Supreme Court New South Wales

• Medium Neutral Citation: Streller v Albury City Council [2012] NSWSC 729
• Hearing dates: 5, 6, 7, 8 December 2011
• Decision date: 28 May 2012
• Before: Latham J

Decision

The plaintiff's claim in negligence fails. A judgement and verdict is entered in favour of the defendant.

Plaintiff is to pay the defendant's costs.

• Catchwords: TORTS - Negligence - whether duty of care owed by public authority - whether breach of duty - plaintiff performs back flip into river resulting in serious injury - whether injuries resulted from inherent and obvious risk arising out of a dangerous recreational activity - judgment in favour of the defendant.
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Vairy v Wyong Shire Council [2005] HCA 62; Nagle v Rottnest Island Authority [1992 - 1993] 177 CLR 423; Berrigan Shire Council and Ballerini [2005] VSCA 159; Graham Barclay Oysters v Ryan (2002) 211 CLR 540; Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor. (2000) 205 CLR 254; RTA v Dederer [2007] HCA 42; Laoulach v Ibrahim [2011] NSWCA 402; Jaber v Rockdale City Council [2008] NSWCA 98; Wyong Shire Council v Vairy [2004] NSWCA 247; Fallus v Mourlas [2006] NSWCA 32
• Category: Principal judgment
• Parties: Dylan Streller (Plaintiff); Albury City Council (Defendant)
• Representation: Counsel; A Barlety SC/F Tuscano; J Sexton SC/G Donnellan; Solicitors; Santone Lawyers (Plaintiff); DLA Phillips Fox (Defendant)
• File Number(s): 2010/00346079

Judgment

1 On 26 January 2008, whilst Australia Day celebrations were taking place in Noreuil Park, Albury, the plaintiff jumped, on three or four occasions, from the branch of a tree, overhanging the waters of the Murray River by about 10 m, in an adjacent area known as Oddies Creek Park.

2 Over a period of some 30 minutes, the plaintiff observed a number of boys who were also jumping from the same tree into the Murray River, by the use of a rope attached to a branch of that tree. On the first occasion that the plaintiff elected to use the rope in order to perform a backflip into the water, the plaintiff's head struck the sandy bottom of the river. He suffered severe injuries, namely C7 quadriplegia.

3 The plaintiff was then 16 years of age and was an accomplished competitive diver. He had competed since Year 7 in 1 m and 3 m springboard diving events, the last being approximately 6 months before the accident. The plaintiff regularly practiced from the 5 m and 7.5 m platform and could dive from a 10 m platform without difficulty.

4 The plaintiff alleges that the defendant owed him a duty of care to take reasonable precautions to avoid a foreseeable risk of injury to him and that the duty of care was breached by the defendant's failure to remove the rope swing, its failure to properly supervise the rope swing, its failure to ensure that the water in the area near the rope swing was sufficiently deep for the plaintiff and others to safely use the swing, its failure to warn the plaintiff it was dangerous for him to dive into the water or to use the swing, and by its failure to perform these alleged obligations, representing to the plaintiff that it was safe for him to use the swing in order to jump or dive into the water.

5 In response to the plaintiff's claim, the defendant submits that the plaintiff's injuries resulted from the materialisation of an inherent and obvious risk arising out of a dangerous recreational activity, within the meaning of ss 5F, 5I and 5K of the Civil Liability Act 2002 (the Act). Further, the defendant relies upon the principles established under Part 5 of the Act, relating to the activities of public authorities.

The Australia Day Celebrations.

6 The defendant employed an events manager, Ros Walls, who was responsible for planning a number of council events, including the Australia Day celebrations. Part of the Australia Day celebrations included live music, face painting and community exhibitions, all of which were to take place in and around the Noreuil Park foreshore. A reception room, ambulance station, children's activity centre, two stages and a performing arts area were located adjacent to the foreshore, at the tip of a bend in the river. Thus, the majority of the members of the public who attended the celebrations congregated in this area (the events area).

7 The day was very hot. A large number of people, including children, cooled off in the river by entering the water from a sandy beach at the bend, almost immediately in front of the events area. Photographs taken on the day depict many people floating in the river on inflatables, such as inner tyre tubes and lilos. There were literally hundreds of access points to the water along the river. Other than a regatta (a novelty boat race held on the Murray River), none of the activities or entertainment arranged by the defendant took place outside of Noreuil Park.

