Enright v Coolum Resort Pty Ltd & Ors [2002] QSC 394

SUPREME COURT OF QUEENSLAND [2002] QSC 394 File No S2701 of 1995 BETWEEN: MAUREEN ENRIGHT Plaintiff AND: COOLUM RESORT PTY LIMITED First Defendant AND: THE COUNCIL OF THE SHIRE OF MAROOCHY Second Defendant AND: DAVID PAUL CLIFF Third Defendant AND: HYATT OF AUSTRALIA LIMITED Fourth Defendant MOYNIHAN J – REASONS FOR JUDGMENT DELIVERED ON: 29 November 2002 HEARING DATE/S: 27 May – 3 June 2002 ORDER: Action dismissed. The plaintiff fails to establish breach of duty by any defendant causing Mr Enright’s death. CATCHWORDS: Section 12 Common Law Practice Act – loss of dependency – where plaintiff’s husband drowned off Coolum Beach in March 1993 – where liability to be determined. TORT – NEGLIGENCE – DUTY OF CARE – whether duty owed by the Hyatt Coolum Resort to guests – nature and extent of duty owed by the first, third and forth defendants - where deceased was swimming at a beach without a lifeguard - whether failure to warn the deceased of dangers of swimming at unpatrolled Yaroomba Beach caused his death. -- 1 of 18 -- 2 TORT – NEGLIGENCE – DUTY OF CARE – where Yaroomba Beach is in Maroochy Shire Council’s possession or under its control – nature and extent of duty of care - whether failure to provide a waning sign as to dangers of swimming at Yaroomba Beach at Birrahl Park where the deceased entered the beach was within their duty - whether failure to provide such a sign caused his death. Common Law Practice Act 1967 s.12 Local Government Act 1936 s45(a)(2) Agar v Hyde (2000) 203 CLR 552 – referred to Green v Chenoweth (unreported Appeal 10998 of 1996, 11 November 1997 per Pincus J) - followed Hallmark-Mitex (unreported Court of Appeal 11009 of 1997 per Chesterman J) - followed Jones v Dunkle (1968) 101 CLR 298 - followed Nagle v Rottnest Island Authority (1993) 177 CLR 423 – cited; followed Perre v Apand (1999) 198 CLR 180 – referred to Prast v Town of Cottesloe (2000) 22 WAR 474 - cited Reeves v Commissioner of Police of the Metropolis (2000) AC 360 – referred to Roger v Holman (1949) AR 843 (Ontario Court of Appeal) - cited Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 – cited; followed The Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 – cited; followed Thomas Borthwick & Sons(Australia) Pty Ltd v Stapleton {10006 QCR (14 June 1996) - followed Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 -- 2 of 18 -- 3 COUNSEL: Mr S.C. Williams QC with Mr W.D. Campbell for the plaintiff Mr P.A. Keane QC with Mr A.M. Daubney SC for the 1 st , 3rd and 4th defendants Mr R.A. Hanson QC with Mr R. Douglas SC and Mr J Kimmins for the 2 nd defendant SOLICITORS: Mallesons Stephen Jaques for the plaintiff Quinlan Miller & Treston for the 1st , 3rd and 4th defendants Jensen McConaghy for the second defendants [1] The plaintiff is the widow of Robert Steven Enright (I will refer to him as Enright) who drowned at Yaroomba Beach in the Maroochy Shire on 3 March 1993. She sues under s 12 Common Law Practice Act 1967 for loss of dependency on her own behalf, on behalf of the two daughters of her marriage to Enright and as executor of his estate. This is the determination of the issue of the liability of the defendants in accordance with an order of Douglas J made on 4 February 2002. [2] I have been assisted by comprehensive written submissions by counsel augmented by oral presentations. A feature of the case is the large volume of documents, plans, photographs and the like admitted into evidence, generally by consent. I have given attention to those to which my attention was directed and to other documents to which that attention led me. I have not however trawled the whole body of material in an endeavour to locate other documents, which might bear on the issues as they ultimately fell to be determined. [3] At the time he drowned Enright was a guest at the Hyatt Coolum Regency Resort (the Resort), which was owned by the first defendant (Coolum) and operated by the fourth (Hyatt). It seems that any contract in respect of Enright’s presence at the Resort was with Coolum. The third defendant (Cliff) was employed by Hyatt as a driver/bell attendant at the Resort. He drove Enright and a companion to the vicinity of Yaroomba Beach on 3 March in circumstances, which will be referred to later. It is convenient to refer to the first, third and fourth defendants as the Hyatt defendants unless it is necessary to distinguish among them. [4] The second defendant (the Maroochy Council) is sued on the basis that Yaroomba Beach was in its possession or under it’s control. [5] Yaroomba Beach is crown land. By an order in council of 26 November 1997 the Governor in Council declared parts of the seashore and land under the sea at Yaroomba Beach a bathing reserve under the management and control of the defendant Council for the public benefit. I note, although in my view nothing turns on it, that any breach of duty by the Council occurred outside the declared reserve. -- 3 of 18 -- 4 [6] The Council permitted the Resort to conduct a patrolled beach on the bathing reserve. [7] Section 45(a)(2) of the Local Government Act 1936 provides to the effect that the Council “may” provide and operate life saving services, and authorise surf life saving. [8] It was not seriously contested that those relationships gave rise to a duty of care. The issue rather was as to the nature and extent of the duty owed to Enright in the particular circumstances of the case and whether there was a breach of duty. [9] The plaintiff’s case is essentially one of failure by the defendants’ to warn Enright of the dangers of swimming at unpatrolled