GREGORY MICHAEL ISAAK WARREN v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA [2024] SADC 37

Applicant: GREGORY MICHAEL ISAAK WARREN Counsel: MR RJ WHITINGTON KC WITH MS J ATKINS - Solicitor: DBH LAWYERS Respondent: DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA Counsel: MR AR HARRIS KC WITH MS S DOYLE - Solicitor: WALLMANS LAWYERS Hearing Date/s: 09/02/2022 to 11/02/2022, 22/08/2022 to 25/08/2022, 29/08/2022 to 02/09/2022, 27/09/2022, 29/09/2022, 01/11/2022, 14/11/2022 to 15/11/2022 File No/s: DCCIV-17-394 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3) [2024] SADC 37 Judgment of his Honour Judge Burnett 11 April 2024 LOCAL GOVERNMENT - LEGAL RELATIONSHIPS AND PROCEEDINGS - LIABILITY FOR TORTS - NEGLIGENCE - PARTICULAR CASES - AS OCCUPIER TORTS - NEGLIGENCE - OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES - SIGNS TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - CIVIL LIABILITY LEGISLATION On 18 December 2013, the applicant, Mr Gregory Warren, suffered severe injuries when he fell 10 metres from a cliff onto rocks at a beach on Eyre Peninsula. The applicant had got out of a motor vehicle at the top of the cliffs and descended down an escarpment, towards the beach. Unknown to the applicant, the escarpment ended in a vertical cliff that could not be seen from the top of the escarpment. The applicant fell over that vertical cliff and onto rocks at the beach. The applicant claims that the respondent, as the occupier of the land where the accident occurred, was negligent in failing to erect signs and barriers that would warn of the danger posed by the cliff and direct visitors to proceed to the beach by a safe route. The applicant also claims that the respondent ought to have conducted a risk assessment of the area. The applicant contended that the breach of the duty of care occurred where the respondent, by creating and maintaining the road to the accident site and having created and maintained the car park near the top of the escarpment, had encouraged visitors to the site. -- 1 of 103 -- The respondent denied that it breached its duty of care to the applicant. It contended that the escarpment was obviously steep and dangerous and the route to the beach was not visible. It referred to the remoteness of the site, the visible cliffs to the north of the site and the fact that there were over 700 kilometers of coastline in its area. It further relied on a number of statutory defences including: (1) pursuant to s 38 of the Civil Liability Act 1936 (SA) (CLA) the risk was obvious; (2) pursuant to s 37 of the CLA, the applicant voluntarily assumed the risk; (3) pursuant to s 244(1) of the Local Government Act 1999 (SA), it was not liable as the injuries sustained by the applicant were not a direct consequence of a wrongful act of the respondent; (4) pursuant to s 50 of the CLA, if the respondent was negligent, then the applicant was guilty of contributory negligence. The trial was only in respect of liability. Held: 1. The claim of the applicant is dismissed. 2. The Council, as the occupier of the land where the accident occurred, owed a duty to visitors, including the applicant, to take reasonable care to protect those persons from physical injury. What is required to discharge that duty depends on all the circumstances of the case: Vairy v Wyong Shire Council (2005) 223 CLR 422 applied. 3. There is no duty to warn per se. The relevant question is whether the standard of care required to discharge the respondent’s duty of care required the erection of warning signs or a barrier: Nagle v Rottnest Island Authority (1993) 177 CLR 423, Leichardt Municipal Council v Montgomery (2007) 230 CLR 22 applied. 4. The proper assessment of the alleged breach of duty depends on the correct identification of the risk of injury because only then can an assessment be made as to what is a reasonable response to that risk: Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454 applied. The risk must be assessed from the perspective of a reasonable person in the position of the applicant. The risk facing the applicant was that he would descend down the escarpment, believing it to be a path to the beach and through inadvertence, speed or accident would be unable to stop when he came to the vertical cliff. 5. It follows from that characterisation of the risk, that the risk was not obvious for the purposes of ss 36 and 38 of the CLA. 6. Sections 20 and 32 of the CLA codify the Shirt calculus and set out the standard of care to be exercised by the respondent, as the occupier of the land where the accident occurred: Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106 applied. The inquiry into risk, although performed after the accident, must be assessed prospectively and objectively: Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 applied. 7. The risk of harm was foreseeable for the purposes of ss 20(2)(e) and 32(1) of the CLA and was not insignificant. 8. The respondent is only negligent if it failed to take precautions against the risk of harm that a reasonable person in its position would have taken: ss 32(1)(c) and 32 of the CLA applied. The area was remote. The probability of the risk materialising, although foreseeable, was low. The burden of taking precautions was significant, particularly taking into account the whole of the Council area: Romeo v Conservation Council of the Northern Territory (1998) 192 CLR 431, Vairy v Wyong Shire Council (2005) 223 CLR 422 applied. There was no reason why a sign or barrier would be placed at the point of descent as distinct from other places on the edge of the car park and the escarpment. In the circumstances of this case, reasonableness did not require any response to the foreseeable risk. 9. Given the above findings, questions of causation, contributory negligence, volenti non fit injuria and s 244 of the Local Government Act do not strictly need to be considered. Local Government Act 1999 (SA) ss 3, 39, 244(1); Civil Liability Act 1936 (SA) ss 3, 19, 20, 31, 32, 36, 37, 38, 44 50; Road Traffic Act 1961 (SA) ; Civil Liability Act 2002 (NSW) ss 5B, 5F, 5L, 43; -- 2 of 103 -- Wrongs Act 1958 (Vic) s 84; Civil Law (Wrongs) Act 2002 (ACT) s 111(2); Civil Liability Act 2002 (Tas) s 40(2); Civil Liability Act 2002 (WA) s 5Y(2), referred to. Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87; Jones v Dunkel (1959) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1; Smith v Samuels (1976) 12 SASR 573; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASC 458; Peter Steven Benic v State of New South Wales [2010] NSWSC 1039; Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479; Vairy v Wyong Shire Council (2005) 223 CLR 422; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Brodie v Singleton Shire Council (2001) 206 CLR 512; Department of Housing and Works v Smith (No 2) [2010] WASCA 25; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; Sydney City Council v Dell’Oro (1974) 132 CLR 97; Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; Ballina Shire Council v Moore [2023] NSWCA 155; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; Chapman v Hearse (1961) 106 CLR 112; Rosenberg v Percival (2001) 205 CLR 434; State of Queensland v Kelly (2015) 1 Qd R 577; Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128; Council of the City of Greater Taree v Wells (2010) 174 LGERA 208; Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; Collins v Clarence Valley Council (2015) 91 NSWLR 128; Fallas v Mourlas (2006) 65 NSWLR 418; Wyong Shire Council v Shirt (1980) 146 CLR 40; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217; State of New South Wales v Fahy (2007) 232 CLR 486; Morris v Redland City Council [2016] 1 Qd R 339; Tame v State of New South Wales (2002) 211 CLR 317; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Wilson v Nilepac Pty Ltd trading as Vision Personal Training (Crows Nest) [2011] NSWCA 63; Burwood Council v Byrnes [2002] NSWCA 343; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Chappel v Hart (1998) 195 CLR 232; Queen Elizabeth Hospital v Curtis [2008] SASC 344; Betts v Whittingslowe (1945) 71 CLR 637; Naxakis v West General Hospital (1999) 197 CLR 269; Imbree v McNeilly (2008) 236 CLR 510; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Chotiputhsilpa (by his tutor Chotiputhsilpa) v Waterhouse [2005] NSWCA 295; McHale v Watson (1966) 115 CLR 1099; Schuller v SJ Webb Nominees Pty Ltd [2015] SASCFC 162; Roggenkamp v Bennett (1950) 80 CLR 292; Woods v Multi Sports Holdings Pty Ltd (2002) 208 CLR 460; Stovin v Wise [1996] AC 923; Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; Weiss v the Queen (2005) 224 CLR 300; SAS Trustee Corporation v Miles (2018) 265 CLR 137; Puntoriero v Water Administration Ministerial Corporation (1999) 1999 CLR 575; Edwards v Virgin Blue International Pty Ltd (2020) 136 SASR 551; Scala v Mammolitti (1965) 114 CLR 153; Macmahon Mining Services v Cobar Management [2014] NSWSC 731; Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 386; Allianz v Waterbrook [2009] NSWCA 224; Alstom v Yokogawa Australia (No 7) [2012] SASC 49; Valentine Falls Estate Pty Ltd v SMEC Australia Pty Ltd [2010] WASC 319; SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138; Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2) [2013] WASC 356; Saint Line Ltd v Richardson, Westgarth & Co Ltd [1940] 2 KB 99, considered. -- 3 of 103 -- -- 4 of 103 -- WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3) [2024] SADC 37 Contents Introduction............................................................................................................ 3 The trial .................................................................................................................. 4 The accident site .................................................................................................. 10 Findings as to the Accident Site ....................................................................... 12 Travel to the accident site .................................................................................... 14 Findings as to travel to the accident site........................................................... 16 Arrival at the accident site ................................................................................... 17 Was the area a car park or a turnaround area? ................................................. 17 Maintenance of the Car Park ............................................................................ 18 Creation of the Car Park ................................................................................... 20 Creation and maintenance of Greenly Beach Road to the Car Park ................ 22 Findings as to the creation and maintenance of Greenly Beach Road ............. 25 Arrival at the Car Park and view on arrival...................................................... 26 Findings as to arrival at the Car Park and the view .......................................... 27 Actions of the group and in particular the applicant on arrival at the Car Park 28 Findings as to actions on the arrival at the Car Park ........................................ 29 Risk and view from the top of the escarpment .................................................... 32 Lay witnesses’ evidence on the escarpment issues .......................................... 32 Expert psychological evidence on the perception of the escarpment from the point of descent-Professor Coyle and Professor Alais ..................................... 36 Expert evidence of Ms Mellen ......................................................................... 39 Submissions on the escarpment issues ............................................................. 39 Findings on the escarpment issues ................................................................... 40 Descent of the escarpment by Gregory and Mr Burk .......................................... 44 Submissions on the descent of the escarpment ................................................ 45 Findings on the descent of the escarpment ....................................................... 46 Events following Gregory landing on the rocks .................................................. 47 Council allocation of funds .................................................................................. 47 Expert evidence ................................................................................................... 49 Ms Mellen-road related area and buffer zone .................................................. 49 Mr Verco - causes of the accident and the response of the Council ................ 52 -- 5 of 103 -- [2024] SADC 37 2 Professor Coyle and violations and the responding report of Professor Alais . 52 Civil Liability Act ................................................................................................ 55 General duty of care and scope of duty ............................................................... 58 Duty to warn ..................................................................................................... 59 Characterisation of the risk of harm .................................................................... 63 Obvious risk ......................................................................................................... 65 Breach of duty...................................................................................................... 68 Foreseeability ................................................................................................... 71 Significance of the risk ..................................................................................... 72 Reasonable response to the risk........................................................................ 73 (i) General principles ............................................................................... 73 (ii) Probability of harm ............................................................................. 75 (iii) Likely seriousness of harm.................................................................. 75 (iv) Burden of taking precautions .............................................................. 76 Other sites ..................................................................................................... 77 (v) Social utility ........................................................................................ 80 (vi) Evaluative exercise.............................................................................. 80 (vii) Failure to inspect and assess ............................................................... 84 (viii) Draft Coastal Management Plan and Plan entitled “Coastline. Developing a management strategy for coastal cliff erosion hazards in South Australia” .................................................................................. 86 Coastal Management Plan ................................................................................... 86 Causation ............................................................................................................. 87 Contributory negligence ...................................................................................... 90 Volenti non fit injuria ....................................................................................... 92 Section 244 of the Local Government Act .......................................................... 93 Wrongful act ..................................................................................................... 94 Direct consequence........................................................................................... 97 Conclusion ........................................................................................................... 99 -- 6 of 103 -- [2024] SADC 37 3 WARREN BY HIS LITIGATION GUARDIAN DIRELLE FARR v DISTRICT COUNCIL OF THE LOWER EYRE PENINSULA (No 3) [2024] SADC 37 CIVIL Introduction 1 On Wednesday 18 December 2013, the applicant, Mr Gregory Warren (the applicant or Gregory), suffered very severe injuries, including a traumatic injury to the brain as well as significant physical injuries, when he fell about 10 metres from a cliff onto rocks on a beach about two kilometres north of Greenly Beach on Eyre Peninsula. The applicant had got out of a motor vehicle at the top of the cliffs near the beach and descended down, what I will neutrally refer to as an escarpment, towards the beach. Unknown to the applicant, the escarpment ended in an abrupt and vertical cliff. The vertical cliff could not be seen from the top of the escarpment. The applicant fell over that vertical cliff and onto rocks at the beach. 2 As a result of his injuries, the applicant’s mother, Ms Direlle Farr, has been appointed as his litigation guardian for the purpose of carrying on these proceedings. 3 The applicant claims damages from the respondent, the District Council of the Lower Eyre Peninsula (the Council), arising from the personal injuries he sustained when falling from the cliff. The applicant claims that the Council, as the occupier of the land where the accident occurred, breached the duty of care that it owed to members of the public who were visiting the area, including the applicant, by failing to place signs and barriers that would warn a visitor of the danger posed by the cliff and direct them to proceed to the beach by a safe route and further by failing to conduct a risk assessment of the area which would have led to mitigation measures being taken such as a warning sign or barrier being erected. The applicant did not submit that the guards or barriers would have prevented any form of access to the beach by way of the escarpment, rather they would have acted as an appropriate warning. 4 The applicant claims that the Council, having created and maintained a road to a car park from which he descended towards the beach and having created and maintained that car park, breached its duty of care by failing to take the actions to which I have referred. The applicant contends that, having created and graded Greenly Beach Road down to the car park, the Council was encouraging visitors to travel to the car park area and the beach as there was only a bush track to the north of the car park area. Having created the road and the car park, situated above a beach, the applicant submitted that the duty to erect a warning sign or barrier or to conduct a risk assessment of the area was engaged. The applicant submitted that the visitors who came to the accident site included persons in the class of the -- 7 of 103 -- [2024] SADC 37 4 applicant, namely teenagers, who might not appreciate the dangers of descending the escarpment. 5 The applicant contended that the risk could not be characterised as an obvious risk as the vertical cliff could not be seen from the top of the escarpment. 6 The creation and maintenance of the road and the car park by the Council (and whether the area was properly called a car park) were in contention and the subject of expert evidence and some lay evidence. For purposes of convenience, I will refer to the area neutrally as the Car Park as that is the most convenient label to describe the area. 7 The Council denied that it owed a duty of care to the applicant or that it breached any duty if one was owed. The Council referred to the remoteness of the place where the accident occurred (the Accident Site). It said that the escarpment constituted an obvious risk to any reasonable person in the position of the applicant and also referred to the line of cliffs to the north that were clearly visible from the Car Park. The Council said that its area was vast and included over 700 kilometres of coastline and there was no duty to place warning signs or barriers at every cliff location. The Council also relied upon a number of statutory defences including: 1. Pursuant to s 244(1) of the Local Government Act 1999 (SA), it was not liable as the occupier of the community land upon which the accident occurred, as the injury was not a direct consequence of a wrongful act on the part of the Council; 2. The risk was an obvious risk and the applicant voluntarily assumed that risk, relying on the presumption created by s 37 of the Civil Liability Act 1936 (SA)(the Civil Liability Act); 3. Pursuant to s 38 of the Civil Liability Act, any duty owed by the applicant did not extend to warning the applicant of an obvious risk; and 4. If the Council was negligent, then, pursuant to s 50 of the Civil Liability Act, the applicant was contributory negligent such that any damages awarded to him should be reduced to nil. 8 The trial only dealt with the issue of liability. The Court had earlier made an order for separate trials of liability and quantum.1 The trial 9 After hearing part of the opening, the Court and the parties travelled to Port Lincoln and over a period of two days conducted a view of the Accident Site and its surrounds, including Greenly Beach Road, which was the road leading to the Accident Site. The view also included visiting some other sites within the 1 Warren v District Council of the Lower Eyre Peninsula [2020] SADC 87. -- 8 of 103 -- [2024] SADC 37 5 Council area that involved access to a beach from a cliff top area and observing what safety measures the Council had put in place at those sites. 10 What was observed and said on the view is of course not evidence. The view assists the Court to understand the evidence that is given about the various locations that were visited on the view. The Council made some written submissions as to what happened on the view. I do not take those matters into account as they did not form part of the evidence that was received at trial. However, some of the other sites that were visited on the view were the subject of evidence, primarily by way of photographs. In the absence of direct evidence about the other sites, such as the number of visitors to the site, the construction of a road to the site and the facilities at the site, the history of the site and any accidents, it is difficult to make any direct comparisons between those other sites and the Accident Site that informs how the Council should have responded to the risk at the Accident Site. Where the evidence of other sites seen on the view was useful was in observing some of the other safety measures that had been adopted at those sites. 11 In these proceedings, some 275 photographs were tendered (exhibit A11) of the Accident Site and its surrounds and the other sites visited on the view. Some of the photographs were taken by drones. Further photographs of the Accident Site and the surrounding area were also tendered. These included a bundle of seven photographs taken by one of the members of the Country Fire Service (CFS) who attended on the day of the accident and who assisted in the retrieval of Gregory from the beach. These are the photographs numbered 1-7 of exhibit A12. Mr Graham Warren (Graham), the brother of Gregory, and his mother, Ms Farr, attended the Accident Site on 14 February 2014, about 2 months after the accident, and took a further 93 photographs of the site (photographs 8-100 of exhibit A12). In addition, a further 16 photographs were taken on a visit to the site by Gregory’s solicitor in January 2017. These are the photographs numbered 101-116 of exhibit A12. Some of the lay witnesses gave evidence of the Accident Site, the Car Park and Greenly Beach Road. The traffic engineers called by the parties, Ms Mellen and Mr Verco respectively, gave evidence about Greenly Beach Road, the Car Park and the escarpment. Professor Coyle and Professor Alais, the expert psychologists called by the parties, also gave evidence about the Accident Site, although Professor Coyle had not visited the site in person. 12 Gregory did not give evidence. It was accepted by the Council that he was amnesiac in relation to the events of the claim. A report from a Dr Stephen Buckley, a consultant physician, which was accepted by the Council, stated that in almost all cases, a person who suffered a brain injury of the type sustained by Gregory, would have no memory of the events leading up to the accident and the accident itself. 13 The applicant called four lay witnesses and two expert witnesses. Three witnesses, Mr Graham Warren, Mr Elijah Burk and Mr Louis Stevens were part of the group who travelled with Gregory to the Accident Site on the day of the -- 9 of 103 -- [2024] SADC 37 6 accident. Graham and Mr Burk were 18 years of age at the time and Mr Stevens was 19 years old. They gave evidence as to the events on that day, their observations of Greenly Beach Road, the Car Park, the escarpment and the areas proximate to the Accident Site. Graham also returned to the site in February 2014 to take some further photographs, to which I have already referred. Mr Brian Foster, a local farmer, who had lived and worked in the area most of his life and was part of the CFS rescue team that retrieved Gregory from the beach. He also gave evidence about the use of the beach over the years, the creation and maintenance of Greenly Beach Road and the appearance of the escarpment and other areas near the Accident Site. 14 The applicant called two expert witnesses: Ms Mellen and Professor Coyle. Ms Mellen is a chartered engineer with specific expertise in traffic and transport engineering. She prepared four reports. These reports dealt with the classification, construction and maintenance of Greenly Beach Road and the Car Park and risks associated with those areas and in particular, the Car Park. 15 The first report addressed the risk assessment and engineering requirements for the Car Park and the need for warning signs. The second and third reports of Ms Mellen addressed the report of the Council’s expert, Mr Verco. Ms Mellen disagreed with Mr Verco’s conclusions about the grading and the trafficability of Greenly Beach Road. She also disagreed with his conclusions about the safety issues, risk assessments and standards associated with Greenly Beach Road. In her third report, Ms Mellen provided a further opinion on the formation of Greenly Beach Road and the nature of the Car Park. The fourth report dealt with grader movements along Greenly Beach Road and the Car Park and an analysis of the Fleetminder data which recorded the movements of the graders. 16 Professor Coyle is a psychologist and human factors engineer and provided four reports. In his first report, he stated that in his opinion the decision to leave in situ the path down the escarpment when the Car Park was graded invited individuals to traverse the path to the edge of the vertical cliff. Failure to inform visitors by way of appropriate warning signs or placing a barrier were violations or knowledge based mistakes. He stated that there was a lack of visual cues to enable the applicant to perceive that he was proceeding into danger. In Professor Coyle’s opinion, warning signs or barriers would have been effective to deter visitors such as the applicant from descending down the escarpment. In his second report, Professor Coyle confirmed his previously expressed opinion in light of some additional information or opinions provided by Ms Mellen. In his third report, Professor Coyle responds to the report of the Council’s expert, Professor Alais, and in particular to comments made by Professor Alais about the path taken by Gregory, the visual cues present at the escarpment and the inattentional blindness of Gregory descending down the escarpment. In his fourth report, Professor Coyle corrected some assumptions that he made or was asked to make about Gregory running (the new assumption that he was asked to make was that Gregory was walking) and a wrong date of the erosion of the gully path (which was in fact 2016 and not 2006 as Professor Coyle had originally stated). -- 10 of 103 -- [2024] SADC 37 7 Professor Coyle also stated this his previously expressed opinion in his third report as to inattentional blindness was not relevant. 17 The Council called four lay witnesses and two expert witnesses. 18 Ms Sarah Barns was a member of the group who attended at the Accident Site with Gregory on 18 December 2020. She gave evidence of her observations of Gregory prior to the accident and of the location on the day of the accident. 19 Two witnesses from the Council were called, Mr David Hall and Mr Gary Jutzen. Mr Hall is currently employed as the Works Constructions Coordinator of the Council and previously, from 1994 to 2008, held a supervisory role in relation to the construction and maintenance work of the Council. From 2008 to 2017, he was employed as a general inspector by the Council. He gave evidence about the work undertaken by graders by the Council on Greenly Beach Road and at the Car Park, the Council grading records pre 2014 and the Fleetminder data, which, from 2014, recorded the movements of the graders. He also gave evidence of the instructions provided to Mr Verco. Mr Jutzen was the works manager employed by the Council and gave evidence about the financial position of the Council and the allocation of resources. 20 The Council also called Mr Timothy Mills who is the works manager of the District Council of Elliston which adjoins the Council to the northwest. Like the Council, the District Council of Elliston has control over many cliff top areas from which there may be some form of access to the beaches below. Mr Mills gave evidence about how the District Council of Elliston responded to these issues and the budgetary constraints operating upon that council. Given the different circumstances of each of the locations and the different budgetary position of the District Council of Elliston, I found his evidence to be of no real assistance. 21 The Council called two expert witnesses, Professor Alais and Mr Verco. Professor Alais is professor of experimental psychology at the University of Sydney. Professor Alais provided two reports which responded to the reports of Professor Coyle. In his first report, Professor Alais contested the opinions of Professor Coyle that there was a path down the escarpment or a graded parking area. Professor Alais gave evidence of what he called primary depth cues and optical cues that were present to someone who was commencing a descent from the top of the escarpment that they were approaching a cliff. He considered that a reasonable person, exercising an appropriate degree of caution would have perceived the risk. He disagreed with Professor Coyle about the need for signs or a barrier. Professor Alais’ second report followed his visit to the Accident Site. In that report, he referred to the advantages of having visited the site before the preparation of that report. He also responded to the opinion of Professor Coyle as to inattentional blindness. 22 Mr Verco provided three reports. He is a civil and traffic engineer. His reports and evidence were responsive to the reports and evidence of Ms Mellen and in -- 11 of 103 -- [2024] SADC 37 8 some instances, Professor Coyle. He disagreed with Ms Mellen’s evidence that Greenly Beach Road and the Car Park near the Accident Site had been created and maintained by a grader. In his first report, Mr Verco provided the opinion that Greenly Beach Road was properly described as a track and its condition did not contribute to the accident suffered by Gregory. He said that the Car Park was a rubbled area which had never been constructed as a car park but had been formed through vehicular movements. He said that the Car Park also did not contribute to the accident. He said it would have been unreasonable for the Council to take protective measures given the number of similar areas from which access might be made to beaches and the length of the coastline. The second report was prepared following the view and also provided responses to Ms Mellen’s second report and the report of Professor Coyle. Mr Verco confirmed his opinion about Greenly Beach Road and the Car Park. Mr Verco was of the opinion that Greenly Beach Road as a whole was rarely graded and that it had been a very long time since the section of the road from the top of the hill to the Car Park had been graded and it may have never been graded He said that he did not consider it appropriate or reasonable to expect the Council to place barriers or warning signs at the Car Park. Mr Verco’s third report dated 31 August 2022 responded to the report of Ms Mellen in which she analysed the Fleetminder data. 23 All of the witnesses were truthful and trying to assist the Court. For the reasons that I will later express, I have reservations about the evidence of Graham, Mr Burk and Mr Stevens in relation to the steepness of the escarpment and the appearance of the escarpment. I do not accept the evidence of Ms Barns about Gregory and Mr Burk running down the escarpment. I will set out in detail my assessment of the reliability of all witnesses when dealing with their evidence on particular issues. I also will set out my assessment of the evidence of the expert witnesses. 24 Both parties criticised the failure of the other party to call particular witnesses. The applicant criticised the failure of the Council to call the council employees who actually operated the graders that undertook work on Greenly Beach Road. The Council criticised the failure of the applicant to call other members of the group who attended with Gregory at the Accident Site on the day of the accident. In particular, the Council criticised the failure of the applicant to call Mr Quade Carbine who was also known to have visited the site, with others, in the company of Gregory’s then solicitor, in 2017. 25 Both parties invited me to apply the rule in Jones v Dunkel2 and draw an inference that the uncalled witness would not have assisted that party’s case. If that is the case, the Court may more readily draw an inference fairly to be drawn from the other side’s evidence. I will deal with those matters when addressing that evidence. 2 (1959) 101 CLR 298; [1959] HCA 8. -- 12 of 103 -- [2024] SADC 37 9 26 Both parties also criticised the pleadings of the other side. The applicant submitted that the Council had not pleaded in its defence that Gregory went over the escarpment without surveying the scene. I do not consider that the Council is precluded from making that submission. The Council, in its defence, put in issue the danger and obviousness of the risk of descending the escarpment and the failure of Gregory to properly assess the risk. The Council pleaded that it was obvious that there was no safe route from the top of the escarpment to the beach. The Council pleaded that it was not required to warn the applicant of an obvious risk that was plainly apparent to any reasonable person in the position of Gregory. The Council pleaded, as particulars of contributory negligence, that Gregory failed to keep any proper lookout, failed to satisfy himself that there was a safe means to access to the beach and failed to take any adequate care for his safety. 