46. The first component that needs to be considered is cost of future care.  His Honour’s findings in that respect began with the acceptance of the evidence of Ms Stephenson in preference to that of Ms Coles.  No challenge is made to that finding.  This evidence allowed for the provision of two live-in carers so that one was available twenty-four hours a day.  His Honour also allowed for food and accommodation for the carer.  It was assumed  that only one carer would live in at a time.  He then allowed for “lifestyle care” which involved organising social and outdoor activities for ten hours a week.  In addition, the defendants conceded that a “commercial on-cost” of 18.5% should be added.  The total of these amounts was $1469.40 per week.  Dr Hill expressed the view that Tanya’s life expectancy was 47 years, so that the raw sum for future care was $1,412,828.  His Honour discounted this to $1.25M.

47. The basis of the challenge to this finding is two fold.  First, it is said that the kind of care allowed for was inadequate.  Personal medical care was needed from a trained nurse for eight hours a day.  Secondly, it was submitted that a new industrial award was soon to come in which would make care much more expensive.

48. The first submission is based largely on the evidence of the medical experts.  It is clear enough that the care which Tanya needs every day to maintain the level of hygiene which will ensure continued good health is extensive and intrusive.  This is particularly so in respect of bladder and bowel function.  Is it necessary that there a trained nurse available, for example, to insert a catheter?  His Honour did not discuss this but said he had regard to the evidence of Dr Max Murray about the nature of the support which he had been given over the years since he became tetraplegic (p 2553).

49. Dr Murray was formerly Associate Professor in Animal Science at James Cook University.  He became a Doctor of Philosophy in Animal Science in 1973 and commenced as a lecturer in Tropical Veterinary Science at James Cook the following year..  He sustained spinal injuries in 1980.  He returned to part time lecturing in 1982 and continued to lecture at the University until 1994.  With his wife, he developed a business, “Access Designs”, giving information to architects, engineers and builders on providing access for people with disabilities.  When he gave evidence, he was fifty eight years old.  He had resigned from his university post to concentrate full-time on Access Designs.  Dr Murray has also been very active in a number of associations concerned with quadriplegia.  His disability was virtually the same as Tanya’s except he has a slightly better wrist action.  Although he had employed various carers over the period since his injury, his wife has provided the great bulk of the care since he resigned from the University.

50. In the time since she returned home, Tanya has been cared for largely by her mother who has been taught to perform all the necessary tasks.  This has been done very well.  This means that the necessary skills can be taught to a person who is not a qualified nurse. Consequently, it cannot be said that the basis for assessment chosen by his Honour was not in accordance with the evidence.  Certainly, he could have accepted the evidence that qualified nurses were needed, or he could have taken the approach he did.  It cannot be said on appeal that he was in error in the approach he took.

51. In relation to the industrial award, the learned trial Judge said (p 2549):-

“I am unpersuaded that I ought assume that an award will become law in this State within the next few years which would so drastically affect the cost of procuring inhouse care and assistance of the sort to which the witness Leveritt referred as having become quite common over the years as to put it beyond the financial capacity of those unfortunate people who need and can currently afford it.”

52. In other  words, the issue was considered by his Honour and was considered to be such a remote possibility that it could be ignored.  That was an opinion open to him, and the way in which he reached that opinion is compelling.  He was giving judgment during a period when “market forces” are seen as having a profound influence upon industrial practices.  It would be strange, in those circumstances, to come to the conclusion that an upward spiral in wages will be achieved in the face of market forces.  Rather, his Honour could proceed on the basis that carers will be paid what handicapped people can afford to pay, according to standards existing at the time of the judgment.

53. There is then no basis for altering the assessment made for future care.

54. The second challenge to the assessment is in respect of the failure to allow for the provision of a nanny to care for Tanya’s children if she has any.  His Honour’s opinion in this respect was (p 2534):-

"For all practical purposes it will not be possible for the plaintiff to have children in the future if she desires to do so.  A good deal of evidence was called concerning the possibility of her adopting children and/or the possibility of her sister acting as surrogate mother for an embryo produced with the participation of the plaintiff.

I have reservations about this aspect of the plaintiff’s case.  It seems on the evidence quite unlikely that the exercise of any necessary discretion to facilitate or approve the adoption of a child by the plaintiff would disregard her inability to do anything for the child because of her infirmity.  Indeed part of her case involved the claiming of future expenses to be incurred in employing one or more nursemaids and providing them with accommodation so that they might look after a child which the plaintiff might either adopt or acquire through the surrogacy of her sister.  Unsurprisingly, the future costs of providing services for such nursemaid assistance were significant and I rather suspect that that was the object of the evidence rather than any real intention on the part of the plaintiff to embark upon such an enterprise, particularly having regard to the deleterious effect it would be likely to have on a child reared in such circumstances.

In any event, in my view every plaintiff is required to minimise the loss suffered by virtue of a defendant’s negligence.  Far from minimising her loss, expense the plaintiff incurred by embarking upon the adoption of a child or children at a time when her capacity to care to them or indeed even to hold them has been substantially destroyed would involve a failure to mitigate loss and for that reason not be recoverable.  In my view it could not be said that the incurring of such expense would be reasonable having regard to the physical incapacity of the plaintiff to give even the most token physical care required by a child.

