Reardon v State of Queensland
[2007] QCA 436
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Reardon v State of Queensland[2007] QCA 436
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Reardon v State of Queensland[2007] QCA 436
Reardon v State of Queensland[2007] QCA 436
SUPREME COURT OF QUEENSLAND
CITATION: | Reardon v State of Qld [2007] QCA 436 |
PARTIES: | CRAIG JOHN REARDON |
FILE NO/S: | Appeal No 4913 of 2007 SC No 150 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Townsville |
DELIVERED ON: | 7 December 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 October 2007 |
JUDGES: | Holmes JA, Jones and Douglas JJ |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | Local government – Legal relationships and proceedings – Liability for torts – Negligence – Particular cases – Swimming pools, waterholes, waterways and beaches – where the appellant dived into a rock pool – where the appellant struck his head on a rock ledge not visible above the water – where the appellant suffered severe injuries resulting in quadriplegia – where the appellant brought an action in negligence against the respondent alleging a breach of the duty of care in failing to erect signs warning of the dangers of submerged rocks – where the learned trial judge found no breach of duty – where the appellant appeals against that finding – whether the trial judge should have found that a sign prohibiting diving was required at the rock pool – whether the trial judge should have found that the failure of the rangers to stop the appellant and his friends from diving was negligent – whether the trial judge should have found that a sign warning against the dangers of diving would have altered the plaintiff’s conduct Evidence Act 1977 (Qld), s 84, s 92 Chappel v Hart (1998) 195 CLR 232, considered Mulligan v Coffs Harbour City Council (2005) 223 CLR 486, cited Reardon v State of Queensland [2007] QSC 105, cited Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, considered Vairy v Wyong Shire Council (2005) 223 CLR 422, cited Wyong Shire Council v Shirt (1980) 146 CLR 40, cited |
COUNSEL: | R J Douglas SC, with A Williams, for the appellant K C Fleming QC, with R Morton, for the respondent |
SOLICITORS: | Robert Bax & Associates for the appellant C W Lohe, Crown Solicitor for the respondent |
- HOLMES JA: The appellant plaintiff brought an action in negligence against the respondent State of Queensland for injuries he suffered on 18 November 1998 when he dived into a rock pool in a creek at the Bowling Green Bay National Park near Townsville. His case was that in diving he struck his head on a rock ledge which was not visible above the water, causing him severe injuries and resulting in quadriplegia. His principal complaint was that the respondent defendant had breached its duty of care as an occupier by failing to place signs at the waterhole warning of the dangers of submerged rocks. Quantum was agreed, as was the existence of a duty of care owed by the defendant to the plaintiff, but the learned trial Judge, having found that there was no causative breach of that duty, gave judgment for the defendant. The plaintiff appeals that judgment, contending that the trial Judge erred in finding certain facts and in failing to make other findings.
The reasons for judgment
- The learned trial Judge was not satisfied on the balance of probabilities that the plaintiff had struck the submerged rock shelf at the pool. In his view, the plaintiff’s evidence indicated uncertainty about where he struck the water and what he hit. A soldier who had seen the incident described the plaintiff jumping in a direction which suggested that he entered the water considerably downstream from the submerged shelf. It was slightly more likely, his Honour thought, that the plaintiff had struck his head on one of the rock walls of the pool, below the waterline.
- In any case, the plaintiff’s evidence was to the effect that he did not intend to dive into the waterfall area, which was near the submerged ledge, because he was not sure of the depth of the water and whether it was safe to dive there. Consequently, the learned Judge found, even if a warning had been given about the submerged shelf it would have made no difference. The plaintiff had not intended to enter that area and it appeared that the accident had been caused by some misjudgement on his part as to where or how he would enter the water.