8 The regatta was a regular feature of the Australia Day celebrations. It consisted of a number of makeshift rafts and water craft competing over a distance of the Murray River, from a point south of the road bridge over the Hume Highway (Union Bridge) to the events area. The eastern road approach to the Union Bridge represented the southern border of Oddies Creek Park. The council received permission from the NSW Maritime Authority to use the river for the regatta. The Authority prepared an Acquatic Management Plan for the running of the regatta (Exhibit 4). There was a Maritime Authority boat leading the regatta, with a Customs boat taking up the rear.

9 The events manager engaged a security firm to assist with crowd control and also liaised with local police, in the hope that up to four police officers could attend for the duration of the day. However, no police officers were in attendance until late in the afternoon in response to a brawl that took place within Noreuil Park.

10 The security officers contracted by the defendant were briefed at 9:30 am. They were instructed to patrol the Noreuil Park area from a point north-east of the focus of the events to the Oddies Creek Park footbridge, which was also to the north of Oddies Creek Park. On Australia Day 2008, Oddies Creek Park itself was devoted to car parking.

11 The security officers were instructed to attend at the Union Bridge at about 3 pm, when it was anticipated that the regatta craft would navigate under the bridge, in order to prevent people jumping off the bridge onto the craft below. At 3:30 pm, additional security guards were requested to attend the Union Bridge in order to assist with preventing people from jumping off the bridge.

12 Ms Walls also prepared a risk management plan, which included a site sweep by council staff at the beginning of the day and at various times throughout the day. Staff were also instructed to examine the site from the footbridge at the north easterly point of Noreuil Park to the Oddies Creek Park footbridge.

13 Ms Walls had not received any specific training as an event manager, although she had planned approximately 8 to 10 events per year on behalf of the defendant and she had undertaken risk management training.

14 Ms Walls did not receive any report in the course of the day that children were jumping from a rope into the Murray River. She did not know of the existence of the rope from which the plaintiff jumped. She was aware generally that ropes were often found in trees along the banks of the river. Her attention was focused entirely on Noreuil Park for the duration of the Australia Day events. She was not aware that any council officer had been engaged to supervise Oddies Creek Park. She regarded Oddies Creek Park itself as outside the boundaries of the Australia Day events undertaken by the council.

15 Ms Griese, who was employed by the defendant as an events officer, was on board the Maritime Authority vessel on its journey to Noreuil Park. As the vessel approached the Union Bridge, she saw a number of teenagers jumping from the bridge into the water. She also saw security guards approaching teenagers on the bridge and attempting to prevent them from jumping. She saw someone jumping from the bridge, landing in the water and almost striking a nearby vessel. She thought that the river level was low that day because the Maritime Authority vessel experienced difficulty finding water sufficiently deep to navigate the river during parts of the journey. She also considered that the current in the river was slow that day.

16 A number of people were photographed on the day, in the river, drifting or swimming around the regatta craft as they navigated downstream from the Union bridge to the finish line. Mr. Boag, a keen recreational photographer, took a number of photographs commencing at 4:24 pm from Noreuil Park, towards the Union Bridge along the length of the Murray River. Mr Boag also took several photographs of a number of boys swinging from a rope attached to a tree on the foreshore of Oddies Creek Park. These photographs demonstrate a number of boys standing on a branch at some considerable height above the water level, whilst others swing on the rope over the river. Mr Boag did not see any other people jumping from any other rope swings along the riverbank during the time that he was there, between 3 pm and approximately 5 pm.

17 Mr Boag had been a resident of Albury for approximately 15 years and his experience of swimming in the river demonstrated that the water level fluctuated and that the river was on occasions fast flowing.

The Defendant's Systems and the Use of Rope Swings.

18 The defendant employed a senior gardener/arborist, Ms Leanne Hunichen. Her responsibilities included the oversight of tree maintenance in the council area and the engagement of contractors to carry out maintenance work when necessary.

19 Over the time she had been employed in that role (5 years), a routine inspection of council's foreshore reserves was carried out each Friday by at least two members of council's horticultural staff, walking and/or driving along the river bank under her supervision. The primary purpose of the inspections was to identify and remove, or arrange for the removal of, rope swings.

20 Any rope swings that could not be safely accessed or removed by council staff were reported to Ms Hunichen so that she could engage the services of a contractor in order to remove the rope swing. It was common practice for the contractors to remove the rope swing on the day that they were reported to Ms Hunichen, or the next day. Council employees were able to remove rope swings in about 80% to 90% of cases without the assistance of contractors. However, where the rope swings were in difficult or inaccessible locations, the council's occupational health and safety obligations called for the removal of the swings by the use of contractors.

21 Rope swings in Oddies Creek Park were unable to be removed by cherry pickers, of which the council had two, each weighing over five tonnes. There was no access to Oddies Creek Park in January 2008 for vehicles in excess of five tonnes. Inspections of Oddies Creek Park were carried out on foot.