27 In these circumstances, it is clear that the Council has put in issue the circumstances of Gregory descending the escarpment and whether he exercised reasonable care in doing so. It was not until Mr Burk was called by the applicant that the evidence as to how the descent was made was given. 28 There was no objection taken at any stage during the course of the proceedings until the closing addresses to any evidence or cross-examination on this issue. The circumstances in which Gregory descended the escarpment were always to be a central aspect of the claim. Both Professor Coyle and Professor Alais addressed this issue. 29 The Council also criticised the formulation of the duty of care as pleaded by the applicant. In paragraph [7] of Revision 2 of the Statement of Claim, the applicant pleaded that the Council owed a duty to manage the area adjacent to the rock pools in accordance with the Council Management Plan for Community Land including Coastal Reserves and in a manner which permitted safe access by members of the public, including the applicant. The applicant conducted its case on the basis of a duty to take reasonable care to prevent loss, not on an absolute basis as pleaded. 30 Neither of the pleading points taken by the parties confines the Court in the way that it should determine the matter. The case of each party was clear and no objection was taken to any evidence that was called by either party. 31 One further aspect of the pleadings requires specific mention. The Council in its Defence-Revision 3 admitted it constructed the road to the Car Park and further that the Car Park was a turnaround area. Mr Hall, the Works Construction Manager of the Council, agreed in cross-examination that he would have given instructions to this effect based on his knowledge. These admissions were withdrawn in the Defence-Revision 4. Given my findings about these matters, I do not have to consider the effect of the withdrawal of the admissions that were made in Defence-Revision 3. -- 13 of 103 -- [2024] SADC 37 10 The accident site 32 The Council admitted in its defence that the location where Gregory fell from the cliff onto the rocks on the beach was community land as that term is defined in the Local Government Act 1999 (SA). The Council further admitted that the accident occurred on Crown Land owned by the State of South Australia and dedicated to the care, control and management of the Council by gazettal notice dated 19 November 1992. It is implicit in this plea and in its reliance on the defence provided for in s 244 of the Local Government Act that the Council accepts that it was the occupier of the area where the accident occurred. 33 The Council also admitted in its defence that it was responsible for the maintenance of Greenly Beach Road and associated infrastructure but denied that it created or maintained infrastructure in the vicinity of the Accident Site. The Council further pleaded that Greenly Beach Road was a coastal access or scenic track which catered for very low volumes of traffic and was a category 5 road for the purpose of the Road Classification Guidelines of South Australia. 34 Given these admissions, there is no contest that the Council is the occupier of the land at the Accident Site for the purposes of the Civil Liability Act and a claim in negligence. 35 Mr Foster is a local famer who gave evidence about the Accident Site. Part of his farm is near the Accident Site and he has travelled along Greenly Beach Road frequently. He described how he moved farm machinery from one of his properties to the other and for that purpose drove along Greenly Beach Road (from its intersection with Coles Point) to the top of the hill (point 4 on exhibit A10) and then across private property to reach his own property. He has visited the Car Park above the Accident Site and the nearby beaches between 50-100 times over a period of some 40 years over the years. He was well placed to make observations about Greenly Beach Road, the Accident Site and how often visitors travel along that road to the Car Park. I accept his evidence. 36 He said that Greenly Beach Road was re-aligned many years prior to the accident. Mr Foster gave evidence, which I accept, that access to the beach at the Accident Site, which he described as End of the Road Beach, was initially through the ravine that is to the south of the Accident Site (or closer to Coles Point Road). However, the ravine was washed out 20-25 years ago. Prior to the wash out of the ravine, Mr Foster said that the graded road ended at the ravine and there were only tracks from there on. He said that following the wash out of the ravine, the graded road was extended to the Car Park. 37 Mr Foster said that north of the Car Park, the road continues, but is noticeably rougher and narrower. The part of Greenly Beach Road from the top of the hill to the Car Park (being from points 4 to 5 on exhibit A10) is narrower than the part of Greenly Beach Road from its commencement to the top of the hill (being from points 1-4 on exhibit A10). -- 14 of 103 -- [2024] SADC 37 11 38 The now well-known Greenly Beach Rock Pools are south of the Accident Site. Following the wash out of the ravine, Mr Foster said that End of the Road Beach was accessed by the sandy gully to the north of the Car Park (the sandy gully). Mr Foster said that the sandy gully was a drainage gully caused in heavy rain events. It was through this gully that Gregory was brought up from the beach by the CFS on the day of the accident. He said that he had used the sandy gully a number of times over the years and that was his usual route to the beach. There was a storm in 2016 (post the accident) where the bottom part of the sandy gully was eroded. The sandy gully is more difficult to access today than it was on the day of the accident and now requires the use a rope at the end of the sandy gully to access the beach. 39 Mr Foster gave evidence about the usage of Greenly Beach Road over the years. He said at the time that visitors accessed End of the Road Beach through the ravine, there was fairly low impact at that stage, visitors numbers were minimal and mostly locals. He said that there has been increased public use. He said that ten years ago, he observed vehicles travelling along Greenly Beach Road to the Accident Site. He said there might be two or three cars at different locations along there. There was high intensity at peak holiday times at Christmas through to Easter. He observed people on the beach, swimming, a lot of fishing and surfing. He has seen people using the area all along Greenly Beach Road, including at the End of the Road Beach. He said that he has accessed the rock pools for 30-40 years. He said that he would go to the End of the Road Beach up to 10 times a year. 40 Mr Hall said that the area where the Accident occurred was an area where people went to surf and fish and was a spot where he went to have lunch when he was part of the grading team because it had a nice view. 41 Mr Jutzen described the levels of patronage at Greenly Beach in 2013 as being relatively low and regarded the Accident Site as a remote location used predominantly by local fishermen and surfers. In more recent times, and since the accident, Greenly Beach Rock Pools (and not the rocks pools at the Accident Site) have been promoted as a tourist attraction (not by the Council)(see exhibit A25). He said that the Accident Site was not and still is not a tourist attraction and just another of many rock pools in the area or that are located along the coast. 42 Mr Verco and Ms Mellen also addressed the question of access to the beach through the sandy gully. In his first report dated 1 June 2021 (exhibit R45), Mr Verco referred to the sandy gully, although not as steep as the escarpment, as still being “very rough, steep and quite treacherous with large rocks protruding, along with lots of lose sand.” He said that “there is no way that this valley approach could reasonably be considered to be a safe access trail leading to the beach”. I note that Mr Verco in his report referred to advice that he received from Mr Foster that the sand had been graded steeply down to the beach in the last section of the sandy gully (where the storm in 2016 caused the sand mound to be washed away and there is now a metal post with a rope attached requiring someone to accessing the beach to use that rope and abseil down the last section). At Court, Mr Foster -- 15 of 103 -- [2024] SADC 37 12 did not give that evidence and I do not take into account Mr Verco’s comments that rely upon Mr Foster and how that last section of the sandy gully appeared in December 2013 at the time of the accident. 43 In her second report dated September 2021 (exhibit A2), Ms Mellen referred to those observations and agreed that the sandy gully could not be considered an access trail but said it was not the lack of an access trail that is relevant to whether safe access could be provided to the beach. Ms Mellen did not directly respond to the statements made by Mr Verco about the steepness and treacherous nature of the sandy gully. 44 In his second report dated 18 July 2022 (exhibit R46), Mr Verco repeats his observations about the sandy gully as a highly eroded depression valley and being still very steep and unsafe with loose sand. He also refers to photographs 92, 93 and 98 to 103 of exhibit A11 as showing the steepness of the sandy gully (recognising that the rope and metal stake were not present at the time of the accident and the bottom section had changed because of the storm in 2016). He said that the sandy gully was approximately 90 metres from where the car in which Gregory travelled was parked. He calculated that distance from the aerial photography. Professor Coyle, in his third report, estimated the distance to be 50 metres. 45 Photographs 1-5 of exhibit A12 show the sandy gully on the date of the accident as the CFS were carrying Gregory up that gully. 46 Mr Verco in his first report (exhibit R45) and Ms Mellen in her first report (exhibit A1) provided a description of the Car Park, which I accept. 47 I have also had regard to documentary evidence describing the location. Findings as to the Accident Site 48 I make the following findings. 49 The Accident Site and the Car Park are remote and a considerable distance from any town. They are reached by travelling along Flinders Highway. Leaving Flinders Highway, a visitor must then turn down a well-constructed dirt road, Coles Point Road, heading towards Coles Point, a distance of about 12 kilometres. Coles Point Road is signposted at the intersection of Flinders Highway and Coles Point Road. Coles Point is approximately 50 kilometres north of Coffin Bay3 and it follows that the Accident Site is about the same distance. Also at the intersection of Flinders Highway and Coles Point Road, was a sign to “Greenly Beach 12.” Greenly Beach Road is a dirt road, situated about 1.7 kilometres from Coles Point (or about 10.2 kilometres from the intersection of Flinders Highway and Coles Point Road). It is accessed by turning right from Coles Point Road. There is a sign to Greenly Beach at the intersection. 3 See Draft Coastal Management Plan, March 2001 (exhibit A56, document 6). -- 16 of 103 -- [2024] SADC 37 13 The sign at the intersection of Coles Point Road and Greenly Beach Road at the time stated “Greenly Beach Rd” with a further sign underneath stating “Greenly Beach 2km” (photograph 17 of exhibit A12). Greenly Beach itself is accessed by turning left off Greenly Beach Road, a short distance from the intersection of Coles Point Road and Greenly Beach Road. Greenly Beach Road is 7.06km in length from its commencement at the intersection of Coles Point Road to its end at a point north of the Car Park. Greenly Beach Road becomes narrower from the top of the hill down into the Car Park. 50 At the time of the accident in December 2013, the area could be described as a wilderness coastline although it was beginning to change because the number of visitors were increasing. That was the evidence of Mr Foster which I accept. 51 There are no facilities of any type at the Car Park or along Greenly Beach Road. The Accident Site could not be described as a tourist attraction at the time of the accident. 52 The Car Park is a flat open area and is made of rubble. The Car Park is between 20-28 metres wide and approximately 30 metres from the far end back to the access road. There are visible wheel ruts in the Car Park. There is a slightly raised middle area. Multiple vehicles are able to park there. It is large enough for vehicles to easily turn around. There are no signs warning of any danger. There are no barriers in the Car Park. 53 The sandy gully was the usual way by which visitors to the area accessed the beach from the Car Park. As both Ms Mellen and Mr Verco agreed, the sandy gully could not be considered as an access trail to the beach. I consider that Mr Verco overstated the treachery and steepness of the sandy gully at the time of the accident. I consider his evidence on this issue to be contrary to the evidence of Graham and Mr Foster who had both accessed the beach using the sandy gully and the photographic evidence (photographs 1-5 of exhibit A12). That said, the sandy gully posed a steep route by which access to the beach could be obtained and as the Council submitted, presented its own challenges. The sandy gully was about 90 metres north of the place where Mr Stevens parked his car in the Car Park. Mr Verco was not challenged on his calculation of that distance. Ms Mellen did not make any alternate calculation. Professor Coyle referred to the sandy gully being 50 metres north of the accident site but he had not been to the Accident Site. I prefer the evidence of Mr Verco on this issue. In his second report (exhibit R46 at [4.6.11]), he measured that distance from aerial photography. There is no evidence to suggest that Professor Coyle did anything other than make an estimate. 54 A track leads from the Car Park to the north towards Convention Beach (which is about 6 kilometres further on), but is a narrow track, inferior to the road leading into the Car Park and which, as Mr Graham Warren and Mr Burk stated, is suitable only for four wheel drive vehicles. Ms Mellen and Mr Verco said in their reports that the track narrowed to about 3 metres north of the Car Park. Mr Hall agreed that the road into the Car Park was very different from the track to -- 17 of 103 -- [2024] SADC 37 14 the north, towards Convention Beach. I accept the submission of the applicant that the Car Park can properly be considered to be the end of Greenly Beach Road. 55 As at the date of the accident, the predominant visitors to the site were surfers and fishermen with increased visitors at school and public holidays although visitor numbers were low. Travel to the accident site 56 The accident occurred on Wednesday 18 December 2013. Mr Graham Warren, Mr Burk, Mr Stevens and Ms Barns all gave evidence about the events leading up to the accident and in the most part, there is no dispute about these events. As might be expected when witnesses are asked to recall events many years previous, recollections will differ as to some of the detail of those events. In this case, those differences of the events leading up to the accident are not significant. 57 Graham gave evidence that he and a group of friends, including Gregory, travelled to the Accident Site on 18 December 2013. It was a very hot day, with clear skies. The group comprised young adults, about 17-18 years of age. Graham himself was 18 years of age as at December 2013. Gregory was 17 years of age. They travelled in three cars to the Accident Site, one car driven by Graham, one vehicle driven by Mr Stevens and one car driven by Renee. It was the evidence of Graham that his girlfriend, Ebony, and another friend Mr Carbine, travelled in his car and that Gregory, Mr Burk and Mr Nick Ormsby travelled in Mr Steven’s car. He could not recall who exactly was in Renee’s car but believed Ms Barns and a girl called Tarshi were in that car. 58 Graham said that he and his girlfriend had been to the rock pools a few times before, which he knew as the mermaid pools. On these occasions, he accessed the beach by the sandy gully to the north of the Car Park (which he had been shown by Ebony’s father). Graham had once travelled down the escarpment on one of these occasions but knew of the vertical cliff when he made that descent. 59 Graham gave evidence that it was likely that he or Ebony suggested that they go to mermaid pools on the day of the accident. 60 Graham said that he, Ebony and Mr Carbine met the rest of the group at about the turn off to Greenly Beach Road from Coles Road. Graham said that there had been some delay while he swapped cars at Ebony’s parents farm so that they could travel in a car that had air conditioning in it. He said that he then travelled to the Accident Site with the other two cars following. 61 Graham gave evidence that all three cars were sedans and were two wheel drives. He said that he could recall the road as being smooth. 62 Mr Burk gave evidence that he was also 18 years of age at December 2013. He agreed that it was a very hot day. He said that he had stayed overnight at the Warren house. He said that Gregory, Graham and Ebony were also there. He can -- 18 of 103 -- [2024] SADC 37 15 recall Mr Carbine being there and Mr Nick Ormsby and Mr Stevens, although Mr Stevens had not stayed the previous night. He said that the day was very, very hot and that Ebony had suggested a swim at Greenly Beach Rock Pools. Mr Burk said that he thought at the time that the rock pools that they were going to were known as the Greenly Beach Rock Pools. That was clearly wrong. The Greenly Beach Rock Pools are about 3 kilometres to the south. Mr Burk said that he had not been to the mermaid rock pools previously. 63 Mr Burk said that he travelled in Mr Steven’s car. He was seated in the back, next to the left passenger door. Mr Stevens was driving. He did not remember where Gregory was seated. Mr Ormsby was also in the car. 64 He can remember stopping at a bottle shop on the way and buying a four pack or six pack of scotch mixed cans. He can remember having a drink but cannot recall who else did. 65 He said that they met up with Graham and Ebony on the highway and he followed them along Greenly Beach Road to the Car Park. He said that Greenly Beach Road was a dirt road with potholes through it. 66 Mr Stevens also gave evidence about that day. He was 19 years of age at that time. He said that a number of people had gathered at the home of Graham and Gregory on the morning of 18 December 2013. He said that someone suggested that they go to the mermaid rock pools, although he could not remember who made that suggestion. He said that he drove his vehicle, a VS Holden Commodore, to the Car Park and that Gregory, Mr Burk and Mr Ormsby were in his car. He said that Mr Ormsby was seated in the front and Mr Burk and Gregory in the back of his car. 67 He can recall going to the service station and the bottle shop and getting a six pack of alcohol and meeting one of the other vehicles, being the vehicle driven by Tarshi, at the intersection of Flinders Highway and the dirt road. He said that he thought that he met up with the vehicle driven by Graham at that point. He said that when going to the mermaids rock pools, he took a wrong turn off Greenly Beach Road down a track where he lost a bumper bar. He said that he did not have any trouble driving along Greenly Beach Road and that it was a relatively smooth, dirt road. I accept the submission of the applicant that the fact that Gregory was in Mr Steven’s car when they took a wrong turn (and the fact that they waited for Graham to arrive and lead the cars to the Car Park) supports an inference that Gregory had not been to the rock pools or the Accident Site previously. 68 Ms Barns was another of the group of friends who travelled to the mermaid rock pools on the day of the accident. She was then 18 years of age. She could recall Gregory, Graham, Mr Stevens, Mr Burk and Renee also being part of the group. She thought that there were a couple of other girls but could not say definitively that this was the case. She said that Renee was driving the car in which she was a passenger. In cross-examination, she confirmed that she believed Renee -- 19 of 103 -- [2024] SADC 37 16 was driving and that Tarshi was sitting in the passenger seat. She could not remember where she was sitting. She could remember two cars but thought there was possibly a third vehicle. She could remember the bumper bar falling off Mr Steven’s car when they were on a dirt road. Findings as to travel to the accident site 69 Given that the events occurred about 10 years ago, it is not surprising that the witnesses recalled different aspects of the day and that their memory differed, particularly of peripheral events. 70 However, from the evidence, I am able to make the following findings. 71 The group first assembled at the home of Graham and Gregory’s parents. I am not able to find whether Graham and Ebony were there or met the group later at or near the intersection of Flinders Highway and Coles Point Road. 72 The day was very hot. The skies were clear. Either Graham or Ebony suggested that they go to the mermaid rock pools. Graham and Ebony were the only members of the group who had been to the rock pools previously. 73 The group travelled to the mermaid rock pools in three cars; one driven by Graham in which Ebony was a passenger; one driven by Mr Stevens in which Mr Ormsby, Mr Burk and Gregory were passengers, Mr Ormsby being in the front passenger seat and Mr Burk and Gregory being in the left and right back seats respectively, and a third car being driven by Renee in which Ms Barns and Tarsi travelled. I consider it more likely that Renee was driving this third vehicle. This is the memory of Ms Barns who was in that vehicle and more likely to remember. It was the evidence of Graham that it was Renee’s car. 74 At some stage, the group took a detour onto a dirt track off Greenly Beach Road and Mr Stevens lost a bumper bar on that dirt track. 75 Greenly Beach Road to the Car Park was a dirt road, with many potholes, but could reasonably be driven by two wheel drive vehicles. This was the evidence of Mr Foster, a farmer who lived and farmed near the Accident Site and was the witness most familiar with the site and road. He said the road into the Accident Site was trafficable, you could get through, but you wouldn’t take your Sunday best car. Mr Burk also confirmed the existence of the potholes. I consider that Graham and Mr Stevens were overstating the condition of Greenly Beach Road. I prefer the evidence of Mr Foster who was independent and had travelled over the road many times and was most familiar with its condition. 76 The car driven by Graham was in the lead, the car driven by Mr Stevens was next and the car being driven by Renee following. Insofar as Ms Barns gave evidence that she thought the car driven by Renee arrived first at the Car Park, I consider that she was mistaken. She agreed in cross-examination that it was possible that she was mistaken and that she did not recall those details. Graham and -- 20 of 103 -- [2024] SADC 37 17 Ebony were the only members of the group who had been to the rock pools previously and it is likely therefore that they led the way. The area was remote and it would not be clear to a new visitor to the site where they should go. I accept the evidence of the other members of the group that it was the car driven by Graham that was in the lead, the car driven by Mr Stevens followed and the car driven by Renee was the third car in the convoy. Ms Barns admitted that it was possible that this was the case and she did not remember all of the peripheral details and only the more traumatic details. The other witnesses all agreed that this was the sequence of cars. Arrival at the accident site 77 There are a number of significant factual issues in dispute relating to the arrival of Gregory at the Car Park. They are: 1. Was the area a car park, as the applicant claims, or a turnaround area as the Council contends? 2. Did the Council construct the Car Park? 3. Did the Council maintain the Car Park? 4. Did the Council create and maintain Greenly Beach Road? 5. Where, in the Car Park, did Gregory arrive and what was the view from the Car Park upon arrival? 6. What is the view from the top of the escarpment, at the point where Gregory commenced descending the escarpment? 7. What were the actions of Gregory and other members of the group upon arrival at the Car Park to the time Gregory commenced descending the escarpment? Was the area a car park or a turnaround area? 78 The parties disagreed upon the proper characterisation of the area where the vehicles pulled up at the Car Park to access the rock pools. The applicant called the area a car park. The Council described the area as a turnaround area. The parties also disagreed on whether the Car Park had been created (i.e. man-made) and whether the Council was responsible for its maintenance. 79 Photographs of the Car Park form part of exhibit A11 (photographs 76-78) and exhibit A12 (photographs 64-71 and 112). They show a wide area with a small mound in the middle. The road continues past the Car Park although it is narrower and less well constructed. It is properly described as a track past that point and requires a four wheel drive vehicle. -- 21 of 103 -- [2024] SADC 37 18 80 There was no evidence of the purpose of the Council or any other party in creating the Car Park. 81 I consider that the area functioned as both a car park and a turnaround area. That was the opinion of Professor Alais who stated that the area was functionally akin to a car park although, in his opinion, it does not appear to have the hallmarks of a deliberately and purposefully graded car park. Ms Mellen stated that the area was formed to be the end of the road where you could turn around or park your vehicle. 82 I agree with that characterisation. I do not consider that it is a binary choice between characterising the area as a car park or a turnaround area. The area was used as both. The evidence about the continuation of the road past the Car Park as only a track to the north suggests that many people would turn round or park at the Car Park. The evidence from Mr Foster that he would see people travel along Greenly Point Road and park at the area demonstrates that it was used as a car park. The evidence of Mr Hall that he would commonly park at the area at lunchtime when he held the position of works manager at the Council also supports the use of the area as a carpark. Maintenance of the Car Park 83 I accept the evidence of Ms Mellen that there was evidence of some maintenance grading of the Car Park. The manual records of the Council indicate that grading occurred along the length of Greenly Beach Road. That includes to and from the Car Park. The manual records do not indicate where along the length of the road that grading occurred. The Fleetminder records for the period from 2015-2018 also show that the grader was in the Car Park. The movements of the grader in the Car Park, the number of times that it was in the Car Park and the speed at which the grader was travelling in the Car Park give rise to the inference that the grader was conducting grading activities in the Car Park. I accept the submission of the applicant that these observations were not consistent with the grader merely driving around the Car Park. Whilst the Fleetminder data was only available for operations after the accident, it does lead, in the absence of any other evidence, to the inference that similar activities would have been conducted prior to the accident. 84 It was within the power of the Council to call the operators of the graders. Mr Hall gave evidence that a Mr Trevor Arnold was the primary operator of the grader known as patrol Q. Mr Arnold had been the operator of patrol O before patrol Q had been purchased. He recently retired and lives in the area. Although he has been sick, there was no suggestion that he was unable to give evidence. Mr Paul Micken had been the operator of patrol O, including along Greenly Beach Road. He still lives in the district. -- 22 of 103 -- [2024] SADC 37 19 85 I consider that the rule in Jones v Dunkel4 has application. That rule states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated at 312: In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 86 Kitto J stated at 308: It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. 87 Davies A-JA (dissenting on the facts) in Ho v Powell5 explained the principle as follows: The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), Handley JA and Beazley JA said ... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. 88 Austin J in Australian Securities & Investments Commission v Rich6 indicated that there are three conditions for the application of the principle: 1. the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence); 2. his evidence would elucidate a particular matter, which is a live matter at the trial; and 3. his absence is unexplained. 89 The onus of establishing the unavailability of a witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.7 4 (1950) 101 CLR 298; [1959] HCA 8. 5 (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168. 6 (2009) 75 ACSR 1 [449]; [2009] NSWCA 1229. 7 Ibid [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573. -- 23 of 103 -- [2024] SADC 37 20 90 The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd:8 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted] 91 In the present case, I consider there was an unexplained failure on the part of the Council to call Mr Arnold and Mr Micken. They were the grader operators who it would be expected would have given evidence on what parts of Greenly Beach Road and the Car Park were graded. They were former council employees, both of whom had only relatively recently retired and who still lived in Port Lincoln or in neighbouring areas. It would be expected that the Council would have called them to give evidence about the grading. No explanation was given as to why they were not called. Further, Mr Wander was the area supervisor who had supervisory responsibility for the grading of unsealed roads. He still lives in the area and is contactable. 92 I consider that an inference is available from the evidence of Ms Mellen and the grading records that grading occurred along Greenly Beach Road and at the Car Park, both at the time that the Car Park area was created and since that time. I am more confidently able to draw that inference given the failure of the Council to call Mr Arnold and Mr Micken. The documentary evidence records grading activity along the whole of Greenly Beach Road to the Car Park. There would need to be cogent evidence, in the face of such documentary evidence, to come to a conclusion that no grading activity occurred in the Car Park. Creation of the Car Park 93 Ms Mellen gave evidence that the Car Park had been formed, in the sense that it was made by someone with a grader although she did not mean it was designed or produced to certain levels. She said that the Car Park had been scraped, as in cleared, and had the form of a trafficable surface. She referred to the fact that the trafficable routes around the central raised area had not formed in wheel paths which would be expected if the area had been created by vehicular movements. She said when an area is formed by vehicular movements, it is formed in wheel paths. She also said that if the area was created by virtue of vehicle movements, the angle of the cross fall across the area would change. She said that the Car Park was formed to be the end of the road where a driver could turn around or park their vehicle. 94 Ms Mellen accepted that there were some contra-indicators to the Car Park having been made. She agreed that the central area of the Car Park showed 8 (2011) 243 CLR 361; [2011] HCA 11 [63]. -- 24 of 103 -- [2024] SADC 37 21 evidence of water pooling in different places from time to time and that was inconsistent with a man made attempt to create a single fall across it for drainage or a camber to facilitate drainage. She said that she accepted there was a possibility that the car park area was formed from the passage of vehicles. 95 Ms Mellen was cross-examined about her use of the word “formed”, but I do not consider anything turns on the terminology that she used. Ms Mellen was clear in the opinions that she expressed. 96 Mr Verco in his first report addressed the opinion of Ms Mellen that the Car Park had been formed. He said from his engineering experience it did not appear that there had been importation of road making rubble to create a formal carpark zone, rather it appeared that naturally occurring materials such as sand and rubble had been progressively moulded into a semi-hard base over which vehicles had passed or parked on. He said that the fact that the area where movements had occurred was lower than the central area suggested that the Car Park had been created by vehicular movements. He said that the Car Park had not been formally constructed to provide a car park to attract visitors to the beach. This conclusion led to his further opinion that the Car Park was not a road related area (i.e.an area that is not a road and is open to or use by the public for driving, riding or parking vehicles).9 97 In his second report, he expressed the view that the Car Park had not been developed as a parking area and again referred to the nature of the material, uneven surface and comments from Mr Foster and the Council. As he accepted in cross-examination, he was not able to point to the source of the comments from the Council that he relied on. 98 The evidence from Mr Foster was that he saw graders working all the way to the Car Park. He was not in a position to observe whether or not the blade was down. 99 Mr Hall stated in his written statement that to his knowledge that the Car Park was not made with the use of the machinery of the Council. He agreed that to actually know that he would need to know whether the grader had been in that area, a fact that he had not observed. He agreed that the grader operators would be the best source of information on this topic. He said however that he had not seen grading activity in that area nor evidence of grading in that area. Mr Hall agreed that there were two mounds towards the centre area of the Car Park and said that would have been created by vehicular traffic. 100 I accept the evidence from Ms Mellen that a grader was used to form the Car Park. I also accept her evidence that the area was level. The photographs demonstrate that the Car Park was in a similar condition in 2014 (when the photographs in A12 were taken) as 2022 (when the photographs A11 were taken). 9 Australian Road Rules, regulation 12. -- 25 of 103 -- [2024] SADC 37 22 As at 2014, the vehicular traffic was relatively minimal and it is difficult to see that it would create such a level area that has not changed over time with increased usage. 