Reardon v State of Queensland
[2007] QSC 105
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- Unreported Judgment
- Appeal Determined (QCA)
- Reardon v State of Queensland[2007] QSC 105
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Reardon v State of Queensland[2007] QSC 105
Reardon v State of Queensland[2007] QSC 105
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 15 May 2007 |
DELIVERED AT: | Townsville |
HEARING DATE: | 30 April & 1,2 May 2007 |
JUDGE: | Cullinane J |
ORDER: | I give judgment for the defendant against the plaintiff with costs to be assessed. |
CATCHWORDS: | TORTS – NEGLIGENCE – LIABILITY OF PUBLIC AUTHORITY – where plaintiff rendered quadriplegic after diving into a rock pool in a National park – whether defendant liable for plaintiff’s injuries. TORTS – NEGLIGENCE – DUTY OF CARE – BREACH OF DUTY – CAUSATION – where plaintiff contends he hit a submerged rock – whether defendant’s failure to warn plaintiff by erecting signs prohibiting diving and signs warning of existence of submerged rock constituted breach of duty of care - whether warning signs would have prevented plaintiff’s injury – whether warning signs would have deterred the plaintiff from diving – whether plaintiff in fact hit a submerged rock. Wyong Shire Council v Shirt (1980) 146 CLR 40, applied. Nagle v Rottnest Island Authority (1993) 177 CLR 423, applied. Mulligan v Coffs Harbour City Council (2005) 23 CLR 486, applied. Vairy v Wyong Shire Council (2005) 223 CLR 422, applied. |
COUNSEL: | T.D. Martin SC, with A J Williams, for the plaintiff K.C. Fleming QC, with R C Morton, for the defendant |
SOLICITORS: | Robert Bax & Associates for the plaintiff Crown Law for the defendant |
[1] The plaintiff was grievously injured on 18 November 1998 when he dived into a pool forming part of Alligator Creek in the Alligator Creek National Park, near Townsville.
[2] As a result of the injuries sustained in the dive he is now a quadriplegic.
[3] The only issue before the Court is that of liability, the quantum of damages having been agreed upon.
[4] On 17 November 1998, the plaintiff with five classmates, (who were in the final days of their education at Kirwan High School) travelled to the Alligator Creek National Park. All five did not travel there together. The evidence suggests that their class as a whole was coming in an organised trip to the park and that the plaintiff and his friends, in travelling separately and beforehand breached a directive issued by the school.
[5] The National Park is vested in the defendant, who is responsible for its control and management. It forms part of the Mount Elliott section of the Cape Bowling Green National Park.
[6] A video of the creek and its adjacent areas from where one enters what is described as a park and camping area up to the falls near the top of the mountain (Exhibit 22) was tendered. This shows an area of about seven kilometres of the creek. Throughout its length the creek runs over a rocky bed and cuts through banks of rock.
[7] One accesses the relevant area by turning off the Bruce Highway and travelling down a dirt road for some kilometres before arriving at what has been described as a park where there are a number of facilities for camping and other activities.
[8] There is a place (described as a self registration booth) in the main camping ground where campers are required to register. The plaintiff and the other members of his group intended to camp at the park overnight.
[9] A permit has to be purchased. The evidence suggests this was done, not by the plaintiff, but by one of the others in the group. The plaintiff says that he did not go to this area nor did he go to an information centre which is situated in another part of the car park which had a visitor information board.
[10] The self registration board would have been close to where the vehicle in which the plaintiff was travelling entered the park and in the course of activities, whilst he was camped there, he would have passed close to it.
[11] The plaintiff says that he did not see any signs at either the self registration board or the information centre. In the latter case the evidence does not suggest that he would have come close to the visitor information centre and the board.
[12] I will return to the question of notices shortly.
[13] There is an area of the creek in this vicinity which has been described as the main swimming area. There was no sign indicating that it was a designated swimming area. At this point the creek is wide and the water in the pool was, at the relevant time, according to some of the evidence about chest deep.
[14] The plaintiff and some of his colleagues had a swim in this area after they had arrived. They spent the night at the camping area where they consumed some alcohol. It is not suggested that alcohol played any role in the events which occurred.