In my view the correct way to compensate the plaintiff of her inability to have and/or to care for children is to take that into account in the award of general damages for pain, suffering and loss of amenities of life.”

55. It is not immediately clear why reference was made to the duty to minimise loss.  The injury which Tanya sustained has grossly interfered with her capacity to do and enjoy the ordinary things of life.  She is to be compensated for that loss.  If she has additional expense because of her injuries she is to be compensated for that.  Consequently, in Sturch v. Wilmott (1997) 2 Qd. R. 310 an injured woman recovered the cost of the care of her children because she was unable to care for them.  That was not the case here.  The learned trial Judge was required to assess the degree of probability of a future event occurring: Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638.

56. At the time of trial, Tanya was aged 22 years and unmarried.  The medical evidence, which tended to be based on generalities rather than on clinical tests, was to the effect that it was possible she could conceive naturally.  It was also possible that conception could be assisted.  There was evidence about the difficulties of pregnancy which were specific to tetraplegics.  There was evidence also about the possibility of adoption, although the relevant officer from the Department of Families, Youth and Community Care agreed that it was “highly unlikely” an application for adoption by Tanya would succeed.

57. The fact that there are three possible ways in which Tanya could become a mother means no more than that every woman has the same three opportunities.  What is significant here is the extent of Tanya’s capacity to have a child and to discharge the responsibilities of motherhood.  Dr Murray’s evidence makes clear how much the well being of a tetraplegic who is married depends upon the partner.  He said that the incidence of break downs in marriages for spinally injured people is very high (p 433).  This is because of the stress caused by the high level of involvement in the care of the handicapped partner.  This would seem to apply even more so if there is thought of bringing a child into that relationship.  When these matters are considered it would follow that the possibility of Tanya becoming a mother is slight.  She would need to find a partner who would support her and then go along the three possible paths to motherhood.  It is significant that the claim made is in respect of the care of two children during their pre-school years.  Any care after that period would be provided either by Tanya’s partner or her paid carer.  In the sober light of day, away from the excitement of building up a claim for damages, common sense could well dictate that it would be a far too difficult a task to undertake.

58. The total amount claimed in the appellant’s outline is $99,800.  If her loss should be determined in this way and the chances are assessed as slight, the appropriate amount could be $20,000. Rather than allow for the cost of caring for children, the learned trial judge took the view that he should compensate Tanya for her inability to have and/or to care for children by including an unspecified amount in the award for pain, suffering and loss of amenities of life.  In view of the allowance of $200,000 under this head, it can be assumed that a significant sum, possibly more than $20,000, was included under this aspect of Tanya’s loss.  Consequently, the approach taken by the learned trial judge has provided fair compensation for this aspect of Tanya’s loss.

59. It follows then that the award of $3,292,036.40 should be upheld.

60. The appeal should be allowed.  Judgment for the defendant should be set aside and in lieu there should be judgment for the plaintiff against the defendants for $3,292,036.40.  The first defendants should bear one half of the judgment and the second defendant the other half.

61. The parties should have liberty to make submissions in writing about the appropriate orders for costs, both in the court below and on appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10477 of 1997

Brisbane

Before Pincus JA

Demack J

Chesterman J

[Hornberg v. Horrobin & Ors]

BETWEEN: 

TANYA ANNE HORNBERG

(Plaintiff) Appellant

AND:

BRIAN CHARLES HORROBIN AND SHERRY JOSEPHINE HORROBIN

(First Defendants) First Respondents

AND:

COUNCIL OF THE SHIRE OF WARROO

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - CHESTERMAN J

Judgment delivered 18 September 1998

1. This appeal is brought from a judgment dismissing the appellant’s claim for damages for negligence against the respondents.  The essential facts out of which the claim arose were described by the trial judge:

“On the afternoon of 17 December 1991 the (appellant) suffered severe injury to her cervical spine when she dived into the shallow end of a public swimming pool at Surat, a small country town about 400 kilometres due west of Brisbane.  As the result of that injury she is now tetraplegic.

The Surat swimming pool ... is ... about 25 metres long by 10 metres wide.  At its deep end it has a depth of 8 feet 9 inches and at its shallow end one of 3 feet 6 inches. ... There were accurate depth markings at the shallow end, the middle and the deep end in imperial measurements.

...

The pool was owned and maintained by (the second respondent) ... It was managed by the (first respondents) whose obligation was to clean and carry out daily maintenance of the pool and its surrounds and to supervise its use when open to the public.”

2. The appellant’s case was that she dived into the shallow end of the pool from “starting blocks” which were masonry blocks raised above the level of the pool surrounds, striking her head on the bottom.  The negligence was said to consist of:

1. failing to warn of the dangers of diving into shallow water by means of signs displaying such a warning; and

2. the presence of the starting blocks which both invited and facilitated a dive at the shallow end.

3. The appellant had swum in the pool several times prior to the occasion on which she was injured.  She knew the depth of the water at the shallow end.  She was seventeen years of age, about six feet in height and about eighty kilograms in weight.

