Felhaber v Rockhampton City Council [2011] QSC 23

SUPREME COURT OF QUEENSLAND CITATION: Felhaber v Rockhampton City Council [2011] QSC 023 PARTIES: Timothy Felhaber Plaintiff v Rockhampton City Council Defendant FILE NO/S: SC 448 of 2005 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 24 February 2011 DELIVERED AT: Rockhampton HEARING DATE: 1 - 4 February 2011. Final submissions received 11 February 2011. JUDGE: McMeekin J ORDER: Judgment for the Defendant with costs CATCHWORDS: TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY — CAUSATION — CONTRIBUTORY NEGLIGENCE - Local authority — Power of care, control and management of natural reserve — Person suffered injury when diving into a body of water — Whether a reasonable local authority would have erected signs warning against the dangers of diving — Relevance of obviousness of risk to questions of duty and breach Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Great Lakes Shire Council v Dederer [2006] NSWCA 101 Imbree v McNeilly and Another (2008) 236 CLR 510 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; (2005) 80 ALJR 43; [2005] HCA 63 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Podrebersek v Australian Iron & Steel (1985) 59 ALR 529 -- 1 of 22 -- 2 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; 151 ALR 263 Swain v Waverley Municipal Council (2005) 213 ALR 249; 213 ALR 249; 79 ALJR 565; [2005] HCA 4 Thompson v Woolworths (Queensland) Pty Ltd(2005) 221 CLR 234 at [37] Vairy v Wyong Shire Council [2005] HCA 62 Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 Wyong Shire Council v Shirt (1980) 147 CLR 40 COUNSEL: G. Mullins for the Plaintiff M. Stewart SC and D. Schneidewin for the Defendant SOLICITORS: Maurice Blackburn Cashman Solicitors for the Plaintiff Barry & Nilsson Lawyers for the Defendant [1] McMEEKIN J: Mr Timothy Felhaber was rendered quadriplegic when he fractured a cervical vertebra on 17 September 2002. He was just 17 years of age.1 He had been swinging on an improvised rope swing from the bough of a tree into the Fitzroy River, in the company of some friends. On his last swing he dived head first into the water, struck his head on the river bed and, effectively, broke his neck. [2] The incident happened in a recreational area not far from the centre of Rockhampton known as the Ski Gardens. [3] Mr Felhaber says that the local Council is responsible, at least in part, for his injury and claims damages. The Council denies that it is responsible. The Council also pleads voluntary assumption of risk and contributory negligence. [4] Quantum of damages has been agreed at $5,000,000. Thus only liability remains to be determined. [5] It is common ground that the defendant had the control of the Ski Gardens and, as a result, that the defendant owed a duty to entrants to that area, such as the plaintiff, to take reasonable care to protect them from unnecessary risk of physical harm.2 The Issues 1 Born 16 July 1985 2 See Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 3; Swain v Waverley Municipal Council (2005) 213 ALR 249; 79 ALJR 565; [2005] HCA 4. -- 2 of 22 -- 3 [6] The plaintiff contends that the defendant was in breach of its duty of care to the plaintiff by failing to do one or more of the following: (a) remove the bough of the tree from which the rope was slung; (b) remove the rope swing; (c) erect a sign warning the public that the depth of the river may change and that diving was prohibited. [7] That submission regarding the warning sign reflects the plaintiff’s pleading but at trial the sign that the plaintiff contended for was the one later erected at the Ski Gardens in early 2004 and which is depicted in the photograph which appears at p23 of Exhibit 1. It included a pictogram of a person diving with a red circle around it and a line though it with the words “Diving Prohibited” beneath, together with cautionary signs indicating shallow water, a risk of striking one’s head on the river bed under the water and the presence of crocodiles. As well the sign read “Do NOT erect platforms or ropes in the trees” and “Do NOT dive or swing into the river from these devices”. At the base of the sign were the words “By Order Chief Executive Officer”. Significantly it was conceded that any alteration in the depth of the river from time to time was irrelevant to the issues. [8] The defendant maintains that the plaintiff has failed to establish that: (a) the defendant owed him a duty of care with the content alleged; (b) alternatively if such duty was owed to him, the defendant breached that duty; (c) alternatively any such breach of that duty was causative of his injuries. The Nature of the Defendant’s Occupation [9] The nature of the defendant’s occupation is not in issue. It is agreed that by Order in Council made 19 February 1976, under the Land Act 1962, there was reserved and set aside the area of land known as the Ski Gardens for public purposes. The defendant, as the local authority in respect of the district in which the land was located, was appointed the relevant trustee. [10] The defendant accepts that it exercised control over the land comprising the Ski Gardens. It was maintained by the defendant by mowing the grassy areas, removing rubbish or litter deposited in the area, and pruning trees. It erected and established a playground, picnic tables, barbeque, toilets and a boat ramp in the area. [11] It is common ground that the bed and banks of the Fitzroy River were, and always have been, the property of the State of Queensland.3 The defendant was not vested with any power to control or lop a branch from a tree situated in the bank or bed without first obtaining permission of the State. There was no suggestion that there would be any great difficulty in obtaining such permission if sought. [12] The defendant encouraged the public to use the area during the course of major public events such as “Australia Day” celebrations. More usually the land and adjacent river was used by the public, with the knowledge and intention of the defendant, as an area for recreation and water activities such as skiing, power boating, rowing, kayaking and like activity. Portions of the land were leased to a local school and a surf life saving 3 See s24(1) Water Act 2000 -- 3 of 22 -- 4 club who erected sheds there to store equipment relevant to their rowing and life saving activities respectively. The Events of the Day [13] The plaintiff had attended at the Ski Gardens after school with a group of school friends. He had been in the habit of doing so for two or three times a week for some two to three months before the day in question. On this day, as it happens, two female friends were filming their male friends diving as part of a course they were completing. As a result there is a video clip of the last portion of the plaintiff’s final dive as well as some film of the earlier dives. The video does not show all the events of the afternoon. [14] At the outset the plaintiff checked the depth of the water. He did so by wading out from the bank to the spot where the river bed dropped off and then submerging himself with his arms above his head. He said it was his practise for him or one of his friends to do this before they started diving. That was so because of the chance that something may have floated into the area and as well generally to check that the depth was safe. There was nothing untoward or unusual discovered on this day. The bed sloped gently out and, about two metres from the bank, fell more steeply away to a depth of perhaps 2.4 meters. As well, with each dive the divers had to return to the bank and wade through the area again – hence reinforcing their knowledge of the depth of the water as they neared the bank. There is no reason to think that the conformation