HIGH COURT OF AUSTRALIA ROADS AND TRAFFIC AUTHORITY OF NSW APPELLANT AND PHILIP JAMES DEDERER & ANOR RESPONDENTS Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 30 August 2007 ORDER Appeal allowed. The first respondent to pay the appellant's costs. Set aside orders 4, 5, 6 and 7 of the Court of Appeal of the Supreme Court of New South Wales made on 5 October 2006 and in their place order that: the appeal to that Court by the Roads and Traffic Authority of NSW ("the RTA") be allowed; set aside so much of the orders made by Dunford J in the Supreme Court of New South Wales on 18 March 2005 as disposed of the action against the RTA and in their place order that there be judgment for the RTA against the plaintiff; and (c) Mr Dederer to pay the costs of the RTA at trial and in the Court of Appeal. Application for special leave to cross-appeal dismissed with costs. On appeal from the Supreme Court of New South Wales Representation B W Walker SC with A C Casselden for the appellant (instructed by Henry D F Jackson QC with D T Kennedy SC and G R Graham for the first respondent (instructed by Emery Partners) Submitting appearance for the second respondent Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Roads and Traffic Authority of NSW v Dederer Negligence – Duty of care – Scope of duty – Roads authority – The first respondent was injured after jumping into shallow water from a bridge erected by the appellant's predecessor – Whether the scope of the appellant's duty of care encompassed the circumstances in which the first respondent was injured – Distinction between the exercise of reasonable care and the prevention of harm. Negligence – Breach – Standard of care – Prospective assessment of breach – Characterisation of relevant risk – Assessment of probability of risk – Assessment of gravity of risk – Assessment of practicability of precautions – Relevance of voluntary conduct and obviousness of risk – Relevance of "allurement" – Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 was correctly applied. Negligence – Contributory negligence – Reduction of damages by Court of Appeal – Whether Court of Appeal erred in disturbing trial judge's assessment. Courts – Appeals – Limitations on appellate review of findings of fact – Meaning of "concurrent findings of fact". Costs – Sanderson orders – Circumstances in which it is appropriate to make a Words and phrases – "allurement", "concurrent findings of fact", "reasonable care", "roads authority", "scope of duty". Civil Liability Act 2002 (NSW), s 5L. Roads Act 1993 (NSW), s 7(4). Transport Administration Act 1988 (NSW), Pt 6, Sched 7 Div 5. GLEESON CJ. The principal question to be decided is whether this Court should overturn findings on negligence and causation made in the Supreme Court of New South Wales by the primary judge (Dunford J)1 and the Court of Appeal (Ipp and Tobias JJA; Handley JA dissenting)2 in an action for damages for personal injuries brought by the first respondent. The facts and issues are set out in the reasons of Kirby J. The appellant is a public authority responsible for the construction and management of the Forster-Tuncurry bridge. The first respondent, then aged 14, dived from the bridge, with catastrophic consequences. It is not in dispute that the appellant owed the first respondent a duty to take reasonable care for his safety. That the first respondent's own serious carelessness contributed to his injuries is plain; a large deduction from the damages he was awarded was made on account of his contributory negligence. Nevertheless, the appellant owed him a duty of care, and there was an issue whether, by its acts or omissions, it failed to take reasonable care for the safety of the first respondent. There was also an issue whether such failure was a cause of his injuries. Those issues, essentially factual, were resolved by the primary judge, and the Court of Appeal, adversely to the appellant. The bridge was not designed to be a platform from which people might, for their own amusement, jump or dive into the water below. That was not its intended use. Yet it was a use that was regularly made of it, even though diving was prohibited. A claim, by a young person who disregarded the prohibition, that the bridge authority failed to take reasonable care for his safety is not immediately attractive, and would not be accepted lightly. Its wider implications are obvious. Even so, the first respondent succeeded in his claim for damages (subject to a substantial reduction for contributory negligence) and his success was affirmed on appeal. It is to be noted that the evidence in the case deals with the bridge and the railings as they were at the time of the injuries to the first respondent. They were still the same at the time of the trial. The bridge, in its present state, is there for anyone to see. At the time of the injury to the first respondent, and at the time of the trial, the railings on the northern side of the bridge consisted of three flat horizontal members. It was not difficult for a young person to mount the top rail and thereby use the bridge as a platform for jumping or diving. That is what the first respondent, and, according to the evidence, many others before him, did. The primary judge, and the majority in the Court of Appeal, criticised the appellant for not having installed a barrier (such as pool-type fencing) that would have been much more difficult to mount and use for diving. The fact that, in 1998, the design of the railings made it comparatively easy to climb on to or over 1 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792. 2 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860. the railings was an important part of the case against the appellant. There is no foundation in the evidence, or in common experience, for inferring that the only way to deter people from climbing and jumping would have been to adopt extreme and fanciful measures such as erecting a very high fence topped with shards of glass or razor wire. If the appellant had attempted, in argument, to persuade the Court to that view then it might have been challenged by questions prompted by the design of the present barrier. The conclusion of the trial judge and the Court of Appeal that the appellant was negligent turned upon findings of primary fact, some of which were disputed and some of which were undisputed, inferences from those primary facts, and judgment as to what reasonableness required in the circumstances. Similarly, the issue of causation turned upon primary facts, inferences, and judgment on questions of probability. In an appeal of this nature, the function of this Court, as a second appellate court and a court of final resort, is not simply to give a well-resourced litigant a third opportunity to persuade a tribunal to take a view of the facts favourable to that litigant. "It is well settled that a second appellate court, such as this Court is in the present case, should not, in the absence of special reasons such as plain injustice or clear error, disturb such concurrent findings"3. This is a principle of long standing, and its importance has not been diminished, but rather has been increased, in the circumstances of modern litigation. In Graham Barclay Oysters Pty Ltd v Ryan4, I referred to what was said about the principle by the House of Lords during the nineteenth century in Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd5. That case concerned a collision between two ships. The question which vessel was to blame turned upon evidence about lighting. The Lord Chancellor, Lord Herschell, said that, weighing the probabilities, he would have been disposed to accept a particular view of the evidence, but he declined to give effect to that disposition because of what the House of Lords had said previously as to "the importance of not disturbing a mere finding of fact in which both the Courts below have concurred."6 Such a step should be taken, he said, only "when it can be clearly demonstrated that the finding was erroneous."7 Lord Watson said that 3 Louth v Diprose (1992) 175 CLR 621 at 634 per Deane J. (2002) 211 CLR 540 at 568-569 [53]-[54]. [1893] AC 207 at 215. [1893] AC 207 at 215. it was "a salutary principle that judges sitting in a Court of last resort ought not to disturb concurrent findings of fact by the Courts below, unless they can arrive at ... a tolerably clear conviction that [those] findings are erroneous."8 In Major v Bretherton9, a fraud case, Isaacs J discussed a "highly important question" which he said was raised "for the first time definitely in this Court". He referred to the "rule" as to the approach of a second appellate court to concurrent findings of fact. A judge in the Supreme Court of Victoria (Dixon AJ) had found that the defendant had not acted fraudulently. The Full Court of the Supreme Court upheld that finding. Isaacs J, after referring to decisions of the Privy Council and the House of Lords, said that the rule was as stated by Lord Herschell LC and Lord Watson in the case of The P Caland. He went on10: "By following it, I do not mean that as soon as I see there are concurrent findings I abstain from forming my own opinion. I am bound to consider the evidence and to form my own opinion consistently with judicial obligation and precedent. But when I have done so, the rule comes into play, and, unless I reach the point of clear conviction predicated by the House of Lords in the P Caland Case, the appeal should, in my opinion, fail." The principle was referred to by Barwick CJ, with whom Stephen, Mason, Jacobs and Aickin JJ agreed, in Baffsky v Brewis11 in relation to a finding as to whether a moneylender acted honestly and ought fairly to be excused for a breach of certain statutory requirements. It was also referred to by Mason J in connection with a finding about contributory negligence in The Commonwealth v Introvigne12. In Louth v Diprose13 (a case about unconscionable conduct) Deane J said: "[I]t is immaterial that the concurrent findings of fact by the court of first instance and the first appellate court encompass both findings of primary [1893] AC 207 at 216. (1928) 41 CLR 62 at 68. 10 (1928) 41 CLR 62 at 70-71 (references omitted). 11 (1976) 51 ALJR 170; 12 ALR 435. 12 (1982) 150 CLR 258 at 274. 13 (1992) 175 CLR 621 at 634 (references omitted). fact and conclusions and inferences of fact drawn from primary facts or that some conclusions or inferences of fact are based on different reasonings as between the two courts. Nor is it relevant that there has been a dissentient in the first appellate court." In the same case, Deane J referred to what he had earlier said in Waltons Stores (Interstate) Ltd v Maher14 (concerning findings about mistaken belief in a contractual setting) as to the modern rationale of the principle, and the importance of litigious finality as a means of preserving equitable access to justice: "[I]t is in the overall interests of ... the preservation of at least some vestige of practical equality before the law that, in the absence of special circumstances, there should be an end to the litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal." Callinan J and I invoked the principle in our dissenting reasons in Bridgewater v Leahy15. It is a principle that stands alongside, and applies in addition to, the principle concerning appellate intervention in factual judgments where a primary judge enjoys some particular advantage16. The principles exist for different reasons, although in many cases they work to the same end. In past times, in most Australian jurisdictions, including New South Wales, a decision on the issue of negligence in an action for damages for personal injuries would be made by a jury as the tribunal of fact. Since no reasons would be given for such a decision, the practical possibility of an appeal on the issue would be very limited17. Nowadays, as in the present case, the issue of negligence is normally dealt with by a trial judge who sits without a jury and who delivers a fully reasoned decision. This procedure facilitates (and in some cases invites) appellate review. The decision of a court of appeal also takes the form of a reasoned judgment, or of reasoned judgments, delivered after a reconsideration of all the evidence and arguments. The law continues to value finality18, which, as Deane J pointed out, is related to questions of reasonable and 14 (1988) 164 CLR 387 at 434-435. 15 (1998) 194 CLR 457 at 471 [43]. 16 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 569 [54]. 17 Swain v Waverley Municipal Council (2005) 220 CLR 517 at 519-522 [1]-[8]. 18 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. equal access to justice. The more litigation becomes a process of attrition, the greater will be the tendency for the outcome of litigation to depend upon the resources, or financial support, available to litigants. That is not good for the administration of civil justice. Given the substantial reduction of jury trials in the administration of civil justice, the respect which a second appellate court shows to concurrent findings of fact is an important counterweight to the seemingly inexorable tendency to prolong litigation. As Isaacs J said, it does not mean that this Court abdicates those its own responsibilities; but responsibilities with an appreciation that, for good reason, it requires to be clearly convinced of error before it will disturb such findings. it discharges Two examples involved in the findings on negligence and causation in the present case illustrate the point. The primary judge and the majority in the Court of Appeal found that the appellant was aware, over a period of years, of the propensity of many people to jump, and of some people to dive, from the bridge. That inference was based largely on two facts: first, a number of witnesses said they saw these things happen, and there is no reason to think such occurrences were not widely known; secondly, the appellant erected a sign which appeared to reflect an awareness of the practice. Again, the primary judge and the majority in the Court of Appeal inferred that a more expansive sign, and a differently constructed railing or fence on the bridge, would have prevented the first respondent from diving. Those inferences were contestable, but they were open on the evidence, and the appellant's arguments on those matters were considered and rejected, for cogent reasons, by a trial judge and an appellate court. A conclusion that a differently designed railing or fence on the bridge, or a differently expressed warning sign, would have deterred an over-confident youth, prepared to disregard an existing prohibition, from diving is a matter on which judgments may differ. Yet it is a judgment of a kind routinely made in negligence actions. When, in a given case, such a finding is reviewed and affirmed by an intermediate appellate court, then this Court should reverse the finding only when it is clearly convinced of error. Subject to those additional observations as to the nature of the exercise that is involved, I agree with Kirby J, for the reasons he has given, that the findings on the issues of negligence and causation should not be overturned. I also agree with what Kirby J has said about the matters of contributory negligence and costs, and with the orders he proposes. GUMMOW J. In Berrigan Shire Council v Ballerini19, Callaway JA remarked that "[t]he relationship between duty and breach in the law of negligence is causing more perplexity than it used to do". This appeal bears out the force of that statement. The errors of which the appellant rightly complains, regarding both the reasons of the trial judge and those of the New South Wales Court of Appeal, did not turn on factual matters upon which reasonable minds might differ. Rather, they concerned the misapplication of basic and settled matters of legal principle. These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt20. The facts The facts are set out in greater detail in the reasons of Callinan J, but it is convenient to set out the main aspects here. The estuary of the Wallamba River divides the twin towns of Forster and Tuncurry on the mid-north coast of New South Wales; Forster lying on the eastern bank, Tuncurry to the west. The estuary contains navigable channels as well as a large central sandbar of shifting depth and dimensions. The towns of Forster and Tuncurry are linked by a bridge which is 632 m long and which carries a two-lane bitumen roadway and a footpath on its northern side. The facts established at the trial included the following. The footpath was enclosed by a wooden post and rail fence around 1.2 m high and consisting of a flat wooden top railing, two horizontal wooden cross-members, horizontal wires and vertical posts. Depending on tidal conditions, the top of the railing was around 9 m from the surface of the water. There was a pictogram indicating the prohibition "no diving" at each end of the bridge, and signs in words prohibiting fishing from, and climbing on, the bridge. The then current "no diving" pictograms were erected by the second respondent, the Great Lakes Shire Council ("the Council"), in 1995, with funding obtained from the appellant, the Roads and Traffic Authority of NSW ("the RTA"). 19 (2005) 13 VR 111 at 115. 20 (1980) 146 CLR 40 at 47-48. The bridge was built in 1959 by the Department of Main Roads, the predecessor of the RTA. The RTA became the universal successor of that Department and the Commissioner for Main Roads pursuant to the Transport Administration Act 1988 (NSW), Sched 7 Div 5, and now exercises the powers and functions set out in Pt 6 of that Act. Pursuant to s 7(4) of the Roads Act 1993 (NSW), the Council was the relevant "roads authority" within the meaning of that statute. The extent of the obligations of such a "roads authority" was recently considered by this Court in Leichhardt Municipal Council v Montgomery21. The interplay between the statutory functions of the Council and the RTA with respect to the bridge was not fully considered at trial or in the Court of Appeal. It was concluded, however, that the RTA was responsible for the erection and maintenance of the bridge and that the Council was responsible for the day to day management of the bridge including, among other things, the enforcement of the prohibition contained in the various pictograms and signs. Each entity thus answered the common law description of a roads authority, namely, as Dixon J put it, "an authority exercising powers for the construction, maintenance, repair and control of highways"22. There was ample evidence that diving and jumping from the Forster- Tuncurry bridge was a widespread and longstanding practice among young people, although the precise frequency and extent of this practice was disputed in this Court. Be that as it may, there was no dispute that until the accident that befell the first respondent, Mr Dederer, there were no reported injuries to those who jumped or dived from the bridge. It was as a result of Council concern about jumping and diving that the "no diving" pictograms were erected. There had also been concern about the danger posed by divers to boats passing under the bridge rather than simply the danger to the divers themselves. Nor, for that matter, was the safety of divers the only potential risk associated with the bridge. Mr Alexander, an RTA officer, gave evidence that the safety issue relating to the bridge that was of most concern to the RTA was the potentially unsafe lack of separation between the traffic on the bridge and the large number of pedestrians and cyclists using the footpath. On 31 December 1998, Mr Dederer was rendered partially paraplegic after he dived from the bridge into shallow water and struck his head on the estuary bed. Mr Dederer was then aged 14. He climbed onto the railing of the bridge and although he originally intended to jump into the water he changed his mind 21 (2007) 81 ALJR 686; 233 ALR 200. 22 Buckle v Bayswater Road Board (1936) 57 CLR 259 at 286. and dived head first instead. Mr Dederer and his family were familiar with the area, and he had seen many other young people jump or dive from the bridge. He had done so himself on the previous day without any harm. He admitted that he saw and understood the signs forbidding diving and climbing, and that he knew that the sandbar moved and that the channels were of variable depth. The decision at trial At trial in the Supreme Court of New South Wales (Dunford J sitting without a jury) Mr Dederer succeeded against both the RTA and the Council. His Honour found that Mr Dederer saw, understood, and deliberately disregarded the "no diving" pictograms, and that he knew that the water was of variable depth and that jumping from heights could cause injury. Nonetheless, Dunford J placed great emphasis on the fact that many people jumped or dived from the bridge both before and after the then current signs prohibiting diving were erected in 1995. He said23: "I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff's accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays. The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing along the outside boundary of the bridge, and the ease of access to that railing by reason of the wooden cross members which provided steps up to the top railing. Even if it was not anticipated prior to the construction of the bridge that it would be used in this way, it soon became apparent after its completion and foreseeable that the culture was likely to continue. Although the jumpers and divers entered the water in or near the main navigation channel, both the RTA and the Council were aware of the moving sands and variable depths underneath the water, and it was therefore reasonably foreseeable, and not far fetched or fanciful, that if the practice continued someone engaging in the activity was liable to suffer serious injury. I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risks should have been so apparent to the officers of both defendants with knowledge of the estuary bed that it was in effect 'an accident waiting to happen'." 23 (2005) Aust Torts Reports ¶81-792 at 67,528-67,529. The Council, but not the RTA, admitted that it was aware of this pattern of behaviour. Nonetheless, his Honour found that the RTA "must have known" of it, and because of the "continuing practice" or "culture" of diving Dunford J found that it was: "not sufficient to ignore the fact that the signs were being disregarded and it is necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care"24. His Honour held that the RTA breached its duty of care and was negligent in failing to erect a "warning sign containing words similar to 'Danger, shifting sands, variable depth'"; in failing to replace the existing handrail with one composed of vertical (not horizontal) members like "a 'pool' type fence"; and in failing to modify the flat top of the handrail by attaching to it a triangular strip "making it difficult and uncomfortable to stand on, and almost impossible to balance on before jumping or diving"25. The evidence upon which the trial judge came to his conclusions respecting breach will require some explanation later in these reasons. His Honour reduced Mr Dederer's damages by 25 per cent on account of his contributory negligence. The decision of the Court of Appeal An appeal by the Council was allowed on the basis that it was not liable to Mr Dederer because his injuries were "a result of the materialisation of an obvious risk of a dangerous recreational activity" within the meaning of s 5L of the Civil Liability Act 2002 (NSW)26. That Act did not apply to Mr Dederer's action against the RTA. The Council was joined as second respondent in this Court but played no active part in the appeal. The appeal by the RTA to the Court of Appeal regarding contributory the proportion of Mr Dederer's contributory negligence succeeded, and negligence was increased from 25 per cent to 50 per cent. That order is the subject of an application for special leave to cross-appeal to this Court, which is addressed later in these reasons. However, by majority (Ipp and Tobias JJA, Handley JA dissenting) the appeal by the RTA on liability failed. 24 (2005) Aust Torts Reports ¶81-792 at 67,529. 25 (2005) Aust Torts Reports ¶81-792 at 67,531. 26 (2006) Aust Torts Reports ¶81-860 at 68,891-68,895. The Court of Appeal rejected the RTA's ground of appeal relating to the trial judge's finding that it knew of the continued jumping and diving from the bridge27. In any event, Ipp JA held that: "the serious risk of devastating injuries to those engaged in such activities must have been obvious to the RTA. The RTA knew or ought to have known that particularly in the summer months, jumping and diving was occurring with startling frequency, involving at times, groups of young people every five or ten minutes, with a group capable of comprising 10 to 15 children aged 10 years to 16 years."28 Tobias JA, who agreed with Ipp JA's disposition of the appeal, endorsed these remarks and added that29: "given the knowledge of … the RTA that for children to jump from the bridge was dangerous and that diving from the bridge was a fortiori dangerous … it is but a small step to conclude that, with the knowledge that children continued to dive from the bridge in circumstances where the water below (depending upon tidal influences) was of variable depth and at times quite shallow, it would be reasonably foreseeable that at low tide in particular, when the water was shallow on the one hand and the height between the railing and the surface of the water is some 9-10 metres on the other, sooner or later a child would dive in a manner resulting in serious injuries. As I have indicated, I would regard such a conclusion as a matter of common sense." For the majority in the Court of Appeal, it was of central importance that the risk was one "created" by the RTA itself through its statutory predecessor. Ipp JA stated that30: "In the present case the RTA is to be regarded as having created the danger by erecting the bridge and by constructing it in a position and configuration that, since its construction, attracted young people to jump and dive from it into the water some nine to ten metres below. In a 27 (2006) Aust Torts Reports ¶81-860 at 68,899. 28 (2006) Aust Torts Reports ¶81-860 at 68,900. 29 (2006) Aust Torts Reports ¶81-860 at 68,918. 30 (2006) Aust Torts Reports ¶81-860 at 68,908-68,909. See also at 68,896, 68,901, material sense, in the present context, creating the risk of harm is at least equivalent to increasing the risk." (emphasis in original) Tobias JA agreed, saying that31: "the RTA had made the danger worse as its predecessors were responsible for the construction of the bridge and, in particular, the type of external railing which provided an easy platform to the RTA's knowledge for children to utilise for the purpose of jumping into the waters below". Their Honours then fixed upon the fact that the "no diving" signs had not in fact prevented young people from diving from the bridge. Ipp JA stated32: "There have been many decisions, including decisions of the High Court, holding that the erection of prohibitory signs is sufficient to discharge the duty of care owed by an entity in control of land on which dangerous activities may be undertaken by members of the public. But, breach of a duty of care is a question of fact, and each case depends on its own circumstances. In the present case, the signs that were erected (and that includes the signs prohibiting climbing on the bridge as well as the pictographs) were not serving the purpose for which they had been erected. They were being ignored and the practice was continuing unabated. This was common knowledge. Mr Alexander referred to it as a 'well known event' and Mr [Pevitt] and the police had found enforcement of the prohibitions displayed on the sign impossible. On the evidence of Mr Dederer, his father, Mr [Pevitt], Mr Keegan [two officers of the Council], Mr Cunial [a friend of Mr Dederer, born in 1980 who was with him on the day of the accident] and Mr Alexander himself, the practice of jumping and diving off the bridge continued with considerable frequency after 1995 notwithstanding the erection of the pictographs and the other prohibitory signs. The signs were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months. In these circumstances, the RTA must have known that the signs were, in a word, useless. And they must have known this from at least shortly after the pictographs were erected in 1995. 