The appellant’s case, as finally pleaded, was that the respondents were negligent in:

1. failing to remove the starting/diving blocks from the shallow end (northern end) of the swimming pool when reasonably prudent persons would have done so;

2. failing to provide warning signs cautioning against diving into the swimming pool when reasonably prudent persons would have provided such warning signs;

3. failing to provide warning signs cautioning against diving into the shallow end (northern end) of the swimming pool when reasonably prudent persons would have provided such warning signs;

4. failing to provide warning signs cautioning against diving into the shallow end (northern end) of the swimming pool from the said starting/diving blocks when reasonably prudent persons would have provided such warning signs;

5. failing to prohibit diving into the shallow end (northern end) of the swimming pool when reasonably prudent persons would have prohibited such diving;

6. failing to prohibit diving into the shallow end (northern end) of the swimming pool from the starting/diving blocks situated at the said shallow end of the pool when reasonably prudent persons would have prohibited such diving;

7. failing to provide any or any adequate life savers and/or life guards and/or supervisors to adequately supervise the conduct of patrons at the Surat swimming pool when reasonably prudent persons would have done so;

8. failing to provide "metric" measurements of water depth at, on or near the swimming pool (and in particular, at the shallow or northern end of the said large swimming pool) when reasonably prudent persons would have done so;

9. failing to adequately supervise the conduct of patrons at the Surat swimming pool when reasonably prudent persons would have done so;

10. exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known when reasonably prudent persons would not have exposed the plaintiff to such risk;

11. failing to give the plaintiff any or any proper or adequate or timely warning of the matters particularised in paragraph 11 of the statement of claim.

12. the first defendant, Brian Horrobin, failed to pay proper attention to his duties as lessee and licensee in control of activities of patrons of the Surat swimming pool in that he was attending to other business and was consuming alcohol at the time the incident occurred.

The allegations in paragraph 11 of the statement of claim were that the respondents knew that it was unsafe for swimmers to dive into the shallow end of the pool and that the danger was increased by diving from a starting block and that there were no signs identifying and warning against those dangers.

4. The trial judge found that the appellant was an unsatisfactory witness as were those called to support her version of events.  His Honour expressly rejected the contention that the appellant had been injured while diving from one of the starting blocks.

There was evidence that the children who frequented the pool played a game which they called “cut the corner”.  It was a game with no fixed rules but which consisted essentially of children running along the side of the pool and diving on a shallow trajectory in a diagonal line from that side to the side at right angles to the one from where the dive commenced. The participant then clambered from the pool at that other side and commenced the run to the next corner.  The game involved the pursuit of one person by others.

The second respondent suggested that the appellant had been injured while participating in the game.

The trial judge rejected the contention.  His Honour found, after a careful and thorough examination of the evidence, that the appellant was injured by diving diagonally across the corner of the pool, from one side to the other, so that her head struck the pool wall but not while participating in the game.  The trial judge found that the appellant had played the game earlier in the day of her injury but was not involved in the game on the occasion she struck her head.

The relevant findings were:

“I find it difficult to determine on the state of the evidence whether the (appellant) was simply diving into the pool either off its edge or off a diving block at its northern end or cutting the corner when she injured herself. 

In my view little assistance in resolving this issue is to be derived from an examination of the medical evidence or the evidence of the diving expert Mr Hall.

All that expert evidence seems to me equally consistent with the plaintiff sustaining her cervical spinal injury either in the course of cutting the corner and striking her head on the pool wall or in the course of diving or inadvertently falling off a diving block or the edge of the pool and striking her head on its bottom after a vertical penetration of the water. (R2506)

...

The expert medical evidence and the expert evidence of the diving instructor in my view being equivocal, I am persuaded principally upon the weight of circumstantial evidence as to the plaintiff and her sister previously playing the “cut the corner” game, as to the probable manner of the (appellant’s) entry into the pool water preceding her injury. ... The most probable explanation for her cervical spinal injury is that she sustained it when she dived across the north-western corner of the pool on its western side bringing her head into contact with the wall at the northern end of the pool. (R2508)

...

The evidence does not disclose that the (appellant) or her sister were engaged in that game.  I am unpersuaded therefore that as far as the (appellant) was concerned she was playing the game of “cut the corner” with other young children at the pool at the time.  On the other hand, I am persuaded on the probabilities for  the reasons I have already given at length, that she in fact did suffer her injury when she dived across the corner striking her head on the wall at the shallow end of the pool.” (R 2530)

5. The principal thrust of the appellant’s argument on appeal was that the trial judge was wrong in rejecting the appellant’s account of her injury.  It was submitted that the evidence overwhelmingly corroborated the appellant’s version that her injury occurred when she dived into the pool at the shallow end and controverted the finding that she dived across the surface of the water towards the side of the pool.

The appellant relies on the submission that the finding of fact is unsustainable on the medical evidence referred to by the trial judge in the passage I have quoted and evidence from a diving instructor, Mr Hall.

In relation to the medical evidence it was submitted that:

1. the injury was a flexion/compression one with the head tilted forward and the spine aligned;

2. flexion injury could occur only by the appellant’s head striking the bottom of the pool;

3. the injury could not have occurred by the appellant’s head hitting the side of the pool in the process of diving across the corner.

