieved by erecting signs in one place or in a few places, which would equip persons who slipped at other places or at earlier times with material with which to garnish a complaint about the lack of signage. It is not in my judgment correct to adopt a speedy conclusion based on the view that a sign near the place where the respondent fell would have cost little. It should not be readily concluded that it would be easy or cheap to erect signs; that judgment could only come as part of an appraisal which could show how many signs should be erected and where, and what they should say; and of the projected costs; including costs of maintenance and repair. Other considerations besides cost present themselves. A decision appraising the difficulty or facility of erecting signs requires administrative ability which courts do not have readily available, especially when not assisted by any relevant evidence.

36 There is a succession of subsidiary questions. One, subsidiary but quite important, is the choice of languages to be used in the signs. There is also the text of the sign, not a simple matter as the sign must be a strong claim on attention, a simple message with no potential ambiguity. It would be for consideration whether the sign should show a pictorial representation of the danger. Shirt's case illustrates that the terms of the warning on a sign may be open to criticism, debate and adverse finding. Another is an appraisal of other risks, such as risks related to rips, currents, waves and submerged rocks, and no doubt others, which in terms of the incidence of risk may have the same or a stronger claim to be dealt with by warning signs. Another important subject, potentially the subject of evidence but rarely addressed in forensic contests, is the actual impact of signs on human behaviour, their utility and the extent to which they are read and if read complied with. These are difficulties which the appellant would be drawn to consider in detail if it decided to erect signs.

37 In my view the response of the reasonable person in the position of the appellant would be to do nothing, in the situation of control which I have found, and to leave persons who walked on rock to perceive and avert the risk themselves. If that reasonable person pursued his thinking to the point of defining a reason for so deciding, the reason would be that the risk was obvious to any reasonable adult, who could look about and see where he was walking and whether it was safe. In my view it would not be the response of a reasonable person to decide to erect signs which would do no more than to state the obvious for the information of persons who had much better access to the obvious from their own observations than a sign would give them.

38 The considerations I have mentioned lead to the disposition of the appeal. As the provision of a warning sign was not within the scope of the appellant's duty and there was no breach of the duty of care, causation need not be addressed. It is not necessary to address a number of other subjects with which submissions dealt. In my opinion the Court should order: -

(1) Appeal allowed with costs.

(2) Verdicts and judgment of the District Court set aside and in lieu thereof give judgment for the defendant.

(3) Order that the plaintiff respondent pay the defendant appellant's costs of the proceedings in the District Court.

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LAST UPDATED: 13/12/2001