- As to any more general warning against swimming or diving, the rock pool was one of many and it was not so distinctive as to warrant its own sign. There were signs at the registration booth and information centre in the National Park’s main camping ground, warning against jumping or diving into waterways and waterholes. There was a breach of duty in the defendant’s failure to place a warning against the risks of diving or jumping into rock pools in a more prominent location for the benefit of those entering the creek area, but it was unrealistic to expect that the plaintiff and his friends would have altered their conduct in response to such a sign. The plaintiff’s evidence demonstrated that he was aware of the dangers involved; his real complaint was that he had not specifically been made aware of the submerged shelf. His Honour found, in consequence, that the plaintiff had not established a causal link between the absence of a warning notice and his injury. He gave judgment for the defendant.
Grounds of appeal
- The plaintiff’s many grounds of appeal turn, in essence, around these arguments as to findings which should or should not have been made: the learned trial Judge should, on the evidence, have found that the plaintiff struck his head on the rock ledge; in any case, he should have found that the features of the rock pool were such as to require a sign warning against or prohibiting jumping and diving there, the failure to display which was a breach of duty; he should also have found a breach of duty in that two park rangers who saw the group of youths, including the plaintiff, diving and jumping into the pool ought to have given them a warning against doing so, the defendant being vicariously liable for their negligence in failing to warn; and as to causation, his Honour’s finding that, although the defendant should have warned generally against the dangers of diving and jumping into rock pools, the plaintiff and his friends, had they seen such a sign, would not have altered their conduct, was against the evidence and erroneously focused on the group rather than the plaintiff.
- The defendant filed a notice of contention, the only ground of which was that the learned Judge should have found that “a failure to provide any warning sign did not amount to a breach of any duty” owed by the defendant.
The plaintiff’s case at trial
- The negligence alleged against the defendant was particularised as follows in the Statement of Claim:
“(a)Failing to provide premises which were safe for the Plaintiff’s use, as reasonable care could make them.
(b)Failing to warn or adequately warn the Plaintiff of the submerged rock at the said water hole, when a reasonably prudent occupier would have done so.
(c)Failing to place signs at the said water hole or in any other area at the said Park of the dangers of submerged rocks at the said water hole when a reasonably prudent occupier would have done so.
(d)Failing to provide signs warning the plaintiff of the type of swimming that can be undertaken at the said water hole, including jumping and diving into the said waterhole when a reasonably prudent occupier would have done so.
(e)Causing permitting or allowing the Plaintiff to utilize the said water hole when it was unsafe to so and when a reasonably prudent occupier would not have done so.”
The particular at (d) seems to have been treated as if the word “cannot” were substituted for “can”.
- At the time of the accident, the plaintiff was an 18 year old in his last year of high school. He had travelled with a group of friends to the National Park, which, according to a visitors’ information sheet tendered in his case, was about 34 kilometres from Townsville. They camped overnight at the Alligator Creek camping ground. The following morning, he and his friends went to a swimming hole in the creek, near the camping ground. Then they made their way up the creek, “rock hopping” to the waterhole known, because of its shape, as “the Coffin”.
- The evidence was that there was no track to the Coffin, which was between 500 and 800 metres from the camping ground, and that the hike to it up the creek was “reasonably arduous”, taking a fit person somewhere between 15 and 30 minutes.[1] The plaintiff’s expert in safety and ergonomics, Mr O'Sullivan, described the Coffin’s features and proportions. At its head there was a waterfall, to the right of which there was an alcove in the rock wall about 2 metres wide. The alcove’s bowl-shaped base extended out 2 metres from the wall and was approximately 1.5 metres across. (That was the “submerged rock” referred to in para (b) of the plaintiff’s particulars.) The waterhole was approximately 8 metres long, similar in size to a domestic swimming pool. It was about 6.3 metres wide in the area of the alcove, although at most other points it was about 4 metres in width.