6. An examination of the evidence to which reference is given by the appellant in support of her argument shows that the premise is not made out.  It must be appreciated that the appellant and her family had informed Doctors Hill, Yeo and Davies who treated her and/or who provided forensic reports that the appellant had been injured by diving into the shallow end of the pool. They naturally accepted that version.  They did not question the appellant’s account of how she came to be injured.  When the matter was investigated at the trial, however, their evidence was equivocal.

Dr Hill said:

“If she dived into a creek and there had been a rock or something like that that she dived horizontally into, I consider that would certainly possibly cause similar damage, but in this situation I think it’s fairly clear what happened, and we have a very good history, and it seems to me entirely consistent with the history, the injury that she sustained.

... if it had been a horizontal dive and she had gone straight into the side it would have to be an almost sort of Kamikaze type thing.  I can understand people diving into the shallow end of swimming pools.  I find it very hard to believe that they would dive straight across into a solid wall, but conceivably it could have caused that.”

He also said that the fractures to the appellant’s cervical vertebrae were consistent “with a vertical blow right on the top of the vertex of the head.”  This passage then occurred:

“If she would have hit the floor almost at right angles to it? - I would say that must be the most common way these injuries occur.

If she dived into the side wall, she would have hit the wall almost at right angles to it, to the surface? - Yes.

With the very top of her head? - Again with the top of her head.”

Dr Yeo said:

“... I think the Court should realise that when we speak of an amount of force, it is a relative term.  The seven bones in the neck are very small bones and they have ... a relatively shallow angle of articulation with each other ... So when we use the term ‘significant amount of force in the neck’, we do so as a relative term, because dislocating one or damaging one bone has relatively little force involved.  A fall in the shower cubicle will cause sometimes severe quadriplegia ...

Well, how do we then reconcile the fact that there is no mark of injury on the skull with the damage to three vertebrae? - We have no doubt that this is how the injury occurred when this lady entered the water ... What we cannot help you with as much as we would like is the exact pathogenesis of this injury at the time, if you like, in milliseconds before ... the head touches the bottom of the pool, and it must be that the angulation and rotation is what causes the effect, ... more a sheering effect, rather than a direct impact.  ... it is not ... localised to the point where skin is ruptured or broken, but rather that the whole weight of the head is rotated and flexed and therefore that force ... is transmitted to this susceptible cervical spine.

...

So, really what is significant in this case ... is the angle at which the damage occurs? - I believe so, yes.

... We therefore - in the field of spinal cord injury - I believe all of us have agreed that there must be a degree of impact occurring with the bottom of the pool or the beach surface, and in that translation of energy, it is the angle that makes the difference as to whether one has merely a sore neck and no spinal cord injury, or whether one becomes permanently tetraplegic.

...

And so far as striking the pool is concerned, the same injury could be done if she had dived into a situation in which she collided with the side of the pool? - Yes ... if there had been a sudden ... direct cessation of movement by an object ... then I would have expected some evidence of that in the soft tissue of the scalp.

But the same must be the case, surely, if it is caused by striking the bottom of the pool ...? - No, ... the peculiar anatomy of the cervical spine ... indicates that ... the forward flexed position of the head and neck leave the spine particularly vulnerable to the translation of forces ... which would be reflected from the bottom of the pool, but would not necessarily ... cause a soft tissue injury, but would produce those angulations and rotations that lead to the injury to the spinal cord and the bones surrounding the spinal cord.

But you could get the same angulation and rotation by colliding with the side of the pool as you could by colliding with the floor of the pool, could you not? - Yes ...

You were not asked to consider the prospect that either she carried out a running dive or that she collided with the side of the pool? - No.”

Dr Davies said:

“... if it were to be suggested to you that this injury could have occurred if the (appellant) had dived in one side of the pool and hit the other side at a corner of the pool, you would agree with that, would you not? ... Well, who could disagree, but, yes, it’s possible.”

Mr Hall’s evidence took things no further.  He explained that some people in the community, uninstructed in the techniques of diving, will, when diving, tend to over-rotate and enter the water vertically.  This group is in the minority.  The evidence does not begin to prove that the appellant was injured by diving into the shallow end of the pool when she was injured.

7. This evidence, in my opinion, far from demonstrating error in the trial judge’s findings, amply justifies his Honour’s description of it as “equivocal”.  It could hardly be otherwise.  The appellant’s injury was caused by a compressive force being exerted along her cervical spine when her neck was flexed.  It is a matter scarcely calling for expert evidence that that force could have been exerted whether the appellant’s body was vertical and her head came into contact with a horizontal solid object (the bottom of the pool) or her body was horizontal and her head came into contact with a solid vertical object (the side of the pool).  What is important, as Dr Yeo pointed out, is the particular degree of angulation and rotation of the neck at the point of impact.

There is no warrant for interfering with the finding of fact as to the circumstances of the appellant’s injury.  It is not necessary to consider the further question of whether the respondents would have been negligent had the trial judge found that the appellant was injured in the manner she contended.