Yaroomba Beach. In the case of the Council, the allegation relates to failure to provide a warning sign at Birrahl Park, from which Enright accessed the beach. In the case of the Hyatt defendants’ it is failure to warn Enright of the hazards of entering the surf at an unpatrolled beach. I will return to these considerations later. [10] The defendants’ deny any breach of duty of care causing Enright’s death, plead that he voluntarily incurred the risk which led to his death and contributory negligence. [11] The same counsel and solicitors represented the Hyatt defendants. The Council was separately represented. The Hyatt defendants and the Council exchanged cross claims for contribution or indemnity in the event of being found liable. Counsel for the Hyatt defendants made no submissions as to the Council’s liability in addition to those made for the plaintiff, the Council adopted a reciprocal course. [12] The case is not, in my view, one which ultimately turns on fine distinctions between the obligations of statutory authorities or tortious breach of duty of care considerations (the Council). Nor does it turn on distinguishing between contractual or tortious obligations (the Hyatt defendants). The large volume of evidence and the weighty submissions tend to obscure that the case ultimately turns on the application of reasonably well settled principles of law to the facts established by the relevant evidence. [13] The relevant principles of law have notably been expounded by the High Court in the decisions of Nagle v Rottnest Island Authority (1993) 177 CLR 423, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Agar v Hyde (2000) 203 CLR 552 and Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483. [14] These cases support the general proposition that the defendants are under an obligation to exercise a reasonable care to protect a person from the reasonably -- 4 of 18 -- 5 foreseeable consequences of the risks of water based recreational activities in general and of surfing at Yaroomba Beach in particular. [15] In imposing a duty of care and more importantly in determining whether or not a duty has been breached the common law recognise individual autonomy and responsibility; see Romeo v Conservation Commission (1998) 192 CLR 431 at [21], [47], [76], [122]-[124]; Agar v Hyde (2000) 201 CLR 552 at [15], [20], [68], [90], [125]-[127]; Perre v Apand (1999) 198 CLR 180 at [114]; and Reeves v Commissioner of Police of the Metropolis (2000) AC 360 at 368. [16] As was said in Romeo at [123]; “While account must be takes of the possibility of inadvertence or negligent conduct on the part of the entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety … 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”. [17] To say that it was reasonably foreseeable that a guest of the resort (in the case of the Hyatt defendants) or that a person (in the case of the Council) would swim in the surf at an unpatrolled beach and get into difficulties and drown does not establish that the defendants were bound to warn Enright of that risk. It is also pertinent to note that a duty of care is not generic but is owed to each particular plaintiff assessed individually; e.g. Romeo192 CLR431 at [76]. [18] In Rogers v Holman (1949) AR 843 the Ontario Court of Appeal noted paid at 838: “There is always the possibility of drowning in any water that is deep enough to swim in, and the chance of drowning is usually greater if the water is rough. It is not suggested that the respondent should or could have done anything to alter the physical character of the location in any material respect, so that any possible element of danger would be removed or lessened”. [19] So far as the specific dangers of surfing are concerned The Secretary to the Department of Natural Resources & Energy v Harper [2000] 1 VR 133 (applied in Woods, 76 ALJR 483, a visitor to a state forest was injured when an aged tree fell during high winds. The case was conducted on the basis that a warning sign should have been erected to inform the plaintiff not to go into such an area. The claim failed. In dismissing the appeal Batt JA (with whom Tagel JA agreed) state: “To enter a forest or its immediate surrounds like entering the surf, is to take a risk of injury albeit a remote risk. The risk is “endemic” or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular in forest reserves”. -- 5 of 18 -- 6 [20] This remark was taken up by the full court of the Supreme Court of Western Australia in Prast v Town of Cottesloe (2000) 22 WAR 474 where the issue was whether the local authority ought to have provided a warning to surfers of the dangers of suffering a serious injury as a consequence of being dumped. Having referred to the passage in Harper Ipp J with whom Wallwork and Parker JJ’s agreed remarked:- [43] Sea conditions often change. Currents, rips and surges unexpectedly materialise. Large and unexpected waves materialise out of the deep. These phenomena are all capable of causing serious injury or death. The currents and rips can take an unsuspecting swimmer far out to sea and result in drowning. Surges and unexpected large waves can hurl an unsuspecting swimmer against rocks or on to the seashore, with serious damage to body and limb. And yet to suggest that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest, be absurd. The absurdity lies in the obviousness of the danger that attaches to the common, everyday, activity of swimming in the sea…. In my opinion, the risks attendant upon bodysurfing falls into the same category. Of course, where there are dangerous currents or rips or surges or rocks, or the possibility