of the bed of the river was any different here to anywhere else along the river bank [15] The boys – there were three of them – were of an age and taking it in turns to swing out into the river. They had been pursuing their swinging and diving activities on and off for about 45 minutes when the accident occurred. [16] The rope was swung from a bough of a tree overhanging the river. Mr Wyatt, the long time director of the defendant’s parks and gardens, described the tree as having a prostrate habit typical of trees in the area. By that he meant that the tree lent over the water. The rope had been put there by an unknown person or persons. The rope swing was a makeshift one, with a handle tied on to the rope being in the nature of a piece of wood or old handlebars. There is no suggestion that the plaintiff was under the misapprehension that the swing had been erected by Council or any person having any authority over the area. [17] The cause of the injury is clear enough. In executing his last dive the plaintiff landed too close to the bank. Obviously it was necessary to land in that deeper water about 2 meters out from the bank to be sure of avoiding injury. Why the plaintiff landed too close to the bank is not so clear. It may have been that he let go of the rope a little later than usual. It may be that the manoeuvre that he attempted – a seemingly straight forward dive albeit angled slightly – brought him closer to the bank than usual. While the video is not entirely clear it tends to suggest that. It may have been that his angle of entry was a little steeper than before. It may have been a combination of one or more of such things. [18] I bear in mind that the precise cause of injury is not greatly relevant to a consideration of the primary question debated in the case. That is, what was the content of the defendant’s duty of care in all the circumstances and was it breached?4 4 Vairy v Wyong Shire Council [2005] HCA 62 per Gummow J at [60]-[61]; per Hayne J at [124] -- 4 of 22 -- 5 Was the Risk of Injury Reasonably Foreseeable? [19] The defendant pleaded that the risk of injury that was realised in this case was an obvious one. So it was. [20] Despite the pleading it also alleged that the risk was not foreseeable.5 That is not right. The risk in question is the risk of impact with the bed or bank of the river, or something floating in the water, in a manner likely to cause injury. That risk might be realised by inadvertence or incompetence on the part of the person swinging and diving or through a mishap resulting from a breaking of the makeshift rope swing, the handle or the bough. [21] First it is noteworthy that the risk was actually foreseen by Mr Wyatt. Well prior to the accident he had issued an instruction to his workers to remove rope swings in the Council area, including at the Ski Gardens, wherever it was practicable for them to do so. Sometimes it was too dangerous for the workers to access the ropes. Otherwise the ropes were removed and the instruction was issued because Mr Wyatt thought that it was dangerous for young people, whom he assumed usually used these devices, to swing from them. [22] With respect, Mr Wyatt’s attitude was eminently sensible. But even if there had been no such evidence in the case it is plain that there was a foreseeable risk of injury from diving into water that was adjacent to deeper water but too shallow. The landing point depends upon a number of factors not least the timing of the release from the rope which obviously can vary. The rope swing is effectively a pendulum and the arc of the swing is determined by its user. A more powerful swing the further out you go and conversely. The diver might merely drop into the river or attempt something more involved and so alter the point of entry. Backflips, forward somersaults, and mid air twists have the potential to make a difference. Younger people, with varying levels of experience, expertise and common sense, are the usual participants. There is no marker on the surface to designate the safe landing point. Nor is there any marker on the river bed. The waters of the Fitzroy are muddy, almost permanently. All this demonstrates the point without consideration of the inherent risks of trusting a makeshift swing, in all probability constructed by youngsters, hanging from a convenient branch. A moment’s thought by a reasonable person in the defendant’s position would result in acceptance of the view that the risk of an injury of this type was foreseeable. [23] As well Council officers were well aware that the practise of swinging from a rope into the water went on and at the Ski Gardens and from this tree. There was ample evidence that the practice in this area, and from this tree, had been going on for a very long time. The plaintiff said he could recall doing so when in primary school five or more years before. He had done so perhaps up to a thousand times before. Other witnesses had been to the area as pre-teenage children and swung from the tree, or seen others do so. As I have mentioned, for some months prior to the day of the accident this group of friends had been in the habit of going to the area after school and swinging from the tree in question. A Mr Lang, who was often at the Grammarians Rowing Shed situated near to the tree in question, was in the habit of reporting the presence of the rope to Council officers, including Mr Wyatt whom he knew well, when it came to his attention. His experience with the Grammarians went back to 1992 and the shed had 5 That is how I interpret paragraphs 5.8A and 5.10 of the Second Further Amended Statement of Claim as did Mr Mullins – Mr Stewart SC did not make any submission supporting the plea. -- 5 of 22 -- 6 been in place since 2000. The Council had removed ropes from the subject tree in the past. The Starting Point [24] There being such a foreseeable risk the starting point, and the guide for the decision maker, is Mason J’s oft cited passage in Wyong Shire Council v Shirt: “In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”6 [25] The reference by Mason J to the defendant’s “conduct” involving a risk needs some qualification – the defendant did not create the risk here. The river bed and bank have in no way been altered by the defendant. The tree is simply there unaffected by the defendant’s activities. The plaintiff was not told by the defendant that he ought to swing from the tree and dive into the water and the defendant did not provide the rope swing. Whilst I will have more to say about the Council’s activities the most that might be said relevant at this point is that by cutting the grass, providing picnic tables, barbecues, toilet facilities and clearing the rubbish, the area was more inviting than it might otherwise have been. Nonetheless it is common ground that the approach suggested by Mason J is apposite. [26] The considerations mentioned by Mason J are not necessarily the only relevant considerations – they can vary depending on the case.7 The Magnitude of the Risk and the Degree of the Probability of Its Occurrence [27] Obviousness and foreseeability do not equate to inevitability. As Mason J observed in Shirt “[a] risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.”8 6 Wyong Shire Council v Shirt (1980) 147 CLR 40 at 47 7 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; 151 ALR 263 at CLR 455 [52], 456 [56]; ALR 280, 281 per Toohey and Gummow JJ, CLR 481 [131]; ALR 301 per Kirby J, CLR 488–9 [157]; ALR 307–8 per Hayne J; Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 at [138] per Hayne J 8 Ibid -- 6 of 22 -- 7 [28] Despite the long history of this practice going on there was no evidence of any injury having been suffered or reported prior to the plaintiff’s injury. It was noteworthy