31 (2006) Aust Torts Reports ¶81-860 at 68,920-68,921. 32 (2006) Aust Torts Reports ¶81-860 at 68,900. As part of the general duty of care owed by the RTA to users of the bridge, it should – in any event – have ascertained whether the pictograph signs were proving effective. On that basis, the RTA ought to have known that they were not". His Honour amplified this conclusion under the heading "The reasonableness of the RTA's response to the risk"33: "The obvious risks involved in jumping and diving off the bridge were not a deterrent. Many of the visitors to the bridge were children and young people. The RTA could not assume that these persons would take reasonable care for their own safety. Experience over many years had shown that, in large numbers, this was not what they were doing. In my opinion, the RTA was not entitled to rely solely on the signs once it became apparent that they were not serving their purpose and were not having any noticeable effect on persons jumping or diving off the bridge." The result in the Court of Appeal was that the trial judge was correct to hold that "by the time Mr Dederer was injured … the erection of the signs was no longer a reasonable response to the risk that the RTA had created"34. Tobias JA held that it was not reasonable for the RTA "to simply ignore what it clearly knew to be a dangerous activity in which children were partaking and who could be expected to be oblivious to the risks involved"35. This statement sits rather oddly with the Court of Appeal's finding that the risk was of such obviousness even to a 14 year old that the Council was absolved of all liability. The majority thus upheld the trial judge's ruling that the RTA was negligent in failing to attach a triangular top to the handrail and in failing to install vertical pool-type fencing36. Although the Court of Appeal correctly considered, contrary to the trial judge, that a sign of prohibition did constitute a "warning", the majority regarded a "mere" sign of prohibition to be unreasonable 33 (2006) Aust Torts Reports ¶81-860 at 68,900, 68,902. 34 (2006) Aust Torts Reports ¶81-860 at 68,903. 35 (2006) Aust Torts Reports ¶81-860 at 68,921. 36 (2006) Aust Torts Reports ¶81-860 at 68,905-68,906. in the circumstances. However, their Honours considered the trial judge's proposed sign would have been similarly ineffective because "Mr Dederer in fact knew that there were shifting sands and variable depths and this did not prevent him from diving"37. Instead, their Honours found that a "composite sign" conveying the danger of "shallow water" would have been a reasonable response38. This conclusion was at odds with the trial judge's undisturbed finding that it was "probable that [such a] sign would also have been ignored, just as the 'diving prohibited' sign was ignored"39. Handley JA dissented. His Honour found that the trial judge had been in error in attributing to the RTA knowledge of continued diving from the bridge, as distinct from jumping therefrom, and that "[t]he absence of any recorded injury over the 39 years before the plaintiff's accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe"40. His Honour added that "[i]f this was an accident waiting to happen it had been waiting for a very long time"41. So far as the exercise of reasonable care was concerned, his Honour summarised his views as follows42: "The signs proposed would not have told the plaintiff anything he did not already know, a triangular section on the handrail would not have discouraged the plaintiff from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge." As his Honour pointed out, Mr Dederer did not give direct evidence about whether any of these matters would have caused him not to dive. A finding of causation in his favour was, at best, a matter of inference43. Handley JA concluded that, in light of the State-wide obligations of the RTA and in light of Mr Dederer's voluntary participation in a recreational activity involving inherent risk, "the foreseeable risk of a diving accident from 37 (2006) Aust Torts Reports ¶81-860 at 68,904. 38 (2006) Aust Torts Reports ¶81-860 at 68,905. 39 (2005) Aust Torts Reports ¶81-792 at 67,530. 40 (2006) Aust Torts Reports ¶81-860 at 68,876. 41 (2006) Aust Torts Reports ¶81-860 at 68,876. 42 (2006) Aust Torts Reports ¶81-860 at 68,880. 43 (2006) Aust Torts Reports ¶81-860 at 68,880. this bridge with a 39 year accident free history had no reasonable claim on [the RTA's] further attention or resources"44. The appeal to this Court The appeal by the RTA to this Court should be allowed. Unlike many recent appeals to this Court in negligence cases, the resolution of this appeal does not require consideration of factual matters regarding breach, upon which reasonable minds may differ45. Nor, despite submissions by the RTA, was the error of the Court of Appeal to be found in discrete and perhaps peripheral disputes of fact. Rather, the errors on the part of the majority of the Court of Appeal lay in fundamental matters of law: matters against which concurrent findings of fact are no insulation. The scope of the RTA's duty of care Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden. Regarding the first point, a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his "neighbour" principle in 193246. The law now recognises types of loss and kinds of relationships which are different from those of earlier days. Five members of this Court observed in their joint judgment in Sullivan v Moody47: 44 (2006) Aust Torts Reports ¶81-860 at 68,881-68,882. 45 Examples include Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Neindorf v Junkovic (2005) 80 ALJR 341; 222 ALR 631; Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161. 46 Donoghue v Stevenson [1932] AC 562 at 580. 47 (2001) 207 CLR 562 at 579-580 [50] per Gleeson CJ, Gaudron, McHugh, Hayne "Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle." (citations omitted) Many of those matters were canvassed in Brodie v Singleton Shire Council48. The result of that case is that a road authority is obliged to exercise reasonable care so that the road is safe "for users exercising reasonable care for their own safety"49. The expression of the scope of the RTA's duty of care in those terms has long antecedents in the law relating to occupiers' liability. In Indermaur v Dames, giving the judgment of the Court of Common Pleas50, "we consider it settled law, that [a visitor], using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger". The modern form of that principle has been frequently affirmed in recent times, both with regard to occupiers and roads authorities52. Of course, the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every 48 (2001) 206 CLR 512. 49 (2001) 206 CLR 512 at 581 [163]. 50 Erle CJ, Willes, Keating and Montague Smith JJ. 51 (1866) LR 1 CP 274 at 288. 52 Examples include Phillis v Daly (1988) 15 NSWLR 65 at 74; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [123]; Neindorf v Junkovic (2005) 80 ALJR 341 at 362 [99]; 222 ALR 631 at 656-657. case53, but in the present case it was also a specific element contained, as a matter of law, in the scope of the RTA's duty of care. A road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances. So much was recently reaffirmed in Leichhardt Municipal Council v Montgomery54. Such an expression of the duty's scope has an obvious and direct consequence when assessing breach. As Gaudron, McHugh and Gummow JJ stated in Brodie55: "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." (citations omitted) Their Honours went on to observe that persons exercising reasonable care will be able to avoid injury in some situations, whereas others will present "a foreseeable risk of harm even to persons taking reasonable care for their own safety"56. The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety"57. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves. 53 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at 246 [35]. 54 (2007) 81 ALJR 686; 233 ALR 200. 55 (2001) 206 CLR 512 at 580 [160]. 56 (2001) 206 CLR 512 at 581 [163]. 57 Brodie (2001) 206 CLR 512 at 581 [163]. In the Court of Appeal58, Ipp JA referred to and adopted remarks he made in the earlier case of Edson v Roads and Traffic Authority59, in which the plaintiff and many others exercised an obvious disregard for their own safety when they crossed a busy highway on foot. After referring to the passage from Brodie set out above, his Honour remarked that60: "the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent. Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so. The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care." In the present case, his Honour concluded that "the 'factual underpinning' was also absent"61. This was in error, as the expectation of reasonable care was not merely a "factual underpinning", but rather a legal aspect of the scope of the duty owed by the RTA. Reasonable care, not prevention In simple and complicated cases alike, one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care. In Vairy v Wyong Shire Council, McHugh J explained62: "[T]he duty in negligence is generally described as a duty to take reasonable care. In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms. Until the decision of this Court in Zaluzna63, for example, the duty owed to entrants upon privately owned land varied according to the category of the entrants. They were classified as invitees, licensees and trespassers. Similarly, the duty in respect of negligent statements is more specific and limited than a 58 (2006) Aust Torts Reports ¶81-860 at 68,901. 59 (2006) 65 NSWLR 453. 60 (2006) 65 NSWLR 453 at 468. 61 (2006) Aust Torts Reports ¶81-860 at 68,901. 62 (2005) 223 CLR 422 at 432 [25]. 63 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. simple duty to take reasonable care in all the circumstances of the case. In negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care. As Prosser and Keeton have pointed out, 'the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk'64." His Honour dissented from the outcome in Vairy, but that does not qualify the cogency of the above observations. Leaving aside matters such as vicarious liability and the potential existence of non-delegable duties of care – neither of which are presently relevant – the exercise of reasonable care is always sufficient to exculpate a defendant in an action in negligence. In Blyth v Birmingham Waterworks, Alderson B laid down the nature of the action as long ago as 185665: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Blyth was a case in which the exercise of reasonable care was sufficient to exonerate the defendants notwithstanding the plaintiff's injuries. However, the standard of reasonable care also results in the inculpation, rather than exoneration, of defendants. In the earlier case of Vaughan v Menlove, Tindal CJ was able to say that66: "The care taken by a prudent man has always been the rule laid down … Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual ... we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." It was therefore insufficient, in the judgment of his Lordship, that the defendant had acted "honestly and bonâ fide to the best of his own judgment"67. 64 Prosser and Keeton on the Law of Torts, 5th ed (1984) at 356. 65 (1856) 11 Exch 781 at 784 [156 ER 1047 at 1049]. 66 (1837) 3 Bing (NC) 468 at 475 [132 ER 490 at 493]. 67 (1837) 3 Bing (NC) 468 at 474 [132 ER 490 at 493]. Such an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil68, Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman69 and observed that "the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable." In Heyman70, Brennan J had emphasised that the common law recognises "a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible". That recognition can be seen in the recent rejection by this Court in Montgomery71 of the existence of a non-delegable duty of care owed by roads authorities to road users. Whatever its content, the existence of such a non- delegable duty was inconsistent with the general obligation of reasonable care owed by roads authorities to the users of roads, including pedestrians. Gleeson CJ observed in Montgomery72: "The formulation of the duty of care given in Brodie, in its application to cases of misfeasance, and to a case where a roads authority has exercised its powers by engaging an independent contractor … is not a special duty to ensure anything; certainly not a duty to ensure that no worker behaves carelessly. It is a duty to exercise reasonable care." Likewise, as Hayne J succinctly put it, "the test for determining a highway authority's liability … [is] the ordinary test of liability in negligence"73. The RTA correctly complains that this orthodox approach was not applied at trial or in the Court of Appeal. The trial judge and the majority in the Court of Appeal each fixed on the failure of the "no diving" pictograms and "no climbing" signs to prevent diving or jumping from the bridge. The trial judge was 68 (2000) 205 CLR 254 at 266 [28]. 69 (1985) 157 CLR 424. 70 (1985) 157 CLR 424 at 478. 71 (2007) 81 ALJR 686; 233 ALR 200. 72 (2007) 81 ALJR 686 at 695 [26]; 233 ALR 200 at 209. 73 (2007) 81 ALJR 686 at 719 [148]; 233 ALR 200 at 241. "satisfied" that the signs "were not effective in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water", and his Honour found it "not sufficient to ignore the fact that the signs were being disregarded"74. In the Court of Appeal, Ipp JA reasoned that the signs "were not serving the purpose for which they had been erected"; that is, they "were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months" and they were being "ignored and the practice was continuing unabated"75. Tobias JA asked whether the "known fact" of continued jumping called "for different measures to be adopted by the RTA to prevent the practice at least of jumping off the bridge". His Honour concluded that it was unreasonable "to ignore the well-known practice of children jumping from the bridge in defiance of 'No Diving' signs"76. The error in that approach lies in confusing the question of whether the RTA failed to prevent the risk-taking conduct with the separate question of whether it exercised reasonable care. If the RTA exercised reasonable care, it would not be liable even if the risk-taking conduct continued. If the contrary were true, then defendants would be liable in any case in which a plaintiff ignored a warning or prohibition sign and engaged in the conduct the subject of the warning. Whether or not other persons engaged in that conduct, such a defendant would ipso facto have failed to prevent at least the plaintiff from engaging in it. If this quasi-automatic form of liability represented the true state of the law, it would be startlingly at odds with the general proposition that liability in tort depends upon proof of fault through the intentional or negligent infliction of harm77. More particularly, it would also be at odds with the decision in Montgomery that roads authorities owe only a duty to take reasonable care, and do not owe a more stringent or non-delegable duty. The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning is given, and if the conduct against which that warning is directed continues notwithstanding the warning, then the party who gave the warning is shown to have been negligent by reason of the warning having failed. Quite apart from its inconsistency with the scope of the RTA's duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty that is required by Shirt, a matter discussed later in these reasons. 74 (2005) Aust Torts Reports ¶81-792 at 67,527, 67,529 (emphasis added). 75 (2006) Aust Torts Reports ¶81-860 at 68,900 (emphasis added). 76 (2006) Aust Torts Reports ¶81-860 at 68,919, 68,920 (emphasis added). 77 cf Northern Territory v Mengel (1995) 185 CLR 307 at 341-342. Even reasonable warnings can "fail", but the question is always the reasonableness of the warning, not its failure. Ipp JA's statement, based on a reference to another case78, to the effect that a warning sign is "not an automatic, absolute and permanent panacea"79 was no substitute for a proper assessment of reasonableness. Whether or not the passage referred to by his Honour did in fact bear the meaning attributed to it by him, the words of Windeyer J in Teubner v Humble are apposite80: "[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application … That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence." looks What is demonstrated here is a by-product of the common law technique which to precedent and operates analogically as a means of accommodating certainty and flexibility in the law. Equity, by contrast, involves the application of doctrines themselves sufficiently comprehensive to meet novel cases. The question of a plaintiff "what is your equity?"81 thus has no common law counterpart. The utility of factual parallels lies not in determining the correctness of decisions of fact, but rather in determining whether the correct legal tests were applied. Apothegms relating to factual matters are unlikely to focus the mind on the resolution of the legal questions that were presented. The proper identification of the risk Even if the trial judge and the Court of Appeal had properly ascertained the scope of the RTA's duty of care, and had accurately discerned that its obligation extended only to the exercise of reasonable care, their Honours would still have been led into error if they did not accurately identify the actual risk of injury faced by Mr Dederer. It is only through the correct identification of the 78 Waverley Council v Lodge (2001) 117 LGERA 447 at 459. 79 (2006) Aust Torts Reports ¶81-860 at 68,903. 80 (1963) 108 CLR 491 at 503. 81 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 216 [8] per Gleeson CJ. risk that one can assess what a reasonable response to that risk would be. In this, too, the majority in the Court of Appeal erred. In the Court of Appeal, the risk faced by Mr Dederer was characterised by the majority as being "serious spinal injury flowing from the act of diving off the bridge"82. That risk, it was said, was one created by the RTA through the erection of the bridge by its predecessor. However, such a characterisation of the risk obscured the true source of potential injury. This arose not from the state of the bridge itself, but rather from the risk of impact upon jumping into the This potentially shallow water and shifting sands of mischaracterisation of the risk led to two consequent errors. First, the majority were distracted from a proper evaluation of the probability of that risk occurring. Secondly, they erroneously attributed to the RTA a greater control over the risk than it possessed. the estuary. The first error can be seen in Ipp JA's characterisation of the "startling frequency" of "large numbers" of people jumping and diving from the bridge; a practice that was "continuing unabated" notwithstanding the pictograms83. Such a characterisation incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v Stone, "in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused" (emphasis added)84. In the present case, the frequency of jumping and diving was only startling if one ignored the fact that no-one was injured until Mr Dederer's unfortunate accident. Far from being a risk with a high probability of occurrence, the probability was in truth very low, and this fact was masked by the Court of Appeal's characterisation of the relevant risk. Regarding the second error, by focusing on the RTA's role in constructing the bridge from which Mr Dederer dived, the majority in the Court of Appeal overlooked the limited nature of the RTA's control over the actual risk of injury faced by Mr Dederer. Ipp JA concluded that85: "The fact that a defendant actually created the structure that gave rise to the risk that materialised, and maintained the structure in a form that 82 (2006) Aust Torts Reports ¶81-860 at 68,892. 83 (2006) Aust Torts Reports ¶81-860 at 68,900. 84 [1951] AC 850 at 858. 85 (2006) Aust Torts Reports ¶81-860 at 68,912. maintained the risk, has always been regarded as a matter of great importance in determining liability for negligence." Perhaps that is so, but whatever its role in creating the bridge the RTA did not control Mr Dederer's voluntary action in diving, and nor did it create or control the natural variations in the depth of the estuary beneath the bridge. The present was not a case, for example, in which the plaintiff's injury arose because the bridge collapsed, or because the footpath was defective, or because the side handrail gave way. Nor was it a case in which the "incentives" discerned by Ipp JA were ones created by the RTA86. Rather, the risk arose because of the conjunction of the bridge's location and two factors outside the RTA's control: one human and the other environmental, namely Mr Dederer diving from the bridge and the natural variations of the estuary bed87. Both the RTA and Mr Dederer in this Court addressed the concept of "allurement" in their submissions. But this is a concept that is more likely to mislead than to assist. Even when the term had determinative legal significance, Barrowclough CJ was able to say in Napier v Ryan that the word "has been given a sanctity which I think it scarcely deserves"88. One can well agree with that sentiment today, especially as the former technical use of that term in occupiers' liability cases has long since been superseded by the decision in Australian Safeway Stores Pty Ltd v Zaluzna89. The continued use of the term "allurement" as a factual epithet tends to conceal more than it reveals. First, "allurement" might be used to indicate no more than that many people have encountered the risk, thus leading to a conclusion one way or another about the probability of that risk eventuating. Secondly, the term might focus attention on the responsibility of the defendant for creating the risk, or for encouraging or enticing people into a dangerous situation. However, in the present case the RTA did not create the risk of shallow water of variable depth, nor did it exhort or encourage young people to dive from the bridge. Thirdly, the term might simply indicate the factual proposition that the particular location or activity was attractive to certain kinds of people. Such an observation is of no legal consequence. 86 (2006) Aust Torts Reports ¶81-860 at 68,901. 87 cf Vairy v Wyong Shire Council (2005) 223 CLR 422 at 453 [92]. 88 [1954] NZLR 1234 at 1240. 89 (1987) 162 CLR 479. The proper assessment of breach Having dealt with the relevant risk, it is appropriate to return to the inquiry into the assessment of breach. Whether reasonable care was exercised in the particular case is a question of fact going to the breach of any duty owed, not to the existence of that duty. In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant's actions could have prevented the plaintiff's injury. As Hayne J stated in Vairy90: "When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." (emphasis omitted) Each of these principles was misapplied by the trial judge and the majority in the Court of Appeal. As explained earlier in these reasons, their Honours erred by focusing in retrospect on the failure of the RTA to prevent Mr Dederer's dive, as opposed to asking what, in prospect, the exercise of reasonable care would require in response to a foreseeable risk of injury. The use of phrases such as "an accident waiting to happen" was redolent of a retrospective, not prospective, approach to the matter. What, then, was the correct approach towards assessing breach? The particular trap into which the majority of the Court of Appeal fell was that warned against by Hayne J in Vairy91: "If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken." 90 (2005) 223 CLR 422 at 461 [126]. 91 (2005) 223 CLR 422 at 462 [128]. The relevant passage from the judgment of Mason J in Shirt should be set out yet again92: "[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." The continuing authority of this passage has recently been reaffirmed by this Court in New South Wales v Fahy93. In that case, Gummow and Hayne JJ observed that94: "There may be cases when the principles stated in Shirt have not been applied accurately. In particular, arguments of the kind made, and rejected, in Vairy and in Mulligan v Coffs Harbour City Council[95] may suggest a misunderstanding of the so-called 'calculus' that would seek to determine questions of breach in some cases by balancing the cost of a single warning sign against the catastrophic consequences of a particular accident. But the fact, if it be so, that Shirt has not always been applied properly does not provide any persuasive reason to reconsider its correctness." 92 (1980) 146 CLR 40 at 47-48. 93 (2007) 81 ALJR 1021. 94 (2007) 81 ALJR 1021 at 1038 [78]. 95 (2005) 223 CLR 486. What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention. Here, the risk of injury consequent upon jumping or diving from the bridge into water of variable depth was reasonably foreseeable. Indeed, the Court of Appeal correctly found, contrary to the trial judge, that the risk was one that was obvious even to a 14 year old boy96, and it beggars belief that the RTA could not foresee the very conduct against which its signage warned. The RTA's evidentiary dispute about whether it did in fact know of the continued practice of diving is beside the point: reasonable foreseeability is to be determined objectively, and the present risk was plainly foreseeable on any objective standard. The magnitude of the risk was self-evidently grave. Mr Dederer's partial paralysis is among the worst kinds of injuries imaginable. The probability of that injury occurring was, however, low. Despite the frequency of jumping and diving from the bridge, no-one was injured until Mr Dederer's unfortunate dive. What, then, of the expense, difficulty and inconvenience of taking alleviating action? The erection of further warning signs would not have been expensive, but Mr Dederer provided no evidence that they would be reasonable. The installation of pool-type fencing and a triangular cap on the handrail would have been more expensive and intrusive. The estimate of the cost of the handrail modification was some $108,072, and it was accepted that the cost of new fencing would be around $150,000 but, again, the reasonableness of such measures is open to doubt. The course of the evidence In order to explain these doubts, it is necessary to return to the way the evidence unfolded at trial. Mr Dederer was never asked whether any of the suggested modifications would have deterred him from diving. Each suggestion arose only after he gave his testimony. Mr Dederer called Mr Robert Fogg as an expert on safety and signage. Mr Fogg's uncontradicted evidence was that a "no diving" pictogram was a reasonable response to the risk. As it happens, Mr Fogg mistakenly believed that such a pictogram had not already been installed, but this misapprehension did not 96 Mr Dederer challenged that conclusion by way of a Notice of Contention dated 14 May 2007. That challenge should be rejected for the reasons given by the Court of Appeal: (2006) Aust Torts Reports ¶81-860 at 68,892-68,895. otherwise undermine the force of his evidence about what a reasonable response to the risk would have been. The sign proposed by the trial judge was devised solely by his Honour and there was no evidence that such a sign would have been a reasonable response. The sign adopted by the Court of Appeal, a pictogram indicating "no diving, shallow water", scarcely seems reasonable in light of the trial judge's explicit finding that it would probably have been ignored as well, particularly as the large number of young persons jumping and diving without incident indicated that the water under the bridge was not generally shallow. In any event, Mr Dederer admitted that he knew about the variable depth of the estuary and the moving sandbar. A warning sign would not have told him anything he did not already know. The suggestion that it was negligent not to have installed "pool-type" fencing arose out of the 1992 Austroads Bridge Design Code, which recommended that bridges constructed after 1992 use such vertical balusters. That design code did not apply to bridges constructed before 1992, and the Forster-Tuncurry bridge conformed to the applicable standards at the time of its construction. The matter was put to Mr Fogg, whose evidence was that he would be satisfied with the provision of a sign as an alternative to such "pool-type" fencing, and that such fencing was unlikely to deter a person of Mr Dederer's height who wished to dive from the bridge. The Council's Works Engineer and Asset Manager, Mr Keegan, also gave evidence that such fencing had not prevented people jumping from the nearby Bulahdelah bridge. The suggestion of affixing a triangular cap to the handrail emerged only in the cross-examination of Mr Keegan. It was not otherwise the subject of any evidence. Mr Keegan said that it would be "possible" to affix such a cap to the railing, and that it would be more difficult to balance on such a cap before diving or jumping. Significantly, Mr Dederer's safety expert, Mr Fogg, gave no evidence about this aspect of the case. Even if the cap made balancing more difficult, it might be doubted whether this would have impeded Mr Dederer's dive, especially as the risk and danger of diving were part of its attraction. Returning, then, to the assessment of breach mandated by Shirt, it becomes apparent that the RTA did not breach its duty of care. Though grave, the risk faced by Mr Dederer was of a very low probability, and a reasonable response to that risk did not demand the measures suggested by him. Those measures lacked evidential support; were of doubtful utility; would have caused significant expense in the case of the modifications to the handrail and fencing; and were in some cases contrary to express findings of fact. This was not a case in which the defendant had done nothing in response to a foreseeable risk. To the contrary, the RTA had erected signs warning of, and prohibiting, the very conduct engaged in by Mr Dederer. As this Court stated in Nagle v Rottnest Island Authority, a prohibition is "one form of notice – perhaps the most effective form of notice – warning of the danger of diving"97. In the circumstances, that was a reasonable response, and the law demands no more and no less. Conclusion The appeal should be allowed with costs. The RTA did not breach the duty of care it owed to Mr Dederer. Handley JA was correct to conclude that the risk of a diving accident had "no reasonable claim on [the RTA's] further Mr Dederer's application for special leave to cross-appeal The appeal having been decided in the RTA's favour, there is no occasion to address Mr Dederer's application for special leave to cross-appeal regarding contributory negligence. Likewise, each defendant having now succeeded on appeal, there is no occasion to address his request for a Sanderson costs order. Orders The appeal to this Court by the RTA should be allowed with costs against Mr Dederer, and his application for special leave to cross-appeal dismissed with costs. Orders 4, 5, 6 and 7 made by the Court of Appeal on 5 October 2006 should be set aside, and in their place it should be ordered that the appeal by the RTA to that Court be allowed; that so much of the orders made by Dunford J on 18 March 2005 as disposed of the action against the RTA be set aside, and in their place order that there be judgment for the RTA; and that Mr Dederer pay the costs of the RTA of the trial and the appeal to that Court. 