- When the plaintiff and his companions arrived at the pool, there were others already there: a group of soldiers on leave. The plaintiff said that he and his friends began jumping into the pool from the waterfall side; that is, from the right side, looking upstream. They jumped past the waterfall into the centre of the pool. Unlike his friends, he did not perform manoeuvres like back flips or somersaults, which he thought unsafe. After he first jumped in, he “duck-dived” to see if he could touch the bottom, to make sure the depth was safe. Then they decided to change sides. The plaintiff began diving in, aiming to enter the water at a point in the middle of the pool about 1.5 to 2 metres from the waterfall. He had dived in the direction of the waterfall but did not intend to go as far as it, or even as far as the foam it created. On his second or third dive he felt himself hit something. The pressure of the waterfall was pushing him down, and he could no longer co-ordinate his limbs. He had to be rescued by his friends and the soldiers.
- When the plaintiff was asked in examination-in-chief what happened, he said: “I guess I just misjudged it and I must’ve gone a bit further than I did the other times”. In a similar vein, he responded in cross-examination that he had “got unlucky and didn’t land exactly where [he had] hoped.” He was not sure what he had struck, apart from the fact that it was some sort of rock. He had not seen any rocky ledge beyond the waterfall. He thought he was diving from a height of about 3 metres into the water.
- The plaintiff said that he had seen no signs warning against diving or jumping into the creek. Asked if he would have obeyed any warning sign or verbal warning against jumping or diving into the waterhole, he said, “I’d like to believe I would’ve”. To the proposition that a sign would have made no difference, he responded: “It would’ve told me there was submerged rocks on that side so therefore I would’ve had to check it before diving there”. He was aware that the bottom of the creek could be irregular; that was why he had checked it before diving. A sign warning swimmers to check the depth before diving would, he conceded, have told him something he already knew; a sign warning of submerged rocks would, he said, have been “more handy”.
- Mr O'Sullivan, the safety expert, said that the water levels at the rock pool fluctuated, so that at times the rock shelf was exposed. At the time of the plaintiff’s accident, the rock shelf was likely to have been 1 to 1.5 metres under water and obscured by the foaming effect of the waterfall. He estimated that the plaintiff had dived from a height of about 4.2 metres above the pool. Although it was known that the plaintiff had sustained an injury on the top of his head towards the front, it was unclear what his head had struck. It was possible, Mr O'Sullivan said from his examination of the pool, that the plaintiff’s dive had taken him under the waterfall to strike the ledge beyond it, or that he had come into contact with the rock face on one or other of the alcove’s sides. It was unlikely that he had hit the bottom, because the pool was quite deep, at least five metres.
- One of the plaintiff’s friends, Brad Cassidy, said that the plaintiff had dived into the middle of the pool in the area of white water created by the waterfall. Others of his companions, who had not seen his dive, gave more general evidence. Corey Muller and Brendan Bailey said that they had not seen any warning signs in their excursion to the pool. Mr Muller said that he knew of no other waterhole in the vicinity of the depth and width of the Coffin. The swimming hole near the camping ground was at most points about six feet deep, although in some parts of it he could not touch the bottom. There was another “quite deep” swimming hole below a lookout on the way to the Coffin. Mr Bailey said that he had been to the location a couple of times because it had better jumping spots than the main swimming hole on the creek. There were usually a few people when he went there, never more than ten. He knew of the deep waterhole under the lookout.
- Mr Wood, one of the soldiers who had been at the pool when the plaintiff’s group arrived, gave this description of what he saw:
“as I drew closer to the – to the waterhole itself I noticed one of – one of the blokes had jumped and I – I thought that he’d – he’d probably jumped a bit – a bit far to the – to the opposite – to the rocks on the opposite side from where they were jumping so I approached the hole to – to – to have – have a closer look and make sure that he was all right.”