8. The appellant briefly advanced an alternative argument should the court not disturb the finding of fact that the appellant was injured by diving across the corner of the pool striking her head on the side wall.  This argument was that there was a foreseeable risk that young people who engaged in the activity of “cutting the corner” might suffer injury and that the exercise of reasonable care on the part of the occupiers of the pool premises to remove or reduce the risk required:

1. an immediate warning of the risk; and/or

2. continuous supervision of persons attending the pool.

The appellant’s written submissions germane to this point were brief.  It was said:

“if there was continuous supervision from the side of the pool and in view of the children then (the appellant) may not have injured herself.

...

In those circumstances where it was so obvious the male (first respondent) or the (second respondent) should have placed up rules such as “No diving across the corners” and administered those rules.

The rules as shown in Exhibit were put up at minuscule cost after (the appellant) broke her neck.  She may not have done so if the rules were known, displayed and enforced.”

The circumstances referred to are apparently:

1. the finding as to how the appellant came to be injured;

2. the finding that had the male first respondent seen the appellant diving across the corner he would have drawn her attention to the obvious danger of doing so; and

3. that the relationship between those who own and control swimming pools and those who swim in them is such as to give rise to a duty in the former to take reasonable care for the safety of the latter.

The trial judge noted that the appellant’s argument was:

“... there should have been ‘an immediate warning’ - perhaps by signs or perhaps by the (first respondents) being constantly on supervisory duty at the poolside to give an immediate warning to people using the pool should they be observed to embark on that course, that it was dangerous to cut the corner - i.e. to dive across the corner. (R2512)

...

The first thing to say about such a contention is that it was not clearly raised in the pleadings.  Indeed as indicated, the (appellant’s) case was conducted on the basis that she dived off the diving block into the shallow end of the pool.  She only sought to rely upon an absence of proper supervision and signs warning against cutting the corners in the event that it was found that she had in fact suffered injury while attempting to dive across the north western corner of the pool.” (R2516)

9. I have set out the relevant passages from the statement of claim.  The lack of supervision about which complaint is there made was directed at the appellant’s allegation that she had dived from a starting block into shallow water and that supervision should have been provided which would have prevented that activity.  The statement of claim did not fairly give rise to the submission now advanced on behalf of the appellant.  Nevertheless the point was considered by the trial judge and was repeated before us though the oral submissions took the matter no further then what appears briefly in the written outline.

The point is not taken (and perhaps was not taken strenuously at the trial) that the appellant’s alternative case was not pleaded.  The appeal proceeded on the basis that the appellant could argue the point.

10. Of more importance is that the point does not seem to have been the subject of evidence. The facts which would need to be established to support a verdict for the appellant on this alternative case were not explored in the examination or cross-examination of the witnesses. Despite the voluminous record the evidence which might be said to relate to this aspect of the case was indirect and extremely brief.  For example the complaint that the respondents had not erected a sign forbidding or warning of the dangers of diving along the surface across corners of the pool was not raised in evidence at all.  The appellant was not even asked her hypothetical reaction to such a sign.  The trial judge noted the lacuna but said:

“I will assume that had she been asked she would have said that she would not have cut the corner had a sign been erected bringing to her immediate attention that it was dangerous to do so.  Of course such a question would have been treated as hypothetical only in light of her denial that she was diving across the corner.” (R 2514)

11. The exhibit which is referred to but not identified in the appellant’s submissions is a photograph included in Exhibit 11 at R1601.  It depicts rules for the regulation of the conduct of those attending the pool painted on a metal plate and displayed as a sign.  Each rule is expressed in words with an accompanying image.  None of the rules prohibited the activity which led to the appellant’s injury.  Significantly, a document (Exhibit 73) published by the Royal Lifesaving Society to promote “safety in swimming pools” considers the topic of signs which may be displayed to enhance such safety.  The document is concerned with swimming in still water, rivers, lakes and pools.  In the section dealing with advisory signs it lists those which are considered applicable:

Swimming permitted

Swimming prohibited

Beware of deep water

Beware of sudden drop off

Beware shallow water - do not dive.

Slippery when wet

Cleaning in progress

Pool closed

Lanes closed.

The list does not include one of the type the appellant contends the respondents should have displayed.  Mr Farmer, the witness called to address the topic of signage, was not asked any questions about signs forbidding or warning against swimmers “cutting the corner” of a pool.

12. The appellant invites the court to find the respondents negligent in not furnishing a sign in the absence of evidence that any pool-owner anywhere in the country has ever erected such a sign.  Moreover it is glib to talk of a sign warning of the dangers of “cutting the corner”.  No attention was paid in the appellant’s case to the content of such a sign, whether expressed in words or images. A sign which read merely “Do not cut corners” erected somewhere in the surroundings of the swimming pool would be meaningless.  More focus would be needed to connect the sign with the danger.  A sign which described in words the activity to be avoided and the reason for its avoidance would tend to be long and no doubt discourage from reading it the young and reckless who have most need of its caution.  A warning must catch attention.  It is not easy to visualise an image which might depict the activity and its dangers.  A warning cannot be too specific.  It must cover the variants of the risk.