22 The council policy in January 2008 (and since that time) required the engagement of third-party contractors who had been approved by the council and placed on the Council Contract Register. As at Australia Day 2008, there were only two contractors who had been engaged by council for tree maintenance services, one of which was registered and the other which became registered in June 2008.

23 On 25 January 2008, Ms Hunichen contacted an approved registered contractor and asked if they were available to remove a rope swing from Oddies Creek Park. This appeared to be the rope swing used by the plaintiff on Australia Day. The rope swing had been detected during the course of council's routine inspection on that day. The principal of the business informed Ms Hunichen that he was not available until Tuesday of the following week (29 January 2008). Ms Hunichen requested that the job be done as soon as possible.

24 Ms Hunichen also contacted another business and was informed that it too was unavailable to do the job until the following week.

25 Ms Hunichen regularly received reports in high summer from council staff of at least one rope swing per week. Her experience in the role was that it was often the case that after a rope swing was taken down, a new rope appeared in the same location a short time later. Mr Gribble, a Parks Maintenance Operator employed by the defendant, also reported occasions when he had attended a site to remove a rope swing, only to see someone removing the rope and hiding it to prevent its confiscation. The rope would then appear in the same place one or two days later. On one occasion when he attended Oddies Creek Park, he saw a teenage boy attempting to hide a rope swing under the surface of the water in the river.

The Circumstances of the Accident

26 Before Australia Day 2008, the plaintiff had visited Noreuil Park on at least 10 occasions and had swum and dived in the Murray River, including using rope swings on the same tree where the accident occurred. The plaintiff knew that serious injuries were likely from a dive into shallow water. The plaintiff said that when he went to the river with friends, they would only perform deep dives if satisfied that it was safe to do so. The last time that the plaintiff had visited the park was Australia Day 2007.

27 The plaintiff went to the Australia Day Festival with Luke Stephens. They met in the Plaza where they ate lunch and then walked to the park. They went in through the gate and along the path to where the concert was taking place (the events area). They stayed there for a while before leaving and going with some friends to the river. The plaintiff then went with Ben Hall and Luke Stephens to the river. The plaintiff and his friends noticed a large number of people picnicking along the riverbank and swimming and diving into the river.

28 When the plaintiff and his friends walked past the relevant tree, there was a line to use the rope (Exhibits L, M, N and O). The plaintiff said there was only one rope in the tree. The plaintiff walked with his friends to the bridge where they saw a security guard on the bridge, stopping people from jumping into the water from the bridge. They then entered the river near the bridge and swam or floated down the river. As the plaintiff floated past the tree rope, he could see a number of children jumping from the tree and from the rope. At that point in the river the plaintiff and his friends could not touch the bottom and it appeared to them that it was fairly deep. The current in the middle of the river appeared faster flowing than near the banks. The plaintiff saw that all the children jumping or diving from the tree rope became fully submerged and then swam to the bank. Some of the people jumping from the rope, completed a full arc of the swing before letting go, such that there was a very steep drop before entering the water.

29 The plaintiff and his friends went back to the concert for a time and then decided to use the tree rope, because they knew that security guards would stop them from jumping from the bridge. When they arrived, there was still a long queue for the use of the rope. However, a number of boys had climbed above the tree rope and were using the uppermost branches of the tree to dive into the river.

30 The plaintiff felt certain that it was safe to go into the water in that fashion. He did that on approximately three to four occasions. On each occasion he successfully completed a dive, feet first, without touching the bottom. Over this period of time (approximately 30 minutes) he saw a number of boys jumping from the tree rope, some performing somersaults and other tricks without any apparent difficulty.

31 Ben Hall also jumped from the tree approximately three or four times. At no stage did any part of his body strike the bottom of the river. However, he then jumped using the rope swing and landed in an area of the river where both his feet struck the bottom. This was the first time that he noticed that the river was shallow in a particular spot.

32 When the plaintiff decided to use the tree rope, his brother Nathan was standing on the branch above him. His brother swung the rope over to the plaintiff. The plaintiff swung from the rope and, with his back to the river, commenced to perform a backflip. As he was rotating through the air, he looked for the water and brought his knees up to his chest. After hitting the water the plaintiff felt as though he had been knocked out. He realised that something was wrong and called for help. When he was taken to the bank he could not feel his legs. Shortly thereafter, ambulance officers arrived.

33 The plaintiff acknowledged that he had jumped from the Union Bridge before and had intended to jump from the bridge that day. He had swum in the Murray River in places other than at Albury and had jumped and dived from trees at various times.