Mr Wood said that he was standing about 4 metres back from the edge of the pool on the opposite side and downstream from the plaintiff when he saw the latter dive. He did not see the plaintiff hit the water but was concerned to make sure that he had surfaced. He saw him in the water “just getting pushed out of the turbulent water from the waterfall.” He and two others had prepared a diagram which purported to indicate the point at which the plaintiff had hit his head, but that was not something which he had seen. However, he was able to confirm the point from which the plaintiff had dived and the direction of the dive, which, consistently with his concern about the plaintiff having jumped “a bit far to the … rocks on the opposite side”, was more or less straight across the pool, not on an angle upstream towards the waterfall.
- There was no evidence as to how many people used the rock pool on a yearly basis. Some statistics as to the use of the park were put before the Court. In 1997, 97,862 people visited it and in 1998, 104,301. The plaintiff tendered a safety audit report for the park prepared by an employee of the defendant, Mr Smith, in 1996. It recorded that warning signage for swimming holes – bearing messages such as “no diving”, “slippery when wet” – were “non-existent”. That lack was given a “high” risk code rating, requiring immediate rectification. One of the recommendations was that there be a determination of the “requirement for warning and information signs at strategic locations.” Pictograms were to be purchased at a cost of $300. That recommendation was given a high priority.
The defence case at trial
- The park ranger in charge of the National Park, Mr Bulley, gave some evidence about it. It covered an area of 60,000 hectares. The Alligator Creek flowed through it, covering about seven kilometres from mountainside waterfalls to the camping ground. The creek’s water level varied with the rainfall in the area. The creek bed was strewn with large blocks of granite. There were pools in a number of locations along it, some of them deep enough to swim in, others only deep enough to lie in. Under cross-examination, Mr Bulley said he was aware that young people would jump and dive into the “Coffin” waterhole, although he did not actually see them doing it.
- There were signs, Mr Bulley said, at a number of points in the park. At the camp registration shed, where campers were to deposit their camping registration fee, was an information board which contained safety instructions, including:
“●Never jump or dive into natural waterways.
…
●Watch your step; keep well away from cliff edges, waterfalls and slippery rocks.”
There was an information hut which was left open seven days a week from 7 am to 3.30 pm. Inside it, beside the door, was a poster with the warning “Do not dive or jump into waterholes”. Among other cautions as to safety, another sign, affixed to the exterior wall beside the door to the information centre, warned that care should be taken in rocky areas and on entering waterways because the rocks could be extremely slippery. A similar warning featured on the back of a sign at the southern end of the car park, past which wound the walking track to the creek. Partway up the creek at the lookout, there was a pictogram attached to the rocks warning against jumping from them.
- The defence case was, initially, that there was a more informative sign placed about the park in three or four locations, including one on the walking track giving access to the creek. It highlighted the word “danger” in red with the message
“People have been injured here. Swift currents and slippery rocks make this creek dangerous. Diving or jumping into the creek or walking or climbing on rocks may lead to serious injury or death”
and bore, among other symbols, a diving figure with a diagonal red line through it. However, it was conceded, after Mr Bulley’s cross-examination, that those signs were not erected until after the plaintiff’s accident.
- The defendant tendered an accident report in relation to the plaintiff’s injury. It was prepared by Mr Smith, who had undertaken the earlier safety audit. He recommended that more “no diving/jumping” pictograms be placed on the main access tracks to the creek system and at the Coffin itself, with warnings about the dangers of diving or jumping into the creek system to be included at the visitor information boards at the camping registration and ranger station. (His report may have prompted the erection of the warning signs mistakenly relied on by the defence.)
- Mr Smith’s accident report was specifically tendered as evidence of his investigations and conclusions, not as evidence of the truth of information gathered from other sources. The report recorded that on the morning of the accident, two Park Rangers had been sent to look for the plaintiff and his friends by Mr Bulley, who suspected that the boys might have taken alcohol with them to the creek. It included a handwritten statement from one of those rangers, Mr Brooker, in which the latter said that he and his partner had located the youths at the gorge at approximately 8 am, when they were “all diving, jumping and summersalting [sic] from the rocks above into the pool below”. He and the other ranger approached the boys at 8.25 am; but by then the plaintiff’s accident had already happened.