that Mr Wyatt who had been involved in Rockhampton parks and gardens as Director for nearly 40 years had never heard of any person, other than the plaintiff, being injured by this activity of swinging into rivers, creeks and water holes anywhere within the Council area. There was evidence that there were many such rope swings within the Council area and surrounding areas. The plaintiff agreed that there were hundreds. [29] Thus it can be safely assumed, as the experience I have mentioned shows, that the degree of probability of the occurrence of injury was low. Despite the hazards I have mentioned people of varying ages and skill had negotiated the risks safely for a very long time. [30] The magnitude of the risk – the degree of harm that might conceivably be suffered - was plainly high. This case shows that much and the experience of the population generally, reflected by the reported cases of paraplegia following diving into shallow waters, confirms that. The Expense, Difficulty and Inconvenience of Taking Alleviating Action [31] After the event the defendant did the things that the plaintiff contends should have been done before his accident – removed the rope swing, eventually removed the bough of the tree, and then, in stages, the tree itself, and erected the sign which I have described. [32] There is no suggestion that any of these actions involved any significant expense, difficulty or inconvenience.9 In a case of this type that factor is but of little moment.10 [33] The taking of such action after the event does not of course preclude a finding that there was no duty to take the measures beforehand or compel a finding of a breach of duty in failing to take the measures. Conflicting Responsibilities [34] The Council had many conflicting responsibilities. In 2002, when this incident occurred, it was responsible for about 900 acres of what Mr Wyatt called “active and passive” parks – that is where active or passive recreational activities might go on - and 50 hectares of parks abutting waterways. There were about 100 kilometres of waterways that abutted such parks. It had responsibilities as well in many other areas of its activities but I limit myself to its parks and gardens department. [35] There were many risks that demanded some response – for example the risks to members of the public that it created by its activities, risks in areas under its control and occupation that were not necessarily obvious and certainly less obvious than the one currently under consideration. Examples would include the inspection and removal of trees or boughs of trees that might present a falling hazard in its 900 acres of recreational parkland or the adequate warning or elimination of risks involved with slippery boat ramps, or makeshift tracks and roads. In the area of the Ski Gardens there were the risks presented by motor boats launched from the nearby boat ramp, 9 Ex 6 10 Mulligan (2005) 223 CLR 486; (2005) 80 ALJR 43; [2005] HCA 63 at [2] and Vairy at [8] per Gleeson CJ and Kirby J; -- 7 of 22 -- 8 collisions with rowing boats (there being two rowing sheds immediately adjacent) and the presence of crocodiles living in the river and its surrounds. [36] The relevant point is that in weighing up what was reasonably required of the Council it needs to be borne in mind that there were many considerations that someone in Mr Wyatt’s position had to bear in mind and without question those considerations included the risk of injury to members of the public from a wide variety of sources, not just the risk in question here. [37] As well, the risk in question here arose at every place within the council area where there was a tree overhanging water that was deep enough, at some point, to dive into. [38] A further point is that this area was intended to be one that families might enjoy. It had an aesthetic appeal – as a tree lined river bank is wont to have, particularly in a sub tropical climate. Any decision to seek permission of the State to remove trees or boughs of trees had to bring into account that a large part of the charm of the river bank lay in the continuing presence of trees providing shade, and that aesthetic appeal, so encouraging the recreational purposes for which the land had been placed into the defendant’s trust. Callinan J, at least, accepted the relevance of the community interest of this type in his analysis in Roads and Traffic Authority of New South Wales v Dederer, another case of catastrophic injury to a young person diving into shallow water, on this occasion from the rail of a bridge: “[275] Also to be balanced, are the interests of the community in being able to walk across the bridge, to enjoy the view, and to pause and lean in comfort on a flat surface of a top rail as they do so.” 11 What Was Reasonably Required? [39] I turn then to a consideration of the fundamental issue. [40] Mr Wyatt was the defendant’s Director of Parks and Gardens and made the decision as to what Council would do in response to the foreseeable risk. That response was to cut down rope swings from time to time when their existence came to the knowledge of him and his men. The timing of the removal depended on whether it could safely be done by Council workers and no doubt on the council’s work plans. I had the impression from the evidence that mere notice of the presence of a rope swing would not necessarily bring an immediate response. Mr Lang certainly made that point. The Council contends that response was a reasonable one in the light of the foreseeable risks and the law demanded no more from it. [41] As more than one judge who has been called on to make a decision in this area has observed the application of normative standards to arrive at a decision on the content of the duty of care and its breach is no easy task in cases of this type. It has not been easy here. [42] I have reached the view that the exercise of reasonable care did not require the Council to take the steps that the plaintiff submits it should have and that the defendant’s submissions should be accepted. My reasons for this conclusion may be summarised as follows: 11 (2007) 234 CLR 330; [2007] HCA 42 -- 8 of 22 -- 9 (a) the activity on which the plaintiff was engaged was a voluntary recreational activity commonly enjoyed in waterways around the district and further afield, certainly throughout Central Queensland and probably Australia – both the site and the activity justify a different approach from the defendant to that adopted at places where people are required to go and pursue activities as part of their normal daily lives such as roads and workplaces; (b) the risks inherent in the activity were obvious and the exercise of care by members of the public could be expected to keep them safe; (c) allied to that point is that there was no reason to think that the obvious risk had been forgotten or overlooked; (d) the Council were not armed with any special knowledge relating to the risks inherent in carrying out the activity; (e) the Council was responsible for a significant area of parkland and waterway abutting that parkland and this area where the accident occurred was in no way physically different to any area of the Fitzroy River where such swings might be erected; (f) the Council in no way “required or invited or encouraged”12 entrants to the area to engage in the activity and so was not instrumental in putting them in harm’s way – their negligence, if there be any, is a said to be a sin of omission not commission and the law, where appropriate, takes “a more critical view” of the latter;13 (g) the long history of no report of injury from such activities, despite the widespread and frequent engagement in the activity, provided strong grounds for thinking that no more significant response was