34 The plaintiff was aware, prior to Australia Day 2008, of a strong current in the river on occasions and that the water was shallow in places. The plaintiff was aware of a sign on the river bank reading "Warning ; this river has strong current and very cold water." He also acknowledged that he was aware of the risk of submerged objects and that the river varied in depth along its course and from time to time. He knew that sand bars and mud banks could shift and that obstacles could drift down the river and lodge in a submerged position.

35 The plaintiff acknowledged that the risks inherent in diving depended upon the manner of the dive, the weight of the diver, the difficulty of the dive and the height of the dive. The plaintiff was aware that any diver could be injured diving into a pool, in the light of these risk factors.

36 The plaintiff knew that the ropes in the trees along the riverbank appeared and disappeared. If there was no rope, he would jump from trees or from the bridge. He admitted that he did so because of the thrill and that the increased risk of a dive or jump correspondingly increased the thrill.

37 The plaintiff also acknowledged that the 360° rotation involved in a backflip was a risky manoeuvre. The plaintiff said that he had previously waded into the water to test the depth and the presence of obstacles, although he did not do that on Australia Day 2008. The plaintiff estimated that over a period of years, he had jumped from the tree (the subject of the accident) approximately 30 times, whether a rope was there or not.

38 After watching a video of the activities on the river on Australia Day 2008 (Exhibits 11 and 12), including footage of a number of boys jumping, or performing backflips, into the river from the tree, the plaintiff agreed that the boys landed in different places in the river. Ben Hall also acknowledged that the footage of the craft taking part in the regatta included images of people walking in the water in the middle of the river.

39 The plaintiff's understanding of his accident was that he had miscalculated his body position in the air and had landed awkwardly in the water. As soon as he realised he had miscalculated, he went into a forward tuck position. He considered that the water in the river below the tree was deep enough because the river was known to be deep at that point, and because he saw at least three boys perform "pin dives" feet first before he used the rope.

Did the Defendant Owe the Plaintiff a Duty of Care ?

40 The plaintiff submitted that the subject tree stood on land occupied by the defendant and that the defendant had exclusive use of the river that day. The plaintiff pointed to the existence of steps worn into the bank from the river at the site of the tree, and previous efforts on the part of the defendant to remove the rope. These factors were said to demonstrate an assumption of responsibility on the part of the defendant for those who enjoyed the defendant's parklands, of which the trees and the ropes were natural extensions.

41 The Australia Day celebrations were widely publicised by the defendant and very well attended. The entry from Noreuil Park to Oddies Creek Park allowed for those attending the celebrations to spill over into the latter area. The celebrations included a number of child-focused events within Noreuil Park. Despite the fact that Oddies Creek Park was nominated as a car park for the events that day, and security guards used the pathway from Noreuil Park through Oddies Creek Park in order to access Union Bridge, no responsibility was taken by the defendant for any areas adjoining Noreuil Park.

42 Given the heat of the day, the number of events that were planned to take place in and around the river, and the fact that the publicity given to the event amounted to an invitation to swim (Exhibit G, p 8), it was submitted that the presence of the rope constituted an enticement and a representation that it was safe to use.

43 In response to these submissions, the defendant maintained that the Court could not be satisfied that the defendant was the owner of the land on which the tree and/or the rope was located. The tree grew from the river-bed, that is, arguably Crown land and not within Oddies Creek Park. It was not a de facto occupier of the river or of the land on which the tree stood.

44 Furthermore, the Council did not promote Oddies Creek Park is an area generally suitable for swimming, given the presence of a sign actively discouraging swimming in that area. The availability of a large number of trees along the riverbank from which people were able to jump or swing rendered it unlikely, if not impossible, that the defendant was more aware of the particular tree as a natural launch point for jumping and/or diving, than any other tree along the length of the riverbank.

45 The defendant disputes that it had exclusive use of the river on the day in question. The plaintiff's claim, says the defendant, amounts to an assertion that the defendant failed to protect the plaintiff from his own conduct (the risks of which the plaintiff acknowledged) by failing to remove a hazard not created by the defendant.

46 Accepting that there is no evidence that the subject tree is located within Oddies Creek Park, it is clear that the tree is part of the riverbank that borders the park over which the defendant has care and control. It may be accepted that the Council, having the care, control and management of the land constituting Oddies Creek Park, to which the public has access, owes a duty of care to those persons exercising that access. However, the necessary qualification that the defendant owes a duty to take reasonable care towards those entering Oddies Creek Park who exercise reasonable care for their own safety, as opposed to ensuring that no harm comes to any entrant, is an important one in the circumstances of this case : Vairy v Wyong Shire Council [2005] HCA 62 at [118] per Hayne J.