97 (1993) 177 CLR 423 at 432. The suggestion to the contrary by the trial judge, supported by Mr Dederer in his Notice of Contention, should thus be rejected. 98 (2006) Aust Torts Reports ¶81-860 at 68,881-68,882. Kirby KIRBY J. At about noon on 31 December 1998, Mr Philip Dederer, then a boy aged fourteen and a half years, dived from a bridge linking the adjoining towns of Forster and Tuncurry in New South Wales. He plunged some eight or nine metres to a water channel below. Having regard to the receding tide, the channel was then but two metres deep. Mr Dederer was a tall boy of about 182 cm (nearly six feet). His head came into abrupt contact with the bottom of the channel. As a result, he was rendered a partial paraplegic. Mr Dederer sued the Roads and Traffic Authority of NSW ("the RTA") and the Great Lakes Shire Council ("the Council"), claiming damages for negligence. The damages to which Mr Dederer was entitled if he succeeded in his action were agreed between the parties before trial. In the event, he succeeded against both defendants in the Supreme Court of New South Wales before Dunford J ("the primary judge"). On appeal to the Court of Appeal of New South Wales, his judgment against the Council was unanimously set aside. That Court held that the Civil Liability Act 2002 (NSW) relieved the Council of legal responsibility for Mr Dederer's injuries99. However, a majority100 upheld Mr Dederer's entitlement in negligence. recover against Unanimously, the Court of Appeal set aside the primary judge's conclusion that contributory negligence should be assessed at 25% and increased that figure to 50%101. Moreover, in a supplementary decision on costs102, the Court of Appeal dismissed Mr Dederer's application for an order requiring the RTA to pay the Council's costs103. the RTA By special leave, the RTA appeals to this Court challenging the judgment which the Court of Appeal upheld against it. Mr Dederer seeks special leave to cross-appeal against its decisions on contributory negligence and costs. The Council, which was joined as a party in this Court, submitted to the Court's orders. As Tobias JA acknowledged at the end of his reasons in the Court of Appeal, the competing views expressed in that Court (and now urged upon this) "contain powerful arguments in favour and against the RTA's appeal being 99 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 100 Ipp and Tobias JJA; Handley JA dissenting. 101 (2006) Aust Torts Reports ¶81-860 at 68,874 [1], 68,915 [323], 68,916 [325]. 102 Great Lakes Shire Council v Dederer [No 2] [2006] NSWCA 336. 103 In accordance with the principle stated in the decision in Sanderson v Blyth Theatre Co [1903] 2 KB 533. Kirby upheld"104. However, alike with his Honour, I have reached the same conclusions on the issues of negligence and contributory negligence as Ipp JA expressed in the Court of Appeal. The concurrent findings of fact relating to the negligence decision should stand. Those conclusions of the Court of Appeal contain no error of fact or law to justify disturbance by this Court. The costs order sought by Mr Dederer in the Court of Appeal should, however, be made. Otherwise, all of the orders of the Court of Appeal should be confirmed. The facts The Forster-Tuncurry bridge: Mr Dederer and his family had a practice of spending summer holidays in the Tuncurry area. They regularly spent time swimming, water skiing and fishing in the estuary where Mr Dederer was later injured. He knew that the estuary was "very much given to tidal action"105. Over the years, Mr Dederer had frequently observed children and adults jumping and diving off the bridge at the Forster end near Forster beach. The area is well known as a tourist resort that attracts many families and visitors on vacation. Swimming and water sports constitute a major attraction of the district. The bridge from which Mr Dederer dived is 632 metres long106. Along its northern side is a concrete walkway for pedestrians, which is about 1.5 metres wide and is bounded by a railing on the outer edge. The bridge rests on reinforced concrete piles and 47 piers. It contains two elevated curves over channels respectively at the Forster and Tuncurry ends. These channels are used by "big trawler boats, fishing boats, ski boats and jet skis" passing up and down the estuary107. The channel on the Forster side of the estuary flows between piers 43 and 44. However, boats also used the water passage between piers 44 and 45, closer to the Forster shore. On the water side of the railing, a ledge protruded northwards near the point where Mr Dederer dived. According to the evidence, this ledge and the more elevated upper railing on the northern side of the bridge (together with a water pipe on the southern side) constituted popular platforms for children and young people to dive or jump from the bridge into the water below. As Ipp JA found108: 104 (2006) Aust Torts Reports ¶81-860 at 68,923 [375]. 105 (2006) Aust Torts Reports ¶81-860 at 68,884 [90]. 106 (2006) Aust Torts Reports ¶81-860 at 68,883 [79]. 107 (2006) Aust Torts Reports ¶81-860 at 68,883 [81]. 108 (2006) Aust Torts Reports ¶81-860 at 68,884 [85]. Kirby "Mr Dederer's dive was by no means an unusual phenomenon. For many years, almost from the time the bridge was constructed, young people – particularly over the summer months – frequently (often in groups) jumped and (less often) dived off the bridge into the estuary below. Apparently, until Mr Dederer was rendered paraplegic, no person had sustained injuries in these activities." Construction of the bridge was completed in 1959 by the then Department of Main Roads ("the DMR") of the State. The bridge was (and remains) part of New South Wales Main Road No 111. In September 1959, in accordance with the Main Roads Act 1924 (NSW), the Governor of the State directed the DMR to carry out maintenance of the bridge. This was done with the consent of the two Councils then concerned109. When the RTA was established, it became the statutory successor to the DMR110. The direction to maintain the bridge continues to apply to the RTA by virtue of later legislation111. By that legislation, the RTA is authorised to carry out road work, defined to include work upon any building or structure, including a bridge, constructed for the purpose of facilitating the use of the road as a road112. Work as a "roads authority" in relation to the bridge is shared with the Council; but work of a capital nature is the responsibility of the RTA, where necessary acting through the Council pursuant to capital grants provided to the Council by the RTA113. Mr Dederer gave evidence that, over the years of holidaying in the vicinity of Forster, he had frequently observed children and adults jumping and diving off the bridge, a sight that led him to assume that the water beneath "must be deep". He had been under the bridge from time to time in a boat. From that vantage point, he said, "the bridge looked fairly high but the water also looked very deep"114. 109 Pursuant to the Main Roads Act 1924 (NSW), s 25. See (2006) Aust Torts Reports 110 Transport Administration Act 1988 (NSW), Sched 7, Div 5. 111 Roads Act 1993 (NSW), ss 62, 63. See (2006) Aust Torts Reports ¶81-860 at 112 Roads Act 1993 (NSW), s 71. 113 (2006) Aust Torts Reports ¶81-860 at 68,874 [5]. 114 (2006) Aust Torts Reports ¶81-860 at 68,884-68,885 [92]. Kirby There was no suggestion that the bridge had been built other than in accordance with the standards applicable to such constructions in 1959. Two factors, however, were advanced to support the proposition that the RTA was aware of the particular dangers involved in the manner in which the bridge, as constructed, came to be used, especially by children and young people. The first was its knowledge of the practice of such people to use the bridge (and especially the ledge and the upper railing) as a departure point from which to enter the water below (to use a neutral expression). The second was its regular testing of the depth of the water channels below the bridge (and hence in the vicinity of the point of entry into the water from the bridge). Inferentially, this was done essentially for the purpose of ensuring the safety of the boating traffic beneath the bridge. In answers to interrogatories, the RTA conceded that from 1 December 1993 it was aware that the river bed levels under the bridge were continually altering and thereafter soundings were carried out at approximately three-monthly intervals115. that Children diving and jumping: Whereas the Council admitted, for the purposes of the proceedings, that it was "aware of the fact persons had jumped and/or dived from the Bridge" before Mr Dederer's injury, the RTA steadfastly maintained that, although it was aware of jumping from the bridge, it had no notice that diving was also occurring. This point of distinction featured prominently in the RTA's submissions to the Court of Appeal. It was accepted by Handley JA and became an important feature of his dissenting reasons116. The same distinction was also pressed upon this Court. However, for reasons similar to those advanced by Ipp JA117 and Tobias JA118 in the Court of Appeal, the differentiation between "jumping" and "diving" is not ultimately material to, and certainly not determinative of, the RTA's liability to Mr Dederer. Discovery prior to suit, and evidence otherwise given during the trial, established that for a long time, probably from soon after the bridge was opened in 1959, it came to be used by young people as a de facto point of entry into the water channels. Mr John Pevitt had been a ranger for the Council since 1988. He gave evidence that over the years he had seen many people jumping off the bridge, some of them doing somersaults, although he said that he had never seen anyone dive. Mr Pevitt stated that in about 1990, he had on three separate 115 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 116 (2006) Aust Torts Reports ¶81-860 at 68,875-68,876 [18]-[20]. 117 (2006) Aust Torts Reports ¶81-860 at 68,897-68,899 [185]-[204]. 118 (2006) Aust Torts Reports ¶81-860 at 68,916-68,918 [327]-[339]. Kirby occasions spoken to people preparing to jump from the bridge. He had endeavoured to dissuade them from doing so and had, on at least one occasion, drawn to their attention signs forbidding such activities. Each time he had been wearing his official Council uniform. However, they had ignored him and jumped all the same119. Once, Mr Pevitt tried to pursue the offenders, but they swam to a sandbank some 20 metres out, waved to him and refused to come ashore. As a result of these incidents, Mr Pevitt became convinced that the Council was unable to enforce the signed prohibition on entering the water from the bridge. He therefore endeavoured to secure the intervention of the police superintendent to ensure compliance with the signs. He later saw police speaking to people on the bridge. However, the people "just continued to jump". Even the use of the police patrol boat was unsuccessful in halting the practice. The signs referred to by Mr Pevitt were the subject of more detailed evidence by Mr Michael Keegan, an officer of the Council. Mr Keegan was an asset manager responsible for roads, bridges and stormwater infrastructure within the Council area. He indicated that since the earlier part of the 1990s, the RTA had provided funding to the Council under an annual "Block Grant Agreement" for activities that included the construction, maintenance and improvement of certain roads, including Main Road 111. At some point prior to Mr Dederer's dive, there had been put in place at each end of the bridge a large sign containing words to the effect of "fishing and climbing prohibited". In addition, Mr Keegan stated that he had been aware of "no diving" pictograms (featuring a representation of a diver with arms outstretched superimposed by a prohibitory bar) positioned on the bridge from at least the late 1980s. In 1995 the Council, using funds derived from the Block Grant Agreement, replaced these pictograms, although it seems that the new signs had themselves deteriorated. The signs were certainly in place on the day of Mr Dederer's dive from the bridge. He acknowledged that he had seen and understood the pictogram120. His candour in this respect was an important reason why the trial judge was generally willing to accept his evidence as truthful121. Mr Dederer had been prepared to make admissions against his own interest. Mr Keegan, like Mr Pevitt, was a resident of the Forster area. He too was well aware of the culture that had developed of children and young people 119 (2006) Aust Torts Reports ¶81-860 at 68,886 [110]. 120 (2006) Aust Torts Reports ¶81-860 at 68,882 [71]. 121 (2005) Aust Torts Reports ¶81-792 at 67,524 [18]. Kirby jumping from the bridge into the water. In fact, he knew that it had been happening for years. He gave evidence that he had "actually remonstrated with his own children for jumping from the bridge"122. He accepted that, from an engineering point of view, it would have been comparatively simple and cheap to install a triangular attachment to the top railing of the bridge such as existed on the railing of the balustrade on the approach to the bridge from the town of Forster. This could have been added to deter the use of the top railing as a launching platform for entry into the water. However, Mr Keegan said that no request had been made for such a modification. He had no budget from the Council for such work. And anyway, he regarded the bridge structure as the responsibility of the RTA123. Council's complaint to the RTA: The RTA, as a State-wide statutory authority, had no officer resident in the Forster-Tuncurry district. There were two officers identified as being conversant with signage issues within the area, but the RTA did not call them to give evidence. Instead, the RTA called Mr John Alexander, planning and analysis officer for the Hunter Region. He had only joined the RTA in 1998. It was by that stage clear that the RTA had been expressly put on notice of the dangerous practice of young people jumping from the bridge to the water below. On 28 January 1993, a committee of the Council resolved to express its concern to the RTA about this practice. On 11 February 1993, the Council sent a facsimile message to the works engineer of the RTA stating124: Problem currently being experienced with youths jumping into navigable channels from the higher parts of bridge. Danger to boating. Needs at least signs. Please advise." Mr Alexander stated that he was not aware of any response to the facsimile on the part of the RTA. In 1995, the Council replaced the pictogram signs on the bridge, as noted above. However, the new signs contained no information as to the special danger occasioned by the tidal character of the estuary and the shifting sands underneath the bridge. The RTA was, inferentially, aware of this danger by reason of its regular soundings of water depths. By 1995, alternative pictograms were 122 (2005) Aust Torts Reports ¶81-792 at 67,526 [34]. 123 (2005) Aust Torts Reports ¶81-792 at 67,526 [35]. 124 (2006) Aust Torts Reports ¶81-860 at 68,875 [12], 68,887 [113]. Kirby available to symbolise the dangers of shallow water. Moreover, pictograms could be accompanied by verbal warnings where these were specially called for. Indeed, the relevant Australian Standard stipulated that signage indicating the fact of "shallow water" should be used in conjunction with the "diving prohibited" pictogram where it posed a risk of serious injury to divers125. Changes to the bridge: In 1992, a new Austroads Standard had come into force. This incorporated the Austroads Bridge Design Code. Under the Code, vertical and not horizontal members were made the norm for new bridge railings126. Evidence was adduced for Mr Dederer that other bridges in the area such as that at Bulahdelah (and others further afield, including the Anzac Bridge in Sydney) featured vertical bars compliant with the new prescription. In the same year, wires attached to the northern bridge railings were found to be rusted. In mid-1993, the RTA released funds to allow the Council to replace the wires without any modification to the horizontal bars supporting them, even in the immediate area of the jumping platform. This was notwithstanding the introduction of the new Bridge Design Code, and the fact that the RTA had been put on express notice of the "problem" of people jumping from the bridge some three months earlier127. By 1995, the narrowness (and consequent dangerousness) of the pedestrian walkway along the northern side of the bridge had become a focus of local community concern. As part of its response, the RTA engaged a firm of design consultants. The firm considered a number of options for widening the walkway, each of which involved the erection of a new handrail, featuring vertical members, along the northern edge of the bridge. The cost of its preferred option was estimated at approximately $1 million. However, the estimated cost of the new handrail alone was a modest sum. By inference, modification of the handrail confined to the area known to be used for access to the water would have been significantly cheaper still. In the outcome, nothing was done about the structure of the walkway or the railing fence. Mr Alexander, although aware of the alarm expressed about the practice of youths jumping off the bridge in 1993, and the erection of (new) signs in 1995, was seemingly diverted into other concerns. When officers of the RTA inspected the bridge in April 1998, they too reported that people were still jumping off, and fishing from, the bridge notwithstanding the signs. By 125 See (2006) Aust Torts Reports ¶81-860 at 68,904 [244]-[245]. 126 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. 127 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. Kirby inference, the RTA working parties that engaged in maintenance of the bridge over the years128 would also have observed the practice. Although no specific written reports had been made to it of people diving from the bridge, the RTA was certainly aware of the ongoing problem (contrary to the law)129 of use of the bridge contrary to the pictogram signs it had paid for as the "least" response to the Council committee's expression of concern. The primary judge found that "the RTA has no policy or programme for dealing with this type of issue, and there is no funding allocated for such an issue"130. Even six years after the injury to Mr Dederer, an internal memo of the RTA, in relation to the "latest proposal", stated131: "It is our intention to remove the handrail and to construct with a new handrail. The new handrail will have a top and bottom RHS 100 x 50 x 5. The balustrades will be made from flat bar and will be centred at least 154 mm. The reason RTA have adopted a new design is to help prevent people jumping off the bridge. The existing handrail can easily be climbed over due to the middle rail. The proposed fence is more like a pool fence and is harder to climb over. RTA have taken this course of action as the authority is being sued by a man who jumped off the bridge and broke his neck when his head hit a sand bar". The fateful dive: Mr Dederer's fateful dive was not the first time he had entered the water from the bridge. On 30 December 1998, the day before his injury, he had spent time with his friend Mr Grant Cunial and others swimming at Forster beach adjacent to the Forster end of the bridge. On two occasions that day, he had jumped into the estuary. He first entered the water from the ledge at the base of the bridge platform. He then jumped from the flat top of the bridge handrail132, which he accessed by using the two horizontal railings in the fence below the upper railing. Effectively, these provided helpful steps to the point of departure from the bridge. On both occasions, Mr Dederer's body became totally submerged in the water below. His feet did not touch the bottom. He gave evidence that he saw other people jumping and diving from the bridge that day, including, he believed, an adult who dived. Nothing untoward happened to any of them. 128 (2006) Aust Torts Reports ¶81-860 at 68,888 [119] per Ipp JA. 129 Roads (General) Regulation 1994 (NSW), reg 17. 130 (2005) Aust Torts Reports ¶81-792 at 67,527 [39]. 131 (2005) Aust Torts Reports ¶81-792 at 67,527 [40]. 132 (2005) Aust Torts Reports ¶81-792 at 67,523 [10]. Kirby On the last day of 1998, Mr Dederer returned to the bridge with Mr Cunial. They crossed the bridge from the Forster side with the initial intention of jumping from the bridge later in the day. However, spontaneously, Mr Dederer made the easy climb again to the flat top of the rail, assisted by an adjacent light pole. He had previously had experience in elevated diving in a swimming pool. Initially, on this day, he had intended simply to jump from the bridge. However, as he described it133: "At that time, I was a cocky 14 year old. I was not going to dive but jump, but when I got up there I changed my mind." Mr Dederer said that he listened for any boats that might be approaching under the bridge. He stood on the platform for perhaps two or three minutes. He then proceeded into the water "almost straight, but at an angle". He said that this was similar to the angle at which he had seen other people dive from the bridge. He did not remember striking the water or hitting the bottom. However, he immediately became aware that he had lost feeling in the lower part of his body134. He was assisted from the water by Mr Cunial, who confirmed the description of the way the injury had occurred. Mr Cunial also confirmed that he "had seen persons (ranging from about 10 to 30 years old) jumping off the bridge at the channel near the Forster shore including diving, doing back flips, somersaults, 'peg-legs' and bombs"135. Mr Cunial had also been going to the area for holidays for years, in his case since 1992. The emerging claims: In presenting his claim against the RTA, a number of suggested contentions of negligence, raised at earlier stages for Mr Dederer, fell away. Thus, no claim was advanced on the basis that the RTA, as successor to the DMR, had been negligent in the initial design of the bridge. Nor did Mr Dederer press a claim that the RTA had failed to ensure that safety on the bridge was enforced by police or by its own guards. Nor did he press a suggestion that a cage of some kind or some other impediment should have been erected to break the culture of young people entering the water from the bridge. Ultimately, his case asserted that the RTA had opted for the most inexpensive, but ineffective, gesture of installing verbal and pictorial signs which were defective for failure to convey the particular nature of the risk to which persons like himself were exposed. Instead of this minimal approach, of whose ineffectiveness the RTA was on notice, Mr Dederer claimed that it should have undertaken (but had failed to undertake) three initiatives: 133 (2005) Aust Torts Reports ¶81-792 at 67,523 [12]. 134 (2005) Aust Torts Reports ¶81-792 at 67,523 [14]. 