[15] On the following morning after breakfast the plaintiff and his colleagues (some of whom had arrived overnight) again had a swim in the swimming pool and then decided to proceed to the area where the accident occurred.
[16] This is a rockpool which is known as "The Coffin". (I will refer to it as "The Coffin" rock pool".) It takes its name because of the narrow rectangular shape of the body of water which is formed by surrounding rock walls. These appear in a number of photographs such as the photographs which appear as part of exhibit 9A and a number of other photographs such as Exhibits 6 and 14.
[17] There were some photographs taken on the day of the accident by, it is believed, a photographer from a newspaper. These are exhibits 14. They show what the flow of water was like on the day and also the levels of water. There was plainly a substantial flow of water into the rockpool at this time compared to the position when other photographs, which are before the Court, were taken.
[18] The water enters the rockpool by two waterfalls in the upstream end. One of these is in about the centre of the top of the rectangle, formed by the surrounding rocks (this was referred to as the small waterfall) and the other is on the extreme right of the top part of the rectangle as one looks upstream.
[19] It is immediately apparent why the feature would attract people, particularly young people. It offers the opportunity to dive and jump into relatively deep water from the relatively high rocks above.
[20] The plaintiff and his friends in order to get to this area engaged in what one of them described as "rock hopping.” This meant climbing over rocks in and along the side of the creek and it also involved crossing the creek. The distance involved can be calculated from Exhibit 5.
[21] Although there is a path for a short distance from the main swimming area towards this area there is no maintained path leading to "The Coffin" rock pool.
[22] Exhibit 5 which is an aerial photograph shows what is described as "Alligator Creek Falls Walking Track" which passes along the left bank of the creek but at some distance from the rock pool. The evidence suggested that at the point at which it passes the rock pool it is a considerable distance above it and away from it. In order to get to the rock pool from that track it would be necessary to leave the track and move through the surrounding bush area.
[23] At least one of the group, one Corey Muller, had been to the area before. He told the others about "The Coffin" rock pool and it was a result of this that they headed towards it.
[24] The evidence of the dimensions of the rock pool varied somewhat but I accept the evidence of Mr O'Sullivan, an engineer who gave evidence, that it is approximately eight metres long by about three to four metres wide and is broadly the size of a domestic swimming pool.
[25] One exception to the description of the pool as a rectangle is that immediately to the right of the bigger waterfall as one looks upstream, there is what has been described as an alcove, where the body of water widens as a result of the surrounding rock cutting away from the waterfall in a semi-circular fashion. This is clearly shown in the photographs.
[26] Below this is what is described as a ledge. It is the plaintiff’s case that this ledge was not visible at the relevant time being below the water and that it is probable that the plaintiff struck his head on this ledge when he dived on the occasion he suffered injury.
[27] Mr O'Sullivan, an engineer who prepared a report and gave evidence, inspected the site on three occasions. There were varying levels of water in the pool on those occasions. Exhibit 9A has photographs (photographs 13, 14, 15 and 16) which show the flow of water at the time of his inspection in April 2004.
[28] He also inspected the site on 27 May 2005 and carried out further measurements.
[29] He says that the width of the pool is generally some four metres and that in the area of the alcove it is an additional 2.3 metres wide.
[30] The ledge to which I have referred is approximately some 1.5 metres across and extends approximately 2 metres relative to the top edge of the wall above it and thus into the body of water contained in the alcove. There seems no doubt that at the relevant time the shelf would have been submerged by water.
[31] Mr O'Sullivan measured the depth with the assistance of some swimmers at the hole. The depth about half way along the rock pool was found to be about five metres. The height of the rock walls varied. Those on the side closest to the major waterfall were lower than on the opposite side. On the opposite side they rose at least three or four metres (and perhaps more) out of the water. It was from the rock face on this side that the plaintiff dived when he sustained his injury.
[32] The evidence suggests that this was a pool where people went to swim and obviously it was an attractive place in which to jump and dive into the water. Two of the plaintiff's classmates who gave evidence spoke of this. The evidence of Mr Bulley who was then the chief ranger of the park suggests that he was aware that people used the rock pool for these purposes.