47 Whilst there is no evidence that the control and management of the riverbank fell to the defendant, it might be said that the tree emanated from land under the management and control of the defendant, and that therefore the duty of care extends to those using the riverbank. Accepting that proposition for present purposes, it is nevertheless a duty to take reasonable care towards those exercising reasonable care for their own safety.

48 There is considerable force in the defendant's submission that it did not owe a duty of care to the plaintiff of the nature alleged. Gummow J pointed out in Vairy at [57] and again at [82] that the duty of care issue in Nagle v Rottnest Island Authority [1992 - 1993] 177 CLR 423 was determined by reference to the "proximity" requirement when it was the prevailing doctrine in the High Court. The duty of care was not founded in the defendant authority having the management and control of the public reserve in which the plaintiff was injured. Similar considerations informed the decision of the Victorian Court of Appeal in Berrigan Shire Council and Ballerini [2005] VSCA 159.

49 If one were to look for the existence of a duty of care other than by reference to the responsibility of the defendant to manage and control Oddies Creek Park, the kind of factors informing the decision in Nagle and Ballerini are absent in this case. I do not accept that the defendant encouraged recreational use of the subject tree or any tree emanating from the riverbank. To the contrary, the defendant attempted, by the erection of signage, to discourage persons from swimming in the river and removed rope swings, or caused them to be removed, as soon as practicable.

50 The length of the riverbank adjoining the defendant's parklands, and the great number of trees affording launch points or attachment points for rope swings, distinguish the circumstances of this case from those in Ballerini and Nagle where the encouragement of recreational swimming arose from the management of the relevant reserve surrounding a discrete body of water, the absence of warning signs and the presence of one prominent, obvious launching pad into the water (a log and rock platform respectively).

51 The evidence establishes that the defendant did not have exclusive use of the river on the relevant day, in that it was necessary to obtain the co-operation and supervision of the Maritime Authority for the running of the regatta. The evidence said to establish an invitation to swim was in fact limited to Noreuil Park ("Bring swimmers, sunscreen and the whole family for an afternoon of live entertainment and fun at Noreuil Park .."). Nor can the fact that the defendant went beyond its obligations to remove foreseeable risks of harm from the land under its management and control, by attempting to remove rope swings from trees along the riverbank when they were detected, necessarily give rise to an assumption of responsibility towards persons such as the plaintiff. Foreseeability of harm and the capacity to take preventative steps do not of themselves suffice : Graham Barclay Oysters v Ryan (2002) 211 CLR 540 at [81] ; Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor. (2000) 205 CLR 254 at [24[.

52 In my view, the defendant did not owe the plaintiff a duty of care in the circumstances of this case. However, acknowledging the possibility of error in this regard, and assuming the existence of a duty of care, I turn to a consideration of the question whether the defendant breached that duty of care.

Was There a Breach of the Duty of Care ?

53 Section 5B of the Civil Liability Act provides that there is no breach of duty unless in the circumstances of the particular case, a reasonable person in the position of the defendant would have taken precautions against the risk of harm.

54 The risk of harm in the instant case was the risk associated with using the rope swing to launch from the particular tree, as opposed to jumping or diving from the same tree, or Union Bridge, or any other tree along the riverbank. The risk of harm also included a risk of harm from hitting the surface of the water, one which the plaintiff himself acknowledged in the course of evidence.

55 The reasonable response to a risk is to be determined prospectively. Moreover, the particular way in which the plaintiff came to be injured must not distort the enquiry into the question of breach. The following discussion by Hayne J in Vairy at [122] to [124] is particularly apposite to the circumstances of this case :-

In deciding what the response of a reasonable council would have been to the risk of diving injuries it is necessary to recognise that that council would be bound to consider all of the land of which the council had the care, control and management. That consideration may yield different answers for different places but all would have had to be considered. And it is a consideration that must be set into a much wider context than is provided by focusing only upon diving injuries. The duty of care which a council owes to those who enter land of which it has the care, control and management is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of recreational activity.

At once it can be seen that the inquiry may not be simple. The risks of injury may differ from place to place. They may differ because of the number of people who resort to one place rather than another; they may differ because one place differs from another in relevant respects; there are many reasons why the risks may differ. But the question for a council having the care, control and management of land to which members of the public may resort is: what is to be done in response to the various foreseeable risks of injury to those persons?

Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be "nothing".