101 The evidence of Ms Mellen accords with the circumstances in which Greenly Beach Road was extended to the Car Park. The road was extended from the ravine because of the washout of that area. The Council graded the track that had previously existed from the ravine. The grading continued to the Car Park area but not further given that the track to the north was accepted by all parties as being of noticeably inferior quality. It is therefore logical that the grading took place up to and including the Car Park area and that the graders turned around at the Car Park. I also accept the evidence of Ms Mellen that the Car Park was larger than the turning circle of a normal large grader, suggesting that more than a turnaround area was created. 102 I do not accept the submission from the Council that the Court should infer that if the Council intended to construct the Car Park, it would have done so in a way similar to other car parks at coastal locations within the area of the Council. How a car park is constructed will depend on many factors including its location, its likely use, the resources of the Council, the budget allocated to the project and the level of classification of the road leading into the car park. 103 Again, the issue in dispute appears to be a question of degree. Mr Verco places emphasis on the formality of the construction of the Car Park as indicated by matters such as whether rubble had been imported or whether the area was developed as a car park. That is not the relevant question. It was accepted by Ms Mellen that the surface area of the Car Park was a subgrade of natural forming materials. What is relevant is that the Council did work in the formation of the Car Park. It is true that it is a basic car park in the sense that it is not bituminised or formally designed or set out. Imported materials were not used. The work done was minimal. Creation and maintenance of Greenly Beach Road to the Car Park 104 Mr Foster gave evidence about the history of Greenly Beach Road. He said that it was initially further inland but was realigned in the 1970s or 1980s along the line of the current road. At that time, the road ended at the ravine (that is before the Car Park) with a track leading from the ravine to the Car Park. 105 The uncontested evidence of Mr Foster was that following the wash out of the ravine about 20-25 years ago, the Council graded, what had previously been a track, from the ravine to the Car Park. The Council effectively extended Greenly Beach Road to the Car Park. At the same time, the Council moved the road further north away from the drop off in the ravine. Mr Foster gave evidence that he saw graders from time to time on Greenly Beach Road all the way to the Car Park. He has never seen a grader on the track heading north from the Car Park to Convention Beach. He agreed that he had not made observations as to whether the grader was actually undertaking grading activities. -- 26 of 103 -- [2024] SADC 37 23 106 Mr Hall also agreed that the wash out of the ravine required reconfiguration of the section of the road leading into the ravine (from the top of the hill to point 5 on exhibit A10). He said that the road narrows at about the top of the hill from 8 metres to 5 metres (down to the Car Park). 107 Mr Hall agreed that the Fleetminder data (which electronically tracks the movements of the graders since its introduction by the Council from about 2014), shows that the grader from 2015 had traversed the section down to the Car Park as many as five or six times in the one day. He agreed that would suggest, and was consistent with, grading activity. He also agreed that some of the speeds recorded in the Fleetminder data in this area were consistent with grading. He agreed that the records were consistent with fairly extensive maintenance grading and indicated that they had been scavenging material for one side of the road. 108 Mr Hall said that the term “patrol grading” was used to describe a grader undertaking a continuous grading activity along a section of a road. The terms “spot or maintenance grading” was used to describe grading in particular spots to fix potholes, ruts, blowouts or washouts. He agreed that both types of grading were designed to make or restore the road to a passable and serviceable condition. 109 Mr Hall was referred to the handwritten grading records of the Council that existed up to the introduction of the Fleetminder system in July 2014. That data records one of the graders working on Greenly Beach Road on 9 May 2006, 2 August 2006, 27 November 2007, once in July 2008 and once in September 2008, 25 August 2009, 10 June 2010, 2 June 2011, 20 June 2012 and 8 July 2012. 110 The primary documents, from which the above summary documents were prepared, record that the job length of the grading work at Greenly Beach Road was 7.5km. That distance is the length of Greenly Beach Road from its commencement at Coles Point right to the Car Park. 111 Mr Hall agreed that in the mid-1990s, the Council performed work on Greenly Beach Road in which they formed a section of that road, namely forming up the natural surface and putting shape into it from the top of the hill to the ravine (from point 4 to point 5 on exhibit A10). 112 Ms Mellen in her third and fourth reports addressed the grading of Greenly Beach Road. She expressed the opinion that while it was evident that Greenly Beach Road was not routinely graded, it was graded from time to time (including when created) as evidenced by the entire width of the road being cleared, windrows are formed on both sides of the road, vegetation is limited to the edges of the road and drainage channels have been created on the edge of the road. The fourth report analyses the Fleetminder data and shows that the grader operated on the length of Greenly Beach Road. The Fleetminder system was introduced in 2014 and therefore provides information about the extent of grading activities post-accident and which may inferentially support a finding about the extent of grading prior to the accident. The system records the precise location of the grader -- 27 of 103 -- [2024] SADC 37 24 as it is undertaking grading activities through GPS data. The line of travel of the grader could then be plotted and the number of passes over a particular length of the road. The speed at which the speed of the grader was travelling at particular spots could also be calculated. 113 An analysis of this data and the number of passes and the speed at which the grader was travelling indicated that grading activity was occurring along the length of Greenly Beach Road. The number of passes down to the Car Park is indicative of grading activity having taken place on the section of Greenly Beach Road that leads to the Car Park. That data shows that in the period from 2015-2018, grading activities generally occurred on Greenly Beach Road and the Car Park about once a year. 114 Mr Verco in his second report stated that only a short length of Greenly Beach Road (being from the commencement of the road from the Coles Point Road) was ever graded and then only opportunistically. He said that the section of the road leading to the Car Park had not been graded for a very long time and perhaps when only first cut. In his second report, he said that the Council had likely used a grader down to the Car Park when the road was first formed (exhibit R46 p 22). 115 In his third report (which responds to Ms Mellen’s analysis of the Fleetminder data), Mr Verco said that the data only indicated intermittent grading activity in the last section of the road leading to the Car Park involving remedial action on deformed sections of the road or for the development or maintenance of drainage turnouts or cut outs. He denied that the speed of the grader at the Car Park was indicative of grading activity, rather than turning around movements. 116 It is clear that Mr Verco, in reaching his conclusions about the creation and maintenance of Greenly Beach Road, erroneously relied on statements attributed to Mr Foster that it was Mr Foster’s recollection that there had been very little involvement by the Council in the maintenance of the road nor could he recall the actual construction of the road. He said that Mr Foster told him that rarely would he see a grader near the Car Park. Insofar as Mr Verco also relied on comments from the Council to support his statement, he was unable to identify any such statements. Mr Verco to some extent also relied upon his own observations that Greenly Beach Road had not been graded for a long time. That fact had no relevance as the Council had ceased grading activities over the road in 2018. 117 In cross-examination, Mr Verco accepted that the Council had some involvement in the creation and maintenance of Greenly Beach Road down to the Car Park. He also accepted in cross-examination, that the Council maintained the road by periodic or maintenance grading. He accepted that whatever the description of the type of grading, it was done so as to preserve the integrity of the road. He accepted that there was no question that Greenly Beach Road had been graded in its creation, although not well constructed. Mr Verco also accepted that his statement that Greenly Beach Road (in the area approaching the Car Park) had rarely, if ever, been graded was inconsistent with the Fleetminder data. -- 28 of 103 -- [2024] SADC 37 25 Findings as to the creation and maintenance of Greenly Beach Road 118 I make the following findings. 119 It was not contested that the Council had created Greenly Beach Road to the Car Park by grading the section from the ravine to the Car Park (which had previously been a track) following the washout of the ravine 20-25 years ago. The evidence clearly supports a finding that the Council used the grader in the creation of Greenly Beach Road down to the Car Park. 120 The issue of the grading, particularly of the maintenance grading, appears to be a question of degree. 121 The evidence, both lay and expert (after Mr Verco ultimately agreed to this position) as well as the documentary evidence, including the Fleetminder data, supports a finding that the Council engaged maintenance grading, including on the section of Greenly Beach Road from the top of the hill (point 4 on exhibit A10) leading down to the Car Park. The maintenance grading only took place periodically, generally about once a year. 122 The road was clearly a minor road with a variable surface and width. Ms Mellen said that Greenly Beach Road was properly classified as class U4 or U5 unsealed rural road for the purposes of the Austroads Guide to Pavement Technology, Part 6, Unsealed Pavements. Class U4 is described as an “unformed pavement with single pavement layer over subgrade with a typical daily traffic volume of less than 20 vehicles per day. The material quality is typically natural gravels, pit material or quarry waste.” Class U5 is described as an “unformed pavement comprising subgrade only with a typical daily traffic volume of less than 10 vehicles per day. The material quality is typically vegetation cleared subgrade.” Ms Mellen said that, by reference to the materials that were used (no materials having been imported to the site to construct an unsealed pavement), Greenly Beach Road could be characterised as an U5 rural road. However, she said that she observed six vehicles in the hour that she was on site and the road could be considered functioning akin to a road with a U4 classification. She said this classification held for the length of the road down to the Car Park. I do not place much weight on her observations as to the number of vehicles that she observed using Greenly Beach Road at the time of her inspection. These observations were made some years after the accident and on one occasion for a short period of time. In these circumstances, I do not consider that they can be used to make any conclusion about the number of vehicles using Greenly Beach Road in 2013. I note that Mr Verco also made observations about the number of other vehicles that were present at the Accident Site when he attended for the purposes of preparing his report. He observed very few vehicles at the Accident Site. However, for the same reasons, I place little weight on these observations. 123 Ms Mellen in her fourth report (exhibit A13) stated the Council documentation suggested that up until 2016 the Council classified Greenly Beach Road as a category 5 road but thereafter as a category 4 road. She said however -- 29 of 103 -- [2024] SADC 37 26 that the grading activity at the time of the accident was consistent with a category 4 road. 124 It is not necessary to make a specific finding was to whether the road was properly characterised as a category 4 or category 5 road at the time of the accident. 125 The maintenance grading of Greenly Beach Road was clearly for the purpose of improving the condition of the road for vehicles. Mr Hall admitted as much when he said in cross-examination that the grading was to smooth and flatten out the road so that vehicles could more comfortably and conveniently travel over the road and so that the road was more serviceable. Arrival at the Car Park and view on arrival 126 It is accepted by both parties that there were no signs or barriers at the Car Park. 127 Graham gave evidence that the car driven by him was in the lead and the other two cars were following. He said he stopped and parked the car at what he described as the big open car park area. The path which he had previously taken from the Car Park to the beach (the sandy gully) was to the north or to the front of where he parked his car. The sandy gully was the path on which Gregory was brought up by the CFS following the accident. Photographs 2, 3, and 4 of exhibit A12 show the sandy gully on the day of the accident. Photograph 28 of exhibit A12 shows that path a couple of months later when Graham returned to the site. 128 Graham said that he thought his car was parked in a similar position but a bit forward of the position where the blue car is parked at photograph 112 of exhibit A12 (which was taken in 2017), although he could not remember exactly. He said that Gregory and Mr Burk ran down towards the beach through the gap in the vegetation (as seen in photograph 112). 129 Graham said that the car driven by Mr Stevens (in which Gregory and Mr Burk were passengers) was parked directly behind his car and might have been where the blue car was positioned in photograph 112. That car was parked near the gap in the vegetation. Graham said that he could not remember seeing the cliff line to the north when parking his car at the Car Park. He agreed that it was apparent that when he parked the car, he was 30 to 40 metres above the beach. He also agreed that it was apparent that when looking along the coast, the cliff line fell to the beach with varying degrees of steepness. 130 Mr Burk gave evidence that the car driven by Mr Stevens (in which he and Gregory were travelling) pulled up almost in the same position of the blue car in photograph 112 of exhibit A12, possibly a metre forward. That was opposite the gap in the vegetation. He agreed that the car was facing up the coast (in a northerly direction). -- 30 of 103 -- [2024] SADC 37 27 131 Mr Burk agreed, in cross-examination, that upon arrival at the Car Park, there was a view up the coast which showed a line of cliffs about 30-40 metres high (see photograph 80 of exhibit A11). He also agreed that looking north up the coast, you could see the cliffs dropping steeply to the beach. 132 Mr Stevens said in evidence that he pulled up his about two metres in front of the place where the blue car in photograph 112 of exhibit A12 is parked. That put Mr Steven’s car approximately opposite the gap in the vegetation. He said that the car driven by Graham and the car driven by Tarshi were on the right hand side and they had pulled up next to the car driven by him. 133 Mr Stevens agreed that he was looking along the coast (in a northerly direction) when he pulled up in the Car Park and he recalled being very high up on the cliffs. He said that he was aware that he was perhaps 30-40 metres in height above the beach. He saw that there was a line of cliffs that stretched ahead on the coast (looking north). He said that some of the cliffs were steeper than others. He agreed that all of the cliffs were steep and high up. He agreed that the cliffs varied in terms as to whether or not the drop was vertical. 134 Ms Barns could not recall details as to where the cars pulled up and in which order. Findings as to arrival at the Car Park and the view 135 I make the following findings about the arrival of the parties in the Car Park and the view from the Car Park. 136 First, I find that the car driven by Graham arrived first at the Car Park and was parked parallel to the coast, facing in a northerly direction and slightly forward of the gap in the vegetation. There was some dispute between the evidence of Graham and Mr Stevens as to whether the car driven by Graham was facing in a northerly direction up the coast or had turned around and was facing in a southerly direction and was next to the car driven by Mr Stevens. That is not a matter of importance. However, I prefer the evidence of Graham on this topic. He had a specific memory about the arrival in the Car Park (and reaching into the back of his car to get his cigarettes and calling out to the others). His car was in the lead and it is likely that he pulled up first and the other cars behind him. 137 Secondly, the car driven by Mr Stevens, in which Gregory and Mr Burk were passengers, parked behind the first car and was facing in a northerly direction. It was parked approximately opposite the gap in the vegetation. 138 Thirdly, the view upon arrival at the Car Park showed a line of cliffs in a northerly direction, descending with varying degrees of steepness to the beach below. The line of cliffs is clear on the photographic evidence such as photograph 80 of exhibit A11 as well as the evidence of Mr Stevens and Mr Burk. Graham said that he could not recall seeing the cliff line on arrival but I did not take that to mean that he was saying that the cliff line was not visible from the Car Park and from -- 31 of 103 -- [2024] SADC 37 28 where the vehicles were parked. The other evidence to which I have referred, establishes that the cliff line was clearly visible from the Car Park. 139 Fourthly, it was apparent from the Car Park and from where the vehicles were parked, that the Car Park was about 30-40 metres above the beach. Actions of the group and in particular the applicant on arrival at the Car Park 140 Four witnesses gave evidence on this topic, Graham, Mr Burk, Mr Stevens and Ms Barns. 141 Graham said that he did not see Gregory and Mr Burk get out of the car in which they were passengers and descend towards the beach. He said he heard the doors of the other cars opening. He said that when he pulled up, he opened the door and told everyone “Don’t go that way, go over here, that’s where the path is” (to go to the right where the sandy gully provided access to the beach and which the rescue party came up). He said that he then reached back into the car to grab his cigarettes. He said that he cannot remember getting any responses from anyone but that the next thing he remembered was hearing Mr Burk call out “Graham, Gregory is hurt”. 142 Graham agreed that he had a conversation with the Council lawyers in 2021 when they came to his house. He did not dispute that he told them Mr Burk and Gregory ran down the cliff but he did not tell them that he saw them. He said he just assumed that Mr Burk and Gregory ran down. He drew the inference that they were running because it felt like it happened so quickly. 143 Mr Burk said that he got out of the car from the passenger side (the side nearest to the cliff) and walked to the edge of the Car Park and saw the rockpool to the left and saw the escarpment (and what he described as a sandhill) and that looked like it went straight down to the beach. He said that he “just went straight down”. He said that he did not wait for anyone. He said that Gregory was probably a metre behind him when he started down the sandhill. He said that he did not hear anyone call out before he went down the sandhill. He said that he went straight down and didn’t wait for anyone because it was so hot. In answer to a question in examination in chief, Mr Burk agreed with the proposition that he was on the left hand side of the car and jumped out and ran down the gap. When that was put to him in cross-examination, he said he wouldn’t say run. He said he did not have time to run because the car pulled up a metre or two from the edge so he would have walked to the edge. He said that he did not have time to race Gregory out of the car although Gregory may have been trying to keep up with him. He said he did not say anything about racing Gregory. He said that at the time that he went down the escarpment, he did not know who was following him. He said that it was so hot, you couldn’t stand without burning your feet. 144 Mr Burk visited the site in February 2017 with Mr Jackson (the solicitor for Gregory), Graham and others. Mr Jackson subsequently wrote in a letter to the Council on 28 February 2017 “our client and friend raced the other down the side -- 32 of 103 -- [2024] SADC 37 29 of what appeared to be a dune”. The letter went on to state that Gregory ran down the dune. Mr Burk agreed that he was likely the source of that information, although he did not recall telling Mr Jackson those details. 145 Mr Stevens gave evidence that he saw Mr Burk and Gregory get out of the car. He said that they “jumped out of the car before me” and then it was him and Nick straight after. He said that he followed them and that they had already jumped out of the car, gone behind the car and through the gap in the vegetation. Mr Stevens said that he reached the top of the cliff face a few seconds, maybe 30 seconds, after Mr Burk and Gregory. He said that Mr Burk and Gregory were not racing. 146 Ms Barns, who was called as a witness by the Council, gave a different account of the movements of Mr Burk and Gregory when the arrived at the Car Park. She said that when they arrived: Us girls we were like conversing together and then I do remember the boys having a lot of energy being excited that they were there and kind of running around a bit and I do remember them heading off towards the direction of the ocean. 147 She said from the corner of her eye that she saw Mr Burk and Gregory running towards the ocean. She said that they were running, not walking. In cross-examination, she agreed what she saw about them running was out of the corner of her eye when she was in the back seat of the car. 148 Mr Jackson provided an affidavit which was received into evidence (exhibit A53). He was not cross-examined on that affidavit. The affidavit described the circumstances in which Mr Jackson spoke to Graham, Mr Burk and Mr Carbine in January 2017 on his visit to Port Lincoln and at the site. The affidavit did not describe what Graham, Mr Burk and Mr Carbine told Mr Jackson and in particular who, if anyone, told him that Graham and a friend “raced the others down the side of the dune”. 149 The Council submitted that I should find that Gregory ran through the gap in the vegetation and down the escarpment, gaining momentum as he went without first surveying what was below. The applicant submitted that I should make no finding that Gregory ran down the escarpment. Findings as to actions on the arrival at the Car Park 150 I make the following findings as to the actions of the group on their arrival at the Car Park. 151 First, Mr Burk exited the vehicle driven by Mr Stevens and then walked through the gap in the vegetation and went straight down the escarpment. He did not stop at the top of the escarpment but just went straight down and didn’t wait for anyone. That was the effect of his evidence. He said in cross-examination: -- 33 of 103 -- [2024] SADC 37 30 …I got straight out of the car and it was a metre or two from the edge and I’ve walked, like went straight down, I didn’t wait for anyone and I just got straight out and went straight to the beach because it was so hot. You couldn’t stand without it burning your feet. 152 Secondly, I accept the evidence of Mr Burk that he did not run to the gap. That finding is contradictory to the evidence of Ms Barns. However, I do not accept her account of the day for a number of reasons. Ms Barns, understandably, found the events of the day very traumatic. There is no suggestion that she had had cause to recall the events of this day other than in preparation for the trial. Her memory of other aspects of the day was not good. She could not remember where the cars were parked on their arrival or where she was seated in the car. She agreed that all she saw about the boys running, was them running to the ocean. In the case of Mr Burk, her observations could only have been of the few steps from the passenger door to the gap in the vegetation. That was not far enough to form a conclusion that he was running. She did not have a clear view of events: she said that she was in the back seat of the car and saw the running out of the corner of her eye. 153 Given the doubts that I have about the accuracy of the observations of Ms Barns, I am not prepared to find that she observed Mr Burk or Gregory running to the gap in the vegetation. 154 The statements made by Graham to the lawyers or to the Council in 2021 are of little weight given that Graham did not see Gregory and Mr Burk exit the car and move towards the gap in the vegetation. 155 I do not consider that the letter written by Mr Jackson dated 28 February 2017 takes matters any further. It is clear that the source of the information came from either Graham or Mr Burk. Insofar as it came from Graham, his evidence was that he did not see Gregory or Mr Burk run to the gap in the vegetation and descend down the escarpment. If I accept that evidence but Graham told something else to Mr Jackson, that is of no evidential value. If Mr Burk was the source of the information contained in Mr Jackson’s letter, then I do not consider that would influence my finding on this issue. Mr Burk maintained that he was did not run or race Gregory down the escarpment. Senior counsel for the applicant referred to the decision of the Full Court in Permanent Trustee Australia Ltd v Valeondis10 where Layton J stated: There is no question that the statement in the letter relates to a core finding of fact. It is uncontroversial that the question of how and why the ceiling fell down goes to the heart of liability. However, the statement can hardly be said to be unequivocal. By the very nature and purpose of the contentious letter, its content was inherently ambiguous. It was not a witness proof, but a letter written by the solicitor, Mr Gask for the purpose of giving notice of the impending claim and to identify broadly what Mr Valeondis had said. It is normal practice that such letters are drafted on the basis of very general instructions. 10 (2009) 105 SASC 458; [2009] SASC 375 [166]. -- 34 of 103 -- [2024] SADC 37 31 156 I consider those statements apposite to the present case. 157 The Council referred to the opening of the applicant where senior counsel for the applicant said that when the vehicle was parked, Gregory and Mr Burk got out and ran. The Council also referred to Professor Coyle being asked to assume that Gregory and Mr Burk ran over the top of the escarpment. 158 I do not place any weight on either of these matters. The word “run” lacks precision. It can often be used in the context of going somewhere-e.g. can you run down to the shops. Further, it is apparent that the applicant’s solicitors made an assumption about the use of the word “run” and adopted that in their pre-trial actions (such as instructing Professor Coyle that Gregory ran down the escarpment) and in their opening. However, that assumption should not be used in substitution for the evidence. 159 Thirdly, I also accept the evidence of Mr Burk that they were not racing. A conclusion that two or more people were racing would require either evidence that there had been an agreement or words to that effect or facts from which a conclusion could be drawn that they were racing. There was no evidence of any agreement or words spoken from which that conclusion could be drawn. There was also no evidence from any other facts that would lead to this conclusion. For the reasons that I have already expressed, I consider the evidentiary value of the statements in the letter of Mr Jackson to be of little weight. I have not accepted the evidence of Ms Barns on this topic. 160 Fourthly, Mr Burk and Gregory went down the escarpment and did not pause at the top to scrutinise the escarpment below and the potential dangers. Mr Burke indicated the path he took by the dotted red line on photograph 74 of exhibit A11. The path was straight down the escarpment. There are a number of reasons which I rely upon to reach this conclusion. Mr Burk gave evidence that he saw the rockpool and went straight down the escarpment. It can be inferred that Gregory followed Mr Burk. Mr Burk said that Gregory was only a metre or so behind him when he started down the escarpment. Gregory had travelled from the other side of the vehicle to get to that position. It can be inferred that he moved faster than Mr Burk. Mr Stevens said that he and Mr Carbine had got out of the car straight after Mr Burk and Gregory. He said he had followed them but they had gone through the gap in the vegetation. He could not precisely describe how long after they had descended that he reached the top of the escarpment, but it was evident it was not a very long time; he said “it would have been a few seconds, 30 seconds maybe.” Mr Stevens also said that Mr Burk and Gregory were together as they descended the escarpment, although I note that this is contradictory to the evidence of Mr Burk. Graham’s evidence also supports the conclusion that it was only a short period from the time that Mr Burk and Gregory got out of the car until he first heard the cry for help after Gregory had fallen. The evidence as to the timing of Gregory’s descent and the way in which he proceeded support the inference that he did not pause to consider safety considerations before descending and like Mr Burk went straight down the escarpment. -- 35 of 103 -- [2024] SADC 37 32 Risk and view from the top of the escarpment 161 In assessing the risk from the top of the escarpment at the point where Gregory and Mr Burk descended (i.e. between the clumps of vegetation), there are a number of interrelated issues (the escarpment issues). They are: 1. How steep was the escarpment and how was that steepness perceived from the point where Gregory and Mr Burk descended the escarpment (the point of descent)? 2. Was there an appearance of a path down the escarpment or towards the Car Park? 3. What was the condition of the escarpment and had its condition changed from the date of the accident to the present time? 4. What could be seen from the point of descent? 162 A number of witnesses, both expert and lay, gave evidence on these topics. Lay witnesses’ evidence on the escarpment issues 163 Graham was the only member of the group who had been down the escarpment prior to the date of the accident. He knew therefore that the escarpment ended in the vertical cliff. He also went down the escarpment after he had heard Mr Burk call out that Gregory was hurt. 164 Graham gave evidence that the escarpment went down at a slope and then at the end there was a steep drop. He said that it “just looked like a sandhill that went down to the beach.” 165 He said that on the day of the accident, there was a lot more sand and less bush than in the photographs (photographs 38-40 of exhibit A12, which were taken in February 2014). He said that there were a lot more rocks in the present photographs and a lot less sand. I do not accept this observation. It is not clear to me how Graham would be in a position to make such an observation given that he ran down the escarpment when he heard the call for help and would have been obviously stressed. He said that he did not slip when he descended the escarpment on the day of the accident. He said that he was able to dig his toes into the sand to control his movements. 166 In cross-examination, he said that there was a significant change in the escarpment in the period from the date of the accident in December 2013 and February 2014 when he returned to the site and photographs 38-40 of exhibit A12 were taken. 167 When shown photograph 69 of exhibit A11 (taken in February 2022), Graham said: -- 36 of 103 -- [2024] SADC 37 33 Well there's a lot less sand on the surface of the top part. The cliff face looks like it has been eaten back a bit more, I could be wrong but it doesn't look the same as it did on that day. And if it was like that on that day I doubt we would be sitting here today. I doubt anyone would have run down that side or tried to. 168 Similarly, he said that the face of the escarpment appeared a lot steeper in photograph 72 of exhibit A11 (taken in February 2014) than it did on the day of the accident. He said that the photograph made it appear harder or more treacherous than it was on the day. 169 In cross-examination, Graham said that he believed that the rock ledges were not present on the cliff face on the day of the accident. He said that he could remember running down a sandhill. When it was put to him that photograph 3 of exhibit A12 which was taken on the day of the accident showed a similar terrain with rock ledges near to the escarpment, he said that he believed rock ledges weren’t present on the escarpment on the day of the accident. He agreed that the terrain in the photographs that were taken in February 2014 (photographs 53 and 54 of exhibit A12) and the terrain in the photograph that was taken in 2017 (photograph 106 of exhibit A12) and the photograph taken in February 2022 (photograph 74 of exhibit A11), looked similar in terms of being rocky with sand and tussocky shrubs, However, he said that there was more sand on the day of the accident. He said: The main features that I remember from that day are some of the bushes that are in the photos, and that's it. They have grown over the years as well. But if it were that rocky on the day of the accident, I would be dead as well, or on the bottom of that cliff. I would not have made it to the bottom of it. Elijah would not have been able to turn around and come back up and Quade would not have been able to come down to the bottom as well. 170 Mr Burk said that from the top of the escarpment, it looked like a sandhill that rolled straight to the beach. He said that it looked as though it met up with the beach. He said that the escarpment had more sand on the day of the accident than it did when photograph 40 of exhibit A12 was taken. He said that there was no ledge (as appears in photograph 74 of exhibit A11) on the day of the accident. He said that on the day of the accident he was walking down a sandhill not a cliff. 