of occasional “king” waves or other dangers that are peculiar to a particular beach or part of a beach. Special warnings may be called for, but that is not the case. [44] …Negligence at common law is still a fault-based system: Perre v Apand Pty ltd (1999) 73 ALJR 1190 (per McHugh J at 1214). As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety. [21] As will emerge on the views I take of the evidence the risk to Enright which resulted in his death was obvious to any reasonable surfer particularly with his knowledge of the characteristics of ocean waters. The circumstances of this case were not such as to require a “special warning”. I turn now to the facts of the case. [22] Robert Steven Enright was born on 22 September 1946. He married the plaintiff (she was born on 19 June 1947) on 5 May 1971. Of their two children Jessica Elizabeth was born on 11 October 1977 and Katherine Brent on 5 March 1980. Enright was vice-president of world tax for PepsiCo Inc, a US corporation at the time of his death and had worked as a lawyer all his working life. [23] Enright had left the Philippines at about 11.00 pm (local time) the previous night and arrived at Brisbane airport at about 5.00 am (local time) on 3 March 1993. He was picked up by a chauffeured hire car which left the airport at about 9.20am arriving at the Resort, at about 11.00-11.30am. He appears to have gone directly to a conference being conducted there by his employer. He participated in the -- 6 of 18 -- 7 conference which concluded at about 4.30pm. The participants were to meet for dinner at about 7.00pm. [24] The person who drove Enright from the airport to the Resort on 3 March was a man called David John Fleming (Fleming). He gave evidence in the following circumstances. Prior to the commencement of the trial on Monday 27 May 2002 the fact that it was to commence received publicity in the media as did the events of the first day of the trial. On the afternoon of Tuesday 28 May 2002 as the result of information received from a person other than Fleming, the solicitors for the defendant Council initiated steps which resulted in Fleming being located and giving evidence. [25] Fleming’s evidence was to the effect that some distance into the journey from Brisbane airport to the Resort, Enright “sparked up” and expressed an interest in surfing. As a result Fleming departed from his usual route to take Enright by a route closer to the sea so Enright could see the beaches. [26] During the course of the journey Enright expressed an intention to go surfing while at the Resort. Not surprisingly Fleming does not remember the actual terms of the conversations and all their detail. That he remembers the incident at all is explained by the following circumstances. [27] On 4 March Fleming returned to the Resort to collect a docket, the pickup had been arranged by the Resort, relating to his transporting Enright there. The staff person he initially spoke to stated that there was no record of Enright as a guest. Fleming adverted to the fact that he had brought him there the previous day. Another staff member then intervened and identified Fleming’s passenger as the person who had drowned the previous evening; this impressed the previous days journey and conversation on Fleming’s memory. [28] I am satisfied that during the course of the journey Fleming plainly expressed to Enright his (Fleming’s) concern to the effect that Yaroomba Beach was not a safe place at which to swim. He suggested that Enright swim at Coolum Beach, where there were usually people on the beach and it was safer, or in one of the Resort swimming pools. [29] I am satisfied that Fleming’s concern was not confined to risk because of the aftermath of a recent cyclone. He expressed general concerns about the safety of the beach. They were founded on his having seen the beach on occasion and particularly on what had been conveyed to him by his daughter who attended the local High School. [30] I am satisfied that Enright arrived at the Resort having determined to surf after the conference finished for the day. Information relating to swimming and surfing was available at the Resort. A brochure describing the facilities offered at the Resort, -- 7 of 18 -- 8 including the “private beach resort” was in each room. This was a reference to what I will call the Beach Club, which was conducted as a Resort facility. [31] The brochure advised guests that the Beach Club was “fully patrolled for the guests’ safety”. There was a shelter for the lifesaver on patrol and other facilities on the beach adjacent to the patrolled area. A phone was connected to the Resort which could be used to summons a dedicated beach shuttle which operated within the Resort between the major Resort facilities and the Beach Club. Guests were made aware of the beach shuttle by reference to their room brochures, signs at the bell desk and by inquiries too resort staff. [32] The Resort bell desk was situated at the front of the main resort facilities in the area where guests arrived. There were hotel staff at or in the vicinity of the desk and at the reception area a short distance away. The beach shuttle departed from the vicinity and there were signs to that effect and as to the way to the Beach Club. [33] The conference Enright attended finished at about 4:30pm. As they were walking to their respective rooms together Enright mentioned his intention to go for a swim or surf to a colleague Edward Francis Hickey (Hickey). Hickey asked if he could accompany him. Enright acceded. Enright apparently inquired of the people leaving the conference if anyone knew where the beach