required; (h) this was not the only risk, or necessarily the most significant risk, inherent in water sports carried on at the Ski Gardens; (i) swimming in general, and diving from swings erected on the branches of trees in particular, were by no means the major activities carried on at the Ski Gardens; and (j) the utility of the proposed measures, looked at prospectively, was not compelling. [43] The interplay of these various factors outweighs, in my mind, the matters that the plaintiff would emphasise. It is useful to first turn to the plaintiff’s submissions as my response to those submissions will encompass a significant part of my reasoning. The Plaintiff’s Submissions [44] Mr Mullins, counsel for the plaintiff, submitted that there were several critical facts that were the key to the case and required a finding in his client’s favour. Those facts were: (a) the Director of Parks, Mr Wyatt, knew and believed this was a dangerous activity, and the danger arose from the fact that although it might be conducted safely, there was a small margin for error; (b) the activity was conducted mainly by children or young people and Mr Wyatt knew they did not appreciate the risk; 12 Vairy per Gummow J at [92] 13 Vairy per Callinan and Heydon JJ at [225] -- 9 of 22 -- 10 (c) this activity was being conducted at the major venue for water activities in the Rockhampton City region; (d) the “admitted and conceded evidence” of the council’s risk manager, Mr Walcott, is that had he considered the risk at the time, he would have rated it a high risk; (e) the evidence of the risk manager that a reasonable response to that risk would have been to, at first, erect signs, and if that failed to stem the problem, then he would have suggested a similar course to what ultimately unfolded; (f) there was no other issue relating to public safety at the Ski Gardens that was of concern to Mr Wyatt at and before the time these events unfolded; (g) the conversations Mr Wyatt had with Mr Lang, in 2000, which specifically drew attention to this tree. [45] The concentration, in (a), (b), (d), (e) and (g) above, on the knowledge and opinions of Mr Wyatt and Mr Walcott tends to obscure the relevant point – their knowledge was no different to that of any member of the public who took a moment to think about the issues. That is, there was no hidden danger here that only those in special positions with council, or with special expertise, were likely to know or appreciate. [46] Nor did the information conveyed by Mr Lang alter that. He did not report some special aspect of this tree and this rope swing that was in any way out of the ordinary. His concern about this tree and its swing reflected the special responsibilities incumbent on those who run school activities. That school children came to the area and perhaps in more concentrated numbers is a relevant matter to weigh up in measuring the proper response to the risk. But in doing so the Council could take some comfort in that the children that Mr Lang was concerned about could be expected to be under adult supervision and actively engaged in quite unrelated activities. [47] The point made in (c) above, and that Mr Mullins pressed, was that the more popular a place the more likely it is that greater number of people would attempt to dive into the water whether from the rope swing or otherwise. Hence the risk of a mishap occurring increased, and with that increase the obligation became greater on Council to respond with more effective measures. [48] He submitted that the Ski Gardens were a special case because of Mr Wyatt’s concession that they were the “the major area for organised recreational water activities in Rockhampton”.14 [49] While it is legitimate to consider the numbers of entrants and the prospect of increased numbers of people diving, it is worth noting that the leap from frequency of attendance to frequency of indulging in the activity does not necessarily follow. If the Council is to single out the Ski Gardens as requiring some guard against the risk of diving and impacting with shallow water as opposed to guarding against the risks involved in diving into the river elsewhere, based on numbers of visitors, then the relevant point is how frequently did people dive in here as opposed to other places? There was no evidence on that point. 14 Para 12 Plaintiff’s Supplementary Submissions 11 February 2011. -- 10 of 22 -- 11 [50] Further the argument that the Ski Gardens is a special case within the shire tends to overstate considerably the use made of the area as a place from which to swing and dive. The Ski Gardens were not primarily used for diving activities. Indeed while swimming takes place it is evident from the evidence of Mr Wyatt and Mr Lang that it was very much secondary to other activities.15 And the fact that “organised” activities go on reduces the likelihood of unsupervised children engaging in the activity of swinging from a tree. [51] That Mr Walcott rated the risk “high”, on the hypothesis put to him, does not advance the matter greatly. That evidence was in the context of Mr Walcott explaining what he had been taught about risk assessment methods – a serious degree of prospective injury combined with a low chance of its occurrence nonetheless meant a rating of “high” in the standard matrices. But that does not mean that the Council had to act. [52] As Mr Walcott pointed out he would rate the risk of a bird strike at the Rockhampton airport – another of the Council’s responsibilities – even higher because of the catastrophic result if a plane load of passengers crashed and because Rockhampton apparently enjoys one of the highest levels of bird strikes in the world. Nonetheless planes land and take off every day from the airport. A rating of “high” in these matrices does not demand, at least in Mr Walcott’s assessment, that the risk be eliminated. [53] To return to swinging from a rope into water - Mr Walcott’s views as to the hierarchy of controls, and what could have been adopted here, obscures the fundamental question. Did the law require that any measure be adopted, over and above what was being done, in all the circumstances? If his evidence went beyond what “could” have been done then he was trespassing, impermissibly, into the area reserved for the Court’s decision. In any case it is interesting to note that, on reflection, he considers that he used the wrong sign and that his intent was not to prohibit but rather to warn of the shallow water near the bank, a fact of which the plaintiff was perfectly well aware.16 [54] Further, while it is relevant to make the point in (f), it is not right that there were no other risks to consider. And the concentration on the Ski Gardens tends to overlook that the Ski Gardens was but one area within the Council’s sphere of responsibility where water based activities occurred and its sole distinguishing feature, if any, lay in the numbers of people likely to go there. Whether more significant numbers came to the Ski Gardens than other venues is not plainly established although its proximity to the city centre and residential areas supports an inference that larger numbers were likely. Whilst numbers of visitors is germane to the issue, it is but one factor, and not determinative. Appreciation of the Risk of Injury [55] A further point that Mr Mullins stressed was that there ought to be a finding that the plaintiff did not appreciate the risk of injury. His submission was that the plaintiff did not appreciate the “small margin of error” between safety and significant injury and that was so because “there were no signs prohibiting diving. He knew it was dangerous to dive into shallow water, but he didn’t think there was anything 15 Mr Wyatt: T3-53/55 – 54/1 (incorrectly numbered on my copy as Day 2); Mr Lang: T3-41/30. 