The appeal
The failure to find that the plaintiff struck his head on the rock ledge
- The plaintiff submitted that the learned trial Judge should have concluded, on the balance of probabilities, that he struck the submerged rock shelf, having regard to his own evidence that he dived “in the general direction of the waterfall” and Mr Cassidy’s evidence that he dived into the white water. The judge should, it was said, have rejected Mr Wood’s evidence and the notation on the sketch map indicating that the plaintiff had dived more or less straight ahead towards the facing rock wall. Because Mr Wood had spoken of seeing the young man “jumping” into the pool, rather than diving, it was to be inferred that he did not see the dive but an earlier jump. It was suggested that that interpretation of his evidence was supported by Mr Smith’s accident report, which summarised Mr Wood’s observations as seeing the plaintiff “jump out too far towards the rocks” and attributed to him a further statement that he could not confirm whether the plaintiff “jumped, dived or somersaulted”.
- It was also suggested that Mr Wood should have been treated as unreliable because he recalled the danger sign on the pathway to the creek at the time of the accident, when in fact it was erected there later. Pressed on the point, Mr Wood said he believed it was there, although he could not be “a hundred per cent certain because it was so long ago” and he accepted as a “reasonable possibility” the suggestion that it was not put there till later.
- Mr Wood’s mistaken recall in that regard, particularly given his concessions, did not necessarily, as it seems to me, have any significant implications for his reliability. As to whether he saw the crucial event, given that he described waiting to see the plaintiff surface, and when he did, in obvious difficulty, was the first in the water to his rescue, it seems unlikely that he was describing anything but the plaintiff’s final, disastrous dive. It clearly was open to the learned trial Judge to accept and prefer Mr Wood’s evidence, making it reasonable to conclude that the plaintiff had dived, not upstream towards the waterfall but directly in front, and to the middle of the pool, possibly hitting the opposite side of the pool. He had not meant to dive past the waterfall, nor had he done so. It followed that a sign warning against the existence of a rock shelf in that area would have made no difference to the outcome.
The failure to find that a sign prohibiting or warning against diving was required at the rock pool
- The plaintiff’s case at first instance seems to have been put on the basis that a sign warning against the risks of diving in to the Coffin was required. Here, he cast his net wider: he argued that the learned judge erred in failing to find that a sign prohibiting jumping and diving was needed at the Coffin, because of its peculiar character. It was uniquely suited, by reason of its depth and shape, to diving, and it was known that young people used it for that purpose. Mr Smith had recommended placement of a warning sign at the pool after the accident. Asked to identify the particular dangers associated with the pool, counsel referred to its narrowness and the submerged rock shelf.
- The plaintiff did not identify the defendant’s powers of prohibition of particular activities, but it is assumed for the purposes of this discussion that they extended thus far, and that the failure to exercise them could attract liability in tort.[2] In examining the content of the duty owed by the defendant, it must be borne in mind that it was a duty owed not to the plaintiff as an individual, but to visitors to the Park,[3] of whom he was one. And of course, the duty was
“a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.”[4]
What was required was
“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.”[5]
- Although there was anecdotal evidence that members of the public made their way to the Coffin, nothing was known as to how much it actually was used. It was relatively isolated and certainly difficult of access. There had been no previous report of injury there. Although the possibility existed of very serious injury or death, it would seem that the risk was low, in the sense that its occurrence was statistically unlikely. The dangers the pool presented were not qualitatively different from those posed by other rock pools in the watercourse. All were likely to have limited dimensions, whether in terms of width or depth; at least the narrowness of the Coffin was patent. Given that the creek bed was littered with blocks of granite, any waterhole along it was likely to have underwater irregularities and obstructions, the obviousness of which, like the rock shelf, might depend on a variable water flow. While one of the witnesses said that the Coffin had better jumping off spots than the main swimming hole, there was no evidence that it was a greater lure to the public than any other swimming hole in the creek.