[33] Nonetheless it is plainly not a case in which the defendant encouraged people to visit the rock pool by providing facilities by way of access to it or facilities to be used at it.
How Did the Accident Happen?
[34] It is the plaintiff 's case that his head struck the submerged ledge at the base of the alcove.
[35] When they arrived one of his friends, Brendan Bailey, jumped into the water first. Two others had some beer from an esky which had been carried up there. The plaintiff says that he "had a bit of a jump" and they all had a bit of a jump and "I checked to see the depth and see whether it was deep enough and like I said, I wasn’t able to touch the bottom from just like a duck dive from on the surface of the water. Diving down I couldn’t touch the bottom, so – yeah, and then I got out and we changed sides cause the other side’s a bit deeper – a bit – sorry, a bit higher but we started jumping from that side then ---."
[36] It can be seen from the photos that the rocks on the side closest to the waterfall are not as high as those on the opposite side.
[37] The plaintiff says that he jumped in once from the higher side and then got back up and that all of the others "had a go" and then he dived in.
[38] He said that he was trying to get "roughly in the middle of the pool itself." This was the same position in the water as he had been trying to achieve when jumping or diving from the other side. The plaintiff marked Exhibit 6D at the point he said he intended to strike the water when he dived. According to his evidence this position was about a metre and a half to two metres from the waterfall. He says that he could see a sort of whitewash effect from the waterfall and he was trying not to jump "that far."
[39] As I have said, his evidence was that he had checked the depth of the water in the area where he was intending to dive. He also gave evidence that he had not checked the area in the vicinity of the waterfall and that the reason that he didn't do this was because he didn't intend to dive in that area.
[40] I understood that he was intending to convey to the court that since he was not aware of the depth of the water in the area of the waterfall (and it would follow the area beyond that into the alcove) and therefore could not be sure that it was safe to dive there he intended staying away from that area and limiting his dives to the area marked in Exhibit 6D.
[41] The plaintiff when cross-examined said that there was nothing which would have prevented him from checking the depth of the water in the vicinity of the waterfall and indeed around the perimeter of the rock wall but said that there was no need for him to do this because he did not intend to dive into that area.
[42] The plaintiff thought that it was on his second or third dive from the high side of the pool that he hit the water and felt himself suddenly stop:
"I had hit something and at that point I just felt the waterfall just pushing me down and then I remember my friends grabbing and bringing me to the surface."
[43] When asked in evidence in chief what happened he said:
"I guess I just misjudged it and I must have gone a bit further than I did the other times. Do you know what you struck?— No I wasn't sure but some sort of rock apparently. And whereabouts did you get struck?— Just on the top of my head there's a slight scar, just as a bit of a line--."
[44] He was asked about this again in cross-examination:
"You were in fact aware, weren’t you, of the dangers of diving into unknown water? That’s why you did it?—I was aware of the dangers of diving into shallow water.
Mmm? So you checked it?—That is correct.
And that was again because of your concern for safety, wasn’t it?—No, it’s because where I checked towards the middle and I knew it was plenty deep enough in the middle.
And you said, "I guess I misjudged it." And that’s exactly what happened in this case, isn’t it?—I’d say I got unlucky and didn’t land exactly where I’d hoped.
And you landed in a place where you say you weren’t intending to dive?—I don’t know if I landed there, but I arrived there.
And it was a place where you hadn’t checked to see what the water was apparently?—That’s correct. I did not know – was – what was there."
[45] The matter was further touched upon in cross-examination;
"Mr Fleming: You were aware, weren't you, that the bottom of the creek can be irregular?--Yes, that's why I checked it first.
Yes. But you didn't check the area in which you dived, did you?--Yes I did.
No, you didn't, did you?--Yes I did.
His Honour: Well I – I think we might be at cross purposes. What you're saying is you didn't check the area where you finished up coming into the-----?-- But that's not where you dived. I'm sorry, Sir but what I'm saying is I checked where I dived.
Where you intended to dive?--What I'm suggesting is I'm not sure when – at what point I hit a rock. I'm saying I've dived to the rough area where I have checked.
Oh, I see. So you've hit the area that you intended to hit?--Well as far as I know.
But you may have continued---?--Yeah, I may have gone more of an angle and hit something."