135 (2005) Aust Torts Reports ¶81-792 at 67,524 [20]. Kirby In addition to the existing pictogram, it should have provided further information, pictorial or verbal, concerning the reasons for the prohibition on diving, in particular that the shifting sands beneath the bridge, of which the RTA was aware, made entering the water from the bridge dangerous, and diving especially so; It should have modified the flat level railing that provided a virtual diving platform some 9 or 10 metres above the water level (subject to tidal variation). The flat railing plane should have been overlaid or replaced with a triangular surface to discourage use of the upper railing as a platform; and It should have removed, at least in the section of the bridge known to be used for entering the water, the horizontal railings which, adjacent to the light pole, afforded a very easy access to the upper railing. Vertical members should have been substituted so as to mimic some of the features of standard Australian swimming pool fencing. The need for such modification had been specifically and repeatedly brought to the notice of the RTA. The primary The conclusions below: judge essentially upheld Mr Dederer's submission that the response of the RTA to a known danger to persons such as himself had been ineffective and inadequate. He concluded that, in combination, the initiatives proposed by Mr Dederer would have prevented him from diving as he did. With some variations in respect of the language of the signage required, the majority in the Court of Appeal found no error in the primary judge's approach in this respect and affirmed it, upholding the consequential judgment against the RTA in Mr Dederer's favour. In this Court, Mr Dederer did not contest the unanimous conclusion of the Court of Appeal overturning his judgment at trial against the Council. The parties did not suggest that any statutory provisions apart from those referred to by the Court of Appeal affected the resolution of the issues before this Court. The RTA accepted that it owed a duty of care to Mr Dederer in the circumstances in which he was injured. However, it denied that it had breached that duty. Moreover, it submitted that any breach found had not caused, or materially contributed to, the injury that occurred. The issues In consequence of the foregoing description of the case, three issues arise in this Court: Breach of duty issue: The first is whether the Court of Appeal erred in failing to reverse the conclusion of the primary judge that Mr Dederer had Kirby established negligence on the part of the RTA in a way causative of his injury. As explained, this issue raises contested factual questions put in issue by each of the parties. Thus, the RTA contested the conclusion of the primary judge and the majority of the Court of Appeal that it had been aware of the risks not only of jumping but also of diving from the bridge over many years before Mr Dederer's injury. Mr Dederer sought to challenge the conclusion of the majority in the Court of Appeal that, even without a "no diving" pictogram, it should have been obvious to him that a dive was very dangerous and that the "no diving" pictogram, displayed on the bridge, impliedly warned against that danger. Apart from disputing such factual findings (and others), the RTA complained that the primary judge and the majority in the Court of Appeal had applied an incorrect legal test in concluding the contested issues of negligence in favour of Mr Dederer. In particular, the RTA argued that the majority judges had determined the issues of negligence from a standpoint of hindsight rather than foresight, ie as the facts would have been perceived before Mr Dederer's injury; Contributory negligence issue: In the event that the first issue is resolved in favour of Mr Dederer, the second issue is whether he should be granted special leave to challenge the Court of Appeal's reassessment of his contributory negligence at 50%. He submitted that the assessment of the primary judge of 25% should be restored, having regard especially to his age and inexperience and the widespread practice of jumping and diving that he had witnessed before he was injured. Special costs order issue: In the event that the first issue is resolved in favour of Mr Dederer, the third issue is whether he should be granted special leave to cross-appeal against the refusal of a special costs order obliging the RTA, as the defendant liable to him, to pay the costs of the Council, whose joinder was reasonable in the circumstances of the case. Negligence: the factual findings The RTA knew of diving: In its pleadings, the RTA made no admission that it knew, before Mr Dederer's injury, that children and other young persons habitually dived off the bridge. In argument in this Court, it conceded that the evidence sustained the conclusion below that jumping and diving had been occurring, but it maintained its claim that it was unaware of the diving. It is true that the documentary evidence produced by the RTA (and the Council) referred only to persons "jumping" from the bridge. Mr Keegan, who knew that children Kirby jumped from the bridge, was not aware of diving136. Mr Pevitt had never seen anyone dive137. The primary judge expressly found that Mr Keegan had been "aware for years that young persons have been in the habit of jumping and diving off the bridge and asserted it was common knowledge in the community". This does appear to be a slip in fact-finding. However, it was not one meriting the importance that Handley JA attributed to it. The real question is not whether a particular officer of the RTA or the Council was aware that children and young people were entering the water from the bridge. It is whether an inference was available to the courts below that the RTA was on notice that this was a risk inherent in the use of the bridge, and that such risk extended to diving as well as jumping. On that issue, as the majority judges in the Court of Appeal pointed out, there was ample evidence to sustain the primary judge's conclusion that the RTA was on notice both of diving and of the risk of diving. The evidence included: The fact that the RTA was aware that "no diving" pictogram signs had been erected on the bridge in 1995; The fact that, with exuberant children incontestably known by the RTA to be "jumping" from the bridge, the risk was present that jumping manoeuvres could easily turn into diving; The proof of regular visits to the bridge and its environs by officers of the RTA, including to perform routine maintenance on the bridge. It could be inferred that such visits would have alerted the RTA to the presence of children jumping and diving from the northern side of the bridge; The actual awareness of the RTA (from the regular water depth assessments it conducted) of the special risks involved in any form of descent into the water from the bridge, taking into account the manifest failure of the installed signs to suppress the practice, and the specific alert which the RTA had of the desirability of replacing the railings that, in providing a kind of diving or jumping platform, comprised an allurement to children and young people; and 136 (2006) Aust Torts Reports ¶81-860 at 68,875 [18], referring to (2005) Aust Torts Reports ¶81-792 at 67,526 [34]. 137 (2006) Aust Torts Reports ¶81-860 at 68,876 [19]. Kirby The fact that the RTA omitted to call in its case the two officers (Messrs Saxby and Selway) said by its witness Mr Alexander to be much more familiar than he was with signage and other measures appropriate to the bridge in the circumstances. On this issue, in my opinion, Tobias JA was correct to say138: "[G]iven the knowledge of Mr Alexander and, therefore, the RTA that for children to jump from the bridge was dangerous and that diving from the bridge was a fortiori dangerous … it is but a small step to conclude that, with the knowledge that children continued to dive from the bridge in circumstances where the water below (depending upon tidal influences) was of variable depth and at times quite shallow, it would be reasonably foreseeable that at low tide in particular, when the water was shallow on the one hand and the height between the railing and the surface of the water is some 9-10 metres on the other, sooner or later a child would dive in a manner resulting in serious injuries. As I have indicated, I would regard such a conclusion as a matter of common sense." The signage was incomplete: The RTA also complained about what it suggested was the invention of the signage that it should have put in place by the primary judge and the majority of the Court of Appeal. With Handley JA139, the RTA asked, in effect: if Mr Dederer read and understood the two signs (verbal and pictorial) put in place to prevent the type of action that he then took, how could it reasonably be inferred that any other or different sign or notice would have restrained him from diving from the bridge to the water below? The specific complaint of Mr Dederer was that the pictogram sign actually used by the RTA did not (as it might have done) signal the specific danger of shallow water arising from tides and sand movements. The expert called in Mr Dederer's case, Mr Robert Fogg, acknowledged that either the "no diving" or "shallow water" pictogram would have been appropriate, whilst expressing a preference for the latter. Inferentially, this preference was attributable to the additional relevant information which a warning about shallow water gave to those potentially inclined to use the bridge for the purpose of entering the water. One possible interpretation of the prohibition of climbing on, and diving from, the bridge was that, like the prohibition of fishing, it was directed (as the facsimile message that the Council sent to the RTA itself suggested) to protecting 138 (2006) Aust Torts Reports ¶81-860 at 68,918 [340]. See also at 68,900 [212]-[214] per Ipp JA. 139 (2006) Aust Torts Reports ¶81-860 at 68,879 [43]. Kirby boats using the channels beneath. Neither the verbal sign nor the pictogram communicated the essential fact of greatest importance for self-protection to those tempted to jump or dive. Mr Dederer answered questions on this issue: "Q: Now you'd agree wouldn't you Mr Dederer, if a sign told you that you were not permitted to dive, another sign which told you that warned you against diving would be of no purpose? No I disagree. Q: Well once you're told not to dive that's the end of it isn't it? A: Well, 14 year olds you're always curious. If you [see] one sign that says yeah you shouldn't and then you see another sign that shows you the danger why you shouldn't, the one that shows you the danger is most likely going to affect you the most. I see, you're saying that now with the benefit of hindsight, aren't you? Yes. Is what you're saying that you agree with me that this sign would tell you that if you dive from this location there was a risk that before your full body entered the water half of it would enter and your head would hit the bottom? I don't believe I would have looked at it in that degree. I believe I would have looked at it and seen that it was just shallow water. I don't think I would've started looking at where the water is at the person on the sign … I would have just looked at it as in it's shallow water, I wouldn't have judged saying alright well it must be just half a body length. This sign [the 'shallow water' pictogram] would've meant nothing to you, wouldn't you agree at this location? It would've told me danger yes." At no point was it put to Mr Dederer that the evidence that he had given in his own case in this respect was false. In that evidence he had also said: Kirby "Q: … I'll just have you look at this [the 'shallow water' pictogram]. Are you able to tell us what message that sign would send to you? That's shallow water and if you dive you will hit bottom. And if such a sign had been erected on the bridge on the day that you were there, the day of your accident, what would your attitude have been to diving from the bridge? I wouldn't have dived because I would have – it would show me that it was shallow water." Evidence of such a kind is not necessarily decisive. It involves a response that, on one view, a person in the position of Mr Dederer could be expected to give. However, it assumes significance in the present case because, for the reasons which he gave, the primary judge was prepared to accept Mr Dederer as an honest witness, trying to give truthful answers to the court. Clearly, it was open to the primary judge to accept or reject Mr Dederer's evidence in this respect. He accepted it. Once that occurred, the RTA faced serious difficulties in overcoming that finding and in obtaining from an appellate court, which never saw or heard Mr Dederer, the opposite conclusion. Further, in the light of the demonstrated fact that the form of the warning sign paid for by the RTA was certainly in issue at the trial, and given further the expert evidence concerning the various pictograms that might have been used, together or in combination and with or without verbal supplementation, there is no substance in the RTA's complaint that successively the primary judge and the majority in the Court of Appeal invented forms of signage which had not been properly litigated at trial. It was Mr Dederer who complained that the RTA's pictogram did not convey to him the critical information specifically known to the RTA about the shallowness and variability of the water levels below the bridge, especially when the tide was receding or low. This point having been made in Mr Dederer's case, it was clearly open to the primary judge, and then to the Court of Appeal, to consider amongst the signs on offer, or by analogy to them, the type of sign that could have conveyed, in pictures and/or words, the critical information concerning the specific danger that diving from the bridge entailed. The RTA's failure to respond: It was also open to the primary judge and the majority in the Court of Appeal to conclude, on the evidence, that the "least" measure (which is all that the RTA took, despite its knowledge of the constant and frequent use of the bridge as a platform for jumping) was proving ineffective to prevent such use because the use clearly continued. To the extent that the RTA's complaint about the sign which the primary judge proposed was that it was not one of the standard pictograms nor one supported by expert evidence, this criticism was met by the sign ultimately preferred by the majority in the Kirby Court of Appeal. This was a pictogram with the symbol for prohibited diving and the addition of the verbal warning "shallow water". As Ipp JA said140: "[This sign] would provide an express reason for the prohibition and indicate the dangers of diving from the bridge. I would observe that the words 'shifting sands', if added to the words 'shallow water' would make the nature of the danger even clearer." In seeking to modify behaviour in the face of a known danger, interdiction, on its own, is likely to have less practical utility and effect than when combined with relevant information explaining its purpose and seriousness. Because Mr Dederer did not challenge in this Court the unanimous conclusion of the Court of Appeal adverse to his claim against the Council, the particular factual findings which he sought to contest by his notice of contention do not need to be decided as relevant to his claim to recover for the negligence of the RTA. Those findings are, however, relevant to his challenge to the reassessment of contributory negligence. They will be dealt with in that context. Conclusion: no factual errors: The result is that the complaints of the RTA concerning factual findings are not sustained. No error is demonstrated to warrant the intervention of this Court or the correction of the reasons and orders of the Court of Appeal. Negligence: breach of the duty of care The RTA's case on breach: In resisting liability, the RTA substantially endorsed the reasoning of Handley JA in the Court of Appeal. On the issue of breach, it pointed out that it had installed a sign that Mr Dederer's expert regarded as appropriate (although not preferable); the installation of a cage was not feasible; there had been no serious accident in 39 years; its chief concern was pedestrian safety on the bridge; control of youthful jumping had proved impossible and some degree of individual autonomy and responsibility was to be expected; Mr Dederer was generally aware of the character of the estuary; and, in any case, the RTA had many State-wide responsibilities. On the basis of such arguments, the RTA contended that the provision of the notices was a reasonable and proper discharge of its duty of care to a person such as Mr Dederer. The principle in Shirt: It was common ground between the parties that the critical legal analysis to be applied to the circumstances was that stated by this 140 (2006) Aust Torts Reports ¶81-860 at 68,904 [246]. Kirby Court in Wyong Shire Council v Shirt141. The principles expressed by Mason J in that decision142 have been applied in countless cases in this and other Australian courts since they were expressed. The attempt in New South Wales v Fahy143 to have this Court reconsider its authority in Shirt was rejected. An important aspect of the Court's reasoning in Fahy, both amongst those who were part of the majority and those who dissented, was an emphasis on the nuanced character of the approach explained in Shirt; the fact that the formula there stated is not mathematical in its application; and the fact that it permits a decision-maker, considering what a reasonable person would do by way of response to a foreseeable risk, to reach a conclusion that, in the particular circumstances of the case, it might indeed be that "nothing" or nothing more is required144. Like many decisions before it, Fahy emphasised that the formula in Shirt "does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury"145. With these freshly restated principles in mind, it is relevant once again to remember the passage in Shirt explaining how a problem such as that now before this Court should be approached146: "[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that 141 (1980) 146 CLR 40. 142 (1980) 146 CLR 40 at 47-48. 143 (2007) 81 ALJR 1021 at 1026 [7], 1038 [78], 1046-1049 [119]-[133], 1065 [241]; cf at 1064 [225]. 144 (2007) 81 ALJR 1021 at 1034-1035 [57]-[58], 1046 [123]; cf Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at 246-247 [36]. 145 (2007) 81 ALJR 1021 at 1034 [57]. 146 (1980) 146 CLR 40 at 47-48. Kirby the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Correct application of Shirt: The Court of Appeal majority considered the challenge to the primary judge's decision in favour of Mr Dederer, giving proper attention to the foregoing instruction. As well, the majority gave due consideration to later decisions of this Court concerning warning signs in the context of diving injuries147. There is no indication that the majority overlooked the holdings of this Court on the approach to be taken to problems of the present kind. To the contrary, the relevant authorities were cited and accurately applied. Nevertheless, as Gleeson CJ pointed out in Fahy, citing what Alderson B said in Blyth v Birmingham Waterworks Co148 as long ago as 1856149: "'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' Reasonableness is the touchstone, and considerations of foreseeability and risk avoidance are evaluated in that context." There is no indication in the majority reasons in the Court of Appeal that Ipp JA or Tobias JA overlooked any of the strictures against mechanistic reasoning or hindsight analysis contained in Fahy and in the other cases to which reference is made in their Honours' reasons. They could scarcely have fallen into such a basic error of reasoning in the light of the strongly expressed dissenting reasons of Handley JA. There being no misapprehension or oversight of the applicable law, the question is whether the majority in the Court of Appeal nevertheless reached a conclusion on the breach of duty issue that indicates error and warrants the intervention of this Court. Having identified the ambit of the RTA's duty of care150 and affirmed the primary judge's conclusion that the RTA knew of the continuing practice of 147 Nagle v Rottnest Island Authority (1993) 177 CLR 423; Vairy v Wyong Shire Council (2005) 223 CLR 422. See (2006) Aust Torts Reports 81-860 at 68,894 148 (1856) 11 Ex 781 at 784 [156 ER 1047 at 1049]. 149 (2007) 81 ALJR 1021 at 1026 [7]. 150 (2006) Aust Torts Reports ¶81-860 at 68,896 [183]-[184]. Kirby children and young people jumping or diving off the bridge (a finding sustained for the reasons already stated)151, Ipp JA analysed, prospectively, what, armed with such knowledge, the RTA ought reasonably to have done. Into the equation, Ipp JA added the knowledge that the RTA had gathered over the years about the sand movements and variable depth of the river bed beneath the bridge152. He also considered its inferred knowledge of the changeable drop from the bridge to both the water surface and the river bed, dependent upon tides153. Further, he noted that "[t]he RTA knew or ought to have known that particularly in the summer months, jumping and diving was occurring with startling frequency, involving at times, groups of young people every five or ten minutes, with a group capable of comprising 10 to 15 children aged 10 years to 16 years"154. The signs were useless: Added to this factual matrix was the realisation, which Ipp JA reasonably attributed to the RTA, that the prohibitory signs that were in place "were, in a word, useless"155. He concluded that, having been alerted to the dangers of children jumping from the bridge structure, the RTA should "have ascertained whether the pictograph signs were proving effective. On that basis, the RTA ought to have known that they were not"156. It is against this backdrop that Ipp JA addressed the reasonableness of the RTA's response to the clearly established risk to persons such as Mr Dederer157. Correctly, his Honour rejected the suggestion that the RTA was excused from action simply because no significant injury had previously occurred158. Handley JA's suggestion that the absence of prior injuries might demonstrate the effectiveness of the existing signs159 was contradicted by the obvious fact that the 151 (2006) Aust Torts Reports ¶81-860 at 68,897-68,899 [185]-[204]. 152 (2006) Aust Torts Reports ¶81-860 at 68,899 [205]-[210]. 153 (2006) Aust Torts Reports ¶81-860 at 68,900 [211]. 154 (2006) Aust Torts Reports ¶81-860 at 68,900 [214]. 155 (2006) Aust Torts Reports ¶81-860 at 68,900 [219]. 156 (2006) Aust Torts Reports ¶81-860 at 68,900 [220] citing Brodie v Singleton Shire Council (2001) 206 CLR 512 at 585 [180]. 157 (2006) Aust Torts Reports ¶81-860 at 68,900 [221]. 158 (2006) Aust Torts Reports ¶81-860 at 68,902 [231]. 159 (2006) Aust Torts Reports ¶81-860 at 68,878 [35]-[36]. Kirby signs were repeatedly and frequently ignored by a class of persons such as Mr Dederer, children and youths, who were amongst those most at risk. The foregoing made it important that the RTA should respond to its demonstrated knowledge of the sources of the risk of which it was aware by taking accident prevention measures beyond mere reliance on signs, which can never be an "automatic, absolute and permanent panacea" for that purpose160. Both Ipp JA (with whom Tobias JA agreed) and the primary judge concluded that reasonable steps involved the installation of a sign with a combination of symbols and words161. The RTA's reliance alone on a sign of unexplained prohibition was inadequate. Although he rejected the primary judge's conclusion that the pictogram should have addressed the specific problem and contained the warning "Danger, shifting sands, variable depth" (which was described in argument as a product of "judicial engineering"), Ipp JA upheld Mr Dederer's contention in the Court of Appeal that a specific warning of "shallow water" should have been added to the pictogram to make "the nature of the danger even clearer"162. The use of such a verbal warning together with a symbol – especially if placed near where children and young people were frequently seen to be entering the water from the bridge – would have been a reasonable response, in terms of signage. Questions of resources would scarcely come into such a modification. What was needed was something more than the "least" response to the problem which the Council committee drew to the notice of the RTA. This was not a case (as often occurs) where there was no warning or complaint about the risk that eventuated. Here, warnings and expressions of concern about the activities of children on the bridge were specifically drawn to the notice of the RTA. It was aware of them. What was needed was that someone in the RTA should consider the problem and do something effective about it. Ipp JA dealt in a convincing way with the lack of cogency of the excuse about the "availability of resources", with the justiciability of Mr Dederer's contentions and with the RTA's passing concentration on the need to upgrade the 160 (2006) Aust Torts Reports ¶81-860 at 68,903 [233] per Ipp JA, citing Waverley Council v Lodge (2001) 117 LGERA 447 at 459 [35] per Bryson J (Meagher and 161 (2006) Aust Torts Reports ¶81-860 at 68,903-68,905 [236]-[251]; (2005) Aust Torts Reports ¶81-792 at 67,530-67,531 [69]-[70]. 162 (2006) Aust Torts Reports ¶81-860 at 68,904 [246]. Kirby walkway and the suggested lack of resources available to it for that purpose163. The fact that there was community concern over other aspects of the safety of the bridge did not relieve the RTA of its obligation to address reasonably the notice it had received about the particular risks to young persons jumping from its structure. More than signs needed: Given the fact that the existing signs were ineffective to deter or prevent children diving from the bridge, Ipp JA supported, apart from improved signage, the two further initiatives which the primary judge had held that the RTA should have taken. In doing so, he gave effect to the observation of the Privy Council in Southern Portland Cement Ltd v Cooper that164: "[S]o far as their Lordships are aware no difficulty was ever felt in holding that, in a case where any warning would have been ineffective, the occupier was bound to do a good deal more than merely give warning." First, Ipp JA favoured the modification of the flat top of the upper railing of the bridge, which afforded an allurement to children tempted to use that railing as a platform for entry into the water165. The installation of a triangular surface would have been inexpensive. A similar surface is shown in a photograph in evidence of the balustrade leading to the bridge. Ipp JA acknowledged that such a modification would not, of itself, prevent access to the water from the bridge166. However, for a relatively insignificant amount of money, it would have diminished or removed what, unaltered, both facilitated and encouraged the kind of activities drawn to the RTA's attention in February 1993. Secondly, Ipp JA accepted the opinion of the primary judge that the horizontal railings should have been removed and replaced with vertical pool- type railings167. At the least, this should have been done in the section of the bridge which was obviously presenting an allurement to the children and young 163 (2006) Aust Torts Reports ¶81-860 at 68,907 [266], 68,907-68,910 [268]-[279], 164 (1973) 129 CLR 295 at 308 per Lord Reid; [1974] AC 623 at 643. 165 See Munnings v Hydro-Electric Commission (1971) 125 CLR 1 at 35 per 166 (2006) Aust Torts Reports ¶81-860 at 68,905 [257]. 167 (2006) Aust Torts Reports ¶81-860 at 68,906 [260]-[261]. Kirby people who were using it as a platform for jumping and diving. Specifically, Ipp JA endorsed the comment of the primary judge168: "Pool fences have been around for many years and there is no reason why such a structure could not have been installed earlier." Three developments, noted in the evidence, lend strength to Ipp JA's conclusion. The first was the introduction of the new Bridge Design Code in 1992, of which the RTA was aware. The second was the opportunity provided in 1993 by the replacement of wire in the area of the horizontal railings which afforded such ease of access to the flat upper railing. The third was the growing familiarity of the Australian community with the special need to protect young people in the vicinity of water. If it was good enough to impose such an obligation on domestic pool owners, in all of their variety and with their many different means, it was not unreasonable, at least from the 1990s, to expect a similar sense of responsibility on the part of a public authority which had been alerted to the special dangers and risks to young persons in the use of a structure for which it was responsible. Clearly Ipp JA and Tobias JA so concluded. That conclusion was open to them. Conclusion: no error on breach: It follows that the majority in the Court of Appeal did not err in holding that the RTA did not apply its mind to the question of whether it should remedy the dangers which its bridge presented to children and young persons who were attracted to use it as a platform for jumping and diving. The RTA did not give any, or any reasonable, consideration to the fact that because of its position, construction and configuration in relation to the water below, the bridge presented special dangers, particularly to children and young persons169. With respect, I do not agree that an allurement to children is a defendant's responsibility only if that party encourages the alluring feature170. This is not how allurement has been dealt with in the past. Allurements often arise in run-down, abandoned or disused premises. The question is not one of encouragement. It is one of foresight and responsibility. This was not a case, as the RTA suggested, of wisdom after the event. Instead, it was well open to the majority in the Court of Appeal to conclude, with the primary judge, that it was an instance of an "accident waiting to happen"171. 168 (2006) Aust Torts Reports ¶81-860 at 68,906 [260], quoting (2005) Aust Torts Reports ¶81-792 at 67,531 [73]. 169 (2006) Aust Torts Reports ¶81-860 at 68,913 [300]. 170 cf reasons of Gummow J at [64]. 