None of these matters was given the slightest attention at the trial.  Mr Farmer’s evidence and Exhibit 74 which deals with safety and warnings apposite to surf beaches shows that considerable research has been done to devise effective signs.  As far as the evidence shows no one has ever turned a mind to what depiction might have been efficacious to warn against the danger to which the appellant fell prey.

13. The evidence did, however, reveal that the appellant and other children were warned against diving across the corners of the pool.  Mr Horrobin, the male first respondent, gave evidence that whenever he observed children playing the game he intervened and stopped it.  He recognised two dangers:

1. that of falling while running on the wet concrete and striking the edge of the pool or a starting block thereby causing injury; and

2. that in executing the dive a child might strike his or her head on the pool wall.

“It is also clear that the (first respondents) at any rate recognised that people playing this game were running a risk of injury should in cutting the corner their head come into contact with the wall at the side or end of the pool.  It was for this very reason according to (Mr Horrobin) that he forbade the playing of the game and whenever he observed children playing the game he told them to stop.  Indeed if they continued to play it apparently they ran the risk of being excluded from the pool.”(R2512)

It would seem unlikely that in speaking to the children when stopping their playing “cut the corner” he did not mention both risks as being the reason for the prohibition of the game.  But again he was not asked the direct question, no doubt because this issue was not part of the appellant’s case.  Had the appellant litigated as an issue that she should have been warned against diving across the corner of the pool it is inconceivable that Mr Horrobin would not have been asked to describe specifically what he told the children about playing the game.

On three or four occasions prior to her accident, Mr Horrobin had “cautioned or reprimanded” her for diving across the corners.  The last warning was given only two hours before her accident (R1097.35, R1098.20-.30).

The only cross-examination of Mr Horrobin relevant to warnings by counsel for the appellant was to suggest that he was mistaken in his recollection of the number of times he had warned her about “cutting the corner”.  No question was directed to what was said and no questions were directed to the absence of a sign.

The first respondents were succeeded as licensees of the pool by Mr Quinn who was a witness called by the plaintiff.  Under his tutelage the children who attended the pool no longer played the game.  Mr Quinn said he stopped it.  He was not asked the means by which he achieved that result.  No question was put to elicit what manner of communication had proved so effective.  The trial judge thought that the moral lesson provided by the appellant’s tragedy was responsible.  With respect this seems correct.  Surat is a small community and within hours of the appellant’s injury the townspeople had come to accept that she had been injured while playing “cut the corner”.

14. The trial judge found against the appellant in relation to this point on the aspect of causation.  Notwithstanding the deficiencies in the evidence his Honour dealt with the matter with admirable care.  His Honour said:

“... it is absolutely clear on the evidence which I accept that all the children attending the pool on the afternoon of the (appellant’s) injury were well aware that they were forbidden to run around the edge of the pool or to cut the corners.  Indeed they had been told to stop engaging in those very activities only an hour or so before the (appellant’s) injury.  It is clear that having been given the warning, as soon as the (first respondent) turned his back to go into the kiosk area they recommenced and continued to play those games until ... they ‘got tired of it’.

I am simply unpersuaded that the erection of signs around the swimming pool prohibiting playing the game of ‘cut the corner’ would have been any more effective to dissuade children from diving across the corners of the pool than had been the constant prohibition of that game whenever the (first respondent) became aware that it was being played.  It is clear from the evidence of the children that they would play the game when they thought they could get away with it in the absence of (Mr Horrobin) from the immediate environs of the pool.

I am quite unpersuaded that the failure of either the (second respondent) or the (first respondents) to erect signs within the pool area prohibiting the playing of the game ‘cut the corner’ or warning against the obvious danger involved ... was a cause of the (appellant’s) injury.  If such a sign had been erected in my view the likelihood is that the children would simply have ignored it and continued to play that game unless and until (Mr Horrobin) came out into the pool area and told them to stop or be excluded from the pool.” (R2514-5)

15. Before this finding can be disturbed it must be demonstrated that it is precluded by the evidence.  On the meagre materials which were germane to the alternative case the trial judge’s approach appears to me, with respect, to be correct.  If the appellant wished for a finding in her favour that an adequate warning would have prevented her injury it was incumbent upon her to lead some evidence of the content and medium of the warning and to provide some evidentiary basis for a finding that she would have heeded it.  The appellant did neither.

16. In my view no distinction can be drawn between warning of the danger constituted by diving across the corners of the pool while playing “cut the corner” with others or doing it individually.  The risk of injury arose from the act of diving across the pool surface.  It was not affected by whether the dive occurred in company or alone.  No separate or different warning was required in relation to the manoeuvre performed not in a game.

17. A second and, to my mind, insurmountable difficulty confronting the appellant is that the finding arises from the trial judge’s assessment of the appellant’s personality and the way it would have interacted with the hypothetical circumstance of a warning against diving across the pool.  It seems to me that the limitation on interfering with findings of credit founded upon a trial judge’s assessment of the veracity or reliability of witnesses apply equally to an assessment of how a litigant would have reacted to a given set of stimuli.