56 Consistent with what Hayne J observed in Vairy at [127], there were many places along the riverbank where this risk of injury arose. There were many places to which the public had access along the riverbank and therefore a correspondingly large number of places where a person could dive or jump, using one of the many rope swings that came and went, into water that was too shallow or from a height that could cause injury upon impact with the surface of the water.

57 The reasonable person in the position of the defendant is a local government body with limited resources and large areas of land to supervise and manage. There were 14,905 km of foreshore according to Exhibit 9. The capacity of the defendant to remove a rope swing, discovered in the course of a routine weekly inspection the day before the plaintiff's accident, was constrained by the defendant's obligations to abide by occupational health and safety standards and by its established policy to only engage contractors who had previously been approved by it.

58 There was no challenge to the evidence establishing the need for a qualified climbing arborist, given the lack of heavy vehicle access through Oddies Creek Park. However, it was suggested that there was inadequate attention given to the possibility that the rope swing could be removed after hours. Such a course appears to involve its own inherent risks to those undertaking it.

59 It is not apparent that the risk of injury inherent in diving or jumping using the rope swing was significantly greater than the risk inherent in diving or jumping from that tree, the Union Bridge or any other tree. To that extent, a reasonable person in the position of the defendant would not necessarily appreciate the need to take action to avoid the risk of harm arising out of the existence of the rope swing on that particular tree.

60 The defendant's knowledge of the depth of the river at the particular point where the plaintiff entered the water was no greater than that of the plaintiff, who acknowledged that the river conditions changed over time, including the speed of the current and the existence of sand banks and obstacles along the course of the river.

61 The balancing considerations determining the question of breach include, relevantly, the probability that the harm would occur if care were not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm.

62 There was no evidence of any previous jumping or diving accident occurring within Noreuil Park or Oddies Creek Park or anywhere else on the riverbank that the defendant's officers patrolled from time to time. The absence of such evidence is significant, given the fact that rope swings were commonly used along the riverbank for many years and were frequently and regularly removed by the defendant's officers, when found. Rope swings that were taken down and confiscated, regularly reappeared in the same spot or elsewhere.

63 In those circumstances, it may be argued that the defendant was justified in regarding the risk of harm arising from the use of a rope swing from a tree overhanging the river as relatively low. There can be no doubt that the gravity of the harm is potentially catastrophic, as the plaintiff's injury demonstrates. However, I would not agree that the risk of harm was low. The presence of snags and numerous obstacles in the river at indeterminate times suggests to me that the risk of harm was at least moderate. The type of injury suffered by the plaintiff was equally consistent with striking his head on such an obstacle, although it was not disputed that the injury occurred when the plaintiff's head struck the bottom of the river.

64 The precautions pleaded by the plaintiff in order to remove the relevant risk included the removal of the rope swing, the proper supervision of the swing in the event that it was not removed, the taking of steps to ensure that the water in the area of the swing was sufficiently deep to allow persons to use the swing or warning the plaintiff it was dangerous for him to dive into the water or use the swing.

65 The burden of taking these precautions on the defendant may be examined sequentially. It has already been noted that the removal of the rope swing required the use of approved contractors only, according to its policy. There was no evidence of the availability of any suitably qualified arborist over the Australia Day long weekend. Any resort by the defendant to a non approved arborist in the short period of time between the discovery of the rope swing and the Australia Day celebrations (including the removal of the rope swing at night) would expose the contractors or the defendant's employees to the risk of injury arising out of potentially unsafe work practices.

66 Having regard to the absence of any previous accidents at that location, the defendant was entitled to weigh the probability of a catastrophic injury arising out of the use of the rope swing (even if it was moderate) against the prospect of injury arising out of the use of an unaccredited independent contractor.

67 The proper supervision of the swing in the event that it was not removed would require placing a permanent guard at that location, and, by extension, at every other rope swing located on the riverbank, in order to warn or ask people not to use the rope. In any event, the defendant's experience of placing security guards on Union Bridge demonstrated that such warnings were ignored, or, as in the plaintiff's case, had the effect of prompting those who wished to dive or jump to move to other locations where they were not prevented from doing so.

68 The defendant had no control over the depth of the river in the area accessed by the rope swing. In that regard, it was simply not possible to ensure that the water was of a sufficient depth to allow persons to use the rope swing, including use that entailed a risky manoeuvre such as that undertaken by the plaintiff. Even if one assumes that it was possible for the defendant's employees to continuously or regularly wade through the water to test the depth, such a precaution could not guard against the presence of an underwater obstacle that could materialise as quickly as the current in the river allowed.