171 (2006) Aust Torts Reports ¶81-860 at 68,912 [293], 68,919 [342]. Kirby Moreover, the RTA was put on specific notice of the accident risk, if in no other way, by reason of the communication to it on behalf of the Council committee in February 1993. The approach of the majority of the Court of Appeal on the issue of breach of duty disclosed no error of legal analysis or of factual conclusion. The opinion of the majority that the RTA breached its duty of care to Mr Dederer should be affirmed. Negligence: causation The RTA's case on causation: This leaves the alternative basis upon which the RTA challenged the conclusion of the majority of the Court of Appeal. Essentially, the RTA supported, in this respect also, the dissenting reasons of Handley JA. Those reasons sought to take apart the elements of the preventive measures urged for Mr Dederer and to suggest that, even if they had been taken, they would not have avoided the injury that occurred172. So far as the signage was concerned, the RTA submitted that a youth of Mr Dederer's age, who would "deliberately" ignore the sign which he had read and understood as prohibiting diving, would not be likely to obey a different sign, whether it contained words or symbols or a combination of both. Similarly, the RTA submitted that the suggested triangular section on the top of the handrail would not ultimately have prevented Mr Dederer from standing there. It might even have added a frisson of challenge. The vertical railings would likewise not have barred physical access to the bridge. In the case of a tall youth, such as Mr Dederer, the momentary difficulty of securing access to a chosen diving platform on the bridge would readily have been overcome. These arguments convinced Handley JA. However, the majority reasons, once again, are to be preferred. The primary judge's conclusions: As Ipp JA correctly pointed out, conclusions on questions of causation demand the drawing of sensible inferences, including on the basis of hypothetical facts that, by definition, have not occurred. Responding to such questions depends very much on the assessment of the character and personality of the plaintiff and what he or she would have done had other and different precautions been taken by the defendant173. Trial judges' assessments of such matters are conventionally given considerable respect by appellate courts, called upon to reconsider conclusions reached at trial on nothing 172 (2006) Aust Torts Reports ¶81-860 at 68,880 [50]. 173 Rosenberg v Percival (2001) 205 CLR 434 at 447 [36]. Kirby more than a transcript and their own assessment of how individuals, whom they have never seen or heard, would react to changed circumstances174. These observations do not deny the right and duty of an appellate court to discharge its own functions, as statute envisages. Nor do they revive an exaggerated deference to trial assessments which reasonably appear to defy appellate commonsense. However, for reasons given, the primary judge formed a good opinion of Mr Dederer's truthfulness as a witness. It was open to him, on the basis of Mr Dederer's oral evidence concerning the effect of a more informative sign alone, to conclude that causation was established. That conclusion is reinforced by the fact that the RTA failed, over an extended period and although on notice, to take the other measures that the primary judge and the Court of Appeal concluded it should have. In these circumstances, no error is demonstrated in the conclusion of Ipp JA (Tobias JA concurring) that175: "Taking into account the fact that Mr Dederer dived after changing his mind, and, moreover, on impulse, I think that, had the RTA altered the signs as I have proposed, modified the top railing, and installed pool-type fencing, it is probable that Mr Dederer would not have dived as he did and he would not have sustained his injuries." The reference in this passage to the momentary indecision and to the last- minute initiative of Mr Dederer to dive, rather than jump, is an answer to Handley JA's statement that the injury was the result of a "deliberate" act on Mr Dederer's part176. That characterisation of Mr Dederer's actions seriously overstates the will that is to be attributed to him in the circumstances disclosed by the uncontested evidence. Further, as Tobias JA pointed out in his reasons, in matters of causation "we are dealing with probabilities and not certainties" and "[t]here was no suggestion that [Mr Dederer] was of reckless or unthinking disposition"177. To picture Mr Dederer as a person blindly fixed upon a course of defying the signs on the bridge is not fairly to reflect his conduct which, according to the evidence, was not so different from that of many other young people, acting with holiday enthusiasm. The RTA's response to the risk that such conduct presented was minimal, ineffective and apparently lacking in proper consideration. More was required of a public authority. In particular this was so because the RTA had 174 Fox v Percy (2003) 214 CLR 118 at 127 [26]. 175 (2006) Aust Torts Reports ¶81-860 at 68,915 [315]. 176 (2006) Aust Torts Reports ¶81-860 at 68,879 [43]. 177 (2006) Aust Torts Reports ¶81-860 at 68,923 [370], [372]. Kirby been specifically warned of substantial and ongoing danger to many children in a popular holiday resort in connection with a bridge under its control. Conclusion: no error on causation: It follows that I cannot, with respect, agree with the opinion178 that the preventive measures suggested for Mr Dederer would not have been effective. That opinion is contrary to findings of the primary judge, who had advantages on this issue that this Court lacks. It disregards Mr Dederer's own evidence without warrant to do so. And it effectively condones the attitude of neglect and inactivity by the RTA which was inconsistent with the principles and purposes of the law of negligence. In the result, the conclusion of the majority of the Court of Appeal on the issue of causation is unattended by error. It too should be affirmed. Accordingly, Mr Dederer's judgment against the RTA should stand. Negligence: reversing concurrent findings of fact I accept that, in a final court such as this, no legal principle bars the court from reversing a conclusion based on concurrent findings of fact made by the primary judge and confirmed by the intermediate court. Whatever might have been the opinion of the Privy Council or the earlier practice of this Court, it cannot prevail against the statutory and constitutional functions that we possess179. To this extent I agree in the approach of Heydon J as to the jurisdiction and power of this Court to reach, and give effect to, contrary factual conclusions180. No principle of law or judicial practice stands in the way181. Nevertheless, more than a passing nod is required to a sense of "trepidation" against interfering in concurrent findings of fact182. Reasons in this Court in recent times have repeatedly explained why this is so183. It is not 178 Reasons of Gummow J at [75]-[77], reasons of Callinan J at [275]-[276]. 179 Warren v Coombes (1979) 142 CLR 531 at 551 explained in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 495-496 [112]-[114]. 180 See reasons of Heydon J at [293]. 181 cf reasons of Gleeson CJ at [5] and see Louth v Diprose (1992) 175 CLR 621 at 182 Reasons of Heydon J at [287]. 183 cf Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 274 [58]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 634 [262]; Aktiebolaget Hässle v Alphapharm Pty Ltd (2002) 212 CLR 411 at 447-448 [95]; (Footnote continues on next page) Kirby ordinarily the function of this Court to perform the tasks of fact-finding and factual review. The Court lacks advantages that other courts possess in this respect. Under the Constitution, the "appeal" we hear has been held to be a strict "appeal", concerned with error. It is not an appeal by way of rehearing, still less a trial184. These considerations and others as to the appropriate and seemly deployment of the time and functions of a final court combine to make such a court properly reluctant to condescend to substitute different conclusions on factual questions. Apart from anything else, such factual decisions cannot be further appealed if errors of fact or appreciation are revealed for the first time in the final court's opinion. It is for these reasons that a clear case of error is needed for interference in concurrent findings of fact made below. The present appeal is far from such a case. All that has occurred is the substitution of different factual opinions, in harmony with a trend that I have earlier called to notice185. That trend reflects a retreat from communitarian concepts of mutual legal responsibility and from concern with accident prevention. It evidences an attitude to the claims of plaintiffs and to the law of negligence that I cannot share. Contributory negligence The Court of Appeal's intervention: Two subsidiary questions arise. The first concerns the issue of contributory negligence and the unanimous decision of the Court of Appeal to double the discount on this basis to 50% of the verdict otherwise recoverable from the RTA186. In the Court of Appeal, the RTA raised the quantification of the reduction for contributory negligence, on the assumption that Mr Dederer was entitled to recover against it. In this Court, Mr Dederer sought special leave to cross-appeal so as to have the apportionment ordered by the primary judge restored. Nominal Defendant v GLG Australia Pty Ltd (2006) 80 ALJR 688 at 702 [74]; 225 ALR 643 at 660; Fahy (2007) 81 ALJR 1021 at 1052 [153]. 184 Mickelberg v The Queen (1989) 167 CLR 259 at 267. 185 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at 499-500 [107]; Neindorf v Junkovic (2005) 80 ALJR 341 at 346-347 [19]-[20], 359-360 [84]-[85]; 222 ALR 631 at 635-636, 653; Fahy (2007) 75 ALJR 1021 at 186 (2006) Aust Torts Reports ¶81-860 at 68,874 [1], 68,915 [320]-[321], 68,916 [325]. Kirby This Court has said many times that appellate courts must show restraint in disturbing the apportionment ordered for contributory negligence as between a their respective shares of plaintiff and a defendant, having regard responsibility for the damage187. The point is self-evident. Involved in such an apportionment is a comparative examination of the whole conduct of each negligent party in relation to the circumstances of the accident and an evaluation of the comparative importance of the respective acts and omissions of the parties in causing the damage. Such decisions are evaluative and multi-factorial. Generally speaking, a trial judge, who has full knowledge of all of the evidence, will be in a better position to make such an apportionment correctly. An appellate court, even if it would have reached a different conclusion, will usually be hard pressed to identify an error that warrants disturbance of the primary judge's conclusion on such an issue. Tinkering with apportionments is to be discouraged. On the other hand, an intermediate appellate court is required by its statute to discharge its own functions of appellate review. If error is shown in the apportionment, it is not only entitled but obliged to set the apportionment aside and to substitute its own decision188. In a proper case, this Court will uphold the intermediate court's determination in that regard189, although sometimes it will be divided over where the correct line is to be drawn. Criticisms of appellate conclusion: For Mr Dederer, a number of criticisms were advanced of the decision of the Court of Appeal to disturb the primary judge's apportionment in this case. First, it was said, with some justification, that the treatment of this issue, of great significance to Mr Dederer, was extremely brief, especially by comparison to the very detailed analysis of the negligence issues that had gone before. Mr Dederer complained of a lack of reasoning to justify doubling the measure of his responsibility for his damage and the lack of a convincing analysis of the respective conduct of the RTA and himself in causing that damage. Secondly, Mr Dederer pointed to the specific advantages which the trial judge had enjoyed in his case, including the conduct of a view of the bridge and estuary which was not undertaken by the Court of Appeal. As against this, the primary judge accepted that it was impossible, on a view conducted many years 187 Pennington v Norris (1956) 96 CLR 10 at 15-16; Podrebersek v Australian Iron and Steel Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532. 188 Fox v Percy (2003) 214 CLR 118 at 127-128 [27]-[29]. 189 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 879 [65]; 179 ALR 321 at 336. Kirby after the event, to re-create exactly the circumstances of the moment of Mr Dederer's injury190. Thirdly, Mr Dederer pointed to an element of tension in the majority reasoning in the Court of Appeal. For the purpose of determining the issue of negligence and meeting, in that context, the assertion that the danger of diving was obvious, the Court of Appeal emphasised Mr Dederer's age and the spontaneous, unconsidered character of his last-minute decision to effect a dive. On the other hand, when it came to the determination of the application of the Civil Liability Act to the claim against the Council and the apportionment for contributory negligence, emphasis was placed on the obviousness of the risk of a dangerous recreational activity engaged in by him191. The conclusion was open: As against these criticisms, the treatment of contributory negligence by Ipp JA (with whom on this issue Handley JA and Tobias JA agreed) followed immediately a most detailed examination of all of the facts of the case essential to a decision on the negligence issues. This was an appeal which could not have been decided, either in the Court of Appeal or in this Court, without the most painstaking examination of the facts. That was clearly undertaken by all of the members of the Court of Appeal. A separate statement or repetition of the facts to determine that part of the RTA's appeal which challenged the apportionment of contributory negligence was not essential. The alteration ordered by the Court of Appeal was certainly not subject to the criticism of tinkering. Obviously, all of the judges considered that the primary judge had erred, if only in the innominate way of reaching a conclusion which, in their view, was plainly wrong. There were many facts in the evidence at trial that made that conclusion available to the Court of Appeal. Although Mr Dederer was only fourteen and a half years of age, the evidence showed that he was an experienced diver. He would have known that a safe dive always requires water of adequate depth. He acknowledged that, notwithstanding visual inspection and the recollection of seeing other children entering the water, he was not aware of the actual depth into which he plunged. He was aware of the signs placed on the bridge and of the prohibition which each entailed. Whilst the standard of care that could be expected of him was only that of an ordinary person of his age192, even a much younger Australian child with less experience of diving would have known that serious risks were involved in proceeding as Mr Dederer did. 190 (2005) Aust Torts Reports ¶81-792 at 67,524 [19]. 191 See (2006) Aust Torts Reports ¶81-860 at 68,891-68,892 [148]-[150], discussing Civil Liability Act 2002 (NSW), ss 5L, 5K. 192 McHale v Watson (1964) 111 CLR 384 at 397 per Windeyer J. Kirby Conclusion: apportionment stands: It follows that a conclusion of error on the issue of contributory negligence was open to the Court of Appeal. In a full appeal by way of rehearing, I might not myself have concluded that the primary judge's view of contributory negligence was wrong. That is not the present question. The principles of restraint which limit intermediate courts' interference in apportionments of this kind are even more clearly applicable to any disturbance by this Court of the new apportionment unanimously arrived at by the Court of Appeal. That Court's apportionment of 50% for contributory negligence is not attended by doubt, and no new point of principle is raised by the challenge. Special leave to cross-appeal on this issue should therefore be refused. Mr Dederer's additional proposed ground of cross-appeal, complaining that the Court of Appeal erred in holding that a reasonable fourteen and a half year old boy should have appreciated that it was highly dangerous to dive as he did, must also be rejected. Costs: Sanderson order How the issue arose: The final issue before this Court relates to the second aspect of Mr Dederer's application for special leave to cross-appeal. It concerns a costs order made by the Court of Appeal in consequence of its determination that the judgment that Mr Dederer recovered at trial against the Council should be set aside. Initially, Mr Dederer brought his proceedings solely against the RTA. The Council was not joined as a defendant to the action until 22 September 2003. At the time the proceedings were initiated against the RTA, the Civil Liability Act had not commenced. However, by the time the Council was joined, that Act was in force193. It exempts defendants from liability 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"194. Although the primary judge rejected the Council's defence based on the Civil Liability Act on the footing that the risk would not have been obvious to Mr Dederer, even if it would have been to a mature adult195, that decision was unanimously reversed by the Court of Appeal. As stated, that conclusion was not challenged in this Court. Necessarily, it meant that Mr Dederer was ordered to 193 (2006) Aust Torts Reports ¶81-860 at 68,891 [146] per Ipp JA. 194 Civil Liability Act 2002 (NSW), s 5L. See (2006) Aust Torts Reports ¶81-860 at 195 (2005) Aust Torts Reports ¶81-792 at 67,533 [87]. Kirby pay the Council's costs, arising both from the trial and from its successful appeal. Self-evidently, such costs would be substantial. Obviously, they would diminish any recovery by Mr Dederer, itself already reduced by the reapportionment for contributory negligence. Normally, this Court will not become involved in disputes over costs. This is because, of their nature, such disputes usually involve large discretionary considerations, insusceptible of principled appellate review, especially in a final court. On the other hand, cases arise where this Court's intervention is warranted because the misapplication of a relevant consideration results in an erroneous order196. Mr Dederer urged that this was such a case. Moreover, the fact that the order in question, with its large practical consequences for the parties, was first made by the Court of Appeal means that the appeal to this Court, if special leave were granted, would be the first and only opportunity for its appellate reconsideration. Principle governing special orders: In the Court of Appeal, Mr Dederer sought what Ipp JA described as "a Sanderson order (that is, an order by which an unsuccessful defendant is ordered to pay the costs of the successful defendant directly to that defendant)"197. As his Honour pointed out, the Sanderson order is a type of Bullock order, although the latter involves the unsuccessful defendant being ordered to pay to the plaintiff the costs of the successful defendant for which the plaintiff is directly liable. Unsurprisingly, the principles governing such orders are substantially the same. Writing of a Bullock order, Gibbs CJ in Gould v Vaggelas198 approved a dictum of Blackburn CJ to the effect that199: "[T]here is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant." The latter aspect of the exercise of the costs discretion in cases of this kind is no more than a consequence of the usual rule that one party is not ordinarily liable for the costs of another unless that party is found answerable to a judgment against it and in favour of the party seeking the order. The RTA said, in effect, 196 CSR Ltd v Eddy (2005) 226 CLR 1 at 34-36 [78]-[81], 48-49 [117]-[120]. 197 Great Lakes Shire Council v Dederer [No 2] [2006] NSWCA 336 at [4]. 198 (1985) 157 CLR 215 at 230. 199 Steppke v National Capital Development Commission (1978) 21 ACTR 23 at 30- Kirby that the Council's costs were Mr Dederer's responsibility and should not be a burden on it. Neither Mr Dederer nor the RTA challenged the governing rule expressed by the Court of Appeal. It is appropriate for this Court to approach the present application on that footing. In support of Mr Dederer's application for a Sanderson order, an affidavit of his former solicitor, Mr Philip Watson, was read before the Court of Appeal. It was not contested, in the Court of Appeal or in this Court, that it was reasonable for Mr Dederer to have sued the Council. Upon the basis that the Civil Liability Act did not disentitle Mr Dederer from recovery against the Council, the primary judge upheld the claim against the Council for what was found to have been its separate liability in negligence to Mr Dederer200. The primary judge ordered the Council to bear 20% of the aggregate agreed damages and costs201. Mr Watson's affidavit was therefore addressed to the second issue identified by Blackburn CJ, namely whether it was fair to impose some liability on the RTA for the costs of the Council following the decision of the Court of Appeal. RTA was responsible for added costs: The affidavit discloses that Mr Dederer was in hospital when Mr Watson first received instructions from his parents in February 1999. Mr Watson immediately set about attempting to identify the public authority that was responsible in law for the conditions of, and signage on, the bridge. Letters were sent in March 1999 both to the Council and the RTA, asking each whether it was "the authority responsible for the Bridge and for the signs positioned at each end of the Bridge and along its length". In April 1999 both the Council and the RTA responded, advising, to quote the letter from the RTA, that: "[The RTA] is the authority responsible for the Forster/Tuncurry Bridge and for signs positioned at each end of and along the length of the Bridge." At the time of receipt of these letters, Mr Dederer's entitlements to damages for negligence were substantially governed by the common law. Moreover, because of his then minority, he had some years within which to commence proceedings. However, in March 2002, the Government of New South Wales announced its intention to seek amendments to the law affecting plaintiffs' rights from the State Parliament. After consultation with counsel, and as a matter of prudence, Mr Watson decided to commence proceedings in Mr Dederer's and other cases at once. In light of the concurrent advice of the two 200 (2005) Aust Torts Reports ¶81-792 at 67,534 [91]. 201 (2005) Aust Torts Reports ¶81-792 at 67,534-67,535 [97]. Kirby authorities, such proceedings were filed in the State Supreme Court on 3 April 2002, naming the RTA as the sole defendant. The action proceeded in the normal way. On 20 May 2002, the statement of claim was sent to the RTA. On 20 August 2002, the RTA caused a defence to be filed. By that defence, the RTA admitted that it was the authority responsible for the bridge. Particulars were exchanged. The matter was listed for hearing in Newcastle on 8 September 2003. However, a week before the notified hearing date, the RTA signalled an intention to seek an adjournment because it wished to join the Council as a party to the proceedings. According to Mr Watson, this was "the first indication from the RTA that it believed the Council had any responsibility for the Plaintiff's accident". The adjournment application was opposed for Mr Dederer, as was the filing of an amended defence and joinder of the Council. However, a judge of the Supreme Court granted leave to the RTA to take these steps. The consequence was the postponement of the hearing at which, on the basis of the Court of Appeal's decision and these reasons, Mr Dederer would have recovered against the RTA alone, without joinder of the Council. When the Council was joined as a defendant on the RTA's application, it was, according to Mr Watson, "clearly necessary" for Mr Dederer to commence his own proceedings against the Council. He was not privy to the details of the RTA's case or to any arrangements that might sustain the new contention that liability for the bridge belonged to the Council. The RTA's evidence might conceivably have shown that it belonged to the Council alone. This was the factual background to the costs application. Ipp JA, who gave the reasons for the Court of Appeal's dismissal of the application for a special costs order, concluded that the steps taken for Mr Dederer might have been understandable. However, as Mr Dederer was separately advised, it was for his advisers to obtain accurate information, including information concerning the operation of the supervening provisions of the Civil Liability Act202. Ipp JA pointed out that the RTA only withdrew its admission of responsibility for the bridge and signage when it filed its defence to the further amended statement of claim in October 2004. By that time the Council had been joined as a party for more than a year. Ipp JA observed that, in any case, the potential liability of the Council was obvious, as was the application of the Civil Liability Act once it had commenced operation. By inference, the suggestion was that Mr Dederer's advisers should have commenced proceedings against the Council at the time they began the action against the RTA. This would have left it to the defendants to fight out their respective liabilities. Mr Dederer would also have avoided any disentitlement under the Civil Liability Act. 202 Great Lakes Shire Council v Dederer [No 2] [2006] NSWCA 336 at [22]. Kirby Conclusion: Sanderson order required: Whilst this is a view compatible with the way in which common law litigation was traditionally fought, protecting the "treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial … in the presence of the judicial umpire"203, it would not have been an ideal, economic or fair way of conducting Mr Dederer's proceedings. An analogous opinion was expressed by Heydon JA in Nowlan v Marson Transport Pty Ltd204. The enquiry made by Mr Dederer's solicitor at the outset, the concurrent responses to it and the RTA's initial defence admitting its responsibility for the bridge and signage made the course that was adopted, of suing only the RTA, a perfectly reasonable one. Had the matter proceeded to trial on that footing, the problem of the Council's costs being ordered against Mr Dederer would not have arisen. Although it is true that Mr Dederer was professionally advised, he and his then solicitor were entitled at the outset to act on the admission made by the RTA, a responsible public authority. The RTA might have responded in the traditional manner, informing the solicitor that Mr Dederer must rely on his own enquiries. However, having indicated an acceptance of responsibility for the bridge and its signs (an acceptance reflected in the effective admission at trial and thereafter that the RTA owed Mr Dederer a duty of care) it was the switch of tactics by the RTA that changed the dynamic of the litigation. That switch of tactics virtually forced those representing Mr Dederer to bring their own proceedings against the Council lest the RTA was saving up some "unpleasant surprises" for the trial which would prove fatal to Mr Dederer's claim against it. In these circumstances, whatever the risks involved in proceeding against the Council by reason of the Civil Liability Act, Mr Dederer was obliged to accept those risks against the greater potential danger that the RTA might escape liability wholly or in large part. In the event there were no such large surprises. But the intervening commencement of the new legislation put Mr Dederer at a serious disadvantage. In the course of the events just described, the Court of Appeal erred in concluding that the conduct of the RTA had not been such as to make it fair to impose some liability on the RTA for the costs of the Council. Indeed, the correct conclusion is that the RTA, by its belated switch of tactics, was the true cause of the joinder of the Council at all. It is therefore fair to impose on it the 203 Donaldson v Harris (1973) 4 SASR 299 at 302 per Wells J. 204 (2001) 53 NSWLR 116 at 127 [27] quoting Sir George