- There was not, in my view, any significant point of distinction identified between the Coffin and any other waterhole along Alligator Creek such as to require a prohibition specific to it. Looking in prospect to what the defendant should have done to meet its duty to visitors to the Park, rather than re-constructing as to what might have prevented the plaintiff’s accident here, the exercise of reasonable care did not require that a sign prohibiting diving or jumping be placed at every pool where such activity might be contemplated. Equally, his Honour’s finding that the circumstances of the Coffin were not so different as to require a sign warning of the risks of diving was, in my respectful opinion, correct.
The failure to find that the rangers should have stopped the plaintiff from diving
- The plaintiff contended that the rangers’ failure, in the period between 8 am and 8.25 am, to stop the youths diving, jumping and somersaulting was negligent. That case, as the defendant pointed out, was not made at first instance. In response, the plaintiff argued that the evidence from Mr Brooker had been before the Court and that particular (e) was sufficient pleading of a case of negligence in this regard.
- But Mr Brooker’s statement was not tendered as evidence of its contents by the defendant and the plaintiff did not seek to have it admitted on that basis below. Here, the plaintiff suggested that the statement was admissible under s 84 or s 92 of the Evidence Act 1977 (Qld), but the conditions for admission under those sections were not adverted to at trial, much less met. In any event, whatever its admissibility, it was not in fact admitted under either provision. Consequently, the statement was not evidence on which the trial Judge could have made the finding of negligence for which the plaintiff contends.
- Even if that were not the case, I doubt that the allegation that the rangers were negligent fell within particular (e), which was that the defendant had caused, permitted or allowed the plaintiff to use the waterhole when it was unsafe to do so and when a reasonably prudent occupier would not have caused, permitted or allowed him to do so. To make its case in accordance with this particular, the plaintiff would have to show that the defendant was under a duty through its rangers to forbid the plaintiff the use of the pool at all. Counsel for the plaintiff suggested that the particular should be read as qualified in this way: the rangers had breached the duty of care in permitting the plaintiff to use the pool in the manner in which he was using it. But that is not what appears on the face of the particular, and one could hardly have expected the defendant to discern a case so cryptically expressed.
- Regardless of whether the allegation of negligence goes beyond the particulars, no such argument, or indeed any argument as to the effect of the rangers’ conduct, was made at first instance. Given that nothing was raised at the trial about the rangers’ supposed negligence in not intervening, it is not surprising that the question of whether they were physically able to do so was not explored there by the defendant. On appeal, the defendant tendered an affidavit in which the solicitor who acted on its behalf at trial deposed that a decision was made not to call Mr Brooker because the plaintiff had not sought to make anything of what was contained in his statement. Had it done so, the defendant could have called evidence from Mr Brooker that he first observed the youths from a ridge above the pool, from where it was unlikely he could make himself heard by them. He then, with the other ranger, made his way across difficult country towards the pool, and by the time they arrived the plaintiff had already suffered his injury. In circumstances where the defendant could have relied on this evidence at trial had the point about the rangers’ conduct been taken there, I do not think that point should now be entertained.[6]
The finding that the defendant should have erected a sign on the path to the creek warning against the dangers of diving
- The defendant’s notice of contention challenged the learned judge’s finding that a sign warning about the risks of diving or jumping into rock pools should have been positioned where it would be seen by people entering the creek area. The evidence to support that finding arose, not because of the plaintiff’s pleading (which was confined to allegations of negligence in failing to place signs at the waterhole as to the particular dangers it entailed) but because of the defendant’s having mounted a case that the plaintiff had ignored such a sign, only to retreat when it became evident that those signs were not put up until after the plaintiff’s accident. His Honour regarded the plaintiff’s submissions at the close of the trial as extending to a case that the defendant breached its duty to the plaintiff in failing to providing a general warning near the creek. He found that
“the defendant ought to have taken greater steps to provide a warning in a prominent location or locations warning those entering the creek area of the risks of diving or jumping into rock pools and warning against such activity.”