69 Having regard to the fact that the burden of taking precautions to avoid risk of harm includes the burden of taking precautions to avoid similar risks of harm, the burden upon the defendant extends to an obligation to monitor and supervise every rope swing, all trees and all bridges in the Council area which potentially provided launching points into the river, or continuous monitoring of the water levels beneath each of them, if those rope swings and overhang branches could not be removed. It has already been noted at [67] that there was a certain futility in posting security guards on Union Bridge. It is reasonable to infer that the attempt to supervise all these places would be similarly futile.

70 The existence of a duty to warn the plaintiff depends upon the resolution of the question whether the risk of harm was obvious, within the terms of section 5H of the Act. Leaving that provision to one side, the plaintiff had himself acknowledged the danger of diving and/or jumping into muddy water, coupled with the uncertainty of the precise landing point, depending on the arc of the swing, the type of manoeuvre executed by the diver or jumper, and the weight of the diver or jumper.

71 The contention by the plaintiff that the presence of the rope swing constituted a representation that it was safe to dive and/or jump at that location is reminiscent of the concept of "allurement" that featured in the argument in the High Court in RTA v Dederer [2007] HCA 42. To the extent that the plaintiff is asserting that the defendant was responsible for creating the risk, or for encouraging or enticing children into diving and/or jumping from the tree, the same observation made in Dederer at [64] by Gummow J, namely that the defendant "did not create the risk of shallow water of variable depth, nor did it exhort or encourage young people to dive from the [rope swing]", is apt. To the extent that the plaintiff submits that the presence of the rope swing made the particular location or activity attractive to children and teenagers, that is an observation "of no legal consequence".

72 In the absence of any specialised knowledge in the defendant of the depth of the water at that particular location, there can be no relevant representation that the location was safe, given that the plaintiff himself knew that it was not safe to dive or jump into muddy waters, and in particular, into rivers where the depth of the water could vary from time to time. The effect of the evidence given by the plaintiff and his witnesses was that it was their own past experience of jumping and/or diving from that location, together with their own observation of a number of other boys jumping or diving from the tree and from the rope, that informed their impression that it was safe for them to do so. The presence of the rope itself and the absence of any security guards at that location were not relevant to their decision to undertake that activity.

73 Having regard to these circumstances, the defendant exercised reasonable care in relation to the risk of harm arising out of the use of the rope swing from the subject tree : see RTA v Dederer at [51] per Gummow J. It took reasonable precautions by instituting a system of weekly inspections of the riverbank and by organising an available contractor to remove the rope swing as soon as practicable after 25 January 2008. There was no breach of the duty of care, assuming that it existed.

Was the Risk Obvious ?

74 Section 5H of the Act provides that a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk.

75 Obvious risk is defined in section 5F as one that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff. Obvious risks include risks that are patent or a matter of common knowledge (s 5F(2)). A risk of something occurring can be an obvious risk even though it has a low probability of occurring (s 5F(3)) and the risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable (s 5F(4)).

76 Thus, the question of obvious risk involves the determination of whether the plaintiff's conduct involved a risk of harm, which would have been obvious to a reasonable person in his position. The test is an objective one and must take into account the objective circumstances of the plaintiff, that is the plaintiff's age, observations, experience and knowledge of the area and the applicable conditions under consideration.

77 In Laoulach v Ibrahim [2011] NSWCA 402, Tobias AJA (Giles JA and Macfarlan JA agreeing), at [79] and following, referred to the discussion of obvious risk undertaken by the Court in Jaber v Rockdale City Council [2008] NSWCA 98. After noting at [35] in Jaber the statement that "whether or not a risk is 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff", Tobias AJA then referred to what was said in Wyong Shire Council v Vairy [2004] NSWCA 247 at [161], namely that :-

'obvious means that both the condition and the risk are apparent to and would be recognised by a reasonable man in the position of the [plaintiff] exercising ordinary perception, intelligence and judgement.

78 Further,

In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury.

Vairy at [162]

79 Tobias AJA later confirmed in Laoulach at [120] that the above proposition cannot be divorced from the factual context in which it is to be applied.

80 The plaintiff maintains that the risk of injury arising from a dive or jump using the rope swing was not an obvious risk and that there was therefore an obligation on the defendant to warn him that it was dangerous to dive into the water or to use the rope swing.

81 The fact that the plaintiff had on previous occasions jumped into the river from a rope swing on the same tree and had, on the day of the accident, before using the rope swing, floated down the river from the bridge without touching the bottom, completed a number of feet first jumps into the river from the top branch of the tree without touching the bottom, and had seen people using the rope swing (including somersaults and other tricks) becoming fully submerged on the entry to the water, tends to disregard the plaintiff's ordinary perception, intelligence and judgement in favour of a combination of factors experienced by the plaintiff on the day of his accident and approximately one year prior.