16 T3-7/5 -- 11 of 22 -- 12 particularly dangerous about this activity. He'd never really questioned the safety of swinging from the tree because he'd done it for so long. He'd been doing it since he had been in primary school. He'd seen many people undertake the activity and no-one had been injured.”17 [56] The concession that the plaintiff knew that it was dangerous to dive into shallow water really meets the point. He also knew precisely how deep the water was. He knew where the deep water started. What is there left to know in order to appreciate the risk of injury? Only perhaps that he might err and all 17 year olds know that, although they don’t always base their decisions on the chance that the possibility will come to pass. [57] But even if it be accepted that the plaintiff, contrary to my view, did not appreciate the risk of injury - his personal knowledge and appreciation of the risk of injury is of no great relevance to the question that I am presently considering save to the extent it might reflect the knowledge of those using the river bank generally.18 In my assessment the average user would be likely to have a keen appreciation of the risk of injury. [58] In considering its response to the risk the Council had to bring into account that not all visitors to the Ski Gardens would have the maturity to know either that it was unsafe to dive into shallow water or appreciate, perhaps, that watercourses like the Fitzroy River were likely to have an area of shallower water adjacent to the bank. But those so immature as not to appreciate such obvious matters were very likely to be under adult supervision. And any such adult was in as good a position as the council officers to assess the risks. [59] Further, in considering the response it ought to take to protect those so immature, the range of potential responses is correspondingly affected – for example, why assume that someone will have the interest or ability to read and heed any sign the Council might erect who does not appreciate that the water can be shallower near to the bank and hence represent a hazard? The Significance of the Absence of any History of Injury [60] Here Mr Wyatt had about 28 years of experience by September 2002 and knew of no occasion of injury, let alone serious injury, from such an activity within the Council area. [61] The evidence that Mr Mullins referred to in the submission and that I have summarised above19 tends to support the notion that those within the plaintiff’s circle and those that he had seen indulging in the same activity all presumably assessed the risk as manageable. Significantly, the absence of any history of injury suggests that their assessment was a valid one. [62] As to that last point in Great Lakes Shire Council v Dederer Handley JA summarised the importance of the absence of any history of a like previous occurrence: “Where the Court has to consider future possibilities and probabilities as at a relevant date and the situation has crystallised before the trial, the Court does not 17 T4 – 37/45-55 18 Cf. Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 at [22] per McHugh J 19 Para [55] -- 12 of 22 -- 13 assess the earlier uncertainties, but acts on the later certainties. As Dixon J said in Willis v The Commonwealth (1946) 73 CLR 105 at 116; BC4600024 “where facts are available they are to be preferred to prophecies”. The same principle should apply where the Court has to assess the probabilities and possibilities of an accident occurring. The foresight of concerned members of the public and an independent body such as the Council, charged with the general care control and management of the bridge, about the risks to public safety on this bridge between 1990 and 1998, supported by a history of no serious accident from jumping or diving over 39 years, provides the best evidence of what reasonable foresight required. This evidence should be given greater weight than an impression formed on a view after a tragic diving accident.”20 [63] I respectfully adopt the approach of giving significant weight to this evidence. Again, like all other factors, it cannot be determinative but goes into the scales. Obviousness [64] That, perhaps indirectly, brings me to the question of “obviousness” of the risk. Fundamental to much of this discussion is the underlying point that the risk of injury here is, on any view, an obvious one. A hidden danger not obvious to an entrant to the area but known to Council more arguably compels a response from Council. But the need for a response is far less clear where the risk is obvious and Council has no special knowledge. [65] There have been differences of opinion expressed in various decisions of the High Court on the relevance of the obviousness of the risk. It is plain that the mere fact of obviousness does not necessarily excuse the defendant from taking action but the balance of authority suggests that it can be very important. [66] As appears from the following passage in the reasons of Gleeson C.J., McHugh, Kirby, Hayne and Heydon JJ in Thompson v. Woolworths (Queensland) Pty Ltd, it is the “remoteness of the likelihood that other people will fail to observe and avoid” an obvious risk that needs to be weighed in the balance: “When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgement. It may depend on the circumstances of the case. …. The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgement about what reasonableness requires as a response. In the case of some risk, reasonableness may require no response … The factual judgement involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were 20 [2006] NSWCA 101 at [35] -- 13 of 22 -- 14 conclusive against liability in every case, there would be little room for a doctrine of contributory negligence.”21 [67] In some cases the obviousness of the risk can assume central importance. Thus in Mulligan v Coffs Harbour City Council Callinan and Heydon JJ observed “that obviousness may be of such significance and importance, indeed of such a very high degree of importance as to be overwhelmingly so, and effectively conclusive in some cases.”22 In Vairy v Wyong Shire Council, judgment being handed down at the same time as Mulligan, Gleeson CJ and Kirby J in their joint reasons acknowledged the potential significance of the obviousness of the risk: “Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits.”23 Their views can be contrasted with those of McHugh J who would put little weight on obviousness of risk as justifying inaction24 and Gummow and Hayne JJ who stressed that to describe a risk as “obvious” was apt to mislead and was not determinative of questions of breach.25 While this creates an interesting point as to the question of any settled or binding authority, given that Gleeson CJ and Kirby J were in the minority in Vairy, the majority of justices making up the High Court at the time of these decisions clearly thought that obviousness could be of central importance. Other decisions confirm that view.26 That view I propose to adopt as open. [68] So in this case, any consideration of the response required of the Council’s must bring into account that the risk was obvious and, in my judgement, that there was a strong likelihood that those indulging in the activity would take care for their own safety. Again the Council could rely upon the long history of absence of injury as confirming that likelihood. Again that factor is not conclusive of the issue but it is highly relevant. [69] Mr Mullins submitted that the numerous occasions on which the plaintiff had swung into the river and the occasions when he had seen others, including adults, do so “led him into a false sense of security”. I do not accept that as an explanation of the plaintiff’s