171 When taken to photographs 54 and 55 of exhibit A12 (which were taken in February 2014, about 8 weeks after the accident), Mr Burk said that it had a bit more sand on it on the day of the accident. When taken to photograph 74 of exhibit A11 (taken in February 2022), he said that there was a lot more sand on the day of the accident. He said that he did not recall the big ledge near the bottom of the escarpment that appears in photograph 40 being present on the day of the accident. 172 Mr Stevens also gave evidence about the view from the top of the escarpment. He said that it was a bit rocky, sort of sandy with a couple of bushes and then it went to sand. He said that it was steep but walkable and that “we assumed you could go down there.” He said that you could see the beach, the rock pools and the water but you could not see the cliffs. -- 37 of 103 -- [2024] SADC 37 34 173 He said that as you went down it got steeper and a bit hard: it got steeper and sandier. He said that you could stop because of the sand. Mr Stevens said when comparing exhibit A18 (a further copy of photograph 40 of exhibit A12 which was taken in February 2024) to the escarpment on the day of the accident “it’s familiar but I felt that it was more sandy on the day [of the accident]. I don’t know if it was all sand in here but I know at the start there was like no sand and then it got sandier and then sandier again”. Mr Stevens said that it was rocky at the top and once over one ledge it was sandy and then over the next ledge it was sandier because he could recall sinking into the sand as he went down. 174 Mr Stevens said that from the point of descent at the top of the escarpment: Yeah, me, I assumed - like, it did get steeper, you could see it got steeper but I assumed that it just kept getting steeper and it was sandy all the way to the beach. So, yeah, it wasn't until past the bushes in between there and '2' you realised, like, there was bit more of a drop and then you didn't know there was a cliff until you got to that last edge and seen that there was a cliff there, because it's sort of decline and then a bit more and then a bit more, so it was like a blind edge coming down. 175 In cross-examination, Mr Stevens agreed that when you were at the point of descent, he was aware that it was steep and that “you could stumble and fall and something bad could happen.” He said that there were ledges further down and that there was a drop off after the ledge. He said that it one of the last two ledges where Gregory tripped and stumbled and kept going. 176 Mr Foster, who was a local farmer, and was the witness most familiar with the area, gave evidence. He was also part of the CFS crew that rescued Gregory on the day of the accident. He was familiar with the escarpment and its composition before the day of the accident. 177 He gave evidence that a few days after the accident he returned to the site and went down to the first green bush from the top of the escarpment. He said that he did not go further down the escarpment because “it’s too damn steep and unstable”. He said that the face of the escarpment looked the same as it looks today. He said that the storm in 2016 affected cliffs which were soft, not where it was hard such as the escarpment. 178 In examination in chief, Mr Foster said that from that stopping point (at the first green bush): The whole cliff is pretty steep then, the top of it is slightly rounded but the cliff itself is quite steep and you can't see the extent of what's below it, but it is very typical of driving along that coast. 179 He went on to say that from the stopping point, as you looked down, it appeared to get steeper. 180 In cross-examination, Mr Foster elaborated on the issues of the comparative condition of the cliff on the day of the accident and now and the steepness of the -- 38 of 103 -- [2024] SADC 37 35 cliff. He gave the following answer by reference to A19 (which is copy of photograph 74 of A11 which was taken on the view): Q Would you agree with this proposition: accepting the fact that this is taken from a drone looking back at the cliff face, but that what you see here is the same or similar to what you saw when you descended down to that clump a few days after the retrieval, in terms of the appearance of the terrain. A I believe that's the same or similar. Q You said that you didn't go down any further than that because it was too steep and too unstable. A Yeah, I wouldn't try and descend that cliff. If I had to go down that cliff I'd be well and truly tied on with a rope. Q Mr Whitington asked you about your knowledge of what was there at the bottom, namely that vertical drop-off at the bottom. Isn't it the case, though, that you wouldn't descend that cliff from the top even if you had no knowledge of the vertical drop at the bottom, would you. A I wouldn't. Q No, because it's too dangerous. A Yes. Q When you went back there on that day, a few days later, and this is no disrespect for the young man who obviously you participated in retrieving, but would this be right, did you go back there on that day because you just couldn't believe that anybody could have been so foolhardy as to try and descend that cliff at that location. A I think I went back to see exactly what it was like, just to confirm my view that I couldn't imagine anyone going over there. Q Because it was too dangerous. A Well, yes. Q And obviously too dangerous. A Yes. Q From the top. A Yes. 181 In re-examination, when asked if he was bringing his lifetime of experience to bear when making the assessment, he said that common sense would say to him that it was a huge unknown and that he would be very reluctant to traverse that area without further information, if he hadn’t experienced it before. 182 Ms Barns also gave evidence about her observations of the steepness of the escarpment. She did not make any attempt to descend the escarpment, she said that -- 39 of 103 -- [2024] SADC 37 36 it “looked so dangerous.” She looked to the right and saw a steadier slope so went that way. Expert psychological evidence on the perception of the escarpment from the point of descent-Professor Coyle and Professor Alais 183 Both parties called expert psychologists to give evidence, inter alia, on what someone would perceive when they were at the top of the escarpment. Both Professor Coyle, called by the applicant and Professor Alais, called by the respondent were qualified to give evidence on this topic. 184 In his first report, Professor Coyle referred to there being a path down the escarpment to the beach. He said that the path was contiguous with the graded car park. He said that “it is down this path that the plaintiff ran and was unable to stop before falling over the cliff at the end of the path. There are no visual cues to enable a naïve visitor to the locale proceeding down the path to perceive that they are approaching a cliff before they are, literally in a position to fall off same”. 185 Professor Coyle stated that the decision to create the path and or leave it in situ when the Car Park was graded and the failure to inform visitors by way of appropriate warning signs and failure to place a barrier were violations or knowledge based mistakes. 186 In examination in chief at trial, he said it was not a path in the sense of being a path with paving or anything of that kind but a path in the normal sense through which people can move from one environment to another that had been formed by a deliberate attempt or people or animals walking over it for a period of time. 187 When it was put to him in cross-examination that there was nothing on the face of the escarpment that would distinguish it as any form of designated thoroughfare or means or route once you go over between the gap between the vegetation, Professor Coyle said that he wasn’t entirely sure that was correct but he did not have the advantage of a view. He went on to say that there was some vegetation further down in the middle section which would give someone walking down a clear apprehension that there wasn’t a vertiginous effect. 188 Ultimately, in cross-examination, Professor Coyle agreed with the proposition that when a person has arrived at the gap between the vegetation, there was nothing that would qualify as a description of a path. 189 I consider that it was clear in his first report that Professor Coyle acted under the mistaken assumption that there was some form of path down the escarpment from the point of descent to the vertical cliff. No other witness referred to there being such a path. The photographic evidence does not support the conclusion that there was a path in the normal meaning of that word. As Professor Coyle properly conceded in cross-examination, he did not have the advantage of having a view to the Accident Site. I prefer the evidence of Professor Alais on this point who said that he saw no evidence of a path. -- 40 of 103 -- [2024] SADC 37 37 190 Professor Coyle said that when he provided his initial report, he has assumed the area in question was the Greenly Beach rock pools. He accepts that was wrong. Professor Coyle did not visit the site and relied on photographs. Professor Coyle accepted, during cross-examination, that he was wrong (because he was referring to the Greenly Beach rock pools) when he said in his initial report: There were no signs indicating a designated path of travel to the rock pools. It is not clear that there was a designated path of travel to the rock pools, despite them being promoted as a tourist destination. 191 Professor Coyle said that at normal walking speed our field of vision normally encompasses about 2.8 metres in front of us. Someone at normal walking speed would be able to perceive there was a cliff there before jumping off it. 192 Professor Coyle made a “big distinction” between someone standing at the gap between the clumps of vegetation looking down the escarpment and someone walking without stopping. He agreed that for someone standing at that point, it would be very obvious that the escarpment was dangerous. He disagreed that it would have been obvious for someone walking down. He said that someone walking down would have been focussed on where they would place their next foothold. 193 Professor Coyle disagreed with the proposition that someone walking towards the gap, could not, on a reasonable basis have perceived that there was a low degree of risk approaching the cliff edge because they had no idea what was beyond it. In response to that proposition he said: I disagree. This is, in fact, the fundamental issue at hand here from a human factors engineering aspect. Someone walking along the cliff, as can be seen from the photograph taken at approximately eye height, would have seen the vegetation further down the hill. This would have given them the impression, wrong though it was, that it was safe to proceed with some degree of caution. By the time they got to the edge of the - what Professor Alais refers to as the discontinuity, more correctly the concavity, and they stepped over that, because of the slope and the friable nature, it would have been extremely difficult if not impossible to stop. So by the time they're in a position to realise they're in danger, it's essentially too late. It is precisely in those situations that warning signs work. They don't work a hundred-per-cent of the time, nothing does with respect to human behaviour. 194 Professor Coyle disagreed that the visual cues were enough to come to the attention of Gregory and his friend because they went down the escarpment. That is not convincing reasoning. It is tantamount to say that because the event occurred and Mr Burk and Gregory descended the escarpment, there could not have been sufficient visual cues. 195 Professor Coyle also disagreed that there was information available to someone arriving at the Car Park because of the line of cliffs that could be seen to the north. He said that the cliff line was not uniform and was highly variable as could be evidenced by the eroded creek bed 50 metres to the north of the Car Park. -- 41 of 103 -- [2024] SADC 37 38 196 Professor Coyle distinguished between the drop between the top of the escarpment and the mound of vegetation in front of him which he described as a significant drop off depending on the angle and that further down there was a precipitous drop off. He agreed that someone seeing it in real time and in three dimensions would be better off to accurately assess the drop off from the top as precipitous than someone providing that description from photographs. In this respect, he agreed with Professor Alais that someone visiting the site would have a better understanding of the site because of the visual experience from the cliff top and understanding issues of depth, distance, perspective and angle, rather than inferences drawn from photographs. 197 It is evident that when providing these opinions, Professor Coyle was suffering from the disadvantage of not having visited the site. He properly agreed that he could not determine the slope of the escarpment which he underestimated as a 30-40 degree slope. He was not in a position to properly assess the visual cues that were available from the Car Park. His opinion that someone at walking speed could have formed the view that it was safe to proceed down the escarpment must be rejected for these reasons. 198 Professor Alais contested the conclusions of Professor Coyle that: 1. There was anything that could be described as a path or even a track. He said there was no evidence of a path. 2. There was a graded parking area. 199 Professor Alais also contested the opinion that there were no visual clues that someone proceeding down the “path” would perceive they were approaching a cliff. Professor Alais referred to primary depth cues and optical cues. He said the visual cues enabled the person standing at the top of the escarpment between the bushes would see the far distance and the near distance but not the middle distance. He said that someone standing at the edge of the bushes would see a very steep declining drop but not the vertical cliff at the bottom of the escarpment. He said that the cues indicated that there was a gulf of unknown and therefore potentially risky space in the middle distance. He said that attending on site for the purposes of his second report gave him a better understanding of what he perceived to be the high risk of standing at the gap and descending the cliff. Cameras can understate the steepness, the size, height and distance. He said that the hillsides were much steeper than he had envisaged from looking at the photographs. 200 Professor Alais described the escarpment from the point of descent as a cliff and “a steeply descending and dangerous slope”. He said that it would take a very brave soul to go down the escarpment. He described the descent as extremely risky. He said that inspecting the escarpment from the top (the point of descent) it “quite breath-takingly declined”. -- 42 of 103 -- [2024] SADC 37 39 201 He described the descent to the beach as rocky and loosely composed and there was no path and a loose and unstable surface, offering little traction. 202 Professor Alais said that he did not believe the escarpment resembled a sandhill as it had too many rocky striations running across it. 203 As to the risk from the point of descent, if Gregory was walking, Professor Alais said: Now that I have been to the site, I think it doesn't matter whether someone was walking or running; because it is not a sheer drop over the edge of photograph 83, you have time to see the ground falling away and time to evaluate a safer - safely whether to negotiate or not. So I think - even walking, I think it is still clear and unambiguous that it would be a dangerous descent, in my view. Expert evidence of Ms Mellen 204 Ms Mellen, who was the traffic engineer called by the applicant, also made some observations about the escarpment and its steepness. She gave the following evidence: Q It is a steep precipitous descent right from the top. A It is very steep, yes. Q What I want to suggest to you as in anybody standing there would recognise the danger associated with attempting to descend from there just by looking down. A At that location, yes. 205 That evidence is not given as an expert, but as an observer to the site. 206 Ms Mellen also gave evidence about the gradient from the point of descent to the top of the vertical cliff). She calculated that for every 1.7 metres on the horizontal plane, there was a drop of 1 metre (although in her cross-examination, she expressed it the other way around-1.7 metre drop for every metre, but that was self-evidently wrong and would have resulted in an even steeper drop). She said it would require mostly rock to even be stable at that point, anything more than a 1 in 2 drop isn’t stable. Submissions on the escarpment issues 207 The applicant submitted that the current state of the escarpment did not resemble the state of the escarpment as it was on the day of the accident. The applicant submitted that the escarpment was more like a sandhill on that day. The applicant submitted that the evidence of Graham, Mr Burk and Mr Stevens all supported this position. 208 The applicant submitted that the Court should accept the evidence of Mr Burk, Mr Stevens and Graham and find that from the point of descent the escarpment had the appearance of a sandhill and that I should reject the evidence -- 43 of 103 -- [2024] SADC 37 40 of Mr Foster as being coloured by his personal subjective reluctance to descend the escarpment because he considered it “too damn steep”. The applicant also relied upon the photographs numbered 1-7 of exhibit A12 as indicative of the composition of the escarpment and its characterisation as a sandhill. The applicant further submitted that the fact that Mr Burk, Graham, Gregory and Mr Stevens were all able to descend the escarpment on the day of the accident was evidence that the composition of the escarpment was that of a sandhill rather than a cliff as if it were the latter, the escarpment could not have been descended in the way that it was. 209 The Council submitted that the Court should find that the escarpment was a cliff, very steep and presented an obvious danger to anyone descending the escarpment. Findings on the escarpment issues 210 Having considered all of the above evidence, I make the following findings about the escarpment issues and how the escarpment was perceived from the point of descent and the appearance and condition of the escarpment, both at the time of the accident and at later times, including February 2022 when the photographs in exhibit A11 were taken. 211 First, the escarpment (from the point of descent to the top of the cliff) was very steep and appeared to be so from the point of descent (both at the date of the accident and at the view and at all other times). As an objective measure of the steepness, I accept the evidence of Ms Mellen that the gradient was 1:1.7 which is a very steep gradient. Evidence from the independent witnesses such as Mr Foster and Ms Mellen (both called by the applicant) and Professor Alais support this conclusion. 212 I also accept Ms Mellen’s calculation of the distance from the point of descent to the top of the vertical cliff as just under 64 metres. 213 I accept the evidence of Mr Foster, who visited the escarpment and examined the escarpment from the point of descent a few days later and said that he wouldn’t go any further than the further clump of vegetation as the escarpment was too steep and too unstable and that he would be tied with a rope, if he went further. 214 I prefer the evidence of Mr Foster to the evidence of Graham, Mr Burk or Mr Stevens as (1) Mr Foster had been to the site many times over the years before and after the accident; (2) he was independent; (3) he visited the site a few days after the accident and made observations that were not made in the context of an emergency or in an emotional state. I consider that Graham, Mr Burk and Mr Stevens understated the steepness of the escarpment. 215 The applicant submitted that Mr Foster’s views must be considered in the context of his knowledge that there was a vertical cliff at the end of the escarpment and his lifetime of experience when making that assessment. I do not consider -- 44 of 103 -- [2024] SADC 37 41 these matters influenced Mr Foster’s opinion about the steepness of the escarpment or its composition. Mr Foster’s evidence was in relation to the escarpment, not in relation to the vertical cliff. While I accept that teenagers may be willing to take greater risks, Mr Foster’s view was carefully considered and objective. I also do not accept the submission of the applicant that Mr Foster’s evidence should be discounted because the words “dangerous” and “obviously” were suggested to him in cross-examination and he agreed with the questions put. Mr Foster was a careful and impressive witness. He had earlier said (unpromoted by a leading question) that if he had to go down the escarpment, he would have been “well and truly tied on with a rope”. A fair reading of the evidence of Mr Foster on this topic was that he considered the escarpment dangerous and obviously so. 216 Mr Foster’s view about the steepness and how it was perceived from the point of descent was supported by a number of witnesses. I accept Professor Alais’ description of a steeply descending and dangerous slope. He was an impressive witness who gave considered answers in cross-examination and made appropriate concessions. As well as calculating the gradient of the slope, Ms Mellen (who was the expert called by the applicant in relation to the road and Car Park in particular) described the descent as very steep and that from the point of descent anyone looking downward would recognise the danger. I accept that evidence. Ms Barns, who although called by the Council, was part of the group who attended the site on the day and was not in any way connected with the Council, said that she did not attempt to descend the escarpment because it looked so dangerous. Mr Stevens also said that from the point of descent it was steep and you could see it got steeper but he assumed that it was just getting steeper and was sandy all the way to the beach. He was aware from the point of descent that you could stumble and fall and something bad could happen. 217 Professor Coyle accepted that it was obvious to someone standing at the point of descent that the escarpment was dangerous but said someone walking would have got the wrong impression that it was safe to proceed with some degree of caution. Professor Alais disagreed with the second proposition and expressed the opinion that whether someone was walking or running, because the escarpment was not a vertical drop from the point of descent, there was time to see the ground falling away and time to evaluate whether to negotiate the descent or not. He said that even a cursory look at the ground beyond what he called the departure point indicated very clearly that it was a steep and rugged terrain with a loose surface composed of crumbling rock and a loose sandy topsoil that would offer poor traction. He said even walking it was still clear and unambiguous that it was a dangerous descent. 218 I prefer the evidence of Professor Alais on this issue to the evidence of Professor Coyle. Professor Alais had been to the site and examined the escarpment from the point of descent. Professor Coyle had not been to the site. Professor Alais gave evidence that his perspective was different after visiting the site and obtaining a better understanding of the risk posed by descending the escarpment. He said that it was steeper than he had envisaged by looking at the photographs. -- 45 of 103 -- [2024] SADC 37 42 Professor Coyle accepted that someone observing the cliff in real time and in three dimensions would be in a better position to accurately assess the drop off than someone providing the assessment from photographs. Professor Coyle, in my view, failed to place sufficient weight on the steepness of the escarpment and instead placed greater weight on the vegetation down the hill to conclude that a walker may gain the wrong impression that it was safe to proceed with caution. I find that someone walking at the point of descent was in a position to assess that the escarpment was very steep and dangerous and was not safe to descend. 219 Secondly, from the point of descent, the beach could be seen but not the vertical cliff at the bottom of the escarpment. This was not in contest. Further, it was not in contest that the entirety of the route to the beach could not be seen from the point of descent. I accept the evidence of Professor Alais that the near and far distance could be seen but not the middle distance. 220 Thirdly, contrary to the submission of the applicant, the escarpment did not appear as a sandhill on the day of the accident. Graham and Mr Burk both gave direct evidence that it looked or felt like a sandhill. Mr Stevens was a little more equivocal in that he said that it was a bit rocky, sort of sandy with a couple of bushes and then it went to sand. He said it got sandier as you went down further. Professor Alais described the composition of the escarpment as rocky and loosely composed with a loose and unstable surface, offering little traction. He said that he did not believe that the escarpment resembled a sandhill as it had too many rocky striations running across it. 221 Mr Foster’s evidence was that the escarpment was in the same or similar condition in February 2022 (when the photographs in exhibit A11 were taken at the time of the view) as at the day when he inspected the cliff a few days after the accident in February 2013. 222 The photographs in February 2022 (for example, photograph 74 of exhibit A11) do not resemble a sandhill. Graham accepted that the escarpment was now rocky and said that if it had been that rocky, he would not have made it to the bottom. He said that it was sandier on the day of the accident. 223 If Mr Foster’s evidence is accepted that the condition of escarpment had not changed from the date of the accident to February 2022, it would follow that the escarpment could not be described as a sandhill on the day of the accident. 224 There were no photographs taken directly of the escarpment on the day of the accident. Photograph 3 of exhibit A12 provides the best assistance. It was taken on the day of the accident and shows the retrieval of Gregory using the sandy gully to the north of the escarpment. The photograph looks across towards the escarpment and although not directly showing the escarpment, shows that the area immediately adjacent to the escarpment does not resemble a sandhill. The applicant submitted this photograph showed the gully to be sandy and that it could be inferred that the escarpment was also sandy. I accept that the photograph shows the gully to be -- 46 of 103 -- [2024] SADC 37 43 sandy but do not consider that an inference can be drawn that the escarpment was also sandy. The photograph itself does not support the contention of the applicant. 225 Photographs 40, 53 and 54 of exhibit A12 (taken in February 2014 when Graham returned to the site) are photographs of the escarpment. Those photographs do not depict a sandhill. Photograph 106 of exhibit A12 was taken in February 2017 and shows the escarpment in terms of rocky with sand. Photographs 1-7 of exhibit A12 were of the gully (which was the means by which Gregory was retrieved). No inference can be made as to the state of the escarpment from the state of the sandy gully. 226 There was no evidence as to why the escarpment would change significantly in appearance and composition between December 2013 and February 2014 but not change significantly since February 2014 including at February 2017 and February 2022. That is contrary to the evidence of Mr Foster and to the photographic evidence taken on the day of the accident, although the latter is not conclusive. 227 I prefer the evidence of Mr Foster to that of Graham and Mr Burk as to the composition of the escarpment on the day of the accident. I have previously set out why I accepted Mr Foster’s evidence relating to the perception of the steepness of the escarpment from the point of descent and for the same reasons I accept his evidence about the composition of the escarpment. I consider that evidence is supported by the photographic evidence. 228 I do not consider that Mr Burk was in a position to have accurately assessed the composition of the escarpment from the point of descent. He did not stop at the point of descent but proceeded straight down the escarpment. 229 Graham also was not in a position to evaluate the composition of the escarpment and its appearance when he descended the escarpment on the day of the accident. His concern clearly would have been to render assistance to Gregory as quickly as possible. He had been down the escarpment before so he was not making an assessment of where he should descend. I reject his evidence that the rocky striations were not present on the day of the accident or that the appearance of the cliff face had changed from the date of the accident to February 2014. I accept the submission of the Council that Graham’s evidence on this topic was implausible. 230 Mr Stevens said it was rocky at the top but then got sandier. He did not say that it resembled a sandhill from the point of descent. Mr Stevens said that after you got to a ledge, there would be a drop off and there would be sand. Mr Stevens said that it was over one of the last two ledges that Gregory tripped and kept going. 231 The evidence also supports the inference that Gregory was not in a position to have accurately assessed the composition of the escarpment from the point of descent. The evidence, from Mr Burk, was that Gregory followed him down the -- 47 of 103 -- [2024] SADC 37 44 escarpment. There would not have been time for Gregory to have stopped and assessed the escarpment at the point of descent. The evidence from Mr Stevens was that Mr Burk and Gregory went down the escarpment together. 232 I accept that the escarpment became steeper and sandier upon its descent and that Mr Burk managed to stop himself by digging his feet into the sand. However, the composition of the escarpment also included rock and bushes and these were evident from the point of descent. In my view, it would be wrong to characterise the escarpment as a sandhill from the point of descent. The evidence of Mr Stevens that there were ledges at the top and also near to the bottom of the escarpment suggests that the escarpment was a mix of sand and rock. 233 The fact that the escarpment could be descended on the day of the accident does not permit, as the applicant contends, an inference to be drawn as to the composition of the escarpment. Gregory lost control on his descent. Mr Stevens proceeded cautiously. Graham proceeded in circumstances of an emergency. Mr Burk managed to stop himself. 234 Fourthly, there was nothing that could be described as a path down the escarpment. Other than Professor Coyle’s opinion expressed in his first report, there was no evidence of a path down the escarpment or from the Car Park to the edge of the escarpment and the point of descent. The photographs do not show any evidence of a path that had been created or any natural path that would be taken down the escarpment. Professor Coyle retreated from his initial position that there was a path and said that it could be called a route rather than a path. Again, the photographs did not show any path and Professor Coyle had not been to the site. There was also no path from the Car Park to the edge of the escarpment. That was the evidence of Professor Alais. There was no evidence from Mr Burk or Mr Stevens that they followed a path to the edge of the escarpment. 235 Fifthly, it follows that I reject the conclusion of Professor Coyle that the decision to create the path and or leave it in situ when the Car Park was graded was a violation as it invited individual to traverse the path to the cliff’s edge. 236 In summary, from the point of descent the escarpment was very steep and appeared to be very steep. It could not be characterised as a sandhill although there was some sand on the escarpment. There was no defined pathway. From the point of descent, a clear way to the beach could not be seen. The middle distance, to use the terminology of Professor Alais, could not be seen. Descent of the escarpment by Gregory and Mr Burk 237 The evidence of Mr Burk was that he had not been down the escarpment prior to the date of the accident and did not know of the vertical cliff at the bottom of the escarpment when he commenced his descent. Mr Burk said that Gregory was a metre behind him when he started their descent of the sandhill. Mr Burk did not see Gregory until he passed him near to where he went over the vertical cliff at the bottom of the escarpment. When asked in examination in chief, how he went down -- 48 of 103 -- [2024] SADC 37 45 the escarpment, he said that he was going at a fast walk but pushing his feet into the ground at the same time and that he built up momentum, so it was a fast walk. 238 Mr Burk said that he did not see Gregory as he descended the escarpment until Gregory went past him near the vertical cliff. 239 Mr Burk said that he first observed the vertical cliff when he was about 10 metres from it. He said that he could see then that the escarpment did not lead to the beach. Mr Burk said that at the point, he pushed back onto his backside and dug his feet into the ground and laid back. He said that “Gregory was sort of in and out of control leaning forward running motion because he’d built up momentum as he was going down”. He saw Gregory go straight off the cliff. From where he stopped he could not see Gregory and he got up, walked down a little and peered over the edge of the cliff and saw Gregory laying on the rocks. He said that he then turned around and shouted “help” and that Gregory had injured himself. 240 Mr Stevens said that he descended the escarpment to the point where Mr Burk had stopped. Mr Stevens said that the descent got steeper and sandier as he went down, particularly from the bushes onwards and that it became hard to keep his footing. He said that he was about 5 or 10 metres behind Mr Burk and Gregory, but also said that he had barely started walking down. He denied that Mr Burk and Gregory were racing each other or running but said they were getting quicker and quicker, “that’s how I seen it.” He said that they “basically headed straight for the gap and down the slope.” He said that Mr Burk and Gregory were together. He said he made slower progress than Mr Burk and Gregory because it was steep and you could stumble and fall and something bad could happen. Mr Stevens gave evidence that he saw Gregory trip and stumble over one of the last ledges and keep going. He said that Gregory couldn’t pull up and stop. 241 Mr Burk did not give any evidence about the presence of Mr Stevens on the escarpment after Gregory had fallen over the vertical cliff, although nothing was put to him on this topic. Mr Burk did not make any mention in his evidence of Mr Stevens descending to be with him near the vertical cliff. 