was. Hickey was unable to say whether he got an answer. [34] Shortly after this conversation the two men left to walk to the beach. As I have indicated the beach is some distance from the main facilities. The direction to the sea is discernable from that locality although not necessarily the beach itself. [35] Enright and Hickey walked past the area where the bell desk and the beach shuttle station were situated, apparently without noticing either and failed to see the sign on the driveway indicating the way to the Beach Club. [36] Neither man made any attempt to pursue any inquires about the way to the beach, surfing conditions or the beach facilities. Hickey was sure that someone would have given them information about the way to the beach “had they been minded to ask.” No doubt information about the beach and surfing would also have been available had they been reminded to ask. [37] There is a degree of speculation about the information any inquires would have yielded. There were policies and procedures for Resort shuttle and transfer services, which it may be taken, applied at the relevant time. These refer to a number of shuttle services. It referred to the Beach Club shuttle and provided: - “All guests transported to the beach outside of lifeguard hours should be informed that swimming in the surf without trained supervision is not recommended” -- 8 of 18 -- 9 [38] In all probability inquiries of Resort staff, particularly at the bell desk or from the beach shuttle bus driver, would have disclosed that there was a patrolled beach, that the patrol ceased at 4.30pm and of the existence of the phone to the Resort. It may well have led to disclose to the effect that swimming outside patrol hours involved some risk. [39] Had the two men travelled by the beach shuttle or followed the designated route to the beach they would have passed a sign on the wooden walkway from the end of the track from the resort the drop off area to the Beach Club and the beach. Ewan McKenzie (McKenzie), the lifesaver on patrol had reversed it when he left at 4.30pm. After 4.30pm on 3 March 1993 the side facing people approaching the Club Beach from the Resort read “Lifeguard Off Duty”. The back or flip side read: “Daily Surf Report Date 3 March 1993 – Swim with caution Tide: Surf Conditions: Inshore gutter, undertow. Please swim between the red and yellow flags.” [40] Enright and Hickey, having made no inquiries, missed the signs for the beach shuttle and the way to the beach. They became lost and found themselves on a main road outside the Resort. They flagged down a vehicle driven by the third defendant Cliff, which proved to be a bus operated between the Resort and an airport. [41] Cliff did not give evidence and his absence was not explained. It was submitted for the plaintiff, relying on Jones v Dunkle (1958) 101CLR 298, that all inferences favourable to the plaintiffs must therefore be drawn. Assuming the necessity for explanation to arise, failure to call Cliff may found an inference his evidence would not have assisted his case. The rule in Jones v Dunkle, as I understand it, does not however found an inference that his evidence would have been damaging to his case nor does it provide a substitute for evidence or turn conjecture on speculation into inference. Put shortly given the view I take of the evidence of the rule is of little assistance to the plaintiff in the context of the whole of the evidence. [42] Having flagged Cliff down, Enright inquired as to the way to the beach. It may be assumed that Enright’s accent identified him as an American and Cliff seems to have inferred that the two men came from the Hyatt. Cliff responded to Enright’s inquiry by asking whether they wanted the Hyatt Beach to which Enright responded, “…it didn’t matter…whichever is closest”. Neither man sought to obtain information from Cliff about the beach or surf conditions. Cliff complied with Enright’s request and took them to Birrahl Park and dropped them near a beach entry point there. [43] I am not satisfied that Enright “accepted Cliff’s directions” so as to place himself in a “relationship of vulnerability” with Cliff or Cliff’s employer so as to give rise to a duty of care which was breached on 3 March. -- 9 of 18 -- 10 [44] Birrahl Park had shelter, picnic, toilet and shower facilities. There were two beach entry points associated with Birrahl Park. The southerly one at which Cliff had dropped Enright and Hickey had a sign referring to Beach Watch. This related to a neighbourhood watch and not to issues of safety in the water. Hickey did not notice any sign and there is no occasion to think Enright did. There was a sign at the northern entry some distance from where the men were dropped but there is no occasion to think it may have come to their attention. [45] As he dropped them Cliff directed Enright and Hickey in terms of “walk down the path, you’ll hit the beach… you’ll walk 50 metres to the Hyatt Beach Club at which point you will see some flags”. He told them there was a phone there to call the beach shuttle when they wanted to return to the Resort. [46] In fact the Hyatt Beach Club was 700 or 800 metres further south from the point where Cliff dropped the two men. Since it was after 5.00pm when the two men arrived at the beach the flags had been taken in and the lifesaver on patrol had left. [47] When Enright and Hickey arrived at the beach it was deserted save for two young girls playing in the shallows that left shortly after. It was obvious that the beach was not overlooked by any habitation and that there was no one to see them if they got into difficulties in the