Jessel; cf Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 195-196 [115]-[117]. Kirby entire costs that Mr Dederer is, by the Court of Appeal's order, obliged to pay the Council. This Court should therefore order the RTA to assume those costs and to pay them directly to the Council on a Sanderson basis. Resulting order for costs: To give effect to these conclusions, Mr Dederer should have special leave to cross-appeal on this point. The cross-appeal should be allowed. The costs order of the Court of Appeal should be set aside and a Sanderson order made. This conclusion justifies Mr Dederer's application for special leave and his cross-appeal. Although, in the conclusion that I favour, he has lost one point of the application, he has substantially succeeded in it. It is therefore just that the RTA should pay two-thirds of the costs of his application and cross-appeal. Orders The following orders should therefore be made by this Court: The appeal by the Roads and Traffic Authority of NSW dismissed with costs; and In the application for special leave to cross-appeal by Philip James Dederer: (a) Dismiss the application for special leave to cross-appeal against the judgment of the Court of Appeal of the Supreme Court of New South Wales made on 5 October 2006; (b) Grant special leave to cross-appeal against the order made by the Court of Appeal on 29 November 2006; set aside that order; and in its place order that the Roads and Traffic Authority of NSW pay to the Great Lakes Shire Council the costs payable in the appeal by Mr Dederer to the Great Lakes Shire Council pursuant to orders (1) and (2) of the orders made by the Court of Appeal on 5 October 2006; and (c) Order that the Roads and Traffic Authority of NSW pay two-thirds of Mr Dederer's costs in respect of his application and cross-appeal. Callinan CALLINAN J. The questions which this appeal raises are whether the primary judge and the Court of Appeal of New South Wales properly applied settled principles of breach of duty of care to the evaluation of the parties' conduct, and of causation. Facts On 31 December 1998, the first respondent, who was then 14, dived from a bridge across the Wallamba River in New South Wales. Steadying himself by holding on to a lamppost, he launched his dive from the highest of three horizontal railings on the northern side of the bridge. The top of the railing was flat and about nine metres above the surface of the water. He struck a submerged sandbank and suffered a very severe spinal injury. There were pictograph signs on the approaches to the bridge prohibiting diving, and signs in words prohibiting climbing on the bridge. The first respondent saw and understood the signs before he dived. He chose to disregard them. The first respondent sued the appellant and the municipality in which the bridge was situated ("the Council") the second respondent in this matter205, in the Supreme Court of New South Wales in negligence. The trial judge, Dunford J, found for the first respondent against both defendants. He held, further, that the first respondent had been guilty of contributory negligence and assessed his responsibility for his injuries at 25 per cent. As between the appellant and the Council, his Honour found that the appellant was 80 per cent responsible for the first respondent's damages (after the deduction for contributory negligence) and the Council 20 per cent. The quantum of damages was not in issue and judgment was entered for the first respondent in the sum of $1,050,000. The bridge links the twin towns of Forster and Tuncurry. It runs east to west. It spans the estuary at the mouth of the Wallamba River and is about one kilometre south-west of the junction of Wallis Lake and the Pacific Ocean. There are recreational parks on each side of the bridge. The Tuncurry town centre is about 500 metres to the north-west, and that of Forster, about 200 metres to the east. There is a small marina immediately to the north of the bridge, and a camping reserve adjoining it. 205 The second respondent's only interest in the proceedings in this Court was in retaining orders for costs made in its favour. Callinan The area attracts a large number of tourists: its population swells during the summer months. Families and children are among those tourists. Some families come annually. There is a parking area on the Forster side of the bridge with an amenities block including lavatories, a park, bench seats and tables. The bridge is constructed of steel and concrete, and is 632 metres long. It carries a two-lane bitumen roadway. There is a concrete walkway for pedestrians on its northern side. Each lane is 3.66 metres wide, and the walkway is 1.525 metres wide. Three people can walk abreast on the walkway. The roadway is part of Main Road 111. There was evidence that it was "extremely" busy. There is no physical separation between the walkway and the roadway. The bridge rests on reinforced concrete piles and 47 piers, numbered 1 to 47 from the Tuncurry side. It passes over a large sandbar as it traverses the estuary. The southern tip of the sandbar is about level with pier 41. Boats, including big trawlers, fishing boats, ski boats, and jet skis pass in deep channels near the Forster and Tuncurry sides of the estuary. Clearance for vessels using the channels was provided "by introducing a crest vertical curve [described by witnesses as 'humps'] into the longitudinal grade line over each channel". The level of the bridge therefore rises over the navigable channels and is correspondingly lower over the sandbar. The main channel for navigation on the Forster side is between piers 43 and 44. Boats also use the passage between piers 44 and 45. The first respondent dived between piers 44 and 45. The tidal flow in the area is strong. The action of the tide has a scouring and dispersing effect on sand from the sandbar causing the depths of the water in the estuary to change continually. The first respondent dived at a point where the visible edge of the sandbar above the surface of the water was about ten metres to his left. The depth of water where he dived was about two metres. According to the first respondent's father, although the position of the sandbar generally remained constant, its length and width changed from week to week. The tides on the day varied by about 1.4 metres. High tide was at 7.53 am and low at 2.08 pm. The first respondent dived at about midday. The first respondent's dive was by no means a rare event. For many years, almost from the time that the bridge was constructed, young people, particularly during the summer months, frequently, often in groups, jumped, and, less often, dived from the bridge into the water. There was no suggestion that anyone else had suffered injuries by doing so. Callinan The railing and ledge on the northern side of the bridge were apparently the more popular diving platforms, although people had also dived from a water pipe pinned along the south side of it. The pictograph sign that the first respondent saw before he dived was located on a telegraph pole between pier 47 and the Forster end of the bridge. It depicted a person diving with a diagonal line through the person. Other signs, in words, prohibiting fishing from, and climbing on the bridge, stood at each entrance to it. The first respondent was about 182 centimetres tall and "a fairly solid person" at the time of the accident. He was an able sportsman who played rugby league as a front row forward, and in 1998 was given the "Player of the Year Award" at his school. He participated in other sports. He had previously dived from a 10-metre tower at a swimming pool. The first respondent and his family had spent holidays in the area since he was a very small boy. They stayed at a caravan park north of the Tuncurry township over weekends and during school holidays. They regularly spent time swimming, water skiing and fishing in the estuary. The first respondent was aware that, in the area of the bridge, the estuary was "very much given to tidal action". He and his family often ran their boat on to the sandbar, jumped off the back of it and swam in the channel. He knew that the depth of the water dropped suddenly at the edge of the sandbar, and the water in the channel was "very deep". His feet had not, on these occasions, touched the bottom in that area. He knew that the tide shifted the sand around and resulted in scouring, particularly in and about the channel. He said that there were not "sudden shift[s] of sand" in the middle of a channel, but at times it was noticeable that "some sort of a shallowing up of the bottom" had occurred. When the water was clear he could see yellow patches in the channel. These were long stretches of sand indicating shallower areas. Whether the shallower areas within the channels could be seen depended on the tide at the time, and "a number of [other] factors". He accepted that the depth of the water in the channels was hard to judge "due to the flow of the water going under the bridge". Over the years, the first respondent had often seen children and adults jump and dive from the bridge. He assumed therefore that the water "must be deep". He had passed under the bridge from time to time in a boat. He said that from the boat, "the bridge looked fairly high but the water also looked very deep". On 30 December 1998, the day before the accident, the first respondent went with a friend, Mr Cunial, to Forster. They walked on to the bridge. As they approached it, the first respondent saw what he described as the "big sign" at the Callinan side of the bridge that read "Fishing and climbing on bridge prohibited". He had seen that sign and an identical sign at the Tuncurry end of the bridge previously. The first respondent advanced some distance along the bridge and jumped into the river twice, first from the ledge at the base of the bridge, and the second time from the top of the handrail. Both times his body was totally submerged after he jumped, and his feet did not touch the bottom. This was the first occasion on which he had jumped or dived from the bridge. That day he saw other people (whom he described as "a group of kids") jumping and diving from the bridge. On 31 December 1998, he and the same friend drove to the parking area on the Forster side of the bridge. It was a hot day and they sat for five to ten minutes on one of the benches. From there, they watched about 10 to 15 people jumping from the bridge. They walked on to the bridge intending to swim. The first respondent said that jumping from the bridge was an easy way to get into the water. He saw the pictograph sign. It "just showed, just told me I shouldn't dive. It didn't sort of put any danger to it." The first respondent climbed on to the rail without difficulty. When he reached the top of it he looked at the water for about two to three minutes or maybe longer. He said: "You couldn't make out the bottom, the water [was] a green murky colour, and it was a real dark green which told me it was deep." He explained why he thought it was safe to dive: "Just the look of it and on my knowledge of sort of that area with the boats passing by and people jumping and diving off that area and the colour in the water and sort of being in the middle of the channel I always thought it was deep." Initially, he had intended to jump, but on impulse, as he stood on the top railing, he decided to dive. He listened to make sure that no boats were approaching before diving, with his arms outstretched. He said: "At that time I was sort of a cocky 14 year old that had the attitude, well I wasn't going to dive, I was jump [sic], but then once I got up there I for some reason changed my mind." He said he dived "almost straight", but at an angle, similar to the way in which other people had dived. He said: Callinan "I didn't jump straight down but I didn't sort of belly-flop either, I sort of went in almost straight, but not dead straight." His next recollection was of coming up from under the water, and being unable to feel any sensation in the lower part of his body. His friend jumped in to assist him. By now, there was a very strong ebb tide. The first respondent was worried that they might end up in the sea. It took two hours for them both to be brought ashore. The first respondent's father first went to the area in the late 1960s or early 1970s. He regularly stayed there for about four weeks at a time. Every time, he saw people either jumping or diving from the bridge on the Forster side. He said that, while people were "jumping all the time", he had seen some "diving on a few occasions". Most of the people jumping and diving were 12 to 16 year olds. Later, the first respondent's father took his own family to the region for holidays. He had taken a van at the caravan site at the Wallamba River for about 22 years. He had driven over the bridge many times. When the weather was warm, it was not unusual for him to see groups of four to six young people jumping from the bridge at a time. The first respondent, from the age of about six or seven years, had seen people jump and dive from the bridge at the channel near the Forster shore. They were of all ages, but most were young. He said that he would see "a steady flow of people jumping and diving" and, "you'd get one group every five, ten minutes". He said a group would comprise from about three to about ten people. Their ages ranged from 10 years to adults. Mr Cunial had been visiting the area for holidays since about 1992 and had seen persons, from about 10 to 30 years old, jumping, diving, doing back flips, somersaults, "peg-legs" and "bombs" from the bridge at the channel near the Forster shore. Mr Keegan, who was called in the appellant's case, was the Asset Manager of the Council's roads, bridges and stormwater systems. Earlier he had been Works Engineer in charge of construction and maintenance. He had worked for the Council since 1975. He was aware that for years young people were in the habit of jumping from the bridge. He said that it was common knowledge in the community: he had actually remonstrated with his own children about it. Mr Keegan said that he was aware, 15 or 16 years before the trial in 2004, that there were signs on the bridge referring to "no diving". He knew from the records that the pictograph signs installed in 1995 had replaced other signs. The trial was conducted on the basis that in December 1995 the Council had replaced Callinan the existing pictorial "no diving" signs. The Council had informed the appellant that signs were needed. Mr Pevitt had been employed by the Council as a ranger since November 1988. He had seen many people, over the years, jump from the bridge. Some had done somersaults, but he had never seen anyone dive. He was asked whether jumping was a "constant thing, particularly in holiday periods" and he replied, "Most definitely, yes." Mr Alexander was the Planning and Analysis Officer of the appellant's Road Safety and Traffic Management Section. He had been employed by the appellant since 1998. He said that, from its records, he was aware of concerns expressed in February 1993 about persons jumping from the bridge. Officials inspected the bridge in April 1998 and reported that people were still jumping from it: that was general knowledge in his office. The first respondent had never seen police officers or Council rangers talking to any of the very many people whom he had seen jumping or diving. The first respondent's father had never seen a police officer patrolling the area or any rangers. This was his experience throughout the "countless times" that he had been there since the late 1960s or early 1970s. Mr Pevitt, on three separate occasions in about 1990, wearing his official Council uniform, spoke to persons who were climbing on to and appeared to be about to jump from the bridge. They were 16 years of age or younger. He drew their attention to the pictograph sign and told them not to jump. They ignored him and jumped all the same. He could not catch them. On one of these occasions Mr Pevitt tried to remonstrate with people who had jumped but "they just sat on the centre island, 20 yards away, and waved and laughed". At about the same time, Mr Pevitt raised his concerns with police officers. The police agreed to attempt to prevent people jumping from the bridge. Mr Pevitt, thereafter, did see police officers on numerous occasions, stop, and speak to persons who appeared to be ready to jump. They however ignored the warnings and continued to jump. Mr Pevitt said that he had seen police officers drive into the adjacent park and speak to people about jumping from the bridge. He had also seen a police boat being used to try to round up some youths who had jumped. People were still jumping while the police boat was there. This continued for about 30 minutes. The police attempts to prevent the practice were fruitless. He said that he had seen police in boats about three times, and other officers talking to youths near the bridge about five or six times, but all to no avail. Mr Pevitt said that the police from time to time telephoned the Council and asked the Council to take enforcement action to prevent people from jumping and diving from the bridge. Mr Pevitt, however, found that "it was just Callinan unenforceable". He said "the people just wouldn't take any notice". Mr Pevitt agreed that, since 1990, the practice of people jumping from the bridge was "a constant thing, particularly in holiday periods". On 11 February 1993, the Council sent a facsimile to the appellant expressing the concerns of the Council regarding "young persons jumping from the ... bridge". The facsimile referred to "[d]anger to boating" and "[the n]eed … [for] at least signs". It was after this, in 1995, that the Council replaced the existing signs and erected the "no diving" pictograph signs near each end of the bridge. The trial judge's findings The trial judge found that both the appellant and the Council owed users of the bridge, including the first respondent, a duty of care. His Honour, "I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff's accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays. The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing along the outside boundary of the bridge, and the ease of access to that railing by reason of the wooden cross members which provided steps up to the top railing. Even if it was not anticipated prior to the construction of the bridge that it would be used in this way, it soon became apparent after its completion and foreseeable that the culture was likely to continue. Although the jumpers and divers entered the water in or near the main navigation channel, both the [appellant] and the Council were aware of the moving sands and variable depths underneath the water, and it was therefore reasonably foreseeable, and not far fetched or fanciful, that if the practice continued someone engaging in the activity was liable to suffer serious injury. I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risks should have been so apparent to the officers of both defendants with knowledge of the estuary bed that it was in effect 'an accident waiting to happen'." 206 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at Callinan His Honour described the bridge as an allurement207: "The bridge, being a launching pad for jumping or diving into generally clear water at a holiday resort, particularly in summer was, I believe, a very strong allurement to youths of the plaintiff's age group, particularly as in a colloquial, though not accurate, sense, 'everybody else' was doing it." Dunford J who viewed the scene said this of it208: "My own observations at the view on 8 October 2004 were that from the place where the plaintiff indicated he dived what appeared to be the bottom could be seen, there were certainly different hues of green and there appeared to be some yellow patches some distance below the surface. The water in the navigation channel appeared to be a much deeper green and therefore much deeper ... But, of course, I saw it nearly 8 years after the plaintiff's accident at a different tide and when the sands had undoubtedly moved in the meantime." His Honour referred to the response made by the Council, with the consent, and at the expense of the appellant, to erect the "no diving" pictograph signs in 1995. He said that he was satisfied that the signs on the bridge were not effective "in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water"209. The Council admitted that it knew that the practice was continuing. The appellant did not. Although the appellant did not have an office or depot in Forster or Tuncurry, it had maintenance and other crews working in the area and taking soundings of the water. Dunford J found that because the practice of persons diving and jumping was so widespread, and because of the presence that the appellant had in the area, "it must have known of the continuing practice": certainly the appellant "had direct knowledge after its representatives reported it in April 1998"210. 207 (2005) Aust Torts Reports ¶81-792 at 67,530 [65]. 208 (2005) Aust Torts Reports ¶81-792 at 67,524 [19]. 209 (2005) Aust Torts Reports ¶81-792 at 67,527 [46]. 210 (2005) Aust Torts Reports ¶81-792 at 67,529 [57]. Callinan His Honour pointed to the fact that, unlike the plaintiffs in some other diving cases before the courts, the first respondent "dived from an artificial structure erected by the [appellant]"211. His Honour said212: "In my opinion, it was not sufficient to ignore the fact that the signs were being disregarded and it is necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care." The first respondent argued that the appellant should have erected "shallow water" pictograph signs showing a person diving and striking his head on the bottom. His Honour said that it was "highly problematic" whether such "shallow water" signs would have been any more effective213: "Because of the large number of young persons jumping and diving without incident, it would have been obvious that the water was not generally shallow, and in those circumstances, I consider it probable that that sign would also have been ignored, just as the 'diving prohibited' sign was ignored." "The 'no diving' pictogram was a prohibition, it did not convey a warning of danger. On reflection it is easy to reason, as the plaintiff subsequently did, that the prohibition on diving was probably put in place because diving from the railing was dangerous, but that was not immediately apparent. Many prohibitory signs are disobeyed and not all of them are put in place because what they prohibit is dangerous to the persons to whom the signs are directed. For example, the sign prohibiting fishing on the bridge was also ignored but the prohibition was presumably in place because of the danger to boats passing underneath or pedestrians using the footway, not because fishing constituted a danger to the persons doing the fishing. The reasonable response to the risk of injury was a notice warning of the danger, not a mere prohibition for reasons unspecified. 211 (2005) Aust Torts Reports ¶81-792 at 67,529 [60]. 212 (2005) Aust Torts Reports ¶81-792 at 67,529 [58]. 213 (2005) Aust Torts Reports ¶81-792 at 67,530 [68]. 214 (2005) Aust Torts Reports ¶81-792 at 67,530-67,531 [69]-[70]. Callinan The danger here was not that the water was generally shallow, but that the sands were constantly shifting and accordingly, along with the tides, the depth of the water was variable. These facts were known to the defendants but not to the youths doing the jumping and diving. In my opinion, a warning sign containing words similar to 'Danger, shifting sands, variable depth' should have been displayed either on the telegraph post or the bridge railing near where the plaintiff dived. Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed." His Honour then gave consideration to the construction of the bridge. He accepted that in 1959, when it was built, the flat top railing and the horizontal flat central members complied with current standards215. By 1993 however, when the appellant's attention was drawn to what was happening on the bridge, standards had changed216. Vertical, rather than horizontal, pool-type members had become "the norm" and were specified in the 1992 Austroads Bridge Design Code217. His Honour did not overlook that the Design Code applied only to new bridges218. Nonetheless, he pointed out that when the wires spanning the railings rusted in 1993, they were replaced without modification to the horizontal members219. His Honour found that the appellant was confronted with a risk that required remedial action. Proposals were put before it in 1995, and thereafter, for a new cycleway and walkway. These included a new handrail and vertical members220. His Honour said that a "comparatively simple" modification could have been made to the flat top surface of the railing by attaching to it a triangular strip221. This would make the handrail difficult and uncomfortable to stand on, and almost impossible to balance on, before jumping or diving. His Honour 215 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. 216 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. 217 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. 218 (2005) Aust Torts Reports ¶81-792 at 67,531 [72]. 219 (2005) Aust Torts Reports ¶81-792 at 67,531 [71]. 220 (2005) Aust Torts Reports ¶81-792 at 67,531 [72]. 221 (2005) Aust Torts Reports ¶81-792 at 67,531 [74]. Callinan pointed out that a similar result could have been achieved by replacing the top flat member with an angled member such as already existed on the approaches to the bridge at both the Forster and Tuncurry ends. His Honour was of the view that a pool-type fence would be difficult to climb. He said222: "Subsequently plans have been prepared and funds approved for widening of the walkway and replacement of the post and rail fence with a fence containing vertical members in accordance with the [1992] Austroads Standard." The judge said that pool fences had been used for many years and there was no reason why one could not have been installed earlier223. His Honour, after referring to the notional modification to the handrail and the possible installation of vertical, pool-type members, went on224: "I am satisfied that the failure to make either or both of these modifications to the railing constituted a lack of reasonable care on the part of the [appellant] and that if they had been in place, the plaintiff would probably not have dived and suffered his injuries." His Honour concluded that, in failing to provide appropriate warning signs, and in constructing and repairing the railings without modification, the appellant failed to take reasonable care for the safety of the first respondent. He was therefore entitled to judgment against it225. With respect to the Council, Dunford J said226: "I am satisfied it owed a duty of care to persons jumping and diving off the bridge to warn them of the danger, and when the 'no diving' pictograms proved to be ineffective in this regard and the practice continued, it was not sufficient to do nothing, but it required the provision of warning, as opposed to prohibition, signs. I am therefore satisfied that 222 (2005) Aust Torts Reports ¶81-792 at 67,527 [46]. 223 (2005) Aust Torts Reports ¶81-792 at 67,531 [73]. 224 (2005) Aust Torts Reports ¶81-792 at 67,531 [74]. 225 (2005) Aust Torts Reports ¶81-792 at 67,531 [76]. 226 (2005) Aust Torts Reports ¶81-792 at 67,532-67,533 [83]. Callinan on this issue, like the [appellant] and on common law principles, the Council was in breach of its duty to take reasonable care." The Council had relied on Pt 1A of the Civil Liability Act 2002 (NSW) which was, because of the later joinder of it as a defendant, available to it as an arguable defence227. It submitted that228: 227 "5F Meaning of 'obvious risk' (1) … an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. Division 5 Recreational activities 5K Definitions dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. (Footnote continues on next page) Callinan "the plaintiff's action in diving off the bridge was a 'dangerous recreational activity', as defined by s 5K … the risk of harm was an 'obvious' risk as defined by s 5F … the plaintiff is therefore presumed to have been aware recreational activity includes: (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure … 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk. 