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Copyright © 2019 Thomson Reuters (Professional) Australia Limited

(2000) 22 WAR 474

Prast v Town Of Cottesloe Jump to: Court: Judges: Judgment Date: Jurisdiction: Court File Number: Citations: Party Names: Legal Representatives:

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» Judgment Supreme Court of Western Australia Ipp J, Parker J, Wallwork J 22/9/2000 Australia (Western Australia) FUL 177 of 1999 [2000] WASCA 274, 22 WAR 474 , 111 LGERA 253

, [2000] Aust Torts Reports 81-579,

2000 WL 1246105 DAVID DUNCANSON PRAST Appellant (Plaintiff), TOWN OF COTTESLOE Respondent (Defendant) Appellant (Plaintiff): Mr N J Mullany; Respondent (Defendant): Mr C J L Pullin QC & Mr C C Rimmer; Appellant (Plaintiff): Anthony Torre & Monaco; Respondent (Defendant): Jackson McDonald » Local government > Legal relationships and proceedings > Liability for torts > Negligence > Particular cases > Swimming pools, waterholes, waterways and beaches » Torts » Torts > Negligence » Torts > Negligence > Essentials of action for negligence > Duty of care > Special relationships and duties > Occupiers

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Supreme Court of Western Australia Prast v Town of Cottesloe [2000] WASCA 274 17 August, 22 September 2000 Negligence — Occupier's liability — Appellant rendered tetraplegic after being dumped when body-surfing at beach controlled by local authority — Extent of duty of care — Whether risk of serious injury from body-surfing was a hidden danger — Warning not required where risk is obvious Negligence — Occupier's liability — Causation — Causation is determined by a subjective test — Due weight to be given to objective factors The appellant, who had been body-surfing many times before, was dumped by a wave while body-surfing at Cottesloe Beach, which was managed by the respondent. The appellant was thrown onto his head on the ocean bed very near the shore line, and became tetraplegic. The prevailing conditions were calm and mild, with little or no breeze and a very slight swell. The waves were between 1-2 ft high, including the wave which dumped the appellant. The appellant was unaware that the wave he was body-surfing was a “dumper”. The appellant claimed that the respondent should have erected signs on Cottesloe Beach reading “Persons body-surfing run the risk of serious spinal injury by reason of the condition of the surf and the seabed”. The appellant contended that, by failing to erect these signs, the respondent had breached duties of care owed to him at common law and under the Occupiers Liability Act 1985 (WA), and that the respondent had breached a statutory duty arising from its own by-laws. After a trial on the issue of the respondent's liability, the action was dismissed. On appeal, it was accepted that all causes of action needed to be resolved by determining whether the respondent was tortiously negligent at common law. Held (per Ipp J, Wallwork and Parker JJ concurring) (appeal dismissed): (1) Given that the respondent managed Cottesloe Beach and encouraged visitors to use it for swimming, it owed the appellant, as a member of the public who went swimming at Cottesloe Beach, a duty to take reasonable steps to avoid foreseeable risk of injury to him. Nagle v Rottnest Island Authority(1993) 177 CLR 423, applied. (2) The risks of being dumped by surf, and thereby sustaining serious bodily injury, were endemic to and part and parcel of the recreation of body-surfing. These risks were obvious and should have been known to the appellant. The respondent was Sunday, 07 April, 2019 at 19:19 AEST