surf. [48] The two men began to walk south but could not see any sign of the Beach Club. As I have explained it was a good deal further south than Cliff had indicated and the patrolled beach had closed at 4.30pm. Moreover the shelter and associated facilities were apparently not conspicuous from the direction of their approach. [49] The two men decided nevertheless to enter the water in the vicinity of a beach level marker pole. They left their towels there and entered the water aware that the beach was deserted, not overlooked by habitation, despite Fleming’s warning, without having made any inquiries and without having found the Beach Club or a patrolled beach. [50] There was a considerable body of expert and lay witnesses’ evidence bearing on the characteristics of Yaroomba Beach and, for reasons which will become apparent, comparisons between them and the characteristics of Long Beach, Long Island, New York State. [51] There was evidence from Dr Edward Arnott Bryant, Associate Professor and Head of the school of geosciences at the University of Woolongong, Professor Malcolm James Bowman, Professor of Oceanography, State University of New York at Stoneybrook and Professor Andrew Damien Short, Associate Professor at the University of Sydney in Geography and Marine Science. -- 10 of 18 -- 11 [52] Ewan McKenzie was the experienced lifesaver on patrol at the Resort Beach on 3 March 1993 until 4.30pm. Thomas Daly was a veteran lifeguard with particular experience of Long Island beaches and experience of Australian beaches; he had been to Yaroomba Beach. There is also in evidence a video, which shows surfing conditions some time after Enright’s drowning which is useful but to be approached with caution because of the lapse of time the general nature of the scene and the lack of clarity and scale of what is seen. [53] I do not find it necessary to embark on a detailed analysis of the technical aspects of the opinion evidence or to resolve some differences, which seem largely academic, which arise. I found the evidence of McKenzie, who had been on patrol for the day particularly useful as was Mr Daley’s perspective of experience. [54] This case does not, in my mind, turn on such issues. [55] The following conclusions are based on an evaluation of the evidence as a whole. Surf conditions at Yaroomba Beach are dynamic and unstable. They are governed by tide, wave and wind activity. Waves break over a seaward bar into a channel or gutter roughly parallel to the beach before striking an inner bar. The force of the wave having been spent the water recedes back into the gutter. [56] On the afternoon of 3 March the flow of water in the gutter was south roughly parallel to the beach creating a southerly drag. As water builds up in the gutter between the two bars it seeks return out to sea. It does this at various points by cutting through the outer bar roughly at right angles to the beach. This creates a flow of water (a rip) out to sea. A rip may be transient or more or less permanent although even in the latter case it will vary according to conditions. This model was referred to in the evidence as a double barred beach and the model is probably neater than the conditions actually experienced; it provides a useful basis on which to consider the events leading up to Enright’s death. [57] The characteristics of a double barred beach at Yaroomba Beach are not unique in terms of southern Queensland and northern New South Wales beaches. These characteristics were said by one witness to be prime reasons for life saving arrangements on Southern Queensland beaches, the explanation for many of the rescues which take place there and the cause of drownings. Professor Short rated Yaroomba Beach as one of a number of beaches towards the more dangerous end of his comparative rating scale. [58] For reasons I have canvassed on one view of it, double barred beaches are an example of the more general characteristic of currents which can be expected in ocean waters. Rips are among inherent characteristics of a double barred beach. Other such characteristics include, variations in the depth of water, wave action of varying degrees of force and the drag I have previously mentioned. Rips can occur at various places and vary in flow and intensity according to prevailing conditions. -- 11 of 18 -- 12 The velocity of a rip varies according to wind, sea conditions and bar topography. It may vary from walking pace to “speeds exceeding an Olympic swimmer”. [59] High tide on the day of Enright’s drowning was at 4.37pm. McKenzie recorded conditions as I have set out in paragraph 39. He estimated the wind to be around 20 knots from the southeast. I accept his evidence that when he left the Beach there were dumping one-metre waves and the surf was rough. He did not consider those conditions justified his closing the beach before the usual 4:30. The conditions are likely to have deteriorated rather than improved between when McKenzie left the beach and when Enright was drowned. I should mention, however, that I am inclined to think that Dr Bryant overstates the role of the wind in the surfing conditions on 3rd March. [60] Enright was familiar with water based recreational activities. He had qualifications and experience as a scuba diver and of recreational boating particularly on Long Island Sound, he lived on the Sound. I accept that this was not surfing experience. It would however have involved experience of dangers inherent in water based recreational activities. In that environment there are inherent but not necessarily apparent risks from changing conditions of wind and tide, variations