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). 228 (2005) Aust Torts Reports ¶81-792 at 67,533 [84]. Callinan of the risk of harm: s 5G, and … accordingly, there was no proactive duty to warn of the risk: s 5H". Although he was prepared to accept that the first respondent had been engaged in a "dangerous recreational activity"229 his Honour was not satisfied that diving from the bridge presented an "obvious risk"230. His Honour said231: "Here the plaintiff was a 14 year old who had seen a large number of persons jumping and diving off the bridge over many years, without any apparent attempt by police or Council rangers to stop them and no known cases of injury. He may have been aware that sandbars shifted (if he thought of it) and know of the variable depth of the water, but from what he had observed and having regard to his age and lack of maturity, the fact that he knew vessels passed through the channel, he looked and saw the water was dark murky green and he could not see the bottom, all of which indicated to him that the water was deep, the risk of serious permanent physical injury would not have been obvious to him, even if it would have been obvious to a mature adult. Accordingly s 5H does not apply in the circumstances of this case, and neither does s 5L which also depends on an 'obvious risk' as defined in s 5F. The Council also relies on s 5M which provides that there is no duty of care in respect of a recreational activity if the risk was the subject of a risk warning to the plaintiff, but for reasons already given, I do not consider that the signs which were displayed constituted a warning." Accordingly, his Honour held that the Council too was in breach of its duty of care to the first respondent in failing to provide adequate warning signs notifying of the danger of diving from the bridge232. Concerning the appellant's and the Council's alternate claims of contributory negligence, on the part of the first respondent, his Honour said233: "[A]lthough the plaintiff did not at the time regard the 'no diving' pictogram as denoting danger, he knew it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the 229 (2005) Aust Torts Reports ¶81-792 at 67,533 [85]. 230 (2005) Aust Torts Reports ¶81-792 at 67,533 [85]. 231 (2005) Aust Torts Reports ¶81-792 at 67,533 [87]. 232 (2005) Aust Torts Reports ¶81-792 at 67,534 [91]. 233 (2005) Aust Torts Reports ¶81-792 at 67,534 [92]-[93]. Callinan water was variable, that jumping from heights could result in injury and he said that part of the thrill of diving and jumping from the bridge was the risk. He was however only a 14 year old, and the standard of care for his own safety required of him was that of a 14 year old person ... In all the circumstances, I am satisfied that the plaintiff was guilty of contributory negligence and I apportion his share of responsibility for his own injury at 25 per cent." In the result his Honour concluded that the appellant and the Council should bear 60 per cent and 15 per cent respectively of the responsibility for the first respondent's injuries and damages, and the first respondent himself 25 per cent. The Court of Appeal The appellant and the Council appealed to the Court of Appeal of New South Wales. That Court (Ipp and Tobias JJA, Handley JA dissenting) was satisfied that the practice of diving was so widespread that, although the appellant did not have an office or depot in Forster or Tuncurry, because it had maintenance and other crews working in the area and taking soundings of the water under the bridge, it must be taken to have known of the practice234. The majority accepted that the "no diving" signs were ineffective235. The appellant was in breach therefore, they held, of its duty of care, by failing to take further steps to prevent injury to persons such as the first respondent236. Their Honours referred to Wyong Shire Council v Shirt237. The majority were of the view that the appellant's reasonable response to the risk should have been to install swimming pool fencing (vertical posts without horizontal cross members) and to modify the top railing by adding to it an upward facing triangular section so as to make it more difficult to climb on to and balance on the top before diving238. 234 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,899 [204] per Ipp JA, 68,918 [339] per Tobias JA. 235 (2006) Aust Torts Reports ¶81-860 at 68,900 [217]-[219] per Ipp JA, 68,918 [339] per Tobias JA. 236 (2006) Aust Torts Reports ¶81-860 at 68,901 [222], 68,903 [235] per Ipp JA. 237 (1980) 146 CLR 40. 238 (2006) Aust Torts Reports ¶81-860 at 68,914-68,915 [310], [314] per Ipp JA. Callinan As to the trial judge's holding that the appellant should have erected a "Danger, shifting sands, variable depth" warning sign239 the majority of the Court of Appeal thought a composite sign containing the "no diving" pictograph with the words "shallow water"240 was preferable and should have been erected. The Court of Appeal took a different view of the Council's responsibility, concluding that the Civil Liability Act 2002 (NSW) relieved it from liability241. The majority of the Court of Appeal also adjusted the trial judge's assessment of the first respondent's responsibility for his injuries242, increasing it from 25 per cent to 50 per cent243. It is relevant to refer to the dissenting judgment of Handley JA because, in my opinion, in substance, his Honour's reasoning and conclusions are correct244: "Ipp JA holds that the No Diving signs did not comply with the 1995 Standard (AAS 2416-1995), and that a sign which prohibited diving with the words 'Shallow Water' would have been more effective. This involved a reversal of the Judge's finding that a shallow water sign of the kind recommended by Mr Fogg [safety expert for the first respondent] would also have been ignored by the plaintiff. With respect I consider that the trial Judge's inference based finding, which I accept, that a 'Beware of shallow water when diving' sign of the type recommended by Mr Fogg would probably have been ignored just as the 'Diving Prohibited' sign was ignored leaves no room for a finding that a diving prohibited sign with the words 'shallow water' would have been effective. The plaintiff knew, as the Judge recorded, that the 239 (2005) Aust Torts Reports ¶81-792 at 67,531 [70]. 240 (2006) Aust Torts Reports ¶81-860 at 68,914-68,915 [312]-[315] per Ipp JA, 68,923 [372]-[373] per Tobias JA. 241 (2006) Aust Torts Reports ¶81-860 at 68,874 [1] per Handley JA, 68,891-68,895 [146]-[173] per Ipp JA, 68,916 [325] per Tobias JA. 242 (2005) Aust Torts Reports ¶81-792 at 67,534 [93]. 243 (2006) Aust Torts Reports ¶81-860 at 68,915 [320] per Ipp JA. See also at 68,874 [1] per Handley JA. 244 (2006) Aust Torts Reports ¶81-860 at 68,879-68,881 [41]-[59]. Callinan sand moved with the current, that the depth of the channels was hard to judge and some parts were shallower than others. The Judge found that the plaintiff saw the sign, and knew that it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the water was variable, and that diving from heights could cause injury. Thus none of the suggested signs would have told the plaintiff anything he did not already know and the failure to erect them could not be a breach of any duty owed to the plaintiff, and if there was any breach it was not a cause of his injuries245. The plaintiff's case is essentially that when he dived he was not aware of the full extent of the risk and that the No Diving signs did not give him that information. However this does not establish a breach of duty. The question was addressed by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd246, quoted by Gummow J in Vairy247: 'It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision.' The Judge was not satisfied that a cantilevered barrier outside the railing would have been effective, and thought it may only have encouraged jumpers to attempt to jump over it with a risk of serious injury if they failed to clear it. The plaintiff did not pursue this allegation in this Court. The other steps which the Judge held should have been taken were the installation of an external handrail with pool fencing and a triangular section on the top, or the addition of such a section to the existing handrail. Ipp JA could not decide whether a triangular handrail would have dissuaded the plaintiff from diving, but he holds that the attraction of the bridge as a place for jumping or diving would have been substantially reduced had the horizontal railings been replaced with pool fencing. The presence of a triangular section fitted to the external handrail would make it uncomfortable and difficult, but not impossible, for someone to stand on the top railing and dive into the water. It may have 245 Vairy v Wyong Shire Council (2005) 223 CLR 422 at 427 [7] per Gleeson CJ and Kirby J, 467 [148] per Hayne J, 479-480 [210] per Callinan and Heydon JJ. 246 (2002) 208 CLR 460 at 473-474 [43]. 247 (2005) 223 CLR 422 at 452-453 [91]. Callinan deterred the plaintiff from diving from the top railing but not from diving from the ledge which was only 1.2 metres lower. He would still have dived from a height of some 8 metres into 2 metres of water. There is no evidence and no basis for an inference that diving from the lower height would have made any difference. The plaintiff failed to prove that such a railing would have stopped him from diving from the ledge or prevented or substantially diminished his injuries. The installation of an external handrail of pool type fencing would have prevented the plaintiff and others from using the existing horizontal rails to climb up or over the handrail, but would not have stopped him getting over. It had to be suitable for use by pedestrians for hand support and would have been no obstacle to an agile teenager. Mr Keegan was shown a photograph of the handrail on the ANZAC Bridge and asked whether it would be exceedingly difficult to climb. He said that it would be harder to climb than the existing railing on the Forster/Tuncurry Bridge, but this would still be possible. His evidence continued: It'd be a lot harder wouldn't it? A. Depending on the size of the person. A young person, I think, would have difficulty getting over it. An adult or a teenager, I think they'd be able to spring over that.' The plaintiff was approximately 6 feet tall and the proposed pool type fencing would have been approximately 1.2 metres high. There is every reason for accepting Mr Keegan's evidence that such a fence would not have deterred a fit teenager such as the plaintiff who wished to jump or dive from the ledge. The signs proposed would not have told the plaintiff anything he did not already know, a triangular section on the handrail would not have discouraged the plaintiff from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge. I conclude therefore that the plaintiff failed to establish that any breach of duty by the [appellant] was a cause of his injuries and its appeal should succeed on this ground. The appeal should also succeed on wider grounds. In the cases since Australian Safeway Stores Pty Ltd v Zaluzna248 that have come before the higher courts arising out of diving accidents on public land outside enclosed and controlled swimming pools, the plaintiff's complaint has been that there was no or no sufficient warning of the danger of 248 (1987) 162 CLR 479. Callinan diving249. This does not involve the reversal of a credit-based finding. The plaintiff did not give direct evidence of his reaction to a triangular section on the top of the handrail or pool type fencing or both. A finding on causation in his favour requires the drawing of inferences. It is always possible after the event, with the wisdom of hindsight, to identify some further step or steps that could have been taken by the defendant to avoid or reduce the risk of injury. However, as the High Court has held, the enquiry must always be prospective. The cases arising from injuries caused by diving in areas open to the public have not raised the question posed in this case where No Diving signs in prominent positions were seen, understood, and ignored by the diver. Although the bridge was an allurement to teenagers the Council and the [appellant], unlike the public authorities in Nagle, Berrigan and Mulligan, had not encouraged persons to use the bridge as a diving or jumping platform. This was considered relevant in Vairy250 and Mulligan251. The public, including unaccompanied teenagers, were entitled to use the walkway as of right, and short of closing it under the Act, which has not been suggested, neither the Council nor the [appellant] could stop them. The fact that the public can enter public land as of right was also considered relevant in Vairy252. Just as in Vairy where attempts by Council lifesavers to stop diving off the rock platform were unsuccessful and provoked abuse from 249 Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports ¶81-149; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Swain v Waverley Municipal Council (2005) 220 CLR 517; Vairy v Wyong Shire Council (2005) 223 CLR 422; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Berrigan Shire Council v Ballerini (2005) 13 VR 111. 250 (2005) 223 CLR 422 at 442 [57], 450 [82]-[83], 453 [92] per Gummow J, 465 [139] per Hayne J. 251 (2005) 223 CLR 486 at 502 [53] per Hayne J, 504 [66] per Callinan and Heydon JJ. 252 (2005) 223 CLR 422 at 426 [5] per Gleeson CJ and Kirby J, 449-450 [81] per Gummow J, 459 [116], 461 [123] per Hayne J. Callinan intending divers253, earlier efforts in this case by uniformed Council officers and police to stop youths jumping or diving off the bridge were also conspicuously unsuccessful. Participation in recreational activity, and particularly where it involves inherent risks, is voluntary. Such activity is of a different character from that undertaken in the work place, on the roads, in the market place and in other areas where people must venture254. In [Vairy] Gummow J quoted255 a statement from the joint judgment in Brodie v Singleton Shire Council256 that the use of roads is a 'basic right and necessity'. The [appellant] knew that the No Diving signs had not stopped the practice of jumping off the bridge, but teenagers may reasonably have understood from the signs that this was not prohibited. It was not aware that youths were diving from the bridge and it is somewhat unreal to consider what its duty would have been if it was. Ipp JA refers to Wilkins v Council of the City of Broken Hill257 where the failure by Council staff at an enclosed swimming pool to enforce a prohibition on diving was held to be a breach of its duty of care to a teenager. In my judgment that case did not establish any principle relevant to the duty of care owed by a public authority to persons using an unpatrolled bridge open to the public as a diving platform contrary to No Diving signs on the bridge. The [appellant] has State wide responsibilities for roads and road traffic in general, and for the State's freeways in particular. The focus in this case on the diving accident involving one person on one day on one bridge is inherently retrospective. This was not perceived as a risk before it happened." (some references omitted) 253 (2005) 223 CLR 422 at 437 [41]-[42] per McHugh J, 450 [83] per Gummow J, 475-476 [194], 484-485 [226] per Callinan and Heydon JJ. 254 (2005) 223 CLR 422 at 481-482 [217] per Callinan and Heydon JJ. 255 (2005) 223 CLR 422 at 449 [80]. 256 (2001) 206 CLR 512 at 574 [141]. 257 [2005] NSWCA 468. Callinan The appeal to this Court It is necessary first to revisit questions which were recently considered by this Court in Fox v Percy258: whether an intermediate appellate court, or this Court may escape its expressly imposed statutory duty to intervene in cases in which the primary judge has made errors of, or in respect of fact, in the exercise of some quite unstated residual discretion to do so, by reason of judicial solidarity, misplaced sympathy259 for a severely disabled, however personally careless plaintiff, expediency, accommodation of an executive failure to appoint a sufficiency of judges, misconceived application of the uncertain principles of distributive justice, or a determined disinclination to distinguish between the roles of a department of social security and the courts, or otherwise; and the meaning and significance of "concurrency". The High Court is under at least as heavy an obligation to dispose of appeals to it on their legal and factual merits as an intermediate appellate court. This obligation is imposed by s 73 of the Constitution260 and, in further pursuance 258 (2003) 214 CLR 118 at 126-127 [24]-[25] per Gleeson CJ, Gummow and Kirby JJ, 157-166 [130]-[148] per Callinan J. 259 I say "misplaced sympathy" because of the consequences of undue generosity to plaintiffs in particular cases for deserving plaintiffs and would-be plaintiffs in other cases. The consequences, inevitably, have been enactments to reinforce and even extend defences of contributory negligence and the like, restrict access to the courts and to cap damages. See for example, Civil Liability Act 2002 (NSW), Wrongs Act 1958 (Vic) as amended by the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic) and by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), Civil Liability Act 1936 (SA) as amended by the Law Reform (Ipp Recommendations) Act 2004 (SA), Civil Liability Act 2003 (Q), Civil Liability Act 2002 (WA), Civil Liability Act 2002 (Tas), Personal Injuries (Liabilities and Damages) Act 2003 (NT), Civil Law (Wrongs) Act 2002 (ACT). As to contributory negligence see: ss 5R, 5S, 5T (NSW); ss 62, 63 (Vic); ss 44 to 50 (SA); ss 23, 24 (Q); ss 5K, 5L (WA); ss 5, 23 (Tas); ss 14 to 17 (NT); s 47 (ACT). As to damages caps see: ss 12, 16, 18, 21 (NSW); ss 28F to 28H (Vic); ss 52, 54, 56 (SA); ss 52, 54, 60 to 62 (Q); ss 9 to 11 (WA); ss 26, 27 (Tas); ss 19, 20, 27, 29 (NT); s 98 (ACT). 260 "The High Court shall have jurisdiction … to hear and determine appeals from all judgments, decrees, orders, and sentences: of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which (Footnote continues on next page) Callinan of it, ss 35261 and 35AA262 of the Judiciary Act 1903 (Cth). Once this Court is satisfied that a case has qualified for a grant of special leave263 it is bound to decide it. Because one or two other courts have earlier decided the questions one way, does not mean that this Court may stand aside and hold, that despite the grant of special leave and the correctness or otherwise of the decisions below, they should be left undisturbed, simply because they are the decisions of the courts below. Deference is one thing: abstention from righting a wrong is an altogether different matter. The task of an appellate court is not to deny any litigant, whether rich or poor the recourse to it that the Constitution, and the relevant legislation say that the litigant should have. Whether a distinction is to be made by appellate courts in carrying out their duties, between a well-resourced litigant and some other litigant, or a special advantage is to be conferred upon the former, are for the legislature, and not the courts to say. And, not surprisingly, no legislature has said that. Both the relevant legislation and the Constitution in providing for appeals draw no distinction between questions of fact and law. For my own part at the establishment of the Commonwealth an appeal lies to the Queen in Council; and the judgment of the High Court in all such cases shall be final and conclusive." 261 "(1) The jurisdiction of the High Court to hear and determine appeals from: judgments of the Supreme Court of a State, whether given or pronounced in the exercise of federal jurisdiction or otherwise; or judgments of any other court of a State given or pronounced in the exercise of federal jurisdiction; whether in civil or criminal matters ..." 262 "(1) … the High Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory." 263 Section 21 of the Judiciary Act 1903 (Cth): "(1) Applications for special leave to appeal to the High Court from a judgment of another court may be heard and determined by a single Justice or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." Callinan I have no doubt that an error of fact is just as capable of causing an injustice, whether it is to be described as a plain, manifest, or gross error or some other form of error, as a mistake of law. If one thing is clear from a review of some of the recent cases in this Court in which pronouncements have been made about findings of fact, it is that the foundation for a more tender treatment of them than holdings of law is unsound. It is unsound because it has in the past been largely based upon the practice of appellate courts in relation to decisions at first instance in the unique admiralty jurisdiction. I drew attention to this in Fox v Percy. The "P Caland"264, with which I did not specifically deal, is also an admiralty case. The judge who decided that case at first instance, Jeune J, was a very experienced admiralty judge well accustomed to consulting the Trinity Masters in almost all cases of any doubt regarding seamanship265. Indeed, in the volume of the reports in which The "P Caland" appears, there are several stated instances of his Lordship's reference to his consultation with the Trinity Masters266. It is more than speculation to think that there was, there, in any event, a nineteenth century judicial reluctance to hear, let alone decide appeals267 on questions of fact by reason of the novelty of their availability, and a condescending view that facts 265 In the admiralty jurisdiction, if a cause depended upon "questions of nautical science and skill, relating to the management and movement of ships" the court would be assisted by two nautical assessors who were "not only technical advisers" but also were "sources of evidence as to the facts … [The court] obtain[ed] its information from them, not from sworn witnesses called by the parties": The Australia [1927] AC 145 at 152 per Lord Sumner. The assessors were members of the Corporation of the Trinity House, a charitable organization established by Royal Charter in 1514 to regulate the pilotage of ships in the King's streams, and drawn from the ranks of the Royal and Merchant Navies. See Derrington and Turner, The Law and Practice of Admiralty Matters, (2007) at 222-226 for a good discussion of the role of nautical assessors in admiralty, and of the Corporation of Trinity House. 266 For example, The Orion [1891] P 307 at 310. 267 A similar reluctance can be discerned to the upholding of appeals in criminal cases for years after the enactment of the Criminal Appeal Acts in the various Australian States: eg in relation to the Criminal Appeal Act 1912 (NSW) in Hargan v The King (1919) 27 CLR 13 at 23 where Isaacs J refers to the three grounds of appeal specified by s 6 of the Act as, if made out, providing only a "prima facie" basis for the allowance of appeals. See also Mallard v The Queen (2005) 224 CLR 125 at 128-129 [4] per Gummow, Hayne, Callinan and Heydon JJ. Callinan were for juries and not judges268. There is more than a hint of this in the language of the Lord Chancellor, Lord Herschell, in The "P Caland"269 in his description of a finding of fact as a "mere" matter270. What is remarkable about the cases referred to in Fox v Percy, and in other judgments of this Court in this case, namely Major v Bretherton271, Baffsky v Brewis272, The Commonwealth v Introvigne273, Waltons Stores (Interstate) Ltd v Maher274, Louth v Diprose275 and Bridgewater v Leahy276, is that there is not the slightest reference in any of them to the enactment under which each appeal was brought and in which nowhere is there any distinction made between appeals on questions of law and appeals on questions of fact. 268 Prior to the enactment of the Judicature Acts 1873-1875 (UK) the general appeal was unknown in England outside the courts of equity. In early times, the only form of review was the writ of attaint, by which the unsuccessful litigant might challenge the decision against him by charging the jury with fraud. The proceedings were brought against the members of the jury themselves, and if successful the verdict was set aside and the jurors punished. The writ of attaint was in due course supplemented and later superseded by the writ of error which survived until 1875. The writ of error was concerned exclusively with questions of law. The Judicature Act 1875 (UK) provided for the hearing of a general appeal of the kind available in the past only in equity by the new Court of Appeal. Equity, however, had never made use of juries nor of the common law mode of trial at which, by reason of the presence and role of the jury, evidence was given orally. See Jolowicz, "Appeal and Review in Comparative Law: Similarities, Differences and Purposes", (1986) 15 Melbourne University Law Review 618 at 623-625. 270 [1893] AC 207 at 215. 271 (1928) 41 CLR 62. 272 (1976) 51 ALJR 170; 12 ALR 435. 273 (1982) 150 CLR 258. 274 (1988) 164 CLR 387. 275 (1992) 175 CLR 621. 276 (1998) 194 CLR 457. Callinan Something should also be said about "concurrency" of findings of fact. Very often concurrency is no more than the acquiescence by the intermediate appellate court in the findings made at first instance. The Supreme Court Act 1970 (NSW) and its analogues elsewhere demand more than that. They require that the appellate court properly and fully review the case at trial, as onerous a task as that might on occasion be. In this case however, neither at first instance nor on appeal, were there any primary factual matters of substance in dispute. This is apparent from the material facts that I have summarized at some length, most of which are taken from the first respondent's evidence at trial. It is on the basis of that evidence that the first respondent's case should have failed in the courts below, and must be rejected here. It is not without irony however, that as to a key inferential matter of fact, indeed the one upon which the result turned in each court, there was no concurrency, actual or supposed, between the trial judge and the Court of Appeal, that is, as to the contents of the notional sign which it is said would have deterred the first respondent from climbing on, and diving from the bridge. It is a further irony that, as Gummow J points out, the first respondent was not asked about his likely reaction to the contents of the sign which the Court of Appeal favoured. Responses to that sort of question are predictable and usually not very convincing277, but the first respondent was asked and did answer such a question at the trial about a different one from the one preferred by the Court of Appeal. There was a sense of improvisation in the conduct of the first respondent's case in both of the courts below as to appropriate measures of deterrence of jumping and diving, both generally and in particular. Unfortunately the improvisation in question accepted and adopted in each of the courts differed. As to duty and the nature and extent of the obligations owed in circumstances of the kind in question here, I agree with Gummow J. All parties, as did the courts below, accepted that the well-known formulation of Mason J in Wyong Shire Council v Shirt278 should be applied here279: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to 277 See Rosenberg v Percival (2001) 205 CLR 434 at 501-502 [214] per Callinan J. 278 (1980) 146 CLR 40. 