He did not find that the activity should have been prohibited.
- Given that there was undoubtedly some level of risk involving waterholes across the Park, the positioning of such a sign (to similar, although perhaps more detailed, effect to others round the camping ground) where potential users of the creek would see it, was a reasonable response to that danger. The learned Judge’s finding to that effect is unremarkable.
The finding that a sign warning against the dangers of diving would not have altered the plaintiff’s conduct
- However, of course, the learned Judge did not find that that breach of duty caused the plaintiff’s injury. The plaintiff made three complaints of his Honour’s approach to the question of causation. The first was that he failed to refer to the plaintiff’s evidence of concern for his own safety: he had checked the depth of the pool before diving, he did not drink alcohol and he did not engage in somersaulting because he thought it was dangerous. Secondly, his Honour had erred in coming to his conclusion on causation by reference to how “the plaintiff and his colleagues” would have reacted to a sign, rather than confining his considerations to the plaintiff’s likely response. Thirdly, he had had no regard to this passage in McHugh J’s conclusions concerning causation in Chappel v Hart:
“[O]nce the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff.”[7]
- The complaint that the learned judge failed to refer to the plaintiff’s evidence about his care for his own safety is unfounded. Immediately after quoting a passage from Vairy which begins:
“Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten…”[8],
his Honour continued:
“The plaintiff was well aware of the dangers involved and took steps to satisfy himself he could dive safely where he intended to dive.”
In context, that reference indicates a conclusion that the plaintiff had in fact exhibited the sort of caution a sign might have been expected to produce.
- The learned judge did say, twice, that he thought it unrealistic that “had the plaintiff and his colleagues seen [a warning sign] it would have altered their conduct on that day”. He also made these observations about the party’s intentions:
“The plaintiff and his schoolmates were celebrating the end of their secondary education. They were looking for some fun and adventure in a wilderness area which inevitably carried with the adventure some risks.”
“The plaintiff and his colleagues sought out the rock pool…”.
Nonetheless, he focussed on the evidence as to the plaintiff’s likely response, as is clear from his observation of what the plaintiff did to protect himself, and also from his having set out the plaintiff’s answers to questions about his likely response to signs. (Presumably because it was not part of his pleaded case, the plaintiff was not asked to comment on the effect a sign of the more general kind located, not at the Coffin, but elsewhere in the Park would have had on him.) Given that the plaintiff went to the pool as a member of a group it is not surprising that the learned judge had regard to his conduct in that context, but his finding was directed to the plaintiff:
“The plaintiff has not established a causal link between the absence of such a notice or notices and his injury.”
- As to the Chappel v Hart point, the defendant was able to point to evidence from the plaintiff himself as to his concerns and likely responses from which it could reasonably be inferred that a general warning against diving would have added nothing to his own knowledge that there were risks. In addition, the learned judge was entitled to have regard to the purpose for which the plaintiff and his group were at the park, and the efforts they had made to get to the pool, in considering whether a warning that diving could cause injury was likely to have made any difference to their enthusiasm for the activity.
- One ought not to be hasty to reject the learned trial Judge’s assessment of the plaintiff’s probable response to a warning sign:
“Responding to such questions depends very much on the assessment of the character and personality of the plaintiff and what he or she would have done had other and different precautions been taken by the defendant. Trial judges’ assessments of such matters are conventionally given considerable respect by appellate courts, called upon to reconsider conclusions reached at trial on nothing more than a transcript and their own assessment of how individuals, whom they have never seen or heard, would react to changed circumstances.”[9]
His Honour could properly find it improbable, in the circumstances, that the plaintiff would have been deterred from diving by a warning sign. The problem was not that the plaintiff was oblivious to the dangers of diving in a pool of this kind, but that he misjudged his dive, probably as to how far it would take him underwater across the pool.