242 Graham gave evidence that after he had called out for everyone to go down to the beach by way of the sandy gully path, he reached into his car to grab his smokes and the next thing that he heard was Mr Burk yelling out that Gregory had been hurt. He said that he went straight down the escarpment as quickly as he could and descended the vertical cliff to attend to Gregory who was laying on the rocks below. Submissions on the descent of the escarpment 243 The Council submitted that I should find that Gregory ran down the escarpment and that he and Mr Burk were racing when they did so. The applicant submitted that I should not make such a finding. The Council also submitted that -- 49 of 103 -- [2024] SADC 37 46 the rule in Jones v Dunkel11 applied in that the applicant did not call, nor explain its failure to call, a number of members of the group who travelled to the accident site on the day with Gregory, including Mr Quade Carbine, Mr Nick Ormsby, Renee and Tarshi. Mr Carbine was one of the persons who travelled to the Accident Site in 2017 and met with Mr Jackson. Findings on the descent of the escarpment 244 I make the following findings about the descent. 245 First, neither Mr Burk nor Gregory had been down the escarpment previously and neither knew of the vertical cliff. That was the direct evidence of Mr Burk. I infer that Gregory also had not been down the escarpment previously and did not know of the vertical cliff. There was no evidence to suggest that he had been to the site previously. The only persons of the group who had been to the site previously were Graham and his girlfriend, Ebony. That they had been to the site is not surprising given that Ebony’s family had a nearby farm. The site was remote and some distance from Port Lincoln where Gregory lived. Further, the need for the vehicles to follow Graham to the Car Park suggests none of the occupants of the other cars knew the way. 246 Secondly, Mr Burk went down the escarpment at a fast walk and was building up momentum as he descended. That was Mr Burk’s direct evidence and the natural inference was that Gregory was proceeding in a similar manner, that is proceeding at a fast walk and gaining momentum. Gregory was in and out of control and was leaning forward because he had built up momentum. That was the evidence of Mr Burk. Mr Burk and Gregory were getting quicker and quicker. That was the evidence of Mr Stevens. Mr Burk and Gregory did not run over the edge of the Car Park and onto the escarpment. Those findings are consistent with the evidence of both Mr Burk and Mr Stevens. It is also broadly consistent with the evidence of Graham, who although he did not see Mr Burk and Gregory descend the escarpment, gave evidence about the short time between when he called out and the time that he heard the cry for help. I do not find it established that Mr Burk or Gregory ran down the escarpment. I do not accept the evidence of Ms Barns on this topic for the reasons that I have previously expressed (although her observations were made as to how Mr Burk and Gregory acted in the Car Park). She did not observe them running down the escarpment. 247 I do not in the circumstances consider that the failure of the applicant to call any of Mr Carbine, Mr Ormsby, Renee or Tarshi gives rise to an inference that I should accept that their evidence does not assist the applicant’s case and therefore I could more confidently accept the evidence of Ms Barns that Gregory ran down the escarpment. Given the doubts that I have about the evidence of Ms Barns in relation to Gregory running down the escarpment, I do not consider that the failure 11 (1959) 101 CLR 29; [1959] HCA 8. -- 50 of 103 -- [2024] SADC 37 47 of the applicant to call the specified witnesses enables me to accept the evidence of Ms Barns more confidently. 248 Thirdly, Mr Burk and Gregory proceeded straight down the escarpment. They did not pause at the point of descent or at any other stage. They went straight down the escarpment from the point of descent. Those findings are consistent with the evidence of both Mr Burk and Mr Stevens. In relation to the actions of Gregory, Mr Stevens gave evidence that Mr Burk and Gregory were together. Mr Burk said that Gregory was following him down, close behind. 249 Fourthly, Gregory stumbled and tripped over a ledge near the bottom of the escarpment and then fell over the vertical cliff and landed on the rocks below. That is consistent with the evidence of Mr Stevens and Mr Burk, the latter seeing Gregory from the time that he passed him. Events following Gregory landing on the rocks 250 There is no dispute about the events following Gregory falling over the cliff and landing on the rocks. For the purposes of causation, it may be accepted that Gregory sustained serious injuries as a result of the fall. The precise nature of those injuries is a matter for the quantum trial, should there be such a trial. 251 Graham performed CPR on Gregory. Gregory was at that time unconscious. 252 It took some time to rescue Gregory and for him to be taken to hospital. Graham descended down the escarpment and climbed down the cliff to reach Gregory. Others in the group went down the sandy gully to the beach (to the north of the point of descent). Graham said that he could recall yelling to call an ambulance and Mr Stevens was the one who called the ambulance. 253 The accident was traumatic for everyone. At the time, Gregory was convulsing. The day was extremely hot. There was considerable delay in the CFS attending and finding the location. Eventually the CFS attended and took Gregory on a stretcher up the sandy gully to the north of the escarpment. Council allocation of funds 254 There was some evidence about the funds that were available to the Council for expenditure and how they were allocated. This evidence was relevant to the risk assessments that might be undertaken and the practicality of the Council taking safety measures at the Accident Site. 255 Mr Jutzen is the works manager of the Council. He gave evidence, which I accept, that the ultimate decision on budgetary allocation was one for the Council as a whole and the councillors meeting as the council. He said that the general practice of the Council was not to carry out risk assessments on unsealed roads. He said that whether the Council would undertake a risk assessment in a particular area would be determined by a consideration of whether or not it would be money -- 51 of 103 -- [2024] SADC 37 48 well spent, whether there are more important things to spend money on or where there is significant risk. 256 Mr Jutzen referred to the budgets and statements of the financial position of the Council. The main source of its income was from rates and grants. There was a modest surplus achieved or forecast for each year. I accept the submission from the Council that most of the infrastructure work was driven by grant income. 257 Mr Hall, who is the works construction coordinator of the Council and had been involved in other positions relating to works over many years, gave evidence that the Council did not have sufficient resources to undertake all work required in relation to its road network and that it prioritised work according to need. 258 The number of council officers who are employed to conduct road maintenance and construction work supports that contention. Mr Hall gave evidence which I accept that only four council officers, divided into two teams of two officers each, were engaged in road maintenance and construction activities. The machinery they had was sufficient only for the activities that they undertook. 259 I make the following findings. 260 First, there was no evidence that the finances of the Council were such that it was not financially feasible to erect signs at the Car Park. I accept the unchallenged evidence from Professor Coyle that the cost of erecting a sign or barrier at the location was insignificant. 261 Secondly, I accept the evidence of Mr Jutzen that it was the practice of the Council to allocate resources where the risk was greatest and therefore to areas such as heavily used roads first. Council documents such as the Road Construction and Maintenance Review dated March 2014 (which was based at least on part of similar reports in 2011 and 2012) support this conclusion. 262 Thirdly, I also accept the evidence of Mr Jutzen that it was beyond the resources of the Council to conduct a risk assessment of all areas along its Coast. It follows and appears not to be in contest that the Council had limited ability to undertake any comprehensive and consistent risk assessment of all sites relating to unsealed roads. 263 Fourthly, the financial records of the Council indicate that the Council had a relatively modest operating surplus but that operating expenses constituted most of the operating income. In relation to the resources of the Council, I accept the submission of the applicant that the evidence demonstrates that the income of the Council was limited and that expenditure must be adjusted to income but that the evidence did not allow any finding to be made about the allocation of resources or the priorities to be given to particular tasks. -- 52 of 103 -- [2024] SADC 37 49 264 Fifthly, the Council employed two teams of two officers each to engage on road maintenance and construction activities. I have already referred to the evidence relating to the two grading teams, patrol O and Q. 265 Sixthly, it is reasonable to infer that there was no reason to afford priority for a risk assessment of this area as opposed to other areas. The evidence established that Greenly Beach Road was either a grade 4 or grade 5 road. Mr Hall said that it was designated category 4B road. I have already referred to Ms Mellen’s evidence that it was either a category 4 or 5 road. It was unsealed and a natural surface road (and according to Mr Hall, unformed from the top of the hill down to the Car Park, narrower, having exposed cap rock and flat without shape, with water running down the road), and clearly, past the turn off to Greenly Beach Road, of an inferior quality. It was not well used. Expert evidence 266 I have already addressed certain aspects of the expert evidence adduced by the parties. However, in some respects the experts also provided opinions on further issues relevant to the applicant’s claim that the Council had breached its duty. Ms Mellen-road related area and buffer zone 267 Ms Mellen provided the opinion that the Car Park was a road related area and that there needed to be a safety margin or buffer zone between the area where a car might be parked and the edge of the escarpment. Ms Mellen said that there should be such a buffer because the steepness of the embankment meant that it was a hazard. Ms Mellen properly acknowledged that the primary reason for this requirement was for the safety of the vehicle although the road safety rules were also for the benefit of the pedestrians who might otherwise misinterpret the potential for beach access. 268 The applicant relied on these rules for the purpose of establishing that the acts of the Council (in creating the road and the Car Park) could not be characterised as an omission for the purposes of establishing a breach of the duty of care or for the purposes of s 244 of the Local Government Act 1999. The applicant also relied on these rules for the purposes of establishing that the discharge of the duty of care by the Council required that some basic precautions be taken, such as the erection of a warning sign or barrier. 269 The applicant submitted that Greenly Beach Road was a road and the Car Park was a road related area within the meaning of those terms in the Australian Road Rules. 270 Regulation 12 of the Australian Road Rules (which have legislative effect pursuant to the Road Traffic Act 1961 (SA)) defines a road as an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles. Regulation 13 defines a road related area -- 53 of 103 -- [2024] SADC 37 50 inter alia to include an area that is not a road and that it is open to or used by the public for driving, riding or parking vehicles. Regulation 14 defines a road user as a driver, rider, passenger or pedestrian. 271 There is no doubt that under those definitions, Greenly Beach Road is a road and the Car Park is a road related area. Gregory and Mr Burk, as pedestrians, are road users. I reject the opinion of Mr Verco that Greenly Beach Road was not a road and the Car Park was not a road related area within those definitions. It is also clear, contrary to the opinion of Mr Verco, that, pursuant to regulation 14 of the Australian Road Rules, a pedestrian is included in the definition of a road user, within the meaning of that definition in the Australian Road Rules. 272 Ms Mellen in her report referred to certain parts of the Austroads Guide to Road Safety Part 9: Roadside Hazard Management (2008) (AGRS09-08). AGRS09-08 contained the following statements: 1. The purpose of this guide is to assist road safety practitioners to minimise the risk of ROR [Run off Road] crashes. The key first step in roadside hazard management is to provide a road environment that reduces the potential for road users to lose control of the vehicle and run off the road; 2. Ideally a roadside environment should be free of any hazards that may increase the severity of a crash should it occur. Such a roadside would prevent injuries in run-off road crashes by providing drivers with enough space to regain control of their vehicles ... However, it is usually not possible to construct a road environment completely free of hazards; 3. Should a vehicle leave the roadway it is important that a strategic approach be taken to a forgiving roadside environment so as to minimise the risk of death or serious injury; 4. A clear zone is an area adjacent to the traffic lane that should be kept free from features that would be potentially hazardous to errant vehicles; 5. The Austroads method of calculating clear zone widths which takes into account traffic volume, 85th percentile speed, curve radius and roadside slope… 273 Ms Mellen also stated in her report that in considering the requirement for a barrier adjacent an embankment, AGRS06-10 provides the following advice: 1. For lower traffic volumes and low-speed roads [less than or equal to 70 km/h] the risk that such embankment pose should be assessed on a site-by-site basis using a risk assessment and a benefit-cost analysis approach. 274 Ms Mellen said that the escarpment, because of its steepness, was a hazard within the meaning of AGRS which therefore required a buffer of a minimum of 3 metres, although recognising that sometimes may not be possible and some other form of protection such as a barrier might be considered. 275 In her second report, Ms Mellen stated that it was important that a risk assessment was completed at each site and along each road to understand any -- 54 of 103 -- [2024] SADC 37 51 safety concerns and identify where a road safety solution is required, having regard to the function and attributes of the road. It was her opinion, at least on a preliminary view, that if an investigation was conducted as it ought to have been, there should have been warning signs of the type set out in her report. She said that the signs would give warnings to drivers of the cliff edges so as to take care when driving. The other sign would warn people of the risk of falling over the cliff edge. She said that matters such as the positioning of the warning sings would be something that would be determined on carrying out the risk assessment. 276 The warning signs which were suggested by Ms Mellen have little application to the present case. The first warning sign relates to drivers and shows a motor vehicle falling over an edge. It would have no impact on persons in the position of Mr Burk or the applicant, who were in the back seat of the vehicle when they arrived at the Car Park. The second suggested warning sign shows an unstable cliff edge and a person falling over that cliff. That was not the risk facing Mr Burk or the applicant. They did not slip at the edge of the Car Park and the escarpment. That sign would warn people of the escarpment, something which was obvious or a fall caused by an unstable cliff edge, which was not relevant to the accident suffered by the applicant. 277 In cross-examination, Ms Mellen said that the road related conclusion does not trigger requirements in terms of the design of the Car Park but did trigger requirements in terms of safety and that was what a road safety auditor would say in relation to the road and road related areas. She said that a risk assessment was required in relation to each such road related area in the Council area, although she said that some risk assessments could be conducted remotely. She said that as a road user included a pedestrian, issues relating to passengers alighting from a vehicle in the Car Park should be considered. It was her opinion that the installation of a barrier would provide information to all road users including pedestrians. 278 As the applicant stated in its written submission, the dimensions of the clear zone or buffer are recommended but not prescribed in the AGRS. 279 All of these statements which I have referred to above indicate that the standards regarding a buffer were directed to the risks posed to vehicles being driven. The buffer is to address the risk that a driver may lose control near the edge of the Car Park. The statements do not deal with pedestrian access to the beach. The calculation of the extent of the buffer zone is made by reference to vehicular behaviour (such as speed) and road characteristics such as curve radius and roadside slope. Therefore, it follows that the buffer zone represents the requirements for safe vehicular travel, not the requirements for pedestrian safety. 280 Breaches of the AGRS in this case are not actionable in themselves in relation to a pedestrian and do not, in themselves, provide proof of a breach of duty. They may nevertheless be relevant in determining what the Council ought to have done and whether the embankment posed a risk, and if so to what extent, to pedestrians or those alighting from a vehicle. -- 55 of 103 -- [2024] SADC 37 52 281 In this case, the absence of a buffer zone, played no part in the circumstances that led to the accident. It was not a case where Mr Burk or the applicant tripped as they alighted from the vehicle. It is not the case that the vehicle stopped immediately adjacent to the escarpment. In the case of the applicant, he walked around the back of the vehicle before descending the escarpment. Mr Verco - causes of the accident and the response of the Council 282 Mr Verco in his reports also expressed opinions about the cause of the accident and what matters may or may not have contributed to the accident. For example, he expressed opinions as to what matters were causative or contributory to the accident. I do not consider that Mr Verco was qualified to express those opinions. Accordingly, I do not place any weight on the opinions and conclusions expressed by Mr Verco as to the causes of the accident. 283 I also consider that Mr Verco expressed opinions as to what it was reasonable for the Council to have done based on assumptions or matters not within his specific knowledge. These are matters for evidence from the relevant Council officers. I do not place any weight on the opinions and conclusions as to what was reasonable for the Council to have done. Professor Coyle and violations and the responding report of Professor Alais 284 I also consider that Professor Coyle strayed beyond his expertise or formed conclusions not based on the evidence when he referred to leaving the path in situ when the Car Park was graded as a “Violation” in his report. He defined a Violation as intentionally doing the wrong thing. I consider that in expressing those opinions, Professor Coyle had made a number of wrong assumptions including that the rock pools had been promoted as a tourist destination (when in fact it was the Greenly Beach Rock Pools that have been promoted), the existence of a path from the Car Park and down the escarpment, Gregory running down the cliff and the application of the Draft Coastal Management Plan to the Accident Site. 285 It is apparent when writing his first report that Professor Coyle wrongly assumed that the accident occurred at the much more popular and promoted Greenly Beach Rock Pools. He refers to the accident site as a popular tourist destination. For example, he stated that: It was of pivotal import that the rock pools were popular to the extent that roads and a car park had been provided by the council to facilitate access to them. 286 Professor Coyle in his first report also assumed that there was a path of travel down the escarpment. He expressed the opinion that: The path leading to the cliff was contiguous with the graded car park near Greenly Beach rock pools and gave them impression that it was safe to proceed along. There were no visual cues to indicate that it was a dangerous path of travel. -- 56 of 103 -- [2024] SADC 37 53 287 In cross-examination, he was referred to the statement in his report “the decision to create the path and/or leave it in situ when the car park was graded.” In giving evidence, Professor Coyle stated when he was referring to a path, he was referring to a route down the escarpment, rather than a designated path of travel.” I do not accept the explanation of Professor Coyle that he was referring to a route and not a path. In his report, Professor Coyle referred to the path that was contiguous with the graded car park and that “it is down this path that the plaintiff ran and was unable to stop before falling over the cliff at the end of the path.” Professor Coyle refers to closing and revegetating the path. He referred to creating a path and leaving it in situ. He was indicating a specific path when making those comments, not simply a route. The Council cannot create or leave in situ a route. 288 Professor Coyle, in his first report, also was asked to assume that the applicant ran down the escarpment. 289 Further, in his first report, Professor Coyle also wrongly assumed that the Draft Coastal Management Plan applied to the Accident Site when it did not. This led him to conclude that “egregiously this plan is silent on any safety issues vis-a vis access to popular locations.” 290 In his third report, Professor Coyle corrected his wrong assumption about where the accident occurred-i.e. it did not occur at the Greenly Beach Rock Pools. He also cavilled with the criticisms made by Professor Alais of his, (Professor Coyle’s), use of the word “path”. In this report, Professor Coyle continued to assume that Gregory ran down the path. In his third report, Professor Coyle mistakes the date on which the rope was attached to the sandy gully. He says that date was 2006 (when in fact it was 2016) and uses the earlier date to wrongly conclude that it implied that the Council knew or should have known that access to the beach was being regularly conducted in this area. 291 In this report, Professor Coyle descends into barracking. He refers to the report of Professor Alais as demonstrating unconscious framing and/or a confirmation bias, of having made an egregious mistake and that his report should not be afforded the status of expert opinion. 292 I do not accept the opinion expressed by Professor Coyle in his third report that the erection of a warning sign is something that the Council should have done for a number of reasons: first, I consider his conclusions are affected by the initial errors in his first report; secondly, he still was acting under the mistaken assumption that Gregory ran down the escarpment; thirdly, he acted under the mistaken assumption that the rope was attached to a post in the sandy gully in 2006; fourthly, he descended, on occasions into barracking; and fifthly, he accepted (in his fourth report) that it was not relevant to consider inattentional blindness as a relevant factor. -- 57 of 103 -- [2024] SADC 37 54 293 In his oral evidence, Professor Coyle after correcting the second and third matters, adhered to his opinion that a warning sign should have been erected or barrier installed. I do not accept that opinion for the reasons that I have previously expressed (save for the corrections of the wrong assumptions). Professor Coyle initially expressed his opinion based on a number of assumptions that have proven to be wrong. The fact that Professor Coyle has not at any time visited the Accident Site placed him at a disadvantage and led to him underestimating the steepness of the escarpment. I also consider that Professor Coyle is intruding into the Court’s role when expressing the opinion as to the warning sign. It is not for Professor Coyle to conclude, that the accident would not have happened if the signs or barriers had been erected. That is a matter for the Court. 294 Professor Coyle said that warning signs in a natural environment where the initial danger is not immediately perceived or understood are effective at reducing the risk of injury. He said that if a risk is so obviously dangerous then a warning sign won’t do much good. However if the danger is not obvious, then the warning sign will be effective. I accept those opinions as a general proposition, although I consider that the question whether a warning sign should have been erected in the particular circumstances of this case is a matter for the Court. 295 Professor Alais responded to the opinion of Professor Coyle expressed in paragraph 44 of his report that the appropriate design and then placement of warning signs would have a very significant likelihood of reducing the prospect of tourists proceeding into danger. 296 Professor Alais provided the opinion that there was no path and then stated that if there was no path, then it became moot as to where a sign should be placed. He further referred to the fact that a sign could be installed at regular intervals along the entire coastline where the beach is backed by steep slopes and even sheer cliffs. He further posed the question what would a sign indicate that was not already evident? 297 As to warning signs, Professor Alais suggested that as a compromise, warning signs could be erected at particular beaches which had sufficient visitation and access to justify a sign. There would be an issue as to where the warning sign would be erected but accepted that there was scope to place a warning sign in the Car Park. He said that a warning sign could potentially have warned of the vertical cliff at the bottom but it was self-evident that there was a steep decline from the top of the escarpment. He said that warning signs might not be as effective as might be hoped and accidents occurred despite warning signs but agreed that they had some effect. He said that as a compromise, warning signs might be erected where there were significant number of visitors such as Greenly Beach Rock Pools. 298 A further opinion of Professor Coyle that I do not accept is his opinion of the conduct of the respondent in relation to the Draft Coastal Management Plan dated March 2001. In relation to this plan, Professor Coyle stated: -- 58 of 103 -- [2024] SADC 37 55 Egregiously, this plan is silent on any safety issues vis a vis access to popular locations. This is despite the wealth of information available in the common domain and scientific literature for years prior to the accident dealing with the importance of safe access and safety signs in scenic locations such as the rock pool in question. 299 He went to say: The decision to accept the Coastal Management Plan which is silent on health and safety problems associated with pedestrian access to Greenly Beach Rock Pools is a Knowledge Based Mistake [which he defines as a failure of perception/understanding because of inadequate knowledge or assessment of the situation]. 300 As the Council submitted, the Draft Coastal Management Plan dealt with the Coles Point area and not the area where the accident occurred. There was one reference in the draft report to Greenly Beach which is not where the accident occurred. Professor Coyle’s mistaken assumption that the accident occurred at Greenly Beach appears to have led him into error. 301 I accept that Professor Coyle and Professor Alais were in agreement that there were no visual cues to the concealed vertical cliff at the end of the escarpment. It was the middle ground that could not be observed from the point of descent. Civil Liability Act 302 The liability of the Council is governed by the application of the Civil Liability Act, although the common law principles relating to the law of negligence remain relevant. As Garling J observed in Peter Steven Benic v State of New South Wales,12 in relation to the Civil Liability Act 2002 (NSW) (the NSW Civil Liability Act), the Act was not intended to be a complete code and it exists in the context of the tort of negligence and the common law which has developed.13 The same observation could be made about the Civil Liability Act (SA). Section 20(1) makes it clear that the general law of negligence remains relevant. 303 The following provisions of the Civil Liability Act are relevant to the issues of the duty of care owed by the Council to the applicant, the scope of that duty, the breach of that duty and the defence of volenti non fit injuria which has been raised by the Council. Part 4—Occupiers liability 19—Interpretation In this Part, unless the contrary intention appears— … occupier of premises means a person in occupation or control of the premises, and includes a landlord; 12 [2010] NSWSC 1039. 13 Ibid at [73]. -- 59 of 103 -- [2024] SADC 37 56 premises means— (a) land; … 20—Occupier's duty of care (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence. (2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account— (a) the nature and extent of the premises; and (b) the nature and extent of the danger arising from the state or condition of the premises; and (c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and (d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and (e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of— (i) the danger; and (ii) the entry of persons onto the premises; and (f) the measures (if any) taken to eliminate, reduce or warn against the danger; and (g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and (h) any other matter that the court thinks relevant. Part 6—Negligence Division 1—Duty of care 31—Standard of care (1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. … 32—Precautions against risk (1) A person is not negligent in failing to take precautions against a risk of harm unless— -- 60 of 103 -- [2024] SADC 37 57 (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. Division 3—Assumption of risk 36—Meaning of obvious risk (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or matters of common knowledge. (3) A risk may be obvious even though it is of low probability. 37—Injured persons presumed to be aware of obvious risks (1) If, in an action for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not actually aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. (3) However, in order to establish a defence of voluntary assumption of risk, it is necessary to establish that the risk was such that a reasonable person in the plaintiff's position would have taken steps (which the plaintiff did not in fact take) to avoid it. 38—No duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. … -- 61 of 103 -- [2024] SADC 37 58 General duty of care and scope of duty 304 There is no doubt that the Council, as the statutory authority which has the control and management of the land where the accident occurred, was the occupier of that land within the meaning of s 19 of the Civil Liability Act and owed a duty of care to persons lawfully entering that land. Following the decision of the High Court in Australian Safeway Stores Proprietary Limited v Zaluzna,14 the liability of an occupier is to be determined according to the ordinary principles of negligence. That is now confirmed by s 20(1) of the Civil Liability Act. 305 In Vairy v Wyong Shire Council15 (Vairy), McHugh J held: At the trial and in this Court, the Council correctly conceded that "as a public authority vested with statutory care, control and management of public land [it] owed a duty to take reasonable care" to safeguard the appellant from physical harm. When a person such as the appellant lawfully enters an area that a public authority controls and manages as an exercise of statutory power, the public authority has a legal obligation to take reasonable care to protect that person from physical injury. What is required to discharge that duty depends on all the circumstances of the particular case. 306 Hayden J in Vairy expressed agreement with that proposition and emphasised that the duty of the Council was to take reasonable care to those who enter land under its care, control and management, not to ensure that no harm befalls the entrant.16 The content of the duty will depend on the particular facts and circumstances of the case.17 307 Therefore, the duty of care owed by the Council to persons visiting the land, including the applicant, was to take reasonable care to safeguard them against injury arising from its care, control and management of the land and its role as occupier. A finding that the Council constructed and maintained Greenly Beach Road and the Car Park is not necessary to establish that the Council owed a duty of care. The question of the construction and maintenance of the road and the Car Park is relevant to questions of the standard of care and breach. 308 The duty extends to reasonably protecting a person who might injure themselves through inadvertence or inattention. In Romeo v Conservation Commission of the Northern Territory18 (Romeo), McHugh J held that the duty extended to persons who were intoxicated, given that it was foreseeable that a person, affected by alcohol might come to the site. 309 A person ordinarily will be expected to take reasonable care for their own safety. In Brodie v Singleton Shire Council,19 Callinan J held:20 14 (1987) 162 CLR 479, 488; [1987] HCA 7. 15 (2005) 223 CLR 422; [2005] HCA 62 [20]. 16 Ibid [117] and [118]. 17 Ibid [118]. 18 (1998) 192 CLR 431; [1998] HCA 5 [76] and [79]. 19 (2001) 206 CLR 512; [2001] HCA 29. 20 Ibid [355]. -- 62 of 103 -- [2024] SADC 37 59 There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. 