in depth, and currents. [61] Enright also had experience of surfing conditions. He was familiar with ocean beaches on the shores of Long Island from his college days, particularly Long Beach. He met his wife there. In the surf on 3 March he spoke to Hickey about his experiences of body surfing on Long Island beaches in his college days. He had holidayed at resorts in Mexico, the Bahamas and the Caribbean which had ocean beaches and surf. [62] Mrs Enright gave evidence that she and her husband had heard of a ‘rip-current’, but that it was quite “an enigmatic term”. She spoke however of an incident in California that involved a mother and two children drowning as a result of a rip current and the beaches being closed as a result. She and her husband observed a sign indicating a rip tide and were aware people had drowned as a result of it. She commented that she was surprised that the beach was dangerous as the water looked calm and it was a beautiful day. [63] The beaches, of the Long Island shore, particularly Long Beach have features of a double barred beach such as Yaroomba Beach. The beaches however, are heavily built up and regulated. The open beach is interrupted by groins some 300 yards apart running out from the shore. Swimming areas are defined in the central hundred yards area by ropes attached to floating buoys. Each beach defined in this way is under the control of lifeguards, it is closed and the closure is enforced when they are not in attendance. The lifeguards supervise so that swimming takes place in the designated areas. -- 12 of 18 -- 13 [64] I accept the evidence of Daly, an experienced lifeguard on Long Island with experience of Australian surfing conditions to the effect that beach currents on Long Island do not always follow the shoreline and that in the summer rips can occur in the middle of and at the sides of the groins. It is likely that Enright had experienced this effect. [65] It is true that the scene in front of Enright at Yaroomba Beach differed from that with which he was familiar at Long Island. He does not seem to have considered that the unfamiliarity might put him to inquire or on guard. In any event in my view a person of Enright’s experience did not need to experience a precise replica of a Yaroomba Beach rip to appreciate the prospect of the inherent risks the beach posed to surfers. [66] By way of contrast to Enright’s experience, most of Hickey’s swimming experience had been in “very calm waters” and he was always “kind of wary of the water”. He had however swimming lessons as a child and could swim a distance. He had limited experience of ocean conditions at Cape Cod. On the day Hickey deferred to Enright’s judgment in the water. This was because of Enright’s greater experience and partly because of his general regard for Enright and because Enright was his superior in the company which employed them. [67] In my view, Enright arrived at the Resort determined to surf and was not deterred from that purpose by subsequent events. As a result of his overall experience he:- (a) knew or ought to have known of the inherent risk associated with surfing including wave action, and currents (however they might be described or named) which might vary in direction or force; (b) knew there was a risk of drowning in the surf; (c) knew this risk increased if a swimmer was out of their depth; (d) knew or ought to have known life guards or life savers were to protect swimmers and that there was added risk in swimming at an unpatrolled beach; (e) knew or ought to have known a patrolled beach when there was no patrol at the time; (f) ought to have appreciated that he’d had a long flight and a long day and his capacity to deal with situations which might arise in the surf and reduced by this; (g) ought to have been at least put on inquiry by Fleming, that Yaroomba Beach may not be a safe place to swim; (h) made no inquiry at the Resort, where it might reasonably have been expected relevant information to be available nor did he inquire from Cliff; (i) knew that in the event the swimmers got into difficulty there was little prospect of their plight being noticed by others; (j) to the extent to which the environment was unfamiliar he ought to have been put on guard or inquiry but made no inquiries or apparently exercised no additional caution; -- 13 of 18 -- 14 (k) expected, as a result of his conversation with Cliff, a patrolled beach designated by flags but entered the water notwithstanding not having found the Beach Club or the patrolled beach; and (l) although he probably did not know that the beach had been closed by the time he went for a swim he knew or ought to have known that the purpose of a patrolled beach was to make the environment safer for swimmers. [68] It is also pertinent to note at this stage that Enright had been diagnosed as suffering from labile hypertension, hypercholesterolemia and situational anxiety. Those conditions were managed by drugs. He was overweight and a smoker although he was said in this context to be “diligently working on life style issues” at the time of his death. [69] Although the evidence does not support a conclusion that Enright suffered a cardiac or other such episode on 3 March 1993 I am satisfied his physical condition, lack of fitness and travel fatigue had an adverse effect on his ability to cope with the situation which led to his drowning. [70] Hickey has given various accounts of the events of 3 March in a letter to Mrs Enright written on the 6 March, to investigating police officers, at a coronial inquest and in evidence at this trial. Not surprisingly given the stress of the