Conclusion
- I do not think that any error has been shown in the learned trial Judge’s reasoning or findings. I would dismiss the appeal with costs.
- JONES J: I have had the advantage of reading the separate reasons of Holmes JA and Douglas J. I agree with those reasons and with the orders proposed.
- DOUGLAS J: I agree with the reasons for judgment of Holmes JA and with the orders proposed by her Honour.
- The learned trial judge’s analysis of the likely behaviour of the plaintiff if a sign had been in place on the path to the creek depended on his assessment of the witnesses and the evidence and nothing suggests to me that he misused the opportunity he had to analyse that evidence and reach the conclusion he did. I also agree that the defendant’s duty of care did not extend to placing a sign at this individual rock pool.
- If a sign had been placed at “The Coffin” warning against the submerged rock or shelf in particular, the conclusion that the existence of such a sign would have made no difference to the outcome may, at first blush, seem to be more difficult to accept. The learned trial judge explained his reasoning as follows[10]:
“[73] It seems to me that on what I take to be the primary case advanced (namely that had there been a specific warning at “The Coffin” rock pool about the submerged shelf the plaintiff would have checked for submerged rocks and adjusted his activities accordingly to ensure his safety when entering the water) the plaintiff faces a difficulty on the issue of causation. In my view there is no convincing answer to the defendant’s submission that there would have been no different outcome to the plaintiff’s dive had he been warned of the ledge.
[74]The plaintiff was attempting to avoid the area of the waterfall and beyond because he had not checked it and could not be sure that it was safe to dive there.
[75]He came to grief through misadventure of some kind. He either misjudged the point where he dived into the water or he entered it in such a way as to result in his body moving under the water to such an extent as to collide with a rock with such force as to render him quadriplegic.
[76]The difference between the two scenarios is that in the events which occurred, the plaintiff intended to stay clear of the area of the waterfall and beyond when diving because he was unsure whether he could do so in safety. On the scenario postulated he would have stayed clear of this area because he knew it was unsafe to dive there.
[77]I do not see how it can be concluded that the plaintiff would not have come to grief in the way in which he did in the latter scenario. As I have said, his injury was the result of an accident caused by a misjudgement of some kind on his part as to where he struck the water or how he entered it.”
- Those conclusions were based on evidence that the plaintiff had checked the depth of the water where he intended to dive, but not in the vicinity of the waterfall and beyond it into the alcove harbouring the submerged shelf because he did not intend to dive there; see paras [38]-[40] of his Honour’s reasons. In those circumstances, the conclusion that a warning identifying the submerged rock or shelf would have discouraged the plaintiff from jumping or diving into the pool at all is not compelling as he had himself identified that area as one to avoid. The more likely conclusion is that reached by his Honour that there would have been no different outcome and that he would have dived in any event.
- That issue is peripheral, however, as the acceptance of his Honour’s findings about the likely behaviour of the appellant had there been a more general sign in place on the path to the creek, and the absence of a need, in my view, to place a particular warning at “The Coffin” must lead to the conclusion that the appeal should be dismissed.
Footnotes
[1] Mr O'Sullivan said the trek took “at least 15 minutes”, Mr Wood, that it took him between 20 and 30 minutes.
[2] See Gummow J’s discussion of the latter issue in Vairy v Wyong Shire Council (2005) 223 CLR 422 at 451-2.
[3] Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 per McHugh J at 494.
[4] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Hayne J at 488.
[5] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
[6]Water Board v Moustakas (1988) 180 CLR 491, at 497; Coulton v Holcombe (1986) 162 CLR 1, at 7-8.
[7] Chappel v Hart (1998) 195 CLR 232 at 247-8.
[8] (2005) 223 CLR 422 at 427.
[9] Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 per Kirby J at 799 [157].
[10] Reardon v State of Queensland [2007] QSC 105.