310 This passage was approved by the Western Australian Court of Appeal in Department of Housing and Works v Smith (No 2).21 311 Historically, the common law did not impose on a person a duty to act to protect another from harm.22 The duty to act arose where the person had created or increased the risk of harm.23 The position in relation to a public authority exercising powers is broader, although the circumstances in which a duty to act might arise is yet to be determined. In Stuart v Kirkland-Veenstra, Crennan and Kiefel JJ held:24 In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way. (citations omitted) … No guiding principle, by which an authority might be considered to be obliged to exercise its powers at common law, has been identified; the search continues. There is agreement that the statutory powers in question must be directed towards some identifiable class or individual, or their property, as distinct from the public at large. (citations omitted) 312 In the circumstances of this case, I do not consider that the Council could deny liability by simply saying that it had no duty to take affirmative action and put up a sign or a barrier. Rather, the question is whether in all the circumstances, the discharge of the duty of care required the erection of a sign or barrier or some form of risk assessment. Duty to warn 313 There is no duty to warn as a matter of law. Saying that there is a duty to warn fails to keep separate issues of duty and breach.25 When a Court refers to a duty to warn, that duty is understood as being commensurate with the standard of 21 [2010] WASCA 25 [36]-[37]. 22 Stuart v Kirkland-Veenstra (2009) 237 CLR 215, [127]; [2009] HCA 15. 23 Ibid. 24 Ibid [129] and [131]. 25 Vairy v Wyong Shire Council (2005) 223 CLR 422 [29]; [2005] HCA 62. -- 63 of 103 -- [2024] SADC 37 60 care required to discharge the respondent’s duty of reasonable care.26 The majority in Nagle v Rottnest Island Authority expressed the two concepts in that way:27 As occupier under the statutory duty [to manage and control the public reserve on the Island's coast for the benefit of the public], the Board [of the Authority], by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged. 314 To say that that there is a duty to warn, also risks turning a factual question (i.e. has there been a breach of the duty to take reasonable care) into a question of law (what is the duty).28 As McHugh J observed in Vairy, Nagle v Rottnest Island Authority29 is binding authority only for the proposition that a duty was owed by the respondent to take reasonable care for the safety of lawful visitors on land under their control but the findings that the respondent breached that general duty of care were findings of fact and did not bind anyone.30 McHugh J in Crimmins v Stevedoring Industry Finance Committee31 expressed the same principles in the context of a motor vehicle accident when he held that the driver owed a duty of care to other road users to take reasonable care, not a series of specific duties such as a duty to keep a proper lookout, etc. 315 It follows that the Council did not, contrary to the written submissions of the applicant, owe a duty to conduct a risk assessment and to take measures to eliminate or minimise that risk. I took the submission of the applicant to mean that discharge of the duty of care owed by the Council required, in the circumstances, those acts to be undertaken. 316 It is always a question of fact and never a question of law whether a particular act is a breach of the duty of care.32 317 Gummow J in Vairy also rejected the impermissible merging of the content of the duty of care and the question of breach.33 He found that the content of the duty did not include an obligation to warn. However, he observed that, given the way in which the case proceeded before the Court, he expressed his conclusion in terms that there had been no breach of the general duty of care. 318 Gleeson CJ made a similar observation in Leichhardt Municipal Council v Montgomery,34 when he held that the absence of civil juries tends to obscure distinctions between questions of duty (which are questions of law) and questions of breach (which are questions of fact). To formulate a duty in more specific terms 26 Ibid. 27 (1993) 177 CLR 423 at 430 per Mason CJ, Deane, Dawson and Gaudron JJ. 28 Ibid. 29 Ibid. 30 Vairy (above) [30]. 31 (1999) 200 CLR 1 [65]. 32 McHugh J in Sydney City Council v Dell’Oro (1974) 132 CLR 97, 110. 33 Vairy (above), [75], [91], [98]-[100]. 34 (2007) 230 CLR 22 [8]; [2007] HCA 6. -- 64 of 103 -- [2024] SADC 37 61 invites error because it is likely to mix a question of law (whether the duty existed) with a question of fact (whether the breach occurred).35 319 In each case the content of the duty (which is a factual question) will depend upon the particular facts and circumstances of the case.36 Matters such as the nature of the danger, assessed prior to the accident with reference to such matters as what the respondent knew or ought to have known of the danger, the functions of the public authority, the obviousness of the danger and the care ordinarily exercised by members of the public will inform the content of the duty.37 320 Kirby J in Romeo v Conservation Commission of the Northern Territory38 held that where statutory powers are expressed in terms of general and permissive powers, the scope of the duty imposed by the common law will be no more than to take reasonable care to avoidable foreseeable risk of injury to persons entering into the area, including the cliffs. Consideration of whether the duty extends to warning or the provision of fencing or a wire barrier will require testing by reference to what is reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public coming on any part of the land under its control when presented with similar risks. Kirby J held:39 But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct. It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them. [citations omitted] 35 McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2022) 211 CLR 540 [106]. 36 Ibid. 37 Ibid [79] per Gummow J; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 [21]. 38 (1998) 192 CLR 431; [1998] HCA 5. 39 Ibid [123] and [124]. -- 65 of 103 -- [2024] SADC 37 62 321 In Hoyts Pty Ltd v Burns,40 Kirby J provided guidance as to how a court should go about the process of determining whether the scope of a duty includes a notice to warn. Kirby J held: Considerations relevant to the obligation to provide a warning notice will include (1) whether the occupier has an economic or other interest in the entry of the plaintiff; (2) whether, because of previous incidents, public discussion or otherwise the occupier could be expected to know of any particular risks against which warnings should be given; (3) whether there was any hidden feature of the place or activity that might not be plain to an ordinary entrant but which should be known to, or reasonably discoverable by the occupier, calling for a warning; (4) whether, if the risk eventuated, the consequences would be likely to be minor or significant for the person affected; (5) whether the imposition of a requirement to give a notice could be confined to a particular place or places or would have large implications, costs and other consequences; and (6) whether the nature of the activity in question was such as to render the presence of a sign irrelevant to the actual prevention of injury. [citations omitted] 322 A number of High Court cases have elaborated on when the scope of the duty should require the erection of a warning sign. In Vairy v Wyong Shire Council, Gleeson CJ and Kirby J said:41 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? 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. 323 It is clear that the Council, as the statutory authority of the land where the accident occurred, owed a duty of care to Gregory, as a visitor to that area, to take reasonable care to safeguard him from physical harm. 324 It is in issue whether the scope of the duty of care, as specified in the previous paragraph, requires the erection of a sign or barrier or put in another way whether the discharge of the duty of care, required, in the circumstances, the erection of a warning sign or some other measure. That is a question of fact. 325 Gaudron J in Romeo held that the actions by the Commission in that case by constructing the road and providing parking were calculated to encourage persons 40 (2003) 201 ALR 470; [2003] HCA 61. 41 (2005) 223 CLR 422 [71]. -- 66 of 103 -- [2024] SADC 37 63 to visit the site where the appellant fell. As it was foreseeable that some visitors would walk towards the cliff top, Gaudron J held that having provided access and car parking facilities, there was a duty of care to provide fencing along the clifftop.42 326 McHugh J reached the same conclusion and in doing so referred to a number of factors including (1) the “great many people” that congregated in or near the car park from time to time (2) the nature of the place, its views and the allurement of a graded, but untarred road and car park and a grass strip that was regularly cut by the Commission.43 327 The matters to which I have referred in paragraphs [319]-[326] are all matters which are relevant to a determination as to whether or not the Council had breached its duty by failing to erect a sign or install some form of barrier. Characterisation of the risk of harm 328 The characterisation of the risk of harm is critical when assessing the precautions that should have been taken against a risk of harm for the purposes of s 32 of the Civil Liability Act and in assessing the standard of care under s 20 of that Act. The New South Wales Court of Appeal observed in Ballina Shire Council v Moore44 (Ballina) that s 5B of the Civil Liability Act (NSW) (the equivalent to s 32 of the SA Act) required the risk of harm to be characterised at the appropriate level of generality, with a prospective enquiry. 329 The High Court in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd45 (Tapp) confirmed the approach that should be taken in determining whether there had been a breach of duty by a respondent, particularly in cases, such as the present case, involving the obviousness of the risk. 330 The plurality, Gordon, Edelman and Gleeson JJ, held that the proper assessment of the alleged breach of duty depends on the correct identification of the risk of injury because only then can an assessment be made of what a reasonable response would be to that risk.46 The plurality went on to say that the risk must be characterised at the appropriate level of generality, a risk that is characterised at an artificially low level of generality, that is with too much specificity, will assist a respondent in denying liability.47 The risk must be assessed from the perspective of a reasonable person in the position of the applicant.48 42 (1998) 192 CLR 431; [1998] HCA 5 [69]. 43 Ibid [82]. 44 [2023] NSWCA 155 [13], [22]-[23] citing Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62; Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11. 45 (2022) 273 CLR 454; [2022] HCA 11. 46 Ibid [106]. 47 Ibid [108]. 48 Ibid [113]. -- 67 of 103 -- [2024] SADC 37 64 331 It is not necessary for the applicant to show that the precise manner in which their injuries were sustained was reasonably foreseeable.49 A risk is real and foreseeable if it is not far-fetched or fanciful even if it extremely unlikely to occur.50 332 The High Court in Tapp therefore agreed with the dissenting judgment of McCallum JA in the Court of Appeal that the appropriate characterisation of the risk was a risk of injury arising from falling from a horse that slipped by reason of the deterioration of the surface of the arena. The Court rejected the Trial judge’s characterisation of the risk as being the risk that the horse would fall and the plaintiff would sustain an injury as being too broad. 333 The first question is therefore to prospectively identify the risk of harm and to characterise that risk at the appropriate level of generality from the perspective of reasonable person in the applicant’s position. Only once that is done can an assessment be made as to what is a reasonable response to that risk. 334 Defining the risk of harm as the risk of falling and suffering some injury whilst going down the escarpment is too broad a characterisation of the risk. Characterisation of the risk in that way does not identify the risk that Gregory was in fact facing, particularly from the point of descent. 335 I also do not consider that defining the risk in terms of the unknown consequences facing the applicant adequately identifies the risk. The Council submitted that the risk was descending the escarpment that was too steep and unstable, losing balance and falling down the escarpment and not being able to stop ahead of some impediment to going further and that his access to the beach might be prevented by the steepness of the escarpment in a way that could not be visualised. That also is too broad a description of the risk facing the applicant. It does not provide any assistance in determining what should be the response to that risk. 336 The risk confronting the applicant, similar to the risk facing the plaintiff in the State of Queensland v Kelly51 (where the risk was characterised as the risk of running down the sandhill and losing his footing as he plunged into the lake), involved two elements: it was the risk of going down the escarpment to access the beach, losing his footing and falling over the vertical cliff. 337 Properly characterised, the risk of harm facing Gregory was that he would descend down the steep escarpment, believing it to be a pathway to the beach and because of inadvertence, accident or some other reason, would be unable to stop when he came to the vertical cliff at the bottom of the escarpment and would fall over that cliff and injure himself. 49 Ibid [108] citing Chapman v Hearse (1961) 106 CLR 112 at 120-121. 50 Ibid [109] citing Gummow J in Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 [64]. 51 [2014] QCA 27. -- 68 of 103 -- [2024] SADC 37 65 338 The question then becomes what would have been a reasonable response to that risk. Obvious risk 339 The next question that arises, having characterised the risk of harm facing a person in the position of Gregory is whether, by virtue of s 38 of the Civil Liability Act, the Council does not owe Gregory a duty to warn of that risk, as that risk should be characterised as an obvious risk within the meaning of that phrase as set out in s 36 of the Act. 340 The applicant submitted that, in accordance with Tapp,52 the question of obvious risk was to be assessed after a determination of prima facie liability in negligence. I do not agree with that submission. Tapp was a decision dealing with s 5L of the Civil Liability Act 2002 (NSW). Section 5L is in Division 5 of that Act dealing with recreational activities and provides that a person is not liable in negligence for harm as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person. Section 38 of the Civil Liability Act states that a defendant does not owe a duty of care to warn of an obvious risk. In Tapp, the anterior determination under s 5L to the question of obvious risk is the establishment of a prima facie liability in negligence Under s 38, the anterior determination, to the question of obvious risk, is the establishment of a prima facie duty of care. The question of obvious risk should be determined before considering questions of standard of care and breach. That conclusion was reached in Action Paintball Games Pty Ltd (in liq) v Barker,53 where it was held that the substantially identically expressed provision of the NSW Act (s 5H) cuts across the scope of the duty and logically should be addressed after considering whether any such duty exists and its prima facie scope before considering breach.54 341 Section 38, if applicable, excludes a duty to warn. A failure to erect a sign would be excluded because it is properly characterised as a failure to warn. Section 38 does not necessarily exclude a breach of duty by the failure to erect a barrier (such as a posts with a low strung wire between them) as that would not necessarily be characterised as a failure to warn. 342 Section 38 of the Civil Liability Act provides that a person does not owe a duty of care to a plaintiff to warn of an obvious risk. The Council submitted that the risk was an obvious risk and s 38 applied. 343 For the purposes of determining whether the risk is obvious, the risk should be characterised at the same level of generality as the risk is characterised in 52 Tapp (above), [111]. 53 [2013] NSWCA 128 [29]. 54 See also Tapp (above) [111]. -- 69 of 103 -- [2024] SADC 37 66 assessing the question of breach.55 That is, the characterisation of the risk is the same for all purposes of the case.56 344 As Tapp made clear, the obviousness of the risk must be determined objectively taking into account the particular circumstances of the applicant and his situation.57 The assessment of risk for the purposes of s 36 of the Civil Liability Act must be considered from the perspective of a reasonable person in the position of the applicant.58 A reasonable person in the position of the applicant in Tapp should take into account that the applicant was a teenager and that “teenagers are likely to be less attuned to risks that would be obvious to more experienced, settled members of the community.”59 In taking into account the particular circumstances in which the person was in, the Court will have regard to the person’s knowledge and experience of the relevant area and conditions.60 345 In Blue Op Partner Pty Ltd v De Roma61 (Blue Op), the New South Wales Court of Appeal referred to how the process of specifying an obvious risk of harm should be undertaken. The Court referred62 to the following passage from Menz v Wagga Wagga Show Society Inc63 (noting that characterisation of the risk of harm in Menz was discussed in Tapp as a correct application of the guiding principles set out in Tapp):64 ...First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single “correct” specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient. Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required. Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight. 346 Addressing the characterisation of the risk in this way, the Court in Blue Op held that the Trial judge did not approach the risk of harm from the perspective of 55 Ibid [110] and [113]. 56 Ibid. 57 See also Council of the City of Greater Taree v Wells (2010) LGERA 208 [75]-[76]; [2010] NSWCA 147. 58 Tapp (above) [113]. 59 [2022] HCA 11 [155] citing with approval this observation from McCallum JA in the Court of Appeal [2020] NSWCA 263 [185]. 60 State of Queensland v Kelly (2015) 1 Qd R 577; [2014] QCA 27 [57]. 61 [2023] NSWCA 161. 62 Ibid [51]-[53]. 63 (2020) 103 NSWLR 103; [2020] NSWCA 65 [70]-[72]. 64 [2023] NSWCA 161 [52]. -- 70 of 103 -- [2024] SADC 37 67 a reasonable person in the position of a plaintiff/applicant by posing the question “was it obvious that the respondent would trip in the way that she did” rather the correct question was “whether it was obvious that a risk of that kind might be present and materialise as she walked across the footpath containing the utility pit lid and frame”. 347 The same approach was taken in Collins v Clarence Valley Council65 where the Court held that s 5F(1) of the NSW Act (the equivalent of 36(1) of the Civil Liability Act (SA)) required consideration of the objective circumstances facing the person whose conduct is being assessed in order to determine whether the risk of harm would have been obvious to a reasonable person in the plaintiff’s position. Obvious means that both the factual scenario facing the plaintiff and the risk would be apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. The Court will take into account the age and experience of the applicant.66 A risk may be obvious even though it has a low probability of occurring and is not prominent, conspicuous or physically observable.67 It is not necessary that the precise facts that did in fact materialise could materialise: it was sufficient that there was an obvious risk that kind of thing might materialise.68 348 The importance of considering the obviousness of the risk from the perspective of the applicant was emphasised in State of Queensland v Kelly.69 In that case, the Trial judge found that the plaintiff ran down a steep sand dune towards the bottom of which he lost his footing, probably because the sand gave way or shifted underneath him, causing him to inadvertently plunge into the water too close to the edge. It was the sudden giving way of the sand or losing his footing in the sand that converted a safe jump into the water to an inadvertent headfirst plunge into the water.70 The Court of Appeal upheld the Trial judge’s finding that the risk that materialised was not obvious. It could be accepted that a reasonable person in the plaintiff’s position would have readily concluded that running down the sand dune was dangerous in that there was some risk of injury such as a sprain or bruising from a fall consequent upon looseness of the sand.71 The risk of the injury namely running down the sand dune into the lake was not an obvious risk. 349 Henry J, in a short concurring judgment, held:72 It warrants emphasis that while the determination of whether the risk was obvious fell to be determined objectively, it did not fall to be determined in the abstract. It is obvious that running down a sand dune into a lake involves a risk of some injury. However sandy slopes and water present as apparently forgiving surfaces on or in which to fall. Whether running 65 (2015) 91 NSWLR 128; [2015] NSWCA 263 [48]. 66 Ibid [138]. 67 Ibid. 68 Ibid [143] citing Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 [15]. 69 [2015] 1 Qd R 557; [2014] QCA 27. 70 Ibid [16]. 71 Ibid [48]. 72 Ibid [62]. -- 71 of 103 -- [2024] SADC 37 68 down a sand dune into a lake involves an obvious risk of serious injury will very much depend upon the individual circumstances of the case. It is a question of degree, turning upon an appreciation of the whole of the evidence, including evidence about warning signs. 350 Gregory’s situation included that he had not been to the site before and did not, it can be inferred, know of the vertical cliff at the bottom of the escarpment. Further, Gregory was a teenager and less likely to be attuned to the risks of the area. 351 In these circumstances, I do not consider that the risk, as characterised, could be considered to have been an obvious risk for the purposes of ss 36 and 38 of the Civil Liability Act to a person in Gregory’s position. The risk posed by the vertical cliff at the bottom of the escarpment could not be seen from the point of descent and to a teenager, it was not obvious that there was such a risk. The escarpment, although very steep, did not obviously appear to end in the vertical cliff to someone at the point of descent, notwithstanding the obvious cliffs to the north of the Car Park. 352 It follows that s 38 of the Civil Liability Act has no application in this case. It is therefore not necessary to consider whether a failure to erect a barrier constitutes a failure to warn for the purposes of s 38. My preliminary view is that a barrier marks the edge of the Car Park and therefore while it may serve as a warning, it also serves another purpose and therefore is not synonymous with a warning. Breach of duty 353 The issue in the present case therefore is what is required by the Council to discharge its duty to take reasonable care to avoid injury to Gregory, as an entrant to the land, against the risk of harm that I have identified which involved Gregory falling down the vertical cliff. That issue requires a determination of whether the standard of care required, in the circumstances, the erection of a warning sign or a barrier. 354 The issue of breach is a question of fact.73 Questions of breach are determined by reference to ss 20 and 32 of the Civil Liability Act which codify the common law test set out by Mason J (as he then was) in Wyong Shire Council v Shirt74 (and known as the Shirt calculus) although there are some differences. 355 In Wyong Shire Council v Shirt,75 Mason J held:76 … If the answer be in the affirmative [to the question of foreseeability], it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the 73 Vairy (above) per McHugh J [21]. 74 (1980) 146 CLR 40 [80]; [1980] HCA 12. 75 Ibid [14]. 76 At pp 47-48. -- 72 of 103 -- [2024] SADC 37 69 expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 356 The High Court has recognised the continual authority of the Shirt calculus.77 357 In Clare & Gilbert Valleys Council v Kruse,78 the Full Court held: Section 32 of the Act codifies what is known as the “Shirt calculus” as set out by Mason J in Wyong Shire Council v Shirt. While the sections of the Act mentioned generally reflect the common law, there are some clarifications or differences. Foreseeability of risk has a specific definition, namely, what a person knew or ought to have known. The not “far-fetched or fanciful” test, as proposed in Shirt has been replaced by a test that a risk be “not insignificant”. In Shaw v Thomas, Macfarlan JA with whom Beazley and Tobias JJA agree, when dealing with the identical provision in the Civil Liability Act (NSW) observed: Under the general law relating to the tort of negligence it is well established that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable” (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 12 at 12-121;(1961) 106 CLR 112 at 120-121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]. Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Tort Reports 81-818 at[42]-[43]). In Wyong Shire Council v Shirt, Mason J referred to a risk “which is not far-fetched or fanciful” as being “real and therefore foreseeable” (at 48). The requirement in s 5B910(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much. We accept that the statutory test is marginally more demanding. 358 The applicant submitted, which I accept, that s 20 of the Civil Liability Act also effectively reproduces the Shirt principle. The applicant also made submissions that accepted the application of Part 6 of the Civil Liability Act (which is the part of the Act dealing with negligence) when making submissions about obvious risks, contributory negligence and volenti. 359 The matters set out in s 20 (the occupier’s liability provisions) and the provisions set out in s 32 (the civil liability provision) are broadly consistent. Section 20(2) sets out certain matters that the Court must take into account in determining the standard of care to be exercised by an occupier. Section 20(2)(h) states that any other matter that the Court thinks relevant may be taken into account. The inclusion of such a provision demonstrates that s 20 is not intended to cover the field and s 20 can be read consistently with s 32.79 In Department of 77 Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [68]-[69]. 78 [2019] SASCFC 106. 79 B McGivern and P Hannaford “Two Problems of Occupiers’ Liability Part Two-The Occupiers Liability and Civil Liability Legislation” (2015) Melbourne University Law Review 507. -- 73 of 103 -- [2024] SADC 37 70 Housing and Works v Smith (No 2),80 the Court considered the interaction between the occupier’s liability provisions (which in Western Australia are embodied in the Occupiers Liability Act 1985 (WA) and in South Australia in s 20 of the Civil Liability Act) and the civil liability provisions (which in Western Australia are embodied in s 5B of the Civil Liability Act 2000 (WA) and in South Australia in s 32 of the Civil Liability Act). Buss JA held:81 The criteria in s 5(1) and (4) of the OLA must be read with s 5B of the CLA. There is no relevant inconsistency between the criteria in s 5(1) and (4) of the OLA on the one hand and s 5B of the CLA on the other in their application to the facts and circumstances of the present case. It is therefore unnecessary to consider how any such inconsistency (if it were to emerge in any other case) should be resolved. 360 That ss 20 and 32 of the Civil Liability Act mandate substantially the same approach is evident from the following comparisons between the two sections: 1. s 32(1)(a) refers to a foreseeable risk (being a risk of which the person knew or ought to have known) whereas s 20(2)(e) refers to the extent to which the occupier was aware or ought to have been aware of the danger and the entry of a person onto the premises; 2. s 32(1)(b) refers to the risk being not insignificant and s 32(2)(a) refers to the probability of harm whereas s 20(2)(b) refers to the nature and extent of the danger; 3. s 32(1)(c) and s 32(2) refers to the precautions a reasonable person might take whereas s 20(2)(h) refers to the extent to which it would have been reasonable and practical for the occupier to take measures to eliminate, reduce or warn against the danger; and 4. s 32(2)(d) makes specific reference to the social utility of the activity that creates the risk of harm. Section 20 does not refer to this consideration but s 20(2)(h) refers to any other matter that the court things relevant. 361 The inquiry into risk, although performed after the accident, must be assessed prospectively: what would a reasonable person, confronted with foreseeable risk of injury, have made of that risk.82 362 Section 32(1) of the Civil Liability Act restricts the circumstances in which a person can be found to be negligent in failing to take precautions against a risk of harm to cases where (a) the risk was foreseeable and (b) the risk was not 80 (2010) 41 WAR 217; [2010] WASCA 217, 81 Ibid [85]. 82 State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 [58]. See Road and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 [65]. -- 74 of 103 -- [2024] SADC 37 71 insignificant and (c) in the circumstances a reasonable person in the respondent’s position would have taken precautions against the risk. 363 Section 32(2) requires a range of matters to be considered in determining whether a reasonable person would have taken precautions to avoid the risk. As the New South Wales Court of Appeal in Ballina recognised, determination of that question involves an evaluative exercise that includes the nature and significance of the risk of harm, in the context of the matters listed in s 32(2).83 As I have said, these matters are substantially the same as those set out in s 20 and those identified in the Shirt Calculus. 364 Each of the matters set out in s 32(1) must first be independently addressed.84 Foreseeability 365 In order to assess foreseeability, the risk of harm must be identified.85 As to what constitutes a risk being foreseeable, the statements made by the High Court prior to the introduction of s 32 of the Civil Liability Act continue to have application.86 In Chapman v Hearse,87 the Court held that it was sufficient that the general nature of the risk must be identifiable and that although the combination of events was unusual, each event was by itself foreseeable. It was sufficient if it appears that the injury to the class of person was one which might reasonably have been foreseen.88 366 The test of foreseeability is not a stringent test and a risk that is extremely unlikely to occur can be a foreseeable risk.89 McHugh J in Tame v State of New South Wales90 referred to the test as undemanding and criticised the weakening of the test.91 Hayne J in Romeo92 made a similar statement when he held:93 The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible to demonstrate the contrary to a tribunal of fact. 367 Section 32 of the Civil Liability Act describes a risk as being foreseeable if it is a risk of which the respondent knew or ought to have known. An applicant must establish either actual knowledge of the respondent of the risk of harm or 83 [2023] NSWCA 155 [31]. 84 Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [88]. 85 Morris v Redland City Council [2016] 1 Qd R 339; [2015] QSC 135 [137]. 86 Ibid [83]. 87 (1961) 106 CLR 112 at 121; [1962] HCA 46. 88 Ibid. 89 Tapp (above) [109]. 90 (2002) 211 CLR 317, [96]; {2002] HCA 35. 91 Ibid [98]. 92 (1998) 192 CLR 431; [1998] HCA 5. 93 Ibid [156]. -- 75 of 103 -- [2024] SADC 37 72 constructive knowledge. Section 20 also refers to the extent to which the respondent knew or ought to have known of the danger.94 368 The Council submitted that the risk could not be characterised as foreseeable and it was so far-fetched that anyone, even a teenager, would pull up on the top of 30-40 metre high cliff and run through a gap in the vegetation where they did not know what was below. The Council referred to the decision in Romeo v Conservation Commission of the Northern Territory95 where Toohey and Gummow JJ held: Whether there was a breach of the duty of care owed by the respondent to those who came onto the Reserve depended on "the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed". An assessment of that action must be on the footing that the respondent had to take into account "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety". But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger. [citations omitted] 369 In my opinion, the risk of harm that confronted Gregory was foreseeable. As in Chapman v Hearse, although the combination of events that led to the injury were unusual, each individual component, assessing the escarpment as the way to the beach, assessing the escarpment as a sandhill, assessing the escarpment as not too dangerous to descend and undertaking the descent from the point of descent was by itself foreseeable. 370 In these circumstances, I consider that the Council ought to have known of the risk, such that the risk was foreseeable within the meaning of ss 32(1) and 20(2)(e). The Council had undertaken grading work along the length of Greenly Beach Road, down to the Car Park. Graders had been in the Car Park. Relevant Council employees therefore knew of the environment in which the accident occurred. The Council had prepared the Coastal Management Plan in 2012 which examined certain issues at the Car Park. Significance of the risk 371 The second requirement of s 32 is that the risk must not be insignificant. That is a reference to an assessment of the probability of the occurrence of the risk. 372 The requirement of a not insignificant risk was addressed in Clare & Gilbert Council v Kruse96 where the Court held that this imposed a standard that was more demanding than the “not far-fetched or fanciful” standard discussed in Wyong Shire Council v Shirt, but not by very much. The requirement is judged from the position of the respondent and prospectively.97 Section 20 does not refer 94 Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [90]. 95 (1998) 192 CLR 431; [1998] HCA 40 at [50]. 96 [2019] SASCFC 106. 