[46] I think the only reasonable conclusion to reach is that the plaintiff cannot say with certainty where he struck the water and what he hit.
[47] It was the plaintiff's case that it is more probable than not that his head struck the submerged ledge at the base of what has been described as the alcove. There is no direct evidence of this.
[48] Mr O'Sullivan who was called as an engineer for the plaintiff produced three reports. Exhibits 9A and 9B are virtually identical although there is some difference between them which is not relevant for present purposes. In Exhibit 9B the following passage appears.
"Mr Reardon was able to describe the spot he jumped from as being on the high side opposite an ‘alcove’ in the wall of the waterhole, where the wall deviated away from his side of the pool. He dived at an angle, believing he had sufficient room due to the width of the pool at this point, and struck ‘ledge’ hidden beneath the water within the alcove."
[49] In his evidence, Mr O'Sullivan expanded somewhat upon this postulating that the extra width of the rock pool provided by the alcove near the waterfall may have mislead the plaintiff into diving further than he should have.
[50] There is an immediate difficulty about this. Both what Mr. O'Sullivan relates in his report and the scenario postulated are contrary to what the plaintiff has said in his evidence. He was intending to dive into the middle of the rock pool at the point shown on the exhibit referred to. This was because he was unsure of the depth of the water in the vicinity of the waterfall and it follows beyond that, but had established that the depth was such that he could dive safely into the middle of the pool.
[51] For him to have struck his head on the submerged shelf it is clear as Mr. O'Sullivan accepted that he would have had to dive behind the waterfall. It is likely, as Mr. O'Sullivan said that the waterfall on the day extended further across the alcove than is shown on Exhibit 6 D given the flow of water along the creek.
[52] As can been seen from Exhibit 6D there are rock faces which are closer to the point from which the plaintiff dived than the rock ledge. These are the rock faces on either side of the waterfall which constitute the mouth of the alcove.
[53] Brad Cassidy, one of the group gave evidence of actually seeing the plaintiff dive. He said that the plaintiff did not "dive into the wall." He said this in relation to the walls on both sides of the waterfall.
[54] In cross-examination he was shown Exhibit 14B and agreed that it was "somewhere into that white water in the bottom middle of the photograph that Mr Reardon dived" (see transcript page 123, lines 12-13). As will be seen the white foam extends well into the rock pool and downstream of the rock faces which form the mouth of the alcove. He marked the spot on Exhibit 14.
[55] Some army officers had arrived on the scene at about the time the plaintiff suffered his injury. One of these, Robert John Wood, was called as a witness. He saw the plaintiff dive as he was approaching the rock pool. He described the plaintiff's dive as a swan dive in which he dived out with his arms open and then vertically. He lost sight of him at some point before he entered the water but he was concerned at the trajectory of the dive thinking that he had probably jumped a bit too far towards the rocks on the opposite side – (see transcript page 129, lines 30-40). He moved quickly to a position where he could see and saw the plaintiff being pushed out by the agitated water towards the centre.
[56] There is what is described as a plan (Exhibit 15) which the army officers together prepared for the purposes of showing what they had seen. The witness was a co-author.
[57] The plan is not particularly clear in some respects but what is of relevance is the dotted line shown from the point where the plaintiff is said to have dived from to the point where he is said to have hit his head. The witness adopted this as representing the direction of the plaintiff's dive.
[58] In cross-examination the following appears:
"Okay. All right. So there was three of you getting together to reconstruct, as best you could, where it might have been that he dived towards. Is that – is that fair enough? – Yeah, that’s correct.
Do you accept that you might be a metre or two out in the direction of travel that you saw, he could have been a metre up?—Of course.
Of course. A couple of metres up or whatever. I mean, you weren’t there – sorry, could you say yes if you agree with that? – Yes."
[59] I thought that Mr Wood was a cautious and careful witness. Whilst he conceded he might be mistaken to the extent suggested in cross-examination he had adopted a line of direction of the dive shown in Exhibit 15 which even if taken as a rough indication of the direction of the dive would have had the plaintiff striking the water considerably downstream from the point where he could have struck the submerged shelf.