conduct or as informing any view that the Council should reasonably have taken. In my view the plaintiff well understood the danger here – you had to land away from the bank in the deeper water to be safe. It was a risk he courted with every dive. I do not see how it can be said that he did not appreciate it or that the Council should assume that younger people old enough to be likely to engage in the practise without the supervision of adults would not have appreciated it. [70] In this context Mr Mullins has referred me to Edson v Roads and Traffic Authority where Ipp JA, with whom Beazley JA and Hunt AJA agreed, said: “Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result.”27 21 (2005) 221 CLR 234 at [37] – emphasis added 22 Mulligan at [75] 23 (2005) 223 CLR 422; (2005) 80 ALJR 1; [2005] HCA 62 at [8] 24 Vairy (supra) at [45]-[46] 25 Vairy at [162] per Hayne J, Gummow J agreeing at [95] 26 E.g. Ghantous v Hawkesbury City Council (2001) 206 CLR 512 27 (2006) 65 NSWLR 453 at [104] -- 14 of 22 -- 15 [71] That might be so but here there is no compelling evidence of “large numbers of persons” taking “grave risks”. The Nature of the Activity and the Site [72] Where, as here, the relevant activity is a voluntary one, recreational in nature, engaged in by those seeking a thrill from – or seeking to extend themselves by - throwing themselves into the air and landing in water then that too can be relevant to the approach of a public authority and its attitude to regulating the customs and practices of members of the public exercising what is a lawful activity in a place meant to be enjoyed. [73] Callinan and Heydon JJ mentioned matters of this nature and their relevance in Vairy: “The appellant was engaged in a physical recreational activity. This does not mean that the respondent owed him no duty of care but it does mean that the duty was conditioned very much by the fact that the appellant set out to extend himself physically, albeit not in any excessive way, against the elements, in particular, the sea. Callinan J said in Agar v Hyde, that when adults voluntarily participate in sport they may be assumed to know the rules, and to have an appreciation of the risks of the game. The same may be said of diving into the sea from a rock platform, particularly when the dive is undertaken by a person of mature years, with a considerable experience and knowledge of the waters which he was entering. The game in which the plaintiff in Agar v Hyde injured himself was notoriously a dangerous one, but the seas too are dangerous and have been understood to be so for thousands of years. And, despite their allure, the sea waters of Australia, notoriously, are far from benign. Depending on how far north the traveller goes, sea lice, flotsam and jetsam, weed, blue bottles, stingers, quicksand, sea snakes, crocodiles, unpredictable waves, sand bars, sharks, absence of effective netting, shifting sea beds, broken bottles on the beach or in the water, sunstroke from sun bathing, and unpredictable tides and currents constitute a non-exhaustive catalogue of the risks a bather runs. Indeed, swimming itself, without more, can be hazardous. Much was made in this case of the tragic case of another tetraplegic within the relatively recent corporate memory of the respondent, but it would be interesting to know how many people have suffered injuries of different kinds from one or other of the risks to which we have referred, including merely swimming itself, an activity in which people of greatly varying abilities participate. We do not think it could be seriously suggested that a shire should erect a multiplicity of signs in the vicinity of its beaches saying "swimming can be dangerous". But the point in particular that we wish to make here is simply that the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be a dangerous thing to do. It is not without significance that according to the appellant, he had never dived there before, and had on other occasions chosen to enter the water from the platform in what clearly was a more cautious manner. Again, as Callinan J pointed out in Agar places of recreation are not places to which people -- 15 of 22 -- 16 are compelled to resort, and nor are they obliged, if they do, to participate in physical activities there.”28 [74] Adapting those comments to this case – this too was an activity, entirely voluntary in nature, which had obvious risks. [75] People, and not only young people, take risks as part of their everyday lives. For the Council to use its powers to prohibit an activity that some people evidently enjoy simply because the activity involved risks is a very significant step. As Callinan and Heydon JJ observed in Vairy: “There is a further reason why a prohibitory sign was not warranted. It is that authorities should not lightly criminalise recreational conduct, particularly conduct, unlike that of the motorist driving too close to the preceding vehicle, which is unlikely to harm others. Even in times of increasing intrusions by governments and local authorities upon personal autonomy, some degree of latitude of choice in conduct must be allowed.”29 [76] The sign eventually erected here did not, at least on its face, criminalise the subject behaviour but merely prohibited it. I was not taken to the source of the Council’s power to prohibit activities but it was common ground it exists. Generally speaking, however, one would expect that there would need to be something significant about the risk of injury that required such a response. None of the matters that Mr Mullins has listed justifies such a course to my mind. [77] In my view, in such a context, the Council “could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the [swing] could be a dangerous thing to do”.30 For those of significantly lesser age, knowledge and experience as to be disadvantaged the Council were entitled to assume that they would be suitably supervised. The Utility of the Proposed Measures [78] No doubt adoption of the suggested measures, either singly or in combination, would have deterred some, perhaps many, from diving at this place. However it is equally certain that the risk would not have been eliminated. [79] Obviously removal of the tree entirely – as was eventually done here due to the failure of any other method to prevent swinging or diving from the tree or its stump – meets the risk of injury presented by this tree. So would removal of the bough from which the swing hung. But such measures do nothing to meet the risk presented by other branches on this tree and every other tree lining the banks of the Fitzroy River in this area. Nor, of course, does it address the risks inherent in other trees throughout the shire in places where the public go. [80] That prompts the question posed by Gleeson CJ and Kirby J in Vairy and Mulligan – why should that particular hazard or place have been singled out?31 Mr Mullins 28 Vairy (2005) 223 CLR 422 at [216]-[217] – emphasis added. See also Gummow J at [80] and RTA v Dederer (2007) 234 CLR 330 at [264] per Callinan J 29 Vairy (supra) at [219] 30 See [73] above 31 Vairy (supra) at [7]; Mulligan (supra) at [2] -- 16 of 22 -- 17 stressed the numbers coming to the Ski Gardens made this hazard distinctive but for the reasons already expressed I find that submission unpersuasive. [81] Further the Council could reasonably anticipate that removal of the tree might well mean adoption of another tree as the point of departure into the river for those so minded. Presumably the subject tree was often picked to sling the swing from because its position and posture made it the best choice. Removal of the tree by the Council may conceivably have increased the risk of injury by forcing youngsters into trees less well adapted for