In Abalos v. Australian Postal Commission (1990) 171 CLR 167, McHugh J quoted (at 178) with approved what Lord Sumner had said in S S Hontestroom v. S S Sagaporack [1927] AC 37 at 47:

“... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case ... If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”

The judgment of McHugh J was approved by Brennan, Gauldron and McHugh JJ in Devries v. Australian National Railways Commission (1993) 177 CLR 472 at 479.

It seems to me the reasoning which makes an appellate court extremely reluctant to overturn a finding of fact based on the assessment of witnesses’ credibility applies equally to a finding of ultimate fact, being an inference or a conclusion derived from an assessment of the personal attributes of a witness.  Unless it can be seen that the trial judge “failed to use or palpably misused his advantage” or has acted on evidence “inconsistent with fact incontrovertibly established” or which was “glaringly improbable”, findings of fact should not be disturbed.

18. In my opinion there is no basis for interfering with the finding that a sign warning against diving across the corners of the pool would have been ineffective to prevent the appellant’s injury.  Indeed it seems to me to be plainly right.

19. The second aspect of the appellant’s submissions was that the respondents, particularly the first respondents, should have exercised such a level of supervision over patrons of the pool as to prevent any of them diving across its corners.

A particular difficulty with this argument is that no evidence was led as to what it was that the first respondents had to supervise. The appellant’s task is made no easier by the finding that she was not engaged in playing “cut the corner” when she hurt herself.

The game was popular with the children who attended the pool and it was frequently played.  It involved obvious dangers of which the first respondents were aware.  Perhaps the most obvious was slipping while running on the wet tiles and concrete surrounding the pool, causing a fall and injury, whether on the surround or the edge of the pool itself.  One might have thought the danger of cutting too little off the corner and striking the far wall was not apparent but Mr Horrobin accepted that it was a risk which he foresaw from the game.

It may be accepted that the first respondents were under an obligation to prevent the game or stop its occurrence whenever it commenced.  Mr Horrobin in fact gave evidence along those lines.  The game tended to be accompanied by a degree of noise and commotion which would attract attention and he would then speak to the children engaged and stop it.

A case might have been made that the first respondents should have done more knowing that their reprimands were ineffective and that the game would commence as soon as the supervising adults left the vicinity.

But the trial judge found that the appellant was not participating in the game when she dived across a corner of the pool and was injured.  Whether or not the first respondents ought to have more diligently curtailed the playing of that game is therefore irrelevant.  The appellant’s injury was not caused by any failure on the part of the first respondents to eradicate that past-time.  No attention was paid in the appellant’s case to the need to lead evidence that there was a foreseeable risk of injury by diving across a corner of the pool when no game was in progress.  That is, there was no evidence to which our attention was directed that any child had ever dived across a corner except as part of the game.  Such an occurrence may well have appeared far-fetched, or to give rise to a risk so small that a reasonable man would have been justified in disregarding it.

20. The appellant’s oral submission was that “constant supervision was necessary” and that “the duty was a heavy one to supervise the pool at all times”.

I think it is impossible now for the appellant to attempt to make out such a case.  There is no evidence to support it.  The only witnesses whose evidence may have been relevant did not deal directly with this point.  Mrs Pate was called by the appellant.  She managed a pool complex at Yeronga which was the base for a large and successful swimming club.  It produced state and national champions.  She had her evidence directed to the provision of signs prohibiting diving at the shallow ends of pools.  Some general questions were asked about degrees of supervision.  Her evidence does not support the notion that there must be such continuity as the appellant now demands.  It appears from Mrs Pate that her level of supervision responded to some observed activity in the pool which appeared to warrant intervention.  She was not asked about the actual extent of surveillance at any of the pools she had managed.  Interestingly Mrs Pate explained that permitted activities vary with the number of persons present.  On days when few people are swimming games are allowed which would be forbidden when it was crowded.  The extent of supervision also varies with the age groups present, as well as the sex of the group.

The pool at Surat caters for a far smaller population than that of inner suburban Yeronga in Brisbane. On the day of the appellant’s injury only six adults and thirteen children attended the pool.

Mr Farmer, another witness called by the appellant, was not asked to address the question of present relevance.  He was cross-examined about the need to supervise but the questioning was limited to the need to prevent patrons running around the pool and/or pushing each other.

Mr Horrobin’s evidence was that he intervened in the activities of those present at the pool when he saw something that appeared to warrant his intervention.  In this regard his attitude appears to have been the same as Mrs Pate’s.  He was cross-examined by senior counsel for the second respondent on the extent and efficacy of his attempts to control or eradicate the game of “cut the corner” but he was not questioned about the need or his ability to provide constant surveillance of all the children who might be in the pool at any one time.  Counsel for the appellant directed no questions to him on the point.