[60] I did not find Mr Cassidy's evidence that the plaintiff did not dive "into the wall" particularly helpful. I think it highly unlikely that the plaintiff dived in a way which brought him into contact with the rock wall before he struck the water. If he struck such a rock wall it is much more likely that he did so below the water line. It cannot be known how the plaintiff's body moved after entering the water.
[61] For the plaintiff to have struck the submerged shelf would require him to have dived considerably further than he intended and either to have struck the water at about the point of the waterfall and then continued or to have entered the water (wherever he struck it) in such a manner that his body continued forwards a significant distance before he struck the ledge with the sufficient force to render him quadriplegic.
[62] I do not suggest that this scenario is impossible but I do not think it is any more likely a scenario than that the plaintiff struck his head on one of the rock walls below the water line. The downstream wall perhaps suggests itself as a greater possibility than the upstream rock wall given the position that both Mr Cassidy and Mr Woods say that they saw the plaintiff in after the accident.
[63] There is the further possibility that the plaintiff simply struck his head on the bottom of the pool, although given the depth of water Mr Sullivan said he thought would have been present he thinks that is unlikely.
[64] My assessment of the evidence as a whole leaves me unpersuaded that it is more probable than not that the plaintiff struck the submerged rock shelf.
[65] This finding is, on my understanding, of the plaintiff's case as pleaded and advanced in the written outline, fatal to it. No cause of action was contended for which would be consistent with his having struck his head on some surface other than the submerged rock shelf. Nonetheless some of the issues addressed hereunder would, it seems to me, also dispose of a case based upon such a scenario.
Cause of Action
[66] It is the plaintiff's case that the defendant owed a duty of care to him which it had breached by failing to give him adequate warning.
[67] It was the plaintiff's case that the scope of the duty owed required the giving of appropriate warnings or notices by the defendant to the plaintiff both specific to "The Coffin" rock pool and generally about the risks of diving into rock pools.
[68] There was no real dispute that the defendant owed a duty of care to the plaintiff. This seems clear from cases such as Wyong Shire Council v Shirt (1980) 146 CLR 40 and Nagle v Rottnest Island Authority (1993) 177 CLR 423 and Mulligan v Coffs Harbour City Council (2005) 23 CLR 486. The duty owed is to take reasonable care to avoid foreseeable risks of injury to those entering into the National Park.
[69] In the plaintiff's written outline there is some lack of specificity as to what it is contended the court should find would have been the plaintiff's likely response to the presence of warning signs. The submissions overall are consistent with the proposition that the plaintiff would have, when diving, avoided the area of a hidden danger if there had been a notice drawing his attention to it at "The Coffin" rock pool . However they were also consistent with the proposition that if there had been such a notice or a more general notice warning about the risks of diving generally his response would probably have been to avoid diving into the rock pool.
[70] In the plaintiff's written outline the following appears in paragraph 64:
"The defendant breached its duty to the plaintiff in failing to warn him in relation to the general danger of jumping or diving into waterholes, but most significantly in this case, in relation to the specific hidden danger known by the defendant of this frequently used waterhole."
[71] Under the heading Obedience, the plaintiff's written submissions go on:
"Whether or not the plaintiff would have acted differently had warning against diving into "The Coffin" rock pool been given is essentially a matter of factual judgment. It is submitted that there would be no reason to conclude other than that had the plaintiff been forewarned of the hidden ledge, he would not have done what he did."
Just what is meant by the statement "He would not have done what he did," was not at that point elaborated upon.
[72] The submission goes on a little later:
"There can be no doubt that the plaintiff is expressing that had he been forewarned of submerged rocks he would have checked for submerged rocks and adjusted his activities accordingly to ensure his safety when entering the water."
[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.
[78] I turn now to the question of the signs.
[79] The plaintiff placed a good deal of emphasis upon the contents of Exhibit 2 which is a report prepared by Mr Brian Smith who was described as the regional workplace health and safety coordinator. This report was prepared in 1996.
[80] In the recommendations which appear in that report Mr Smith stated that there were insufficient public warnings/information signs provided in the park. Notes attached to the report suggest that immediate steps should be taken to rectify the absence of warning signage and it appears that the Crown law Office was consulted about the content of the signs. The form fixed upon was:
"Warning:
The creek is shallow in many parts and has hidden underwater obstructions.
