Mulligan v Coffs Harbour City Council [2005] HCA 63

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

GARRY SEAN MULLIGAN APPELLANT

AND

COFFS HARBOUR CITY COUNCIL & ORS RESPONDENTS

Mulligan v Coffs Harbour City Council [2005] HCA 63

21 October 2005

S502/2004

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

G O'L Reynolds SC with R J M Foord and J C Hewitt for the appellant (instructed by Martin Bell & Co)

M T McCulloch SC with S P W Glascott for the first respondent (instructed by Phillips Fox)

J E Maconachie QC with B M Green for the second to fourth respondents (instructed by Crown Solicitor for New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Mulligan v Coffs Harbour City Council

Torts – Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Local authority – Power of care, control and management of natural reserve – Person suffered injury when diving into a body of water – Whether a reasonable local authority would have erected signs warning against the dangers of diving – Relevance of obviousness of risk to questions of duty and breach.

Marine Parks Act 1997 (NSW).

1. GLEESON CJ AND KIRBY J. This appeal was heard together with Vairy v Wyong Shire Council[1]. In our reasons in that case we made some general remarks about the role of precedent in decision-making on the issue of breach of duty in negligence actions. We would incorporate them by reference in these reasons, and would add the following in relation to arguments that were put to the Court by reference to what was described as a "calculus". 2. Reference is often made to the "Wyong Shire Council v Shirt calculus". In that case[2], Mason J referred to the way in which a tribunal of fact might determine what a reasonable person would do by way of response to a foreseeable risk. As he made clear, he was describing a process of factual judgment. He referred to such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities of the defendant. These, he said, were matters to be balanced out in making a judgment about reasonableness. The later use of the word "calculus" to describe this passage is unfortunate. A calculus is a method of calculation. What is involved in the process to which