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(2000) 22 WAR 474

reasonably entitled to expect visitors to the beach to use their common sense, skill and experience to guard against such risks. In these circumstances the respondent's duty of care did not require it to erect signs to warn the appellant about the ordinary risks of body-surfing. Romeo v Conservation Commission (NT)(1998) 192 CLR 431, applied. (3) Whether a failure to warn a person of a risk causes an injury which is sustained when no warning is given must be judged subjectively according to what the injured person would have done if a warning had been administered. However, in making this judgment objective factors are generally more important than the subjective testimony of the injured person in hindsight. The trial judge had erred in applying an objective test in determining whether any failure by the respondent to warn the appellant of the risks of body-surfing had caused his injuries. If the appellant had been able to establish that the respondent had breached its duty of care by failing to erect signs, it would have been necessary to remit the case for further determination on this issue. Chappel v Hart(1998) 195 CLR 232, applied. Cases Cited The following cases are cited in the judgment: Agar v Hyde(2000) 74 ALJR 1219. Chappel v Hart(1998) 195 CLR 232. Franklins Selfserve Pty Ltd v Bozinovska (unreported, Supreme Court, NSW, 14 October 1998). Inverell Municipal Council v Pennington(1993) 82 LGERA 268. Mountain Cattlemen's Association of Victoria Inc v Barron[1998] 3 VR 302. Nagle v Rottnest Island Authority(1993) 177 CLR 423. Natural Resources and Energy, Department of v Harper[2000] VSCA 36. Perre v Apand Pty Ltd(1999) 198 CLR 180. Rockingham, City of v Curley[2000] WASCA 202. Romeo v Conservation Commission (NT)(1998) 192 CLR 431. The following further cases were cited in argument: Barrow v CSR Ltd (unreported, Supreme Court, WA, Library No 7231, 4 August 1988). Black v City of South Melbourne(1964) 38 ALJR 309. Bomford v Commissioner of Main Roads[2000] WASCA 187. Caledonian Collieries Ltd v Speirs(1957) 97 CLR 202. Caswell v Powell Duffryn Associated Collieries Ltd[1940] AC 152. Crimmins v Stevedoring Industry Finance Committee(2000) 74 ALJR 1. Curley v Fremantle Port Authority(1999) 21 SR (WA) 148. Davies v Adelaide Chemical and Fertilizer Co Ltd(1946) 74 CLR 541. Downs v Williams(1971) 126 CLR 61. Geddis v Proprietors of Bann Reservoir(1878) 3 AC 430. Grant v National Coal Board[1956] AC 649. Groves v Lord Wimborne[1898] 2 QB 402. Haines v Bendall[1990] Aust Tort Rep 67,587. Heil v Suncoast Fitness[2000] 2 Qd R 23. Hutchinson v London and North Eastern Railway Co[1942] 1 KB 481. Jeffries v Fisher[1985] WAR 250. Morgan v Sherton Pty Ltd(1999) 46 NSWLR 141. Mt Isa Mines Ltd v Pusey(1970) 125 CLR 383. Nagle v Rottnest Island Authority (unreported, Supreme Court, WA, Library No 940724, 22 December 1994). O'Connor v S P Bray Ltd(1937) 56 CLR 464. Pennington v Norris(1956) 96 CLR 10. Pyrenees Shire Council v Day(1998) 192 CLR 330. Railways, Commissioner for (NSW) v Anderson(1961) 105 CLR 42. Roggenkamp v Bennett(1950) 80 CLR 292. Rootes v Shelton(1967) 116 CLR 383. State Government Insurance Commission v Hitchcock (unreported, Supreme Court, WA, Full Court, Library No 970089, 11 March 1997). Sutherland Shire Council v Heyman(1985) 157 CLR 424. Tonich v Macaw Nominees Pty Ltd (unreported, Supreme Court, WA, Full Court, Library No 940119, 11 March 1994). Wade v Australian Railway Historical Society (SA)[2000] SASC 233. Westralian Caterers Pty Ltd v Eastment Ltd(1992) 8 WAR 139. Woods v Multi Sport Holdings Pty Ltd[2000] WASCA 45. Sunday, 07 April, 2019 at 19:19 AEST

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(2000) 22 WAR 474 Wyong Shire Council v Shirt(1980) 146 CLR 40. Appeal N J Mullany, for the appellant (plaintiff). C J L Pullin QC and C C Rimmer, for the respondent (defendant). Judgment

Cur adv vult 22 September 2000 Ipp J.

The action in the District Court 1

On 25 February 1995 the appellant was dumped by a wave while body-surfing at Cottesloe Beach. He was thrown on to his head on the ocean bed very near the shore line and in consequence sustained severe injuries which rendered him tetraplegic.

2

The appellant commenced proceedings in the District Court claiming damages for the personal injuries he suffered. According to the appellant, the respondent owed him a duty of care under the Occupiers Liability Act 1985 (WA) and at common law, the respondent breached that duty of care in a number of respects, and those breaches caused the appellant to be injured. The appellant contended in the alternative that the respondent had breached its statutory duty arising from its own by-laws relating to beaches and, in consequence, the appellant had sustained the injuries in question.