97 Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [103]. -- 76 of 103 -- [2024] SADC 37 73 to the extent of the risk but requires the Court to consider the nature and extent of the danger when determining the appropriate standard of care. 373 The Ipp Report98 which led to the introduction of the Civil Liability Act referred to the use of the words “not insignificant. It stated: The Panel favours the phrase ‘not insignificant’. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was ‘not insignificant’. The phrase ‘not insignificant’ is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far fetched and fanciful’, but not so high as might be indicated by a phrase such as ‘a substantial risk’. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for ‘significant’. ‘Significant’ is apt to indicate a higher degree of probability than we intend. 374 The Council described the risk as far-fetched and fanciful, although it is evident from the decision in Clare and Gilbert Council v Kruse that the test may be slightly more demanding that the far-fetched and fanciful test. 375 In my opinion, the risk could not be described as insignificant even though I consider it to be improbable. There was a logical, coherent risk that someone could make the series of missteps that have been described above and descend the escarpment and then fall over the vertical cliff. Reasonable response to the risk (i) General principles 376 The third matter to consider pursuant to ss 32(1)(c) and 32(2) of the Civil Liability Act is whether, in the circumstances a reasonable person in the Council’s position would have taken precautions against the risk of harm. Section 20(2) requires similar matters to be considered. 377 In Vairy, Hayne J (with whom Gummow J agreed on this point), held that the question of breach requires a judgment of what would have been a reasonable response to the risk that had been identified.99 However, in determining that response, Hayne J accepted that the Council, by providing car parks and access to the beach, encouraged persons to come to the beach but it was not right to say that the Council encouraged persons to use the rock platform.100 378 Hayne J in Mulligan emphasised that the question as to breach was how would a reasonable authority, having the care, control and management of the creek, respond to the foreseeable risk that someone may injure themselves by diving. He said that was a judgment about what in all the circumstances of the case, a reasonable authority would have done in response to that risk.101 98 Final Report of the Review of the law of Negligence, September 2002 at [7.15]. 99 Vairy (above) [153]. 100 Ibid [152]. 101 Mulligan (above) [52]. -- 77 of 103 -- [2024] SADC 37 74 379 The Court must consider what precautions a reasonable person in the position of the Council would have taken against that risk. In undertaking that inquiry, the Court conducts an evaluative exercise that includes, but is not limited to, the matters set out in ss 20 and 32(2). The relevant factors must all be considered but then weighed against each other and the weight accorded to each will vary according to the facts and circumstances of the particular matter. 380 As Hayne J in Romeo observed102 that while the gravity of the injury that might be sustained, the likelihood of the injury occurring, the difficulty and cost of averting the danger are important considerations, other matters must also be taken into account including the level of control of the public authority, the position where the land is located (e.g. it may be an area of wilderness or may be in the middle of the city), and whether the Council positively encouraged or at least knew of the use of the land by the fit and adventurous or by those of all ages and conditions. 381 In response to the submission that all that was required to stop the applicant walking off the cliff was two star pickets and one or two stands of wire, Hayne J held that attributed a false degree of precision to the identification of the foreseeable risk; it attributed too high a probability to the occurrence of that risk and fails to identify properly the response that would have to be made to avoid that risk.103 382 An assessment of what is a reasonable response must take into account that one or more persons to whom the duty is owed might fail to take proper care for their own safety.104 The respondent might also anticipate a variety of visitors including children, the elderly, the short-sighted, the intoxicated and the exuberant.105 However, the taking of steps to fence off or illuminate a cliff which was about two kilometres in length and where the presence of the cliff was obvious, was held not to be a reasonable response to that risk.106 383 McHugh J in Vairy (although dissenting in the result) referred to a number of factors that might be considered when determining whether a warning sign is. reasonable response to the risk of harm. He held:107 Whether a warning sign is a reasonable response to a perceived risk of harm depends on a number of factors. They include the nature and obviousness of the risk, the probability of its occurrence, the age and maturity of those exposed to it, the actual or imputed knowledge of those persons and the likelihood that the warning will be effective to eliminate or reduce the harm resulting from the risk. Most importantly, they include the likelihood that inadvertence, familiarity with the area or constant exposure to the risk will make those coming into contact with the risk careless for their safety. It follows that I cannot accept 102 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 [157]. 103 Mulligan (above) [161]. 104 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 [50] per Toohey and Gummow JJ. 105 Ibid [132]. 106 Ibid [54]-[56]. 107 Vairy (above) [40]. -- 78 of 103 -- [2024] SADC 37 75 that Lord Hoffmann's statement in Tomlinson v Congleton Borough Council, that "[a] duty to protect against obvious risks ... exists only in cases in which there is no genuine and informed choice", accurately represents the common law of Australia. (ii) Probability of harm 384 The Car Park was self-evidently high above the beach. The beach was some thirty or forty metres below. The row of cliffs up above the beach were clearly visible to the north of the Car Park. 385 There was no evidence that other persons had, to the knowledge of the Council, used the escarpment as a means of accessing the beach. There was no evidence that persons were in fact regularly using the escarpment as a means of access to the beach. 386 Notwithstanding a finding that the risk was foreseeable and not insignificant, I consider that there was in fact a low probability that the harm would occur, even if precautions were not taken. I have set out the series of steps that had to occur before the harm materialised. They were: 1. A visitor to the site wrongly assessing the escarpment as the way to the beach, even though the entire route to the beach was not visible; 2. A visitor to the site wrongly assessing the escarpment as a sandhill (and not observing the ledges); 3. A visitor to the site wrongly assessing the steepness of the escarpment and concluding that it was safe to descend; 4. A visitor to the site wrongly assessing that it was safe to descend straight down the escarpment and not descend in a careful manner; 5. A visitor to the site not turning his or her mind to possible impediments when descending the escarpment, given the height of the escarpment at the point of descent; and 6. A visitor to the site through inadvertence or accident, stumbling or losing their footing, being unable to stop falling over the cliff. 387 There was a low probability that a sufficient combination of these events would occur and that the risk of harm would materialise. (iii) Likely seriousness of harm 388 It is accepted that the likely seriousness of the harm was very significant. Once the risk has been identified in the way described, then the risk involved in falling over the vertical cliff was very significant as serious injuries could be expected. -- 79 of 103 -- [2024] SADC 37 76 (iv) Burden of taking precautions 389 The burden of taking precautions is a matter that the Court is expressly required to take into account under ss 32 and 20(2)(g). It is also relevant in the Shirt calculus. As Kirby J held in Romeo:108 As to the expense of taking alleviating action, it is increasingly recognised that courts must "bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for" bodies accorded that function by law. Demanding the expenditure of resources in one area (such as the fencing of promontories in natural reserves) necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong. I leave aside, but shall return to, the extent to which "true policy" decisions of a public authority are justiciable. But even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk. [citations omitted] 390 The burden upon the Council of taking precautions to avoid the risk of harm was significant, particularly when considering the cost that would be incurred to prevent equivalent accidents at other sites in the Council area. While, as the applicant submitted, the cost of erecting a single sign or barrier, might be minimal (in the order of $1000 as stated by Professor Coyle in his first report), there is no reason why the signposting would be limited to that site or the particular place suggested by the applicant, namely at the point of descent. The point of descent was not obvious or the only place from which a person might descend down to the beach. The signage would need to extend all along the edge between the escarpment and the Car Park. The Car Park itself was not small and there were various places where a vehicle might park at the Car Park (see photograph 112 of exhibit A12). The place where the vehicle was parked in which Gregory was a passenger, was not the only place where a vehicle might be parked. 391 The signing suggested by Ms Mellen in her first report did not address the risk of descent of the escarpment. It would not be sufficient that the signing or barrier be placed between the gap in the vegetation as that was not the only place from which the escarpment might be descended. 392 The erection of a sign at or near the sandy gully directing visitors to access the beach by way of the sandy gully would not be an answer to the question of where to place a sign. I have come to that conclusion for three reasons. First, the sandy gully was about 90 metres from the Car Park and even further from the southerly boundary of the Car Park. It could not therefore be considered to be a 108 Romeo (above) [54]. -- 80 of 103 -- [2024] SADC 37 77 reasonable response to the risk that someone would descend the escarpment. Secondly, although the sandy gully was undoubtedly a safer option to access the beach than proceeding down the escarpment (and was the usual way that Mr Foster and Graham had accessed the beach), it does not follow that the Council wished or sought to have to encouraged persons to access the beach in that way by directing them that this was the route to the beach. I accept the submission of the Council to that affect. Thirdly, and this is perhaps a matter of causation, the erection of a sign at the top of the sandy gully would not have caused Mr Burk or Gregory to have altered their behaviour on the day of the accident. Mr Burk took three or four steps from the motor vehicle to the point of descent (between the Car Park and the escarpment). Gregory followed him. They would have had no opportunity to see a sign at the top of the sandy gully. Other sites 393 Mr Verco gave evidence that from Coles Point to the Car Park there were thirty similar sites that on Ms Mellen’s evidence would require either barriers or warning signs or at the least, an investigation as to whether those measures were necessary. He said that this sample represented only an area of about seven kilometres. 394 The Council submitted that the Court should also take into account that it had 702 kilometres of coastline in its council area (from Elliston in the west to Tumby Bay on the south east of the peninsula) and that a determination that signage or a barrier was necessary in this area would mean that signage or barriers would also be necessary throughout that 700 kilometre coastline. In addition, Mr Hall gave evidence that there were “literally hundreds” of bush tracks created through coastal vegetation within the Council area created by people driving through the vegetation and which have become more defined and facilitate access to the coast at many places. Council’s work in relation to these tracks is determined by environmental factors and the Council does not treat these tracks as part of its road network. Mr Verco gave evidence that in the small part of the coast from Coles Point to the Car Park, a distance of about 7 kilometres, there were thirty similar sites that on Ms Mellen’s evidence would require either barriers or warning signs or at the least, an investigation as to whether those measures were necessary. The Coastal Management Plan prepared in 2012 (exhibit A56, document 11) attaches maps of the roads in the Council area on the west coast. The map of the area to the east of the Car Park (Convention Beach to Picnic Beach) shows a number of roads going to the coast. The map further to the west of the Car Park from Point Drummond to Hall Bay shows the same with the road nearer to the coast for significant lengths. The map from Kiana Beach to the Cummins Monument shows the same. 395 The applicant submitted that what might be required elsewhere was irrelevant and further submitted that there was no evidence (and it was not the case) that the Council had in other places constructed a road to a car park at the top of the cliff from which the beach below was to be accessed. -- 81 of 103 -- [2024] SADC 37 78 396 I consider the burden of what precautions might be required at other sites to be relevant. It is something that the Court should take into account in assessing the precautions a reasonable person would take. I accept care must be taken in considering other sites as the conditions may differ at each site. I accept also that there are a smaller number of sites where there was a road, leading to a car park that was adjacent to the cliffs. However, that does not mean that the burden of assessing and placing signs or barriers at such sites is not relevant in determining what are reasonable precautions at the Car Park. 397 I accept the submission of the Council that the cars parks for the beaches north of the Car Park (heading along the track to Convention Beach) (photographs 114 and 115 of exhibit A11) would also qualify as a road related area and required a risk assessment. It would also follow, as Ms Mellen accepted, that the same standard would apply to all cases where a track that could carry a vehicle might lead an area near a cliff where a car could be parked. She accepted that there could be hundreds of such locations along the coastline of the western end of the Lower Eyre Peninsula, although she didn’t know how many. She accepted that her standard (i.e. at least an investigation as to what measures should be adopted) would apply to the 30 sites referred to on the 7 km from Coles Point to the Car Park. 398 The applicant submitted that if the beaches to the north of the Car Park required a warning (because the track was still a road), it was a much inferior road and the necessary warning could be achieved by the erection of a sign at the commencement of the track where it left the Car Park. 399 If that solution is adopted, then it suggests that a warning sign is required to be erected at a great many places along the coast, although what would remain variable is the nature of the warning in any particular place. 400 Kirby J made it clear in Romeo that consideration of other sites was a relevant factor when examining the reasonableness of the response of the Council when he held:109 However, because the risk was obvious and because the natural condition of the cliffs was part of their attraction, the suggestion that the cliffs should have been enclosed by a barrier must be tested by the proposition that all equivalent sites for which the Commission was responsible would have to be so fenced. The proposition that such precautions were necessary to arrest the passage of an inattentive young woman affected by alcohol is simply not reasonable. The perceived magnitude of risk, the remote possibility that an accident would occur, the expense, difficulty and inconvenience of alleviating conduct and the other proper priorities of the Commission confirm the conclusion that breach of the Commission's duty of care to the appellant was not established. The Commission's failure to provide protection against the risk that occurred was not unreasonable. 109 Romeo (above) [132]. -- 82 of 103 -- [2024] SADC 37 79 401 Hayne J in Romeo came to a similar conclusion when he held:110 Further, to say that it was reasonable to fence this area (or some other areas as well) assumes that a reasonable person would think that the possibility of such an unusual combination of circumstances as led to this accident was sufficient to warrant taking the step of installing fences. No doubt the reasonable person takes account of the fact that people do not always pay attention, that people do not always take care for themselves and that people may be affected by alcohol. But what was the likelihood of the events which happened here occurring? Was it a possibility that required serious consideration? If the risk was of sufficient likelihood to warrant serious consideration did reasonableness require the authority to fence all areas of the Dripstone Cliffs from which a person affected by alcohol might have fallen? Did it require like attention to all other elevated parts of the area under the Commission's management? Should this area have received special attention because of the height of the cliffs and the provision of car parking, or because it was known to be a place that young people went at night? 402 Hayne J reached the same position in Vairy where he held:111 But, as Romeo v Conservation Commission (NT) demonstrates, while it is necessary to look at what ought to have been done in relation to activities on the rock platform, attention cannot be confined to the precise place at which the events in question took place. In deciding what the response of a reasonable council would have been to the risk of diving injuries it is necessary to recognise that that council would be bound to consider all of the land of which the council had the care, control and management. That consideration may yield different answers for different places but all would have had to be considered. And it is a consideration that must be set into a much wider context than is provided by focusing only upon diving injuries. The duty of care which a council owes to those who enter land of which it has the care, control and management is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of recreational activity. 403 There will be cases where the risk will require a particular response, because the risk is confined or the respondent had encouraged those to participate in an activity at a particular spot. In Southern Colour (Vic) Pty Ltd v Parr,112 the Court of Appeal distinguished Romeo and Vairy on the basis that: 113 … in this case, the risk that was relevant to this case, was confined to one point in the applicant’s premises, namely that part of the eastern garden bed that was adjacent to the fence over which Mr Parr had commenced to climb. 404 In Vairy, the respondent argued that it was responsible for about 27 kilometres of coast and it was unreasonable to be required to erect warning signs on every rocky outcrop. Gleeson CJ and Kirby J (dissenting in the result) rejected that submission, finding that the respondent knew of the unusual rock platform, its accessibility to members of the public attending a popular surfing beach, that people dived from the platform and that the activity was a dangerous 110 Ibid [132]. 111 Vairy (above) [122]. 112 [2017] VSCA 301. 113 Ibid [83]. -- 83 of 103 -- [2024] SADC 37 80 one and that the respondent knew or ought to have known that there were variations in the depth of the water. 405 However, in the present case, the risk was not confined to the one point and there was no evidence that the Council had knowledge that visitors were descending the escarpment. (v) Social utility 406 The fourth factor set out in s 32(2) of the Civil Liability Act to be considered by the Court is the social utility of the activity that creates the risk of harm. Section 20 does not expressly refer to that consideration but permits it to be considered “as any other matter that the court thinks relevant” in s 20(2)(h). A broad interpretation of that phrase has been adopted. In Roads and Traffic Authority of New South Wales v Dederer,114 Callinan J held there was a public benefit in being able to “walk across the bridge, enjoy the view and to pause and lean in comfort on a flat surface of a top rail as they did so.” 407 There could be some similar social utility in this case of coming to the Car Park, enjoying the view from the top of the cliff and going down to the beach to swim or fish. 408 However, I consider this factor to be of little weight in the evaluative exercise that is required to be undertaken in this case. This is not a case where the social utility is some emergency response or necessary public utility. It is not the case that fewer precautions are needed because there is some social utility in the activity that creates the harm.115 409 In all the circumstances, in undertaking the required evaluative exercise, I place little weight on any social utility of the activity of the Council. (vi) Evaluative exercise 410 In undertaking the evaluative exercise required to consider whether a reasonable person in the position of the Council would have taken precautions against the harm, I take into account the nature and significance of the risk of harm and the location of the Car Park and Accident Site which I have described previously. 411 The Accident Site was remote and the number of visitors to the site small. The Accident Site was not promoted as a tourist attraction nor was it such a destination. It had been described as wilderness coastline in 1990 and that description remained apt in 2013. It was a considerable distance from any nearby town or any facilities and the number of visitors to the site as at December 2013 were few. The total Council area was some 4771 square kilometres, yet the total population of the area in 2013 was about 5,000 (exhibit A56, document 10, p3). 114 (2007) 238 ALR 761 [275]; [2007] HCA 42. 115 Wilson v Nilepac Pty Ltd trading as Vision Personal Training (Crows Nest) [2011] NSWCA 63 [7]. -- 84 of 103 -- [2024] SADC 37 81 There were some swimmers, some surfers, some fisherman and some sightseers to the site. There were no facilities at the Car Park or anywhere along Greenly Beach Road. The road to the Car Park was a dirt road and although some periodic maintenance grading was undertaken on the road, the road was of an inferior quality. 412 The probability that harm would occur, was for the reasons that I have identified, low. There were a number of missteps that had to occur before the harm was realised. 413 I accept the submission of the applicant that the Council must take into account that young persons such as the applicant might visit the site and that they may be less cognisant of risks (including the risk of descending the escarpment) than older persons. 414 I accept also that the Council had knowledge or ought to have known that surfers, fishermen and swimmers used the beach. 415 The question of whether it can be said that the Council encouraged the applicant to engage in the activity that caused him injury is a relevant consideration. 416 It follows from my findings that I have set out earlier in these reasons, that the Council: 1. created Greenly Beach Road to the Car Park; 2. created the Car Park; 3. performed grading work from time to time on the road and on the Car Park; and 4. to some degree, by undertaking those actions encouraged or made it easier for persons to come to the Car Park. 417 However, I do not accept that the Council encouraged Gregory to descend the escarpment. The escarpment, as I have found, was very steep. Descending the escarpment was self-evidently dangerous, even if the risk could not be characterised as obvious for the purposes of ss 36 and 38 of the Civil Liability Act. It was part rocky and part sandy. There was no pathway to the beach that had been created or made through use, nor was there any natural pathway. The entire pathway to the beach could not be seen from the point of descent. 418 It follows that I also do not consider that by undertaking some work in creating and maintaining Greenly Beach Road and the Car Park, the Council can be said to have encouraged visitors to drive to the Car Park and then access the beach from the escarpment. The applicant referred to the Car Park as a destination car park. I do not agree with that description. That description implies a level of -- 85 of 103 -- [2024] SADC 37 82 work or activities undertaken by the Council to encourage visitors to the Car Park which I do not consider occurred. The minimal work done by the Council in maintaining the road and the Car Park (and creating the road and the Car Park in the first place) is not sufficient to describe the Car Park as a destination car park. 419 The Council did not provide any access to the beach from the Car Park and therefor did not encourage visitors to access the beach from the Car Park which was self-evidently on top of cliffs, 30-40 metres above the beach. 420 The burden imposed on a respondent in responding to a particular risk is a relevant matter. As I have indicated, there would be a significant burden on the Council if it were required to erect warning signs or barriers at similar locations throughout the area of the Council. 421 It is informative in the present case, to consider (when determining what is a reasonable response to the risk of harm) where it is contended that a sign or barrier should be erected because there is no obvious answer. For example, the signs could be placed anywhere in the Car Park and in respect of different parts of the escarpment. 422 There was no reason why a sign or barrier would be placed at the point of descent as distinct from any other point on the edge of the Car Park and the escarpment. 423 The applicant submitted that the barrier could have been rocks or boulders around the edge of the Car Park such that they provided a barrier or directional indicator or alternatively a barrier in the form of low fence. 424 I do not consider the rocks or boulders to be a reasonable response to the risk facing the applicant. The rocks and boulders did not prevent physical access. They may, and are designed to, prevent a vehicle from going over the escarpment, but they do not prevent a pedestrian from doing so. They do not, in my view, provide any directional indicator to a pedestrian as to the way in which they should descend to the beach. They do not provide any warning to pedestrians of the dangers of descending the escarpment. They simply mark the edge between the Car Park and the escarpment. 425 A barrier in the form of a low fence (with a chain between posts) would have acted in a similar way to a sign. It would not have prohibited a pedestrian from descending the escarpment or even made it more difficult to do so. It would have acted as a warning. Therefore, any contention that the Council should have erected a barrier to discharge its duty of care requires the same or similar considerations when determining whether the Council failed to discharge it duty of care by failing to erect a warning sign. -- 86 of 103 -- [2024] SADC 37 83 426 In a matter involving failure to warn and the response to a particular identified harm, the Court in Morris v Redland Shire Council116 considered questions such as how many signs there should be, should they be illuminated (not relevant in the present case), where on the cliff should the sign or signs be placed, which cliff should be warned of, and what other warnings should be given. 427 The submission that a reasonable response to the risk required the erection of a warning sign or the placement of a low barrier also ignores the efficacy of a warning sign or a barrier (which was to act as a warning). The warning signs which were suggested by Ms Mellen either related to roads or did no more than warn of something that was evident: the escarpment was very steep and descent should not be undertaken. It was not the case that the sign should have directed the visitor to proceed by some other route to the beach: for the reasons that I have already expressed, the sandy gully to the north of the Car Park was not a means of access that was to be promoted. 428 The applicant in his written submissions suggested that the signs or barrier could be placed at the various gaps on the vegetation at the edge of the Car Park which gave the impression to someone standing there of a path down the escarpment. Professor Coyle said that one option could be to place a sign or post and rail barrier in the gap in the vegetation. 429 The difficulty with that submission is there is, in my view, no impression of a path down the escarpment or from the Car Park to the point of descent. Further, there is no obvious place where signs or barriers should be placed. Photograph 112 of exhibit A12 demonstrates this point. 430 Hayne J in Vairy held that to mark one place as especially dangerous was neither reasonably necessary nor appropriate. 431 Toohey and Gummow JJ in Romeo reached the same conclusion when they held that the risk of falling off the cliff in the case was the same all along the two kilometre stretch of that coast. In those circumstances, it could not be regarded as reasonable as fencing off that particular part of the coast. 432 Similar reasoning was adopted by Gleeson CJ and Kirby J in Mulligan v Coffs Harbour City Council117 when they posed the question why would a public authority chose to single out this particular spot or that particular risk as the subject of a warning. They may do so where there was an established risk such as in Vairy.118 Gleeson CJ and Kirby J held:119 The reasoning of Whealy J [at first instance] 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 116 [2016] 1 Qd R 339; [2015] QSC 135 [48]. 117 (2005) 223 CLR 486; [2005] HCA 63; See also McHugh J in Mulligan [26]. 118 Ibid [2]. 119 Ibid [6]. -- 87 of 103 -- [2024] SADC 37 84 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. 433 In all of the circumstances, a reasonable response to the risk of harm did not require the erection of a warning sign (or any other response). Gleeson CJ and Kirby J held in Mulligan:120 This Court has recently said in Thompson v Woolworths (Queensland) Pty Ltd, that reasonableness may require no response to the foreseeable risk. 434 I consider these comments apposite to the present case. There is a danger, common to all areas involving cliff top areas, that when descending a slope as steep as the escarpment that the person descending might fall. This is a case where even though the risk was foreseeable, reasonableness did not require any response to that risk.121 435 Evaluating all of these factors, I conclude that a reasonable person in the position of the Council would not have taken the precautions of erecting signs or a barrier against the risk of harm facing the applicant. (vii) Failure to inspect and assess 436 The applicant also pleaded that the Council failed to inspect and assess the area of the Car Park in regard to its safety. The applicant submitted that the Council should have undertaken a risk assessment of the area. There was no submission by the Council that it has undertaken a risk assessment. There was no suggestion, for example, that the Coastal Management Plan constituted a risk assessment. In those circumstances, I find that the Council had not conducted a risk assessment addressing the risk facing visitors to the Car Park. 437 In relation to this aspect of his claim, the applicant placed reliance on the evidence of Ms Mellen and the Austroads Guide to Road Design 2009 which required either the installation of a barrier or at least an assessment of what road safety measures were required at the Car Park. As I have previously held, a pedestrian is included as a road user. 438 However, I do not consider that the installation of boulders or rocks addresses the risk of injury facing the applicant as previously identified. The risk facing the applicant was not a question of the clearance between the vehicle and the cliff for pedestrians and the associated risk of slipping at the edge of the cliff. 439 The placement of boulders or rocks has the purpose of addressing the risk of a vehicle being driven over the escarpment. It does not address any risk to a pedestrian except perhaps a risk of failing to observe a demarcation between the 120 Mulligan (above), [3]. 121 Ibid [3]. -- 88 of 103 -- [2024] SADC 37 85 Car Park and the escarpment. That was not the relevant risk in this case. There was no evidence that Mr Burk or Gregory mistook the edge between the Car Park and the escarpment. In fact, the evidence was that Mr Burk and therefore it can be inferred Gregory made a conscious decision to descend the escarpment. The Council was only under an obligation to take reasonable care for the safety of pedestrians.122 The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their safety.123 In the circumstances of this case, the erection of boulders was not a measure that the Council was required to take to meet that standard. 440 The carrying out of an inspection and assessing the safety of the Car Park does not lead to any act required to be undertaken by the Council. I have already concluded that to address the risk facing the applicant, a reasonable person in the position of the Council, was not required to take precautions such as the erection of signs or the placement of a barrier including rocks or boulders. 441 It is also the case that the requirement of an inspection and assessment would place a considerable burden on the Council. There would be no reason to limit the inspection and assessment to the Car Park. All similar areas along the coast would also have to be inspected and assessed. Various investigations would need to be carried out and the results considered by those with authority in the Council. Recommendations would need to be made and if approved, resources allocated to the work. The burden imposed on Council to undertake a risk assessment as suggested would be considerable even if the Council engaged a third party to conduct the risk assessment as Mr Jutzen said that they would do. 442 It is, contrary to the evidence of Ms Mellen, difficult to see how this risk assessment could be undertaken in the absence of a physical examination of each site. Matters such as the nature of any particular hazard, the volume of traffic and matters peculiar to the site could only be properly assessed on a visit to the particular site. 443 The applicant then submitted that it was the characteristics of the Car Park and the fact that the Council had done work creating and maintaining Greenly Beach Road and the Car Park and the attractions of the site that led to the requirement that the site be the subject of a risk assessment. Therefore, he submitted, the number of places where a risk assessment was required to be undertaken was greatly reduced. 