events, the traumatic nature of Enright’s drowning and that the event is now some time ago the accounts are not completely consistent and reliable. I am satisfied that the following chain of events occurred when the two men had entered the water. [71] When Enright and Hickey entered the water they experienced a “fairly strong” current pushing them south. Hickey initially tried to maintain his position against the current in relation to their starting point on the shore. Enright suggested they go with the current and walk back along the beach when they finished their swim and collected their towels. Hickey acceded to this. [72] The two men were in the water for some 30 or 40 minutes moving south with the drag, catching the waves breaking on the outer bar and endeavouring to ride them in as far as they could. They would then return to the outer bar to repeat the exercise. During this time the two men were not out of their depth for any appreciable period. [73] In all probability the sea got rougher and the wind came up during the period. The changing conditions ought to have been apparent to the swimmers but do not appear to have given cause for concern. [74] After some time in the water. Hickey appreciated he was becoming tired and said he wanted to go in. They agreed to catch a last wave and with their backs to the shore, waited looking for a wave. This was apparently some time in coming. -- 14 of 18 -- 15 [75] After waiting for a time, apparently treading water it was decided not to wait any longer but to go in. When they turned they found that they were some 80 to 100 metres from the beach. This was both surprising and disconcerting, in Hickey’s words “at that moment I think we both knew we were in trouble”. This was because they were out of their depth, a good deal further from the shore than either had appreciated until they turned to face it and they were tiring. [76] Hickey started to swim in, after he took a couple of strokes he heard Enright call him. He stopped and turned back to hear Enright say “don’t leave me out here”. He tried to reach Enright’s hand but was pulled under by a wave, from contact with Enright or a combination of those things. When he came up he asked Enright how he felt. Enright did not answer but “kind of shook his head”. [77] After waiting a moment Hickey, appreciating his own condition was such that he could do little to help Enright and that he too was in danger, took the only sensible course open and swam and waded to shore for help. Hickey states that whilst swimming to shore he noticed an “undercurrent” which he describes as extremely strong but he was nevertheless able to make it safely to the shore. [78] When he reached the shore Hickey ran south in the hope of finding the Hyatt Beach but having run an estimated 100 metres or so and finding no sign of it he retraced his steps to that part of Birrahl Park where Cliff had dropped them. [79] Two surfers in the parking area came to his aid and ran back down along the beach with him. One of them was carrying a surfboard and when they saw Enright floating in the surf went out with the surfboard. He was unable to get Enright onto the surfboard or move him to the shore unaided but with assistance finally got him to shore. By this time other help had arrived but Enright could not be revived. [80] No doubt there are rips, sometimes strong rips, at Yaroomba Beach and that rips were present on 3 March 1993. Hickey’s evidence, however, does not paint a picture of the two men being caught unexpectedly in a rip and swept out their depth. [81] Hickey’s description of the events prior to Enright’s drowning does not make reference to a drag, undertow, rip or increase in the force of the waves as the cause of the dilemma in which the men found themselves far from the beach. He however remarked on the drag and the undertow he struck while coming to shore. [82] Hickey speaks of a strong undertow while making his way ashore and of conversation later while watching attempts to recover Enright’s body. He was told by a bystander that Enright’s body could not be brought directly to shore because the rescuers had to negotiate a rip. There is no reliable evidence of the lapse of time between Enright getting into difficulties and this event. Wind and sea conditions were deteriorating at that time. There is no evidence upon which a reliable -- 15 of 18 -- 16 conclusion can be found as to the relationship between where Enright got into difficulties and where his rescuers had difficulty said by a bystander to be on account of a rip. I am not prepared to conclude that this evidenced a rip which led to Enright’s drowning. [83] It is suggested the fact that no wave came and that the men found themselves a long way from shore and out of their depth supports an inference of a rip. As I have said Hickey’s evidence does not support a conclusion that their dilemma was due to a rip and is otherwise not sufficiently reliable to found the conclusion that these conditions evidenced a rip which caused Enright to drown. [84] I note too that “rip” is not Hickey’s term. In the course of cross examination he was taken to the amended statement of claim and in that context he said that the term “deep rip” …“was not one that I came up with, it was, in describing it I think that term was inserted – no that’s not a term I would have used”. He went on to say that in making a statement to Mrs Hickey’s lawyers he may have said something and they said “deep rip” and explained it to him and he said yep that’s right. [85] The picture painted by the evidence in my view is of the two men moving south with the drag, chasing