Serious injury or death could result from striking the bottom or being caught by an obstacle.
To avoid injury, do not swim or dive.
(Pictogram of hitting head and underwater obstruction.)"
[81] These signs were to be located "at strategic locations" in the park.
[82] Exhibit 23 is an accident report also prepared by Mr Smith. It followed the plaintiff's accident and contained some recommendations one of which was "position no diving/jumping pictograms on the main access tracks to the creek system via the boardwalk, lookout access point and "The Coffin."
[83] Of course the question of whether there has been a breach of the duty of care owed by the defendant to the plaintiff by a failure to provide appropriate notices and warnings is to be determined by the application of the principles expressed in the authorities and in particular cases which as Wyong Shire Council v Shirt (1980) 146 CLR 40. The statement of the duty in Shirt's case has been reaffirmed in subsequent judgements of the High Court. The test must be what a reasonable person in the defendant's position would do by way of response to a foreseeable risk. It is not determined by the recommendations made by Mr Smith prior to this accident nor by the contents of his report following it. Nonetheless the contents of Exhibit 2 are of some significance on this issue.
[84] Mr Bulley, the senior park ranger at the time, gave evidence that there are a large number of rock pools in the creek as it courses down the side of the mountain. He thought there were in excess of 50. Exhibit 22, which is a video of the area, shows the large number of rock pools.
[85] According to Mr Bulley there are a number of places where you could get in the water and have a swim although some are quite shallow. He said:
"All right. Is there one main area which is used regularly for swimming?—The – the main – the predominant use area for swimming would be in the areas immediately adjacent to the top day use area, below the lookout, and – and back out towards the mouth of – sorry. Back out towards the – the park fence which is a – possible a kilometre."
[86] The plaintiff placed much emphasis upon what was said to be the uniqueness of "The Coffin" rock pool. It can be accepted that "The Coffin" rock pool by virtue of the depth of the water and the height of the surrounding rock walls would have had particular attraction to people wanting to jump or dive into the water but to a greater or lesser degree this attraction could be expected to exist in many rock pools throughout the national park and certainly in the rock pools a little downstream from the "The Coffin" rock pool which were quite deep.
[87] The levels of water in the rock pools would be ever-changing resulting in ever-changing exposure of rocks and thus ever-changing dangers of engaging in such activities.
[88] As Gleeson CJ and Kirby J said in Mulligan v Coffs Harbour City Council [2005] HCA 63 at paragraph 6 and 7:
"The reasoning of Whealy J on all the issues in the case was orthodox. His conclusion on the issue of breach of duty was amply supported by the evidence, and unsurprising. There were features of the place where the appellant was swimming that were distinctive, but the conditions that led to the appellant’s injury were not unusual. The danger that materialised was one that exists at virtually every Australian beach, and in most waterways. It is one of many dangers involved in swimming. It is difficult to see how such common dangers can be addressed by particular warnings at particular locations."
[89] This consideration was thought by a number of members of the court in Vairy v Wyong Shire Council (2005) 223 CLR 422 to be fatal to the claim of the plaintiff there. See Haine J at paragraphs 122-125 and Callinan and Hayden JJ at paragraph 218.
[90] I am not persuaded that the circumstances of "The Coffin" rock pool are so special as to warrant a sign of the kind suggested here.
[91] The second basis which it seems to me arguably arises from the written outline of the plaintiff is based upon the proposition that the defendant ought to have provided a general warning of the risks associated with diving or jumping into the creek and that such warning should have been located in a position where those persons entering the area of the creek itself would inevitably have seen the notice.
[92] It is necessary to say something about the way in which the case was conducted. The defendant had pleaded in one of its amended defences that there was such a sign in place at the time of the accident. The defendant led evidence that the notice shown in Exhibit 16 was in existence at the time. Indeed it led evidence that no less than three of these signs were present in positions where persons entering the main swimming pool or going beyond that point would inevitably see them.
[93] There was a dispute as to the pathway by which the plaintiff and his classmates entered into the creek area and in particular whether the boardwalk which they spoke of walking along was in existence at the time and if in existence, whether access to it was possible.