279 (1980) 146 CLR 40 at 47-48 per Mason J. Callinan determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." The evidence shows that there was a basis for holding that both the appellant and the second respondent should reasonably have foreseen that the bridge and the railing on it, in its current state might present these risks: that the latter might provide a platform for divers and jumpers; and that they might thereby injure themselves, severely, either by jumping or diving on to a passing boat or a submerged bank, or indeed in the water itself. The question then becomes, what was an appropriate response to those risks? That has to be answered by balancing the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities of the defendants. In my opinion the trial judge and the majority of the Court of Appeal erred, by failing to undertake this balancing exercise in a sufficient and proper way. Had they done so they would have identified and given full weight to these matters. As to "magnitude", I accept that diving from a height of 8 to 10 metres was itself a risky activity. It was for this reason that it was discouraged by police and officials, banned, and the subject of the pictograph signs. But even so, and despite flagrant defiance of the ban, not one out of the many who had dived in the 40 or so years that had elapsed since the construction of the bridge had been injured, so far as anyone could recall, let alone severely injured. This is to say that the risk, although undisputedly present, had a very low degree of probability of realization. And although the first respondent's injuries were grave, that is of great magnitude, seemingly minor mishaps can sometimes cause grave injuries. Also to be balanced, are the interests of the community in being able to walk across the bridge, to enjoy the view, and to pause and lean in comfort on a flat surface of a top rail as they do so. Only an extremely high unscaleable fence, with perhaps shards of glass embedded in its top, or barbed, or electric, or razor wire, might, on the evidence, have deterred determined and adventurous youths from climbing and jumping. Equally, the substitution of vertical bars for horizontal rails is unlikely to have been an effective deterrent. Other measures such as the provision permanently of a sufficient number of police or other officials would exceed the requirements of a reasonable response. It was only during the course of the trial, during the cross-examination of Mr Keegan, and as a matter of understandable opportunism rather than of deliberation, that the other Callinan measure came to be suggested as one apt to deter climbing and diving: the erection, either in substitution of, or in addition to the top rail, of a metal or wooden rail triangular in shape, laid flat so that a diver would have had to balance himself on its sharp edge before diving. It may be accepted that this measure might have been a relatively inexpensive one, but again, one not so formidable as to constitute a substantial deterrent. It would, in any event, have had these further disadvantages: that a person on it might more easily teeter, overbalance, fall unprepared into the water, or backwards, on to the unfenced roadway, and into the path of a motor vehicle. In any event, the notion that the first respondent and other youths would have heeded a worded sign when they flagrantly disregarded a pictograph sign of unmistakeable the excruciatingly fine distinctions, as each of the courts below did, between the content of the signs actually erected, and other allegedly preferable ones, as to which those courts themselves were not in agreement, was quite unconvincing. import, strains credibility. the making of Indeed, The first respondent was engaged in an activity of a purely recreational kind. The thrill of making, as he did, a high dive which he knew to be banned must have been an attraction for him. To say, as if it were an answer, that the bridge was therefore an allurement280 which the defendants should, on that account, have rectified, is to cease the inquiry at, or to treat as effectively decisive, the state of affairs antecedent to the first respondent's entirely voluntary, and premeditated, prohibited act of diving. But even so, it is something of an exaggeration, to describe a perfectly orthodox bridge constructed to endure for many years, and in accordance with the standards of the time, as an allurement, as if, because youths were accustomed to misuse it, it should be modified to put beyond all chance, that they would do so in the future. A defendant is not an insurer. Defendants are not under absolute duties to prevent injury, or indeed even to take all such measures as might make it less likely to occur. They are obliged only to make such responses as can be seen to be reasonable in the circumstances. A proper balancing exercise which takes all of the relevant circumstances into account leads inescapably to the conclusion that the appellant, in responding to a risk that had not been realized for 40 years, by erecting the pictograph signs, acted reasonably and adequately. The first respondent seeks to rely on a notice of contention as follows: The majority of the Court of Appeal was in error in determining, contrary to the determination of the trial judge, that even without the sign ('no diving' pictogram) it should have been obvious to a 280 [2007] HCATrans 233 at 3465-3535. Callinan reasonable 14 and a half year old that such a dive was dangerous and could lead to catastrophic injuries. That the majority of the Court of Appeal, was in error in determining, contrary to the determination of the trial judge, that the 'no diving' pictogram displayed on the bridge impliedly warned against danger." It is unnecessary to give that notice any additional consideration. What I have said, and the reasoning of Handley JA in the Court of Appeal to which I have referred are an answer to it. Causation was also argued. If it were necessary to determine the question, I would hold for the appellant on it also. The cause was the first respondent's defiance of the sign in full awareness of the presence of the sandbars. For these, and the reasons given by Handley JA which I have quoted, I would allow the appeal. I agree with the orders proposed by Gummow J. 283 HEYDON J. I agree with the orders proposed by Gummow J and with the reasons he gives, and would add only the following. Concurrent findings of fact? This is not an appeal in which it can be said that the courts below made "concurrent findings of fact" in such a way as to inhibit this Court from allowing the appeal. Discordant findings. The findings of the courts below on issues which were crucial to the resolution of the question whether the RTA was in breach of its duty of care were discordant, not concurrent. It is true that the trial judge and a majority of the Court of Appeal agreed that there had been a breach of duty, and in that sense their findings on breach were concurrent. The question of breach of duty is an issue of fact, but the ultimate conclusion about that issue of fact is one which operates at an extremely general level. The crucial findings of the courts below in relation to what measures the RTA, exercising reasonable care, should have adopted were not "concurrent" in the ordinary meaning of language. The trial judge found that a sign warning of "shallow water" would have been ignored by the plaintiff281; the Court of Appeal majority disagreed282. The trial judge thought that the relevant sign should have warned of "Danger, shifting sands, variable depth" and that that sign would probably have prevented the plaintiff's dive283; the Court of Appeal majority disagreed, saying that that sign would have been unlikely to have inhibited the plaintiff from diving, and that the RTA should have erected a composite sign containing a "No Diving" pictogram and the words "shallow water"284. The trial judge said that the RTA should have ensured either that the fence had a triangular top or that the fence should have been of swimming-pool 281 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 282 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 283 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 284 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,904-68,905 [243]-[251] per Ipp JA and 68,923 [373] per Tobias JA. style285; the Court of Appeal majority differed by saying that the triangular top "may have dissuaded" the plaintiff from diving, but declining to hold that it would have286, rather saying that that change, taken in combination with pool-type fencing and the different sign, would probably have prevented the accident287. The trial judge thought that the prohibition against diving communicated by the RTA was not a warning; the Court of Appeal majority said it was288. The trial judge thought that the risk was not obvious to a 14 year old boy289; the Court of Appeal majority thought it was290. The concurrency of the findings is further damaged by the fact that Handley JA, dissenting in the Court of Appeal, was at odds with many of the findings made by both the trial judge and the majority. Further, there is discordance on issues not directly material to the question whether the RTA was in breach of its duty of care, but factually closely related to that question: 285 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 286 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,906 287 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,906 [259]-[261] and 68,914 [310]. 288 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,903 289 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,533 [87] and 67,534 [93]. 290 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,894 The trial judge found the RTA 80 percent liable for the plaintiff's damages and the Council 20 percent liable291; the Court of Appeal found that the Council was not liable at all292. (ii) And the trial judge found 25 percent contributory negligence on the part of the plaintiff293; but the Court of Appeal found 50 percent294. If the basis of the supposed concurrent findings principle is that what two courts have found to be the case may be safely assumed to be the case, it has no operation here, for in every crucial respect the two courts below were in disagreement. It is true that some conclusions may be more acceptable if different lines of reasoning support them. But where conclusions are supported by inconsistent lines of reasoning, one's confidence in the correctness of those conclusions often declines rather than rises. If this case is an instance where the concurrent findings principle is to be applied, it has been misnamed: it should be called a concurrent orders principle. The authorities. It is common for lawyers to speak of the difficulties facing appellants seeking to overcome "concurrent findings" in two courts below. In one sense, all that is meant is that if four judges have agreed on what the facts are, it will be difficult in a practical sense to persuade three more to disagree. From this perspective, the existence of "concurrent findings" creates no technical or rigid bar to appellate intervention. But in another sense, what is meant is that concurrent findings create a barrier to appellate correction, that appellate correction will not take place if only error is demonstrated, and that the appellant must go further and show a different kind of error – error which is in some sense "clear" or which works a plain or manifest injustice. And in Louth v Diprose Deane J said that the relevant principle about concurrent findings applied even if "some conclusions or inferences of fact are based on different reasonings as between the two courts", and even if there was "a dissentient in the first appellate court"295. In principle these last two propositions are difficult to understand in 291 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 292 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 [1] per Handley JA, 68,891-68,895 [146]-[173] per Ipp JA and 68,916 [325] per Tobias JA. 293 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 294 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 [1] per Handley JA and 68,915 [316]-[321] per Ipp JA. 295 (1992) 175 CLR 621 at 634. modern Australian conditions. As to the first of Deane J's propositions, it is understandable that a third court might feel trepidation in disagreeing with factual findings on which all the judges of two other courts have already agreed: but it is difficult to understand the trepidation in cases like the present, where the courts below not only did not agree, but were at odds on almost every crucial issue except the ultimate issue of whether there had been a breach of duty. And, as to the second of Deane J's propositions, in cases like the present, where questions of credit are not involved, and where four judges have sat in the courts below, it is hard to see why the supposed concurrent findings principle applies where the dissentient judge sat in the intermediate appellate court and not where the dissentient judge was the trial judge. The reason assigned by Deane J in an earlier case for the concurrent findings principles he enunciated was the desirability of ending "litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal". He noted that "the cost of litigation has gone a long way towards effectively denying access to the courts to the ordinary citizen who lacks access to government or corporate funding". He saw the finality of which he was speaking as being "in the overall interests of the administration of justice and of the preservation of at least some vestige of practical equality before the law"296. The reduction of cost and the non-denial of access to justice are, of course, important considerations. However, Deane J appears to treat them as supporting the view that it is unjust for a litigant who has succeeded twice on an issue of fact to be deprived of the fruits merely because a final appellate court thinks the courts below were wrong. A competing view is that it is also in the overall interests of the administration of justice that judges reach correct conclusions, and that if their conclusions are erroneous they be corrected on appeal. It may be thought that the likelihood of judges having reached a correct conclusion is greater where they are unanimous, and reduced if there is a dissentient. If so, it remains unclear why the precise court in which the dissentient sits is crucial, so that there is a concurrent findings principle if the dissentient was in the intermediate appellate court but not if the dissentient was the trial judge. Deane J cited authority for the two propositions quoted above – that the concurrent findings principle applies even if the courts below differ in their reasoning, and even if there is a dissentient in the first appellate court. That authority was the Privy Council decision of Devi v Roy. In that appeal, decided in 1946, the Board (Lord Thankerton, Lord du Parcq and Sir Madhavan Nair) examined many Privy Council decisions reached over the previous 85 years. 296 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 434-435. They concluded that the Privy Council had a practice of not disturbing concurrent findings of fact. Two aspects of that practice were297: "(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice[298]. (3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice." They also said299: "(7) That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country." That was a consideration mentioned as well in some of the authorities they analysed, and, for the Privy Council, it may well remain a powerful one. In 1946 it was a particularly powerful consideration. In that year, and for many decades earlier, the Privy Council could hear appeals from numerous jurisdictions spread across all five continents. Many appeals would have been heard by judges lacking an understanding of local conditions in these extremely diverse jurisdictions. The position of the Privy Council at that time and earlier was very 297 [1946] AC 508 at 521. 298 In this respect South Australia v Johnson (1982) 42 ALR 161 at 167 may qualify the doctrine, for there Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ said: "This appeal requires the court to review and evaluate a vast body of evidence, much of which is in conflict, yet upon which the findings of the learned trial judge have been substantially confirmed by a unanimous Full Court. In such a case, the appellant naturally faces a difficult task in showing that the challenged findings were erroneous ... This court will give the greatest respect to such concurrent findings, although free of course to depart from them if convinced that they are wrong." Depending on the force of the word "convinced", that is a more defensible proposition. It would not assist the plaintiff, for here the Court of Appeal did not "substantially" confirm the trial judge's findings, nor was there unanimity in the Court of Appeal. 299 [1946] AC 508 at 521. different from that of this Court, which with limited exceptions hears appeals only from the federal courts and States and mainland Territories of Australia, to which one Constitution applies, and to which a single common law applies unless modified by Commonwealth legislation, usually of universal application, or State or Territorial legislation, often uniform in character. What is more, while there is some social heterogeneity to be observed among the residents affected by the laws of each jurisdiction, there is no radical difference between the jurisdictions in this respect. It is not the case that there are particular aspects of local conditions with which trial judges and intermediate appellate courts are far better equipped to deal than this Court. That difference in position is a reason for strongly doubting the applicability of the concurrent findings principle to this Court300. A further reason for doubting the applicability of the principle to this Court is that among the propositions stated at the end of the Privy Council's reasoning is the following301: "(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect." It cannot be the law in Australia that this Court will only depart from concurrent findings where what "happened [was] not in the proper sense of the word judicial procedure at all". That is not how exceptions to the concurrent findings principle have been stated in this Court. If the second and third propositions quoted above lead to, or are integrally linked with, a proposition which is in this Court as erroneous as the fourth is, the applicability in this Court of the second and third propositions themselves must be questionable. Further, as the Privy Council made plain in Robins v National Trust Co302: 300 See Muschinski v Dodds (1985) 160 CLR 583 at 590-591 per Gibbs CJ. 301 [1946] AC 508 at 521. The language derives from that of Viscount Dunedin in Robins v National Trust Co [1927] AC 515 at 518. 302 [1927] AC 515 at 517 per Viscount Dunedin. "The rule as to concurrent findings is not a rule based on any statutory provision. It is rather a rule of conduct which the Board has laid down for itself. As such it has gradually developed." It must be seriously doubted whether it is right for this Court to adopt for itself a rule of conduct which the Board laid down without reference to any statutory provision, at least without counsel appearing before this Court, and the Court itself, conducting a close analysis of the constitutional and statutory provisions concerning appeals to this Court in a case in which the existence or non-existence of the supposed concurrent findings principle is crucial to the outcome. Finally, apart from Privy Council cases, the authorities that support the concurrent findings principle are, with respect, slight. The point is usually put in passing, as a makeweight for conclusions arrived at on other, more specific and substantial grounds. Thus in the first case on the point in this Court, Major v Bretherton, only Isaacs J devoted much attention to it303. Starke J mentioned it very briefly304. Knox CJ and Gavan Duffy J did not mention it at all. The fifth "The attitude of the Judicial Committee as the final tribunal of the Empire as to its own practice is not necessarily to be the attitude of this Court; and the question whether we shall treat ourselves as being subject to such a rule in our endeavours to do justice after weighing all the circumstances of the case before us should not be decided until the subject has received much more attention than has been possible in this case. In my opinion, the question should be left open until such a decision becomes necessary." The subject received no attention in argument from the parties on the present appeal, apart from a short submission by the plaintiff that there were some concurrent findings. The reports of the other well-known cases in this Court do not suggest that the subject received attention in argument in them306. What is 303 (1928) 41 CLR 62 at 68-71. 304 (1928) 41 CLR 62 at 74. 305 (1928) 41 CLR 62 at 74. 306 Baffsky v Brewis (1976) 51 ALJR 170; 12 ALR 435; The Commonwealth v Introvigne (1982) 150 CLR 258 at 274 (recording a concession by counsel); South Australia v Johnson (1982) 42 ALR 161 at 167; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Louth v Diprose (1992) 175 CLR 621; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 at 618 [39]; Bridgewater v Leahy (1998) 194 CLR 457; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. more, Gibbs CJ maintained that this Court had not adopted the Privy Council rule of practice, and said: "Where concurrent findings are challenged, it remains the duty of this Court to depart from them if it considers them to be erroneous."307 And in the House of Lords the Earl of Halsbury LC said of the Privy Council doctrine: "I have repeatedly protested against the views cited. I feel that where a tribunal has to review a question of fact, it must do it to the best of its ability."308 In the same case Lord Davey said that the Privy Council doctrine was sound if "regarded merely as a guide to the judgment of the tribunal and not as a rule of law or practice."309 He also said310: "In every case the appellant assumes the burden of shewing that the judgment appealed from is wrong, and when it depends on an estimate of probabilities or inferences so nicely balanced that it is impossible to say that a decision either way would be wrong, every material fact having received due consideration, your Lordships would, I make no doubt, be disposed to affirm the concurrent decision of the Courts below." In these circumstances it is undesirable to treat the concurrent findings principle as beyond argument until proper argument has taken place in a case in which "such a decision becomes necessary". Exception to concurrent findings principle. In any event, even if it is appropriate to treat the concurrent findings principle as a rule of law until such time as it is examined closely after full argument, the statements of it in the House of Lords and in this Court accept that it does not apply if the supposedly concurrent findings are "clearly demonstrated ... [to be] erroneous"311, or there is "a tolerably clear conviction"312 or a "clear conviction"313 that they are erroneous, or there are "special reasons such as plain injustice or clear error"314. The errors 307 Muschinski v Dodds (1985) 160 CLR 583 at 590-591. 308 Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 75 (in argument). 309 Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 83. 310 Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 83. 311 Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd [1893] AC 207 at 215 per Lord Herschell LC. 312 Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd [1893] AC 207 at 216 per Lord Watson. 313 Major v Bretherton (1928) 41 CLR 62 at 71 per Isaacs J. 314 Louth v Diprose (1992) 175 CLR 621 at 634 per Deane J. of factual inference identified by Gummow J and by Callinan J are clear, and they led to a plain injustice. Breach of duty In recent years attempts to argue that the test stated in Wyong Shire Council v Shirt315 is erroneous have not succeeded. Until they do, it is necessary to apply that test, properly understood. I agree with the reasons given by Gummow J for deciding that its application leads to the conclusion that the RTA was not in breach of duty. Costs In view of the fact that a majority favour the allowing of the appeal, it is not necessary to consider whether the Court of Appeal was correct in refusing the plaintiff's application for a Sanderson order. Had it been necessary to do so, I would have agreed with the reasoning of Kirby J on this point316, and would add only the following. Though no doubt this was not its purpose, the effect of the RTA's conduct was to mislead the plaintiff's advisers into a course which led to him not starting an action against the Council at a propitious time, only starting an action against it at an unpropitious time, failing in that action, and as a result incurring a responsibility for payment of the Council's costs. Counsel for the RTA defended the Court of Appeal's approach by saying that it was not for the RTA to advise the plaintiff's professional advisers as to whether the Council had any responsibility for the bridge and for the signs positioned on it. To this there are two answers. First, it may be open to some potential defendants to take that stand. It seems wrong for a corporation like the RTA to do so in resistance to an application for a Sanderson order. The RTA is, for the purposes of any Act, a statutory body representing the Crown: Transport Administration Act 1988 (NSW), s 46(2)(b). Its affairs are managed and controlled by its Chief Executive, who is appointed by the Governor: ss 47(1) and 48(1). The Chief Executive is, in the exercise of his or her functions, subject to the control and direction of a Minister: s 49. The RTA is in that sense a governmental organisation. It is a truism that statutory bodies of that kind should be model litigants: counsel for the RTA accepted that this was so "without question". A terrible thing had happened to a child. The solicitors for that child were not busybodies. Their 315 (1980) 146 CLR 40 at 47-48 per Mason J. 316 Reasons of Kirby J at [176]-[193]. request of the RTA was not a trivial one. It was possible that the RTA – a very wealthy and powerful organisation – was liable in tort. It was also possible that the Council – doubtless much less wealthy, but better resourced than the plaintiff and his parents – was liable. There is nothing wrong with wealthy and powerful defendants requiring plaintiffs to prove their cases, but in the circumstances, as a matter of common humanity, not legal duty, the RTA ought not only to have attempted to tell the plaintiff's advisers who controlled the bridge, as it did, but also to have stated the underlying facts correctly. This was particularly so in view of what the trial judge eventually found was the close relationship between the RTA and the Council317. Counsel for the RTA submitted that no responsibility could be attributed to the RTA because the plaintiff had "professional advisers who bring equality of arms", and hence there was no duty on the RTA to have answered the query of the plaintiff's solicitors at all. "Equality of arms" is a blessed phrase. However, many of the factual matters on which the trial judge relied to reach his conclusions as to the responsibilities of the RTA and the Council for the bridge were far from being readily ascertainable by an outsider, being internal to the workings of government, and to some extent being ancient. There was no equality of arms at all in that respect. If it be said that the question of who controlled the bridge was not an easy one even for insiders, the insiders had no apparent difficulty in making allegations in the RTA's pleadings about the control of the bridge which turned out to be correct. But whether or not the RTA was under any obligation to respond to the request made by the plaintiff's solicitors, and whether or not it was under any obligation to respond more fully or to respond correctly, the fact is that it did respond in the way it did. Its response was confirmed by the identical response from the Council. The response was erroneous. That error led the plaintiff to lose an opportunity to start proceedings against the Council at an advantageous time, before the germination and enactment of legislation which eventually caused his claim against the Council to fail. More crucially for present purposes, the reversal by the RTA of the stand it had taken about who was responsible for the bridge, and the RTA's suggestion, by its indication that it wished to amend its pleadings in September 2003, that the Council might be liable to the plaintiff, which it had up to that point denied, caused the plaintiff's advisers to join the Council, but at a much more disadvantageous time. Thus whether or not the RTA had any duty to cooperate when it was originally asked about who was responsible for the bridge, the fact that it responded as it did, and thereafter behaved as it did, would have made a Sanderson order just had the plaintiff succeeded against the RTA. 317 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at