3

By agreement between the parties the matter came before the learned trial judge only as regards the liability of the respondent. The appellant's case focused initially on hazards said to have been caused by the construction of a groyne at Cottesloe Beach. It was said that the construction of the groyne brought about dangerous surf conditions and the respondent failed to take appropriate steps to protect the public from them. At some point after the trial commenced, however, it became apparent that the groyne did not have the effect contended for by the appellant. The appellant's case thereupon concentrated on the proposition that the respondent “failed to give any or any adequate warning to the [appellant] by sign of the danger or [ [sic] — of] being dumped in a manner which might result in a severe spinal injury”. The appellant contended that the respondent should have erected signs in appropriate places on Cottesloe Beach reading, “Persons body-surfing run the risk of serious spinal injury by reason of the condition of the surf and the seabed”.

4

The respondent admitted that the risk of serious injury to persons body-surfing in the ocean off Cottesloe Beach was reasonably foreseeable by it. The facts that the appellant otherwise relied upon to establish the generalised duty of care were not substantially in dispute. Accordingly, the two principal issues at the trial were whether the respondent had breached that duty and whether that breach had caused the appellant to sustain the injuries that he did.

5

The trial judge considered that the duties imposed on the respondent by the Occupiers Liability Act and the relevant by-laws were no different from the duties owed by the respondent at common law and there was no need to deal with each cause of action separately. All causes of action needed to be resolved by determining whether the respondent was tortiously negligent at common law. I did not understand counsel for the appellant on appeal to contend that her Honour was wrong in this regard.

6

The learned judge decided that the respondent owed a generalised duty of care to the respondent to take reasonable care to avoid foreseeable risks of injury to members of the public, including the appellant, who used Cottesloe Beach for body-surfing. However, she held that the respondent had not breached that duty of care. Further, the learned judge was not persuaded that, had the respondent set up warning signs in the terms suggested, the appellant would have refrained from body-surfing on the day in question. The appellant therefore failed to establish that any breach of duty was causative of his loss. The appellant's case, accordingly, was dismissed.

7

In substance, the appellant raised the same two issues on appeal, namely was there a breach of the respondent's duty of care and, if so, was that causative of the appellant's injuries.

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(2000) 22 WAR 474

The duty of care 8

Cottesloe Beach falls within a reserve created pursuant to s 29 of the Land Act 1933 (WA) and is vested in the respondent. The Local Government (Miscellaneous Provisions) Act 1960 (WA) confers power on a municipality to manage beaches and reserves within its boundaries. Since at least 1963 the respondent has, pursuant to this power, managed Cottesloe Beach. For the year ended 30 June 1996 the respondent budgeted for expenditure of over $6,000,000 for the maintenance of the beaches under its control and for income of over $4,500,000 from those beaches.

9

For many years the respondent has been concerned with the conservation, preservation and development of Cottesloe Beach. Its object, as expressed in its 1995 Beach Policy is: “To facilitate a wide range of recreational opportunities for the West Australian community. This usage is not limited to Cottesloe residents, but includes all West Australians, as well as interstate and international visitors. As such, Council has a responsibility to ensure that the reserve is varied in its focus, meets safety requirements and makes appropriate provision for conservation where required. Further, the beach front should be accessible to as wide a range of people as is possible … ”

10

To this end the respondent developed Cottesloe Beach, together with North Cottesloe Beach, “as areas of the beach reserves capable of withstanding heavy pedestrian use and requiring a high level of amenity, permanent access, adequate parking facilities and accessibility to public transport”. The respondent has been successful in achieving the objects set out in the 1995 Beach Policy and in encouraging visitors to come to Cottesloe Beach. It has always been a very popular beach in the Perth metropolitan area and is frequented throughout the year by large numbers of local inhabitants and visitors.