21. The trial judge made the following findings:

“It is probable in my view that if the (first respondents) had stayed in the vicinity of the pool at all times and observed any children diving across the corner of the pool, in the fashion in which ... the (appellant) was diving when she hurt herself, in spite of his presence, he may well have had the opportunity to shout out as they prepared to make the dangerous dive, telling them not to and threatening to expel them if they did.(R2512-3)

Should then the (first respondents) have appreciated that the children (including the (appellant)) attending the pool at the time of the (appellant’s) injury would continue to ‘cut the corner’ if they thought that they could get away with doing so and have adopted a system which involved one of them being in the pool environs constantly to supervise the children while they were there and to more rigorously impose the rule against cutting the corner by shouting at those children who indicated that they intended to or might do so; if necessary by excluding them for some period of time if they disobeyed directions not to do so.(R2515)

I conclude upon the whole of the evidence that ... (Mr Horrobin) did not continuously supervise the children playing in the pool on 17 December 1991 between the time he warned the (appellant) and other children ... to stop playing that game and the time of the (appellant’s) injury. ... the children did stop when they were told to but upon (Mr Horrobin) returning to the kiosk recommenced to play the game ... without (Mr Horrobin) again coming out and directing them once more to stop ... (R2516)

Had (Mr Horrobin) been out of the kiosk supervising generally the pool and had he observed the (appellant) take a few steps and execute a “running dive” across the ... corner ... at a time when she was not being chased by or actually chasing children, it is far from clear to me that he could have done much which would have prevented the (appellant) from doing what caused her injury and I doubt very much whether supervision would have in any way inhibited that activity; perhaps however his actual presence beside the pool would have discouraged it. ... on the assumption that the (appellant) was not ... in the course of a game of ‘cut the corner’ ... there would seem to be little basis or reason for (Mr Horrobin) to have done or said anything even if he observed the (appellant) dive across the corner - particularly if her observed behaviour gave little timely warning that she proposed to do so ... On the other hand if (Mr Horrobin) had been at the poolside and there was no ... excited group of children playing ... ‘cut the corner’ he may have been more inclined to supervise the young children at the deep end of the pool rather than the activities of the (appellant), who was almost adult, ... near the shallow end. (R2517)”

22. The trial judge then (at R2518) addressed the question whether the first respondents were negligent in failing to provide continuous supervision.  His Honour noted the absence of evidence  that what the appellant did just prior to her fateful dive would have been detected by someone exercising “adequate supervision” in time to do something that would have prevented the appellant’s dive.  This difficulty arose principally because of the manner in which the appellant conducted her case at trial.  She sought to prove that she should have been warned against, or prevented from, diving from a diving block into shallow water.  She did not lead evidence to describe what, on the findings of fact, she must have been doing that should have been stopped.  Nor did she improve her chances of succeeding on the alternative case by not exploring in evidence what supervision could as a matter of practicality have been provided by the first respondents.  The trial judge observed,

“... in neither her pleadings nor the evidence she led did she pursue such a case and the feasibility of conducting the Surat Swimming Pool in such a way that one of the (first respondents) was continuously at or near the pool side to ensure that the rules so well known to all children were obeyed was never investigated ...”,

but went on to note (at R2524) that whatever general constraints there may have been in providing supervision at the pool, at the time of the appellant’s injury there was no reason why he could not have been looking over the pool and its occupants.  He had no other pressing duties which demanded his attention.  “The evidence as far as it goes indicates that at that time he was simply standing inside the kiosk talking to his wife ... and perhaps other people ...”  However his Honour thought that by reason of the appellant’s age and physical maturity there was no need for the first respondent to be particularly solicitous for her safety.  Unless, perhaps, actually engaged in “cut the corner” there was no apparent danger to which the appellant was exposed by being in the pool.  There was not a game in progress at the time and no boisterousness which might have required the attention of a supervising adult.  As I have already mentioned, there is no evidence that the appellant did anything prior to her injury which would have attracted the attention of an alert adult supervising the activities of the pool’s occupants.

23. Unless, therefore, the degree of supervision required was that someone watch each and every child continuously while they were in or around the pool, it cannot be said that the respondents failed to discharge the duty they owed the appellant.

I cannot accept that it was unreasonable of the first respondent not to provide this level of supervision.  It would be an impossible task and one beyond the resources of any municipal pool owner.

In Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8, Mason J said:

“... it is ... 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.”

In Jaenke & Anor v. Hinton (1995) Aust Torts Reports 81-368, Pincus JA expressed the view that the law does not require a defendant to remove or neutralise a foreseeable risk.  He is required only to do what a reasonable man would do by way of response to the risk.  Thomas J said (at 62,809):

“If the law pretends to impose standards to which reasonable members of the community cannot relate, the law will fall into disrepute.  In fact it is the standard of the reasonable person that courts attempt to uphold.”

In the same case Williams J (at 62,811) quoted with approval the remarks of White J in Bartlett v. Robinson (1981) 27 SASR 342 at 347:

“The law of negligence is concerned with reasonable standards of conduct - reasonable care for the safety of others, showing reasonable foresight in the circumstances.  What is reasonable varies not only with the particular circumstances or relationship, but with community standards from place to place and decade to decade.”

24. In my view, if there were a foreseeable risk that the appellant might injure herself by diving across the pool when not taking part in the game, a reasonable response did not require her constant supervision (and therefore constant supervision of every other non-adult occupant of the pool).  The finding of the trial judge that an alert adult supervising the occupants of the pool when the appellant was injured would not have prevented the injury is supported by such evidence as there was on the topic. 

In my view there is no basis for disturbing the findings and conclusions of the trial judge.  The appeal should be dismissed.