[94] In view of the way matters developed it is unnecessary for me to make any findings about these matters. After senior counsel for the plaintiff cross-examined Mr Bulley the defendant withdrew its allegations that there had been such signs in place and it was conceded that the court should proceed upon the basis that there were no such signs.
[95] This is not to say that there were no warning signs at the park relating to diving.
[96] At the self registration board to which I have referred earlier there were a number of notices. Under one headed "Protect Your National Park" there was a part of the notice under the heading "Safety on the Park" which contained the following:
"National parks are wild places. The unwary visitor can get hurt. Please take responsibility for your safety and that of your family.
- Stay on formed tracks unless you are experienced and well equipped. Take a map; let someone know your plans.
- Take walks within capabilities, and plan your walk to arrive at your destination well before dark.
- Never jump or dive into natural waterways.
- Wear hats and protective clothing to prevent sunburn.
- Watch your step, keep well away from cliff edges, waterfalls and slippery rocks."
[97] At the information centre there was a sign on one of the walls inside the centre which included "do not dive or jump into water holes" and which showed a pictogram of a person diving with a stroke through it.
[98] The plaintiff did not see any of these and in cross-examination two of his colleagues who gave evidence whilst acknowledging that they were generally aware of the information board said that they did not go over to read it.
[99] I think that on the evidence here it should be accepted 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. Such warnings were put in place subsequently. In my view the defendant breached its duty to the plaintiff as one of those entering the National Park and for whose benefit the duty of care existed by its failure to provide such notice or notices.
[100] However I think it quite unrealistic to expect that had the plaintiff and his colleagues seen such a sign it would have altered their conduct on that day.
[101] 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 attraction of the rock pool is, as I have already said, obvious but the margin for error was small.
[102] In Vairy (supra) Gleeson CJ and Kirby J who were in the minority in that case spoke in para 7 of the purpose of warning signs.
"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. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out (21)? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign."
[103] The plaintiff was well aware of the dangers involved and took steps to satisfy himself he could dive safely where he intended to dive.
[104] The plaintiff was asked about his likely response to warning signs in evidence in chief:
"Mr Reardon, if there had been a warning sign or a verbal warning given to you not to jump or dive into the waterhole would you have obeyed it or not?—I’d like to believe I would’ve."
[105] In cross-examination he again was asked about the matter:
"And you have thought long and hard, haven’t you, about your case?—Not particularly, I tried not to think about it.
And what I’m suggesting to you is that it wouldn’t have made any difference to you whether a sign had been there or not, you were there to go swimming?—I would’ve liked to have been given the opportunity to make that decision.
But the sign wouldn’t have told you anything that you weren’t aware of, would it?—It would’ve told me there was submerged rocks on that side so therefore I would’ve had to check it before diving there."
[106] It is obvious that the answers to these questions in cross-examination are about a warning specific to the submerged ledge.
[107] The plaintiff and his colleagues sought out the rock pool. It was not something that they came across. The defendant did not encourage in any way persons to go to the rock pool to dive and jump and indeed access to it required significant effort.
[108] I think it unrealistic to conclude that had the plaintiff and his colleagues seen a sign of the kind under discussion here it would have altered their conduct on that day.
[109] The plaintiff in the answer given in evidence in chief set out above was somewhat ambivalent about the matter. No doubt he could have asserted that he would not have dived into the pool had he seen such a sign and it is to his credit that he did not make this assertion. Such evidence as Callanan and Hayden JJ pointed out in Vairy's case at para 226 (adopting what Callanan J had said in an earlier case) is of a "very limited utility, indeed practical uselessness---"
[110] The plaintiff has not established a causal link between the absence of such a notice or notices and his injury.
[111] It is not argued that the plaintiff was entitled to be compensated upon the basis of the loss of a chance that he might have not been injured had such a notice or notices been in place and I do not think on my assessment of the plaintiff and the evidence generally that there was any appreciable chance that he would have desisted from diving or that events would have taken some different course had there been such a notice or notices in place.
[112] The plaintiff therefore has not satisfied me that he is entitled to compensation from the defendant for the catastrophic injuries which he has suffered.
[113] I give judgment for the defendant against the plaintiff with costs to be assessed.