82 The selective nature of these factors ignores the fact that the plaintiff himself acknowledged that there was a range of entry points into the water that were possible from the use of the rope swing. The fact that those persons who had previously jumped or dived using the rope swing had not been injured said nothing about the risk of injury to someone using the rope swing to enter the water from a higher point of the arc.

83 Exhibits 11 and 12 demonstrate the height at which the rope swing was attached to the tree, and correspondingly, the height of the release point at the top of the arc of the swing.

84 The current in the centre of the river was sufficient to carry reasonably large submerged obstacles which could have floated and lodged within the landing area below the subject tree at any point in time. The photographs and film footage in evidence also depicted people standing at various points in the river, including towards the middle of the river. The plaintiff acknowledged both of these matters in the course of his evidence.

85 The particular circumstances of the plaintiff assume considerable significance for the purposes of determining whether the risk was obvious. The plaintiff was an experienced and accomplished diver who knew from an early age that diving into shallow water could result in serious injury. The various factors which were capable of affecting the risks associated with a dive were particularly well known to the plaintiff, given the duration and intensity of the training which he undertook to reach a competitive level.

86 Lastly, the plaintiff acknowledged that he was performing a risky manoeuvre which increased the risk inherent in diving or jumping from the rope swing and that he performed that manoeuvre because the thrill of using the rope was heightened by that manoeuvre.

87 I accept the defendant's submission that a significant number of factors in the circumstances of this case come within the concept of matters of common knowledge. The fact that the depths of rivers may vary according to the drift of sand banks and mud banks, the fact that the landing point of a person using a rope swing varies depending upon the trajectory and the point of release, the fact that the depth of penetration into the water by a diver depends upon the diver's weight and method of entry, and the fact that the consequences of diving headfirst into shallow water are potentially catastrophic are all commonly known and appreciated.

88 Notwithstanding the plaintiff's submission that Dederer is outside the factual context of this case, it is difficult in my view to maintain any relevant, significant distinguishing feature between the two cases.

89 Accordingly, I am of the view that the risk was obvious and that there was no duty to warn of the risk of harm.

Was the Plaintiff Engaging in a Dangerous Recreational Activity ?

90 Assuming that I am in error in determining that there was no breach of the duty of care owed to the plaintiff, I turn to the defendant's contention that Part 1A, Division 5 of the Act provides a defence to the plaintiff's claim.

91 Section 5L of the Act provides that a defendant is not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. This is so whether or not the plaintiff was aware of the risk.

92 Obvious risk within the terms of this provision has the same meaning as provided for in s 5F.

93 A dangerous recreational activity is a recreational activity that involves a significant risk of physical harm (s 5K).

94 In Fallus v Mourlas [2006] NSWCA 32 at [90] - [91] and in Jaber at [50], Tobias AJA articulated the appropriate approach with respect to the definition of dangerous recreational activity. The term "significant", qualifying the extent of the risk, means "not merely trivial but, generally speaking, one which has a real chance of materialising." (Fallas) This standard lies between the extremes articulated by Ipp JA in the same judgement, namely somewhere between a trivial risk and a risk likely to materialise. However, Tobias AJA recognized that the former standard is no more than a general guide. He then went on to say at [92] :-

............. for the purposes of the definition of "dangerous recreational activity" in s 5 K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the [plaintiff] at the relevant time, being the period immediately prior to the [plaintiff] suffering the relevant harm as a consequence of the [defendant's] negligence. In other words, ..... in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the [plaintiff] but also the circumstances which provide the context in which that conduct occurs.

95 Having regard to this articulation of dangerous recreational activity, and in particular, the objective and prospective nature of the enquiry, the risk of the plaintiff suffering serious injury by diving and/or jumping from the rope swing into water of unknown depth could not be regarded as trivial.

96 The particular conduct engaged in by the plaintiff and the context within which that conduct took place have already been the subject of discussion at [83] to [87] above. For those reasons, I accept the defendant's submission that the plaintiff was engaged in a dangerous recreational activity.

97 It follows that the harm suffered by the plaintiff was the result of the materialisation of an obvious risk of that dangerous recreational activity. Accordingly, the defendant is not liable to the plaintiff, regardless of whether the existence of the duty of care and its breach by the defendant had been successfully established by the plaintiff.

98 For all of the above reasons, the plaintiff's claim in negligence fails. A judgement and verdict is entered in favour of the defendant.

99 Plaintiff is to pay the defendant's costs.

Decision last updated: 29 June 2012