waves, surfing them in and then going back out. They were paying insufficient attention to their surroundings particularly the distance to the beach and the depth of the water they were in when they finally gave attention to these conditions they were out of their depth and far from shore. Hickey, although less experienced than Enright in surf conditions and as a swimmer was able to save himself. Enright was too exhausted to take steps to regain his depth or otherwise save himself and drowned. [86] The defendants did not create the risk of Enright drowning in the surf or have any control over or responsibility for the conditions, which created it. The choices Enright made, in the events leading up to his death, were made without reference to or reliance on the defendants. They were his alone. [87] Assuming that the defendants’ were in breach of an obligation to warn Enright either generally (the Hyatt defendants) or specifically by a sign (the Council) the question arises of whether Enright would have observed the warning and avoided drowning. [88] Given that he was not in the frame of mind of acquiring information about the surf, although there were opportunities to do so Enright would not necessarily have observed (seen and read) it and avoid drowning. In the event that he saw it, or received a warning from the Hyatt defendants, unless it was graphic beyond any reasonable expectation in my view, the probability is that he would never the less entered and remained in the surf as he did on the day. -- 16 of 18 -- 17 [89] No doubt it was possible to devise a sign of such prominence and power that it could not be missed and deter even the most fool hardy from surfing at an unpatrolled beach. The failure to erect such a sign is not however a breach of duty. [90] In opening, counsel for the plaintiff advocated a sign indicating the presence of dangerous rips and the advisability of not moving beyond a safe depth of water. These were but among a number of the risks inherent in surfing at Yaroomba Beach. [91] A sign which said for example, “surfing dangerous, it is dangerous to get out of your depth” is simply a statement of what already ought to have been obvious to Enright. Since in my view Enright did not drown because of a rip a sign warning against rips would have not been to the point. [92] I have spoken about the inherent danger of surfing. No doubt there may be circumstances in which it is foreseeable that potential surfers do not have the experience to be aware of and to make judgments about the inherent risks. This might well give rise to obligations to warn them or even to safe guard against their entering the surf unsupervised. On the basis of the finding I have made Enright was not such a person. [93] The Council had erected a number of signs at beach entrances along the 17 or so kilometres of the beach front within the shire. A common one contained a series of prohibitions with signs and at the bottom a statement: “tragedies occur at unpatrolled beaches – please swim only between the flags”. [94] A sign with these words was located at the northern entrance of Birrahl Park but not the southern entrance which Enright and Hickey used. One was subsequently placed there. It might be accepted that this is admissible as evidence that it was reasonably open to the Council to adopt that measure. I am not however persuaded that it was obliged to so in the circumstance of this case or that failure to do so was in breach of its duty of care to Enright. [95] The test is what Enright would subjectively have done had he been warned than what a reasonable person would have done; per Chesterman J in Hallmark-Mitex (unreported Court of Appeal 11009 of 1997 per Chesterman J [45] see also Green v Chenoweth (unreported Appeal 10998 of 1996, 11 November 1997 per Pincus J at 5), Thomas Borthwick & Sons (Australia) Pty Ltd v Stapleton [10006] QCR (14 June 1996). [96] In this context it is submitted on the plaintiff’s behalf that Enright was:- (a) a 46 year old Harvard educated lawyer; (b) there was evidence that he was by disposition conservative and not a risk taker; -- 17 of 18 -- 18 (c) there was evidence in the past that he had indicated a likely reliance on warning signs; (d) did not swim outside beach hours or outside the unpatrolled beach area on Long Island Beach (in this context it is necessary to bear in mind that the evidence is that there was active enforcement of beach hours and of remaining inside the patrolled area); and (e) his general outlook was one of being safety conscious. [97] These considerations have to be weighed against my conclusions about Enright’s conduct and decisions on 3 March 1993. At the risk of repeating myself these are that, he had determined, notwithstanding Fleming’s advice, to surf prior to his arrival at the Resort. He took no attempt to acquire any relevant information at the Resort. He entered the water without locating the Beach Club and without the prospect of assistance other than from his companion if they got into trouble. He was experienced in risks associated with water based recreational activities and the decisions he took to enter, remain in and leave the water were his own. The risk which led to his drowning was within his knowledge and was within his competence to deal with had he been paying proper regard to conditions and the depth of water and, distance from the shore and his state of fatigue and fitness. [98] The considerations being those I have canvassed, the plaintiff has failed to establish breach of duty by any defendant causing Enright’s death. The action should therefore be dismissed. -- 18 of 18 --