swinging from because they were a little further back from the bank or not so far out over the water. [82] The major focus in the trial was on the possible erection of the warning sign that eventually came to be placed in the car park near to the Grammarians shed. The difficulty with that submission is again the obviousness of the risk and the likelihood of it being well appreciated by those coming to the area. Again the comments of Gleeson CJ and Kirby J in Vairy are apposite here: “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?”32 [83] There is no evidence that the Council should have appreciated that persons coming to the site had overlooked or forgotten this obvious risk – the mere fact that people did continue to engage in the activity does not establish that. The fact that they continued to do so for years without injury tends to suggest that people did bear the risks in mind and took due care. [84] It needs to be borne in mind as well that there had been some attempt made before the day of the accident to take alleviating action. These measures were largely ineffectual. From time to time the Council did cut down rope swings or arranged for them to be cut down when their location was too dangerous for Council employees to access without specialised equipment, as did Mr Lang and his fellow office bearers in relation to the tree in question here. Their experience was that the swings would be replaced, sometimes very soon after removal. [85] Given that experience Council officers might have reasonably entertained a fairly jaundiced view of the efficacy of any control measure – the youth of the city seemed determined to pursue the thrill involved in leaping from swings into the river. [86] That such a view might be reasonably held is reinforced by Mr Wyatt’s evidence of his observing several youths walk past a sign prohibiting diving - of the type eventually erected at the Ski Gardens – and climb a 20 meter high tree to access a branch on 32 At [7] -- 17 of 22 -- 18 which just such a swing had been previously erected but removed and which the youngsters were determined to re-erect. This occurred post accident. [87] Further confirmation that such an attitude could reasonably be held lies in the evidence that after the plaintiff’s accident, with its disastrous consequences and attendant publicity in the Rockhampton media, a rope swing was again re-erected from the same tree. Neither the cutting down of the bough or the tree itself when it was reduced to a stump prevented people from using the tree to dive into the river. [88] Consideration of the probable utility of taking the alleviating measures does not, in my view, tip the scales significantly in favour of the plaintiff’s case. Vairy v Wyong Shire Council [89] Vairy was a case involving very similar facts and I have the advantage of the extensive analysis set out in the various judgments in the High Court. [90] Uninstructed by the result in Vairy I would conclude that the content of the duty imposed on the Council here was not as the plaintiff submits. But whilst the decision in Vairy cannot be taken as a precedent for establishing when a warning might be required, or when that precaution might be safely ignored, I observe that it would be a peculiar result if a warning was required in this case and not in Vairy. [91] In Vairy a young man dived from a rock ledge into the ocean, struck the sandy bottom only about 1.5 meters down and was rendered quadriplegic. A young man had suffered a similar devastating injury diving in the same area as the plaintiff some years before. That was well known to the local Council. Thus the risk of injury was brought starkly home to the Council years before and its likelihood of occurrence was arguably higher than here. There the evidence showed that large numbers of people frequented the area for the purpose of swimming and diving and diving from the rock ledge from which the plaintiff dived was a very common activity. It was well recognised as dangerous because of the shallowness of the water. That is not the case here – many if not most entrants to this area came for purposes quite unconnected with swimming and diving and the activity was perfectly safe if the landing point was in the deeper water two meters out from the bank, a spot to which the swing would take you. As well, in Vairy the depth of the water could vary significantly over time with the shifting of sands caused by wind and tide. Those features made the danger in Vairy less obvious than here. In Vairy the Council knew of those features and the plaintiff did not. These are each significant matters that weighed in favour of the plaintiff’s case. Yet the ultimate decision was that no warning sign was required. [92] So far as I am aware community standards as to the demands of reasonable conduct by local Councils do not differ between States. Unless some countervailing consideration is present here consistency of approach suggests that to require a warning sign here would be to insist on a higher standard of care from the Council than was seen as appropriate by the majority in Vairy. I cannot identify any such countervailing consideration that compels a different view. The only significant difference is that arguably the ocean represents a greater range of hazards for the Council to bring into consideration than the river. Whilst relevant that does not, in my judgment, overcome the factors that I have mentioned. Summary -- 18 of 22 -- 19 [93] The more cogent points made by Mr Mullins were the central nature of the Ski Gardens and hence the prospect of greater numbers of visitors arguably than other areas where rope swings were used as well as the need for the Council to weigh up the inevitable presence of children and the probability that younger, more exuberant persons would be most likely to engage in swinging and diving. Relevant though those factors are they did not, in my view, compel the Council to take further action than it did in discharge of its duty of care to entrants to land under its control. [94] A significant weakness in the submission is the emphasis given to the alleged unique quality of the Ski Gardens. It is not. It is, for example, by no means as popular a swimming and diving place as Soldier’s Beach in Vairy. [95] The submission that the subject tree should have been removed partially or wholly has the great difficulty of why the Council should limit itself to this tree. Destroying every tree that might be used for the activity of swinging from a rope branch in areas where the public have access in reasonable numbers seems to me to be quite unrealistic. [96] As to the erection of a prohibitory sign the difficulty that the plaintiff faces lies in demonstrating that such a sign was reasonably required given the low probability of the occurrence of injury; the widespread nature of the practice; the impossibility of even significantly reducing, let alone eliminating, the risk; the absence of any factor which made this place more risky than other places; the conflicting responsibilities of the Council; combined with the doubtful utility of signs given the obviousness of the risk to any person, even a young teenager. Seen in the context of a voluntary recreational activity freely pursued with the expectation of exhilaration from the inherent danger of the activity I cannot see that the law required any greater response from the Council. Causation [97] Despite my finding on the content of the duty and breach I am required to consider the issue of causation. [98] Plainly, if the subject tree had been removed this incident would not have occurred – at least not from this tree – and for present purposes not at all. Similarly had the bough been removed from which the swing hung. There was no