444 In my opinion, the requirement for a risk assessment cannot arise or be influenced by whether or not the Council may have undertaken some work (even minimal in nature) in either creating or maintaining the road leading into the site or any car park at the site. A risk assessment is triggered by knowledge of the nature of the site, the usage of the site and likely danger. 122 E.g. Burwood Council v Byrnes [2002] NSWCA 343. 123 Ibid. -- 89 of 103 -- [2024] SADC 37 86 445 However, the risk assessment itself does not have any impact on Gregory’s accident. It can only do so if the consequence of the risk assessment was that warning signs or a barrier should have been erected. I have found that the Council did not breach its duty of care by failing to erect a warning sign or barrier. It follows that I also find that the Council did not breach any duty of care by failing to inspect and assess the Car Park area. The standard of care imposed on the Council did not require such an inspection and assessment to be carried out. (viii) Draft Coastal Management Plan and Plan entitled “Coastline. Developing a management strategy for coastal cliff erosion hazards in South Australia” 446 The applicant submitted that the 2001 Draft Coastal Management Plan (exhibit A56, document 6) prepared by Council should be taken into account in that it makes reference to the increasing number of visitors to the area generally. The difficulty with that submission is that Draft Plan is in relation to Coles Point and the neighbouring area and does not extend to the Accident Site. It makes recommendations relating to the conditions at places other than the Accident Site. The statement in the Draft Plan that “it is not always apparent which is the best route from the cliff top to the water’s edge” must be read in that context. 447 The applicant also placed reliance on the plan prepared by the Department of Environment, Water and Natural Resources entitled “Coastline. Developing a management strategy for coastal cliff erosion hazards in South Australia” (exhibit A56, document 15). Although the applicant properly recognised that the report was prepared in 2014 (and therefore after the accident), he made the submission that the report confirmed that the danger created by erosion hazards such as the cliff drop and the importance of the management of pedestrian expectations. 448 I consider that this report was addressing a very different issue namely coastal cliff erosion and the risk associated with cliffs collapsing. In those circumstances, the report does not assist the applicant in his claim. The risk facing the applicant was a very different risk than the risk associated with erosion. The contents of the report therefore do not provide evidence of matters that the Council should have recognised and dealt with in relation to the Car Park and the escarpment. In any event, the report was prepared 6 months after the accident. Coastal Management Plan 449 The applicant pleaded that the Council owed a duty of care to all members of the public in accordance with the Coastal Management Plan for Community Land, including Coastal Reserves (exhibit A56, document 14). That Plan was produced in 2012. 450 The Plan relevantly refers to “Recommendation and Action Table.” It does not place any direct obligation on the Council to comply with the Plan, although the matters raised in the Plan may be relevant when assessing questions relating to the scope of the Council’s duty of care and its response to the identified risk of -- 90 of 103 -- [2024] SADC 37 87 harm. The applicant made submissions to that effect. The Plan may also be relevant to the knowledge of the Council of the matters contained within it or the knowledge that the Council ought to have had. 451 In respect of the Car Park, the Coastal Management Plan includes the following in the Recommendation and Action Table: Site No Site Description Recommendation/Action Hazard and Conservation Status 43.10 Greenly Road to End Bay-carpark through the gate Place rock boulders to delineate carparking area. Management water runoff from carpark down erosion gully Medium hazard Medium Conservation 452 The reference to the “car park through the gate” is unclear. The applicant submitted that the table indicated the Council regarded the Car Park as a hazard. 453 I do not consider that a conclusion that the Council was in breach of its duty of care can be drawn from the Coastal Management Plan. The Plan is in the nature of recommendations and an action plan. It does not represent an assessment of risk that faced the applicant when descending the escarpment. The recommendation and action plan set out in the Coastal Management Plan relates to vehicles and not the danger of the cliff to persons descending the escarpment to the beach. Causation 454 Given my findings about breach, it is not strictly necessary to consider questions of causation. 455 Causation under the Civil Liability Act requires consideration of factual causation and scope of liability. Section 34 provides: Division 2—Causation 34—General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). … -- 91 of 103 -- [2024] SADC 37 88 (3) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 456 Factual causation requires the court to be satisfied that but for the negligence, the harm would not have occurred.124 Section 5D is a statutory statement of the “but for” test of causation.125 457 The counterfactual of what would have happened if the Council had erected the sign must be considered.126 The Court must be wary of absolving a respondent from legal responsibility by giving decisive weight to hypothetical and problematical considerations of what could have happened in conditions of great variety.127 458 In Nagle v Rottnest Island Authority,128 the Trial judge found that a warning sign would not have added to the state of knowledge of the applicant and therefore would not have averted the harm that ensued. That finding was overturned on appeal. The High Court agreed that causation had been established and referred to evidence both of the applicant as to his approach to diving and general evidence as to members of the public obeying warning signs in relation to diving and swimming. 459 Proof of causation is to be assessed in a practicable and robust manner.129 Often questions of the effect of omissions and whether an omission was causative will give rise to hypothetical questions which may be inherently difficult to answer definitively. That however does not preclude a finding on the balance of probabilities.130 460 Often it will be the case that a finding of breach, followed closely by damage and loss, will prima facie give rise to an inference of causation, in the absence of evidence to the contrary. Thus, in Bennett v Minister of Community Welfare,131 Gaudron J held (quoting in part from Dixon J in Betts v Whittingslowe)132: In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”. 124 Tapp [101]. 125 Ibid. 126 Ibid [149]. 127 Ibid citing Chappel v Hart (1998) 195 CLR 232 [81]. 128 (1993) 177 CLR 423; [1993] HCA 76. 129 Queen Elizabeth Hospital v Curtis [2008] SASC 344 [44]. 130 Ibid. 131 (1992) 176 CLR 408 at 420-421; [1992] HCA 27. 132 (1945) 71 CLR 637 at 649; [1945] HCA 31. -- 92 of 103 -- [2024] SADC 37 89 461 Callinan J in Naxakis v West General Hospital133 adopted the same approach when he held: Where, as here, a plaintiff demonstrates that it was open to a jury to conclude that the respondents were in breach of their duty of care to him and this breach was closely followed by his damage, a prima facie causal link is established. It may be displaced and it may be rejected; but it cannot be ignored in considering a motion for judgment for the defendant for the want of evidence. 462 These statements indicate the difficulty in embarking on a hypothetical exercise of determining whether causation was established when the precise precaution that ought to have been taken has not been found. 463 This is particularly the case where I have made findings about the conduct of Mr Burk and Gregory when they got out of the vehicle and descended down the escarpment. I found that Mr Burk got out of the car and moved three or four steps to the point of descent and then went straight down the escarpment. I found that Gregory followed him. They did not pause to consider the dangers posed before embarking on his descent. I found that the escarpment did not have the appearance of a sandhill. I found the escarpment to be very steep. 464 I accept the evidence of Ms Mellen and Professor Coyle, as a general proposition, that signs or barriers can have an effect in deterring a person from engaging in risky behaviour. 465 However, the difficulty in the present case is that they would not have had the effect of deterring Mr Burk and Gregory unless they were placed at the point of descent or between the bushes. Unless the scope of the duty required placement at those particular points or all along the interface between the Car Park and the escarpment, any signs or barriers would not have had any effect on Mr Burk’s and Gregory’s descent of the escarpment. 466 There was direct evidence about the effect of the signs or barriers on the behaviour of Gregory. There were no direct observations made about Gregory’s conduct in the Car Park except for Ms Barns’ observation that he was running about the Car Park, which I have not accepted. 467 However, I have found that certain inferences can be drawn about his conduct which will also have relevance to the issue of causation. 468 The evidence allows the inference to be drawn that Gregory went around the back of the car and followed Mr Burk down the escarpment. It follows from the evidence about Mr Burk stopping before falling over the vertical cliff and Gregory stumbling and being unable to stop, that Gregory was close behind Mr Burk as they descended and that Gregory was travelling about the same speed as Mr Burk. 133 (1999) 197 CLR 269; [1999] HCA 22 [76]. -- 93 of 103 -- [2024] SADC 37 90 Mr Burk said that he was travelling at a fast walk as he approached the vertical cliff. 469 It follows from this evidence that unless Gregory was running or going substantially faster than Mr Burk, he also must have also walked straight down the escarpment. Any inference that he paused at the point of descent and then ran down the escarpment is dispelled by the evidence of Mr Stevens. 470 On all of the evidence therefore, I find that Gregory, like Mr Burk, went straight down the escarpment from the point of descent without stopping at the point of descent. 471 From this finding, the placement of a sign or barrier would not have had an effect on the behaviour of Gregory unless it was placed at the point of descent or all along the edge of the interface between the Car Park and the escarpment. 472 Therefore, in the hypothetical exercise that is being undertaken, causation will only be established if the scope of the duty extended to placing a sign or barrier specifically at the point of descent or between the bushes. 473 However, given my finding that the Council did not breach its duty of care, it is not possible, if I had come to a different conclusion, to say precisely what the Council ought to have done and therefore determine whether factual causation (i.e. but for the failure to place signs or a barrier, the harm that befell Gregory would not have occurred), had been established. Contributory negligence 474 It is also not necessary to consider the question of contributory negligence, given my finding that the Council was not negligent. There are obvious difficulties in assessing contributory negligence when negligence has not been found and therefore the precise nature of the asserted negligence has not been determined. However, given the confined nature of the claim for negligence, it is possible to make an assessment as to contributory negligence in the event that a finding had been made that the Council were negligent. 475 Section 3 of the Civil Liability Act defines contributory negligence as meaning: A failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection of for the protection of his or her own interests. 476 Section 44 of the Civil Liability Act provides that the principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent. 477 Section 31 sets out the principles that apply in determining whether a person is negligent. Section 31(1) states: -- 94 of 103 -- [2024] SADC 37 91 For determining whether a person (the "defendant") was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 478 That position reflects the position at common law. In Imbree v McNeilly (Imbree), Gummow, Hayne and Kiefel JJ held:134 And both what a plaintiff actually knows, and what that plaintiff ought reasonably to have known, will be relevant to an inquiry about contributory negligence. The answers to both questions (about what a plaintiff knew and what a plaintiff ought to have known) will bear upon whether the plaintiff failed to take reasonable care for his or her own safety. 479 The applicant also made the submission that Gummow, Hayne and Kiefel JJ held in Imbree that there was little, if any difference between the defence of volenti and the defence of contributory negligence.135 That statement was made in the context of the facts of that case: a gratuitous passenger accepting carriage in a vehicle driven by a person known by the passenger to be drunk. I do not take the Court to be expressing a general proposition that there was little, if any difference between the defence of volenti and the defence of contributory negligence. 480 The question of apportionment for the purposes of contributory negligence involves questions of balance and relative emphasis and weighing different considerations. In Podrebersek v Australian Iron & Steel Pty Ltd,136 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ held: [a] finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’... 481 The causal effect of a party’s own negligence is an evaluative exercise and not a matter of precise calculation.137 When assessing contributory negligence, age is a relevant fact and the care expected is what is reasonable to be expected of a person of the same age, intelligence and experience.138 482 In my opinion, there are a number of acts or omissions on the part of Gregory that caused or contributed to his accident. They were: 1. Failing to stop at the top of the escarpment and determine that the escarpment was not the way to the beach; 134 (2008) 236 CLR 510; [2008] HCA 40 [85]. 135 Ibid [76]. 136 (1985) 59 ALJR 492 at 493-4. Cited in State of Queensland v Kelly [2014] 1 Qd R 577; [2014] QCA 27 [54]. 137 Chotiputhsilpa (by his tutor Chotiputhsilpa) v Waterhouse [2005] NSWCA 295 [92]. 138 Ibid citing McHale v Watson (1966) 115 CLR 1099 [215]. -- 95 of 103 -- [2024] SADC 37 92 2. Failing to stop at the top of the escarpment and conclude that there was not visible a path all the way to the beach; 3. Failing to stop at the top of the escarpment and determine that the escarpment was not a sandhill; 4. Failing to stop at the top of the escarpment and assess the steepness of the escarpment and therefore failing to conclude that the escarpment was not safe to descend; 5. Failing to appreciate the steepness of the escarpment; 6. Descending straight down the escarpment; and 7. Not descending in a careful and slow manner. 483 Taking into account all of the above matters and considering these along with the assumed negligence (for the purposes of this exercise) of the Council in not erecting a warning sign or placing a barrier at the point of descent, I would have found that Gregory was contributory negligent to the extent of 40%. Volenti non fit injuria 484 Again, for the sake of completeness, I will address the defence of volenti non fit injuria (volenti) which has been raised by the Council. 485 Although the Civil Liability Act has made the defence easier to establish, there remains a requirement that a respondent must still prove that an applicant consciously adverted to the possibility that the known risk might eventuate and nonetheless decided to embark on a course of conduct that involved that risk of which he or she was aware. 486 The circumstances in which the defence of volenti can be established under the common law required the respondent to prove that the applicant:139 1. perceived of the existence of a danger; 2. fully appreciated the danger; and 3. freely and voluntarily agreed to accept the risk. 487 The Full Court in Schuller v SJ Webb Nominees Pty Ltd140 held that ss 36 and 37 of the Civil Liability Act made it easier for a respondent to establish the defence of volenti in the case of an obvious risk in that: (1) s 37(1) provided that if the risk was obvious, the respondent did not need to prove that the applicant knew of the risk (although the applicant could prove on the balance of probabilities that he was 139 Schuller v SJ Webb Nominees Pty Ltd [2015] SASCFC 162 [35.2] citing Roggenkamp v Bennett (1950) 80 CLR 292 at 300; [1950] HCA 23 [11]. 140 Ibid. -- 96 of 103 -- [2024] SADC 37 93 actually unaware of the risk); (2) s 37(2) provided that the applicant is aware of the risk if they were aware of the kind of risk even if they did not know of the precise nature, extent or manner of occurrence of the risk.141 488 There are two difficulties with the application of volenti to the circumstances of this case. First, I have not found the risk facing the applicant to be an obvious risk. In these circumstances, the presumption provided for in s 37(1) does not apply. The Council had not proved that the applicant knew of the risk. 489 Secondly, s 37 and in particular s 37(3) does not do away with the requirement of voluntariness and the respondent must still prove the common law requirement that an applicant consciously adverted to the possibility that the known risk might eventuate and nonetheless decided to embark on a course of conduct that involved that risk of which he or she was aware.142 490 In my opinion, the Council is unable to prove that Gregory had that consciousness. The evidence supports the inference that Gregory did not advert to the risk at all. 491 In these circumstances, the defence of volenti is not made out. Section 244 of the Local Government Act 492 The last matter to consider is whether the Council has made out its defence under s 244 of the Local Government Act. Again, that is a hypothetical exercise given my finding that the Council is not liable. I will however assume for the purpose of consideration of this defence that it has been established that the Council has been found to be negligent. 493 Section 244 of the Local Government Act provides that the Council is only liable as an occupier of community land for injury, damage or loss that is a direct consequence of a wrongful act. 494 Section 244 was introduced into the Local Government Act upon its enactment in 1999. A similar provision was not included in the Local Government Act 1934. The second reading speech in relation to the enactment of the 1999 Act does not provide any assistance in understanding the reason for the inclusion of the section. 495 There is no directly equivalent section in other states although a number of states provide that a public authority does not breach a statutory duty unless the act or omission was in the circumstances so unreasonable that no authority could properly consider the act or omission to be a reasonable exercise of its functions.143 141 Ibid [49]. 142 Ibid [51] and [54]. See Woods v Multi Sports Holdings Pty Ltd (2002) 208 CLR 460 [125]. 143 Wrongs Act 1958 (Vic), s 84; Civil liability Act 2002 (NSW) s 43(2); Civil Law (Wrongs) Act 2002 (ACT), s 111(2); Civil Liability Act 2002 (Tas), s 40(2); Civil Liability Act 2002 (WA), s 5 Y(2). -- 97 of 103 -- [2024] SADC 37 94 496 There are four matters relevant to the possible application of the defence in this matter. They are: 1. Was the Council the occupier of the community land where the injury occurred? 2. Did Gregory suffer an injury? 3. Did the Council commit a wrongful act? 4. Was the injury sustained by Gregory a direct consequence of that wrongful act? 497 There is no dispute about the first two matters. The Council is the admitted occupier of the land where the injury occurred and Gregory clearly suffered very severe injuries. The dispute concerns the latter two matters. The Council argues that any injury suffered by Gregory was not a direct consequence of a wrongful act and further that it did not commit a wrongful act. Wrongful act 498 The Council submitted that it has not committed a wrongful act within the meaning of s 244 and therefore s 244 applies to exclude any liability on its part. The Council submitted that the claim made by Gregory, namely the failure to erect a warning sign or the failure to erect a barrier, amounted only to alleged omissions and cannot be characterised as wrongful acts. 499 The applicant submitted that the acts committed by the Council must be examined in the context of the Council creating or maintaining the Greenly Beach Road down to the Car Park and further by creating or maintaining the Car Park. In those circumstances, it was submitted the Council committed a positive act, (which was wrongful) rather than an omission. 500 The applicant submitted that while the ultimate deficiency of the Council in failing to erect signs or a barrier might be characterised as an omission, that deficiency must be considered as part of the fabric of conduct which led to the breach and therefore was a positive conduct. The omission is part of the larger course of conduct. The classic example of such characterisation is the failure to apply a handbrake. While in isolation, it could be characterised as an omission, it is properly characterised as part of the larger course of activity.144 501 The applicant placed reliance on the following passages from Brodie v Singleton Shire Council 145 where Gaudron, McHugh and Gummow JJ held in relation to the distinction between misfeasance and non-feasance:146 144 Stovin v Wise [1996] AC 923 at 930. 145 (2001) 206 CLR 512; [2001] HCA 29. 146 Ibid [88] and [89]. -- 98 of 103 -- [2024] SADC 37 95 Likewise, there may be misfeasance if the authority has created a false sense as to the security or safety of a road. The authority may have thrown open an unsafe road for use as a safe road; its work may have created or maintained a "trap" by creating an appearance of safety, or at least of uniformity, across its surface, which could readily mislead; or its work may have created a new danger or added to the danger by making an unfenced hole. In some of these cases, the so-called "misfeasance" appears to consist of omissions to take certain steps while carrying out some positive actions. Indeed, on such a reading, anything done which "has in fact increased the risk of accidents" will be misfeasance, even where that risk has been increased solely by omissions to act. This is so although in Gorringe Dixon J sought to introduce a criterion of "severability" between what was done and what was left undone Here, the true determinant seems not to be non-feasance contrasted with misfeasance, but the presence or absence of positive action: if the authority has taken some steps, then its actions are to be examined using the ordinary principles of negligence. [citations omitted] 502 I do not accept that the alleged wrongful act of the Council can be properly characterised as the one act or course of activity involving the creation and maintenance of the road and the Car Park accompanied by the failure to erect a sign or barrier. The alleged acts of negligence are the failure of the Council to erect the sign or install some barrier or conduct a risk assessment. The road and Car Park are circumstances which the applicant submits assist in defining the scope of the liability of the Council, leading to his claim and submission that the Court ought to find that the omissions by the Council were a breach of the duty of care it owed the applicant. Although I have rejected that contention, even if I had come to the opposite conclusion, I would not have found the creation and maintenance of the road and the Car Park were part of the wrongful act and therefore that the omissions were part of a larger course of conduct. 503 The second question that arises is whether the omission to erect a warning sign or barrier is a wrongful act. That question involves the statutory construction of s 244. Provisions such as s 244 which provide statutory protection against liability for an omission should ordinarily provide so in express terms but also such provisions should generally be strictly construed.147 504 The High Court has emphasised the primacy of the text: see Taylor v The Owners -Strata Plan No 11564148 and Weiss v The Queen.149 The construction of the text must be undertaken at the same time as considering the context in which the provision was enacted. In SAS Trustee Corporation v Miles Edelman J held:150 ... this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although 147 Puntoriero v Water Administration Ministerial Corporation (1999) 1999 CLR 575; [1999] HCA 45 [113] per Callinan J. 148 (2014) 253 CLR 531; [2014] HCA 9. 149 (2005) 224 CLR 300 [30]; [2005] HCA 81. 150 (2018) 265 CLR 137 [64]; [2018] HCA 55. -- 99 of 103 -- [2024] SADC 37 96 legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where “the clearer the natural meaning the more difficult it is to justify departing from it”, so too in statutory interpretation “questions of degree arise” and it will be more difficult to displace an interpretation that “has a powerful advantage in ordinary meaning and grammatical sense”. 505 The Full Court in Edwards v Virgin Blue International Pty Ltd151 summarised the approach from SAS Trustee as follows: Statutory construction is the process by which meaning is attributed to statutory text. Where the meaning of the text is in doubt it involves constructional choice. The statutory text must be considered from the outset in context, and attribution of meaning to the text in context must be guided, so far as possible, by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. [citations omitted] 506 The first stage of the enquiry is to construe the words “wrongful act” in their context, including considering the statutory purpose for the enactment of s 244. 507 The meaning of the word “wrongful” in s 244 is not controversial. It means wrongful in the sense of a breach of duty.152 That meaning contrasts with an omission. 508 The more problematical question is the meaning of the word “act”. One meaning, advanced by the Council, is “something done or performed”.153 On the other hand:154 The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of human will. Such a definition is, indeed, not ultimate, but is sufficient for the purposes of the law. 509 In Puntoriero v Water Administration Ministerial Corporation,155 Kirby J (although dissenting in the result) held:156 Mason P, in the Court of Appeal, correctly remarked on the unsatisfactory features of the distinction between "acts of commission and acts of omission". He continued: "It would probably be possible to characterise practically any activity of the [respondent] in positive 151 (2019) SASR 55 [45]; [2019] SASCFC 98. 152 See Scala v Mammolitti (1965) 114 CLR 153, 159, 161; 1965] HCA 63. 153 Black’s Law Dictionary 9th ed.’ 2009, 27. 154 Ibid citing J Salmond “Jurisprudence” at 369, Glanville Williams ed., 10th ed., 1947. 155 (1999) 199 CLR 575; [1999] HCA 45. 156 Ibid [64]. -- 100 of 103 -- [2024] SADC 37 97 or negative terms. The scope of the immunity cannot turn upon which side of the same coin faces the decision-maker." I agree. [citation omitted] 510 The statutory context in which s 244 was enacted provides little assistance in the task of ascertaining the meaning of the Act. The section was introduced at the time that the Local Government Act 1999 was enacted. It was not part of the 1934 Act. It is included in Part 5 of the 1999 Act which simply is headed “other matters”. Other than limiting liability for injury caused by trees in s 245, the other provisions do not relate to liability. The 1999 Act was enacted prior to the Ipp reforms. No other state has a similar provision. 511 The statutory purpose is clearly to limit the liability of the Council as the occupier of land. The question is, on its proper construction, does it do this by limiting liability to direct losses or by limiting liability also in respect of liability for omissions. 512 In my opinion, it is the former-that is, it is seeking to limit its liability to direct losses. I come to this conclusion for four reasons: first, the construction of s 244 places emphasis on the acceptance of liability only for direct losses. Secondly, the narrower interpretation of “act” (as excluding omissions) would lead to harsh and irrational outcomes. The Council would never be liable for a failure to erect signs or any other form of omission , even in the most obvious of cases. It would be a very harsh outcome that an injured person could never recover against a council, as the occupier of a property, for an omission. A more proportionate response would be to limit the amount to be recovered to direct losses. Thirdly, the common law has permitted claims against councils, as the occupier of property. There is no material that suggests the legislature was intending to limit claims of a certain class. Fourthly, the legislative scheme is more consistent with limiting, rather than excluding, actions of this class. Section 3 of the Local Government Act 1999 (SA) provides that an object of the Act is to ensure the accountability of the council. Section 39 provides that the council has the legal capacity of a natural person and may sue and be sued. 513 For all of these reasons, I consider that “wrongful act” in s 244 includes an omission. It follows therefore that s 244 does not operate as a defence that is available to the Council in these proceedings. Direct consequence 514 If the injuries and losses suffered by Gregory are not a direct consequence of a wrongful act, then the Council may be able to rely on this section to avoid liability. 515 Expressions such as direct loss and consequential loss are ambiguous and commonly lead to uncertainty.157 These expressions are most commonly found in contractual terms seeking to exclude or limit liability. Courts have not adopted a 157 Macmahon Mining Services v Cobar Management [2014] NSWSC 731 [13]. -- 101 of 103 -- [2024] SADC 37 98 fixed rule that determines that in all cases what categories of loss fall within the description of consequential loss.158 516 A rigid approach that equates “consequential” with “everything beyond the normal measure of damages” should also be rejected.159 The interpretation of equating consequential loss with everything beyond the normal measure of damages was first enunciated in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd.160 It has been followed by a number of cases, including Allianz v Waterbrook161 and in South Australia by Bleby J in Alstom v Yokogawa Australia (No 7)162 but was rejected in Valentine Falls Estate Pty Ltd v SMEC Australia Pty Ltd163 (affirmed in SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd164). 517 As pointed out by Bleby J in Alstom Power (No 7)165, the word “consequential” connotes both direct and indirect consequences. In Macmahon Mining Services v Cobar Management166, Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2)167 and GEC Alsthom Australia Ltd v City of Sunshine168 similar approaches to the construction of “indirect” and “consequential” were adopted. In each of these cases, it was held that “indirect” or “consequential losses” were understood to connote a loss that was a step removed from the transaction and its immediate effects. Atkinson J held in Saint Line Ltd v Richardson, Westgarth & Co Ltd169 “direct damage is that which flows naturally from the breach without other intervening cause and independently of special circumstances, while indirect damage does not so flow”. 518 In Regional Power, Kenneth Martin J held the economic losses or damages claimed by the plaintiff (such as replacement energy expenditures, labour and associated expenses) were properly characterised as direct losses.170 His Honour went on to hold that in the circumstances of that case, loss or revenue was not consequential as it was not a step removed from the contemplated transactions and her immediate act.171 519 It follows from the statements of principle to which I have referred, that the injuries suffered by Gregory are, in my opinion, a direct consequence of a wrongful act of the Council (if that had been established). I reject the submission of the 158 Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2) [2013] WASC 356 [94] citing Carter “Exclusion of Liability for Consequential Loss” (2009) 25 Journal of Contract Law 118 at 133. 159 Ibid. 160 [2008] VSCA 26; (2008) 19 VR 386 at 388. 161 [2009] NSWCA 224 [126] and [127]. 162 [2012] SASC 49 [289]. Bleby J rejected the Hadley v Baxendale approach. 163 [2010] WASC 319. 164 [2011] WASCA 138. 165 Above [281]; Macmahon (above) [13]. 166 Above [13]. 167 Above [109]. 168 Unreported, FCA No BC 9600288, 20 February 1996). 169 [1940] 2 KB 99 at 103. 170 Ibid [50]. 171 Regional Power (above) [114]. -- 102 of 103 -- [2024] SADC 37 99 Council that all losses could be said to be indirect or consequential. Aside from the contributory negligence of Gregory, there is no intervening cause that has caused or contributed to the injury. If negligence on the part of the Council had been found and that the negligence caused the injury, then that wrongful act has caused Gregory to fall over the vertical cliff and onto the rocks. 520 It may be that not all of the losses claimed by Gregory could not be said to be direct losses. That however would be a matter that would be determined on a separate trial, if one was required to be heard, on the assessment of damages. For the purposes of this trial, the Council would have to prove that all of the losses sustained by Gregory were indirect losses. It has failed to do so and therefore this requirement of s 244 does not provide a basis for denying the liability of the Council. Conclusion 521 For the reasons which I have set out, I dismiss the claim of the applicant. -- 103 of 103 --