11

The 1995 Beach Policy recorded that the respondent would “provide a beach inspection service primarily at [Cottesloe and North Cottesloe Beaches]”. The respondent appointed beach rangers to Cottesloe Beach and their task was to enforce beach safety by observing beach and surf conditions and warning beach users of unusual dangers. The Beach Policy also recorded that the respondent “will endeavour to ensure that appropriate signage relating to safety … is in place”. The beach rangers from time to time placed signs in areas of the beach considered unsafe for swimming or unsafe generally. They put up signs reading “Danger, Rocks” when areas of reef became exposed and “Danger, Swimming Prohibited” when rips formed off the beach. Other, permanent, signs were also erected on the beach. These signs warned swimmers of danger when diving from the groyne, prohibited animals, surf boards and spear guns on the beach, and warned against diving into the ocean from a pylon known as the “Bell”.

12

In the circumstances, the respondent was in a position akin to the respondent statutory authority in Nagle v Rottnest Island Authority(1993) 177 CLR 423. If I may paraphrase the majority in that case (at 430), the respondent promoted Cottesloe Beach as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities. That being so, the remarks of the majority (also at 430) are apposite: “In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.” It is to be noted, in this context, that their Honours observed: “In reaching this conclusion we have not mentioned foreseeability otherwise than by reference to the standard or scope of the duty of care. That is because this is a case in which it is possible to ascertain the existence of a generalised duty of care — to take reasonable steps to avoid foreseeable risk of injury — owed to members of the public who resort to the Basin to swim, without looking to foreseeability, a concept which in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity. Here, as it seems to us, foreseeability is of critical importance in determining not whether there was a duty of care but whether there was a breach of duty.”

13

In the circumstances, the learned judge rightly held that the respondent owed the appellant, as a member of the public

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(2000) 22 WAR 474 who went swimming at Cottesloe Beach, a duty to take reasonable steps to avoid foreseeable risk of injury to him.

The factual circumstances giving rise to the surfing injury 14

At the time of the accident the appellant was 29 years old and employed as a sales executive selling computers. He had learnt to swim as a child and had obtained junior and intermediate swimming certificates. He described himself as an average swimmer. He had swum in the ocean, including at Cottesloe Beach, many times in his life. He had also body-surfed at many beaches, including Cottesloe, Margaret River, Yallingup and Port Beach in Western Australia, Manly, Bondi, Palm Beach, Wollongong, Nowra and Port Stevens Beach in New South Wales, Noosa and on the Gold Coast in Queensland and also in Puerto Rico. In the 12 months prior to the accident he had swum at Cottesloe Beach about six times.

15

The appellant described himself as a careful person who was particularly concerned about his own safety. For that reason, if conditions were too rough he would not body-surf. He knew that if he body-surfed in rough conditions and was dumped, he could be injured. He said he would body-surf if conditions “were right”.

16

Shortly after 5 pm on Saturday 25 February 1995, the appellant went to Cottesloe Beach with his girlfriend Ms Lindley. The temperature was just under 25 degrees Celsius. There was little or no sea breeze and a very slight swell. Conditions were calm and mild. The appellant said that the sea “looked beautiful, it looked great”. The waves were small, between 1-2 ft in height.

17

The appellant and Ms Lindley “just swam around and enjoyed the conditions”. They body-surfed a few waves towards the shore, going back to the beach and then out to sea again. There were about 20 people in the immediate area. There was nothing untoward about the sea or the waves they surfed.

18

The appellant decided to leave the water and proceeded towards the beach. When he was about 6 m from the water's edge he “caught a wave towards shore” and commenced body-surfing. The wave was relatively low, between 1-2 ft high, like all the other waves he and Ms Lindley had surfed. Nevertheless, unbeknown to the appellant, the wave was a dumper. As it came towards the shore it collapsed and threw the appellant downward on to the sea bottom. The appellant, although by no means a small man (he weighed about 100 kg), was unable to control his body and his limbs. With the irresistible downward motion, his head hit the sand. He thereupon sustained the injury to his neck which rendered him tetraplegic. It all occurred “in a split second”.

The surfing conditions at Cottesloe Beach 19

Mr Eliot, a coastal geomorphologist, testified that in general terms four types of breaking waves are recognised. The first type he termed a “spilling breaker”. He said: “In a spilling breaker, the wave peaks and then breaks by crumbling down the face of the incoming wave. It forms a distinct ...