suggestion that the plaintiff was likely to have himself put a rope into place either on this or any other tree. [99] I am content to accept that had a prohibitory sign been in place the plaintiff would probably have complied with it. I am conscious of the lack of utility of the plaintiff’s evidence that he would have complied with such a sign – what else could he say?33 I am thus conscious of the need to look for objective evidence to support the claim. [100] There were several matters that seem to me to support the plaintiff. First, he seemed, in the giving of his evidence, to be a reasonable young man. Obviously, as he is now may not be as he was then, but his general attitudes seemed perfectly normal. Secondly, there was no history of disobedience or defiance of authority. Thirdly, I was reasonably impressed by his companions – they seem to have gone on in life to achieve worthwhile lives and take on responsibilities. If one can judge a man by his friends then the plaintiff appeared to have fallen in with reasonably good company in his teenage years. Fourthly, and on an allied point, despite the defendant’s objection, it 33 Vairy at [226] per Callinan and Heydon JJ – “the very limited utility, indeed practical uselessness, of reliance by a court upon an answer by a plaintiff” regarding an issue of this type. -- 19 of 22 -- 20 seemed to me relevant that the attitude of the plaintiff’s friends to such a sign was relevant – there would be no peer pressure on him to disobey the sign. Fifthly, there were other places to go to do precisely this activity. Why risk a brush with authority? [101] Conversely, the defendant’s arguments were not persuasive. A readiness to smoke despite the dire health warnings on the packets is not, to my mind, indicative of a readiness to do something that is prohibited and which may be subject to sanction, or at least the spoiling of an afternoon’s entertainment if a person in authority chanced along. And a readiness to pursue this activity at other, more risky venues, such as the 20 meter rope swing on the north side of the river, again does not to my mind make a defiance of a formal prohibition more likely. [102] On balance, had I been of the view that the defendant was under a duty of care with the content alleged by the plaintiff, I would have been satisfied as to the necessary causal element. Voluntary Assumption of Risk [103] On the assumption that the defendant was in breach of the duty owed to the plaintiff the question arises as to whether the plaintiff has voluntarily assumed the risk of injury. [104] The defendant’s case on this issue consisted of mere assertion. No analysis was provided or authorities cited to demonstrate why it is that this principle, which has rarely been successfully invoked in modern times,34 applies here. The onus rests on the defendant. [105] There are two things that must be established - the plaintiff must “freely and voluntarily” impliedly agree to incur the risk, and he must do so with full knowledge of the nature and extent of the risk.35 [106] Mr Mullins submitted that whilst the plaintiff appreciated that there was a risk of injury from diving into shallow water he did not consider that “using the rope swing” was particularly dangerous. He drew a distinction between the plaintiff’s claimed appreciation of the risk of diving into shallow water and his belief that the risk of his hitting his head would not happen. Presumably the plaintiff did not believe, immediately before his last dive, that he was likely to strike his head on the river bed and break his neck. But that is a different issue to whether he had full knowledge of the nature and extent of the risk. [107] Given my finding concerning the plaintiff’s appreciation of the nature and extent of the risk36 I find that he had full knowledge in the relevant sense. [108] Did the plaintiff impliedly agree to incur the risk? The difficulty is that the question is usually posed in terms that suggest an acceptance of an abrogation by the Council (in this case) of any duty owed to the plaintiff. Thus in Woods v Multi-Sport Holdings Pty Ltd37 Kirby J put the principle in this way: “[T]he appellant must totally accept the consequences of the respondent's neglect for his safety.”38 Similarly in Imbree 34 Imbree v McNeilly and Another (2008) 236 CLR 510 per Gummow, Hayne and Kiefel JJ at [79] 35 Ibid at [81] 36 See [56] above 37 (2002) 208 CLR 460 38 At [125] -- 20 of 22 -- 21 Gummow, Hayne and Keifel JJ said: “And the conclusion that a plaintiff voluntarily assumed the risk in question is readily seen as equivalent to concluding that the defendant owed that plaintiff no duty of care”. 39 [109] Here it is common ground that a duty of care exists. Once one assumes, contrary to my finding, that the Council has breached its duty to the plaintiff then there is an implied acceptance of the proposition that the Council has exposed the plaintiff to an unnecessary risk of injury. To the proposition “Has the plaintiff impliedly relieved the Council of its responsibility of exposing him to such risks?” I would answer yes. [110] If that is the wrong question and more aptly I should ask whether there was any compulsion or obligation on the plaintiff to accept the risk, or no opportunity to avoid incurring it, then I would answer that there was no such obligation or compulsion and there was opportunity to avoid it. [111] I think that the correct question is the latter and that the defence, on the notional hypothesis of a finding of breach of duty, is made out. Contributory Negligence [112] It is necessary that I consider the question of apportionment on the hypothesis that I have found for the plaintiff. That has its difficulties. An apportionment that is “just and equitable” when one is not persuaded that there has been a departure from the standard expected of the defendant requires a leap of the imagination. [113] Doing the best I can I note that the relevant principles are as were explained in Podrebersek v Australian Iron & Steel: “The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”40 [114] I bear in mind that “the duty that [the plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.”41 [115] The defendant contended for an apportionment of 80% and the plaintiff conceded one of 15%. Mr Mullins stressed the plaintiff’s age and the culture of acceptance of the activity. [116] On this issue the fact that diving from rope swings has been successfully accomplished without injury for a very long time - and from the subject tree – suggests that the undertaking of the activity itself cannot be seen as necessarily in breach of a duty to 39 (2008) 236 CLR 510 at [81] 40 (1985) 59 ALR 529 at 533 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ. 41 Vairy at [220] per Callinan and Heydon JJ -- 21 of 22 -- 22 take reasonable care of oneself. Otherwise the mere act of say, driving a car, given the known horrendous injury toll on the roads, would justify an apportionment without more. Rather it is the manner in which the dive was executed that must be the focus. [117] The plaintiff made a mistake in his dive – I suspect that his swing took him not so far out as was usual and his chosen method of dismount brought him a little closer to the bank than he expected. It was not a deliberate action of courting a risk but a negligent failure to ensure he kept a safe distance away from the bank. That should have been his primary concern. That negligence was of significant causative potency whilst the degree of departure from the standard of a reasonable man was not so great. I do not see the plaintiff’s age as particularly relevant in this assessment. [118] I assess the notional apportionment at 50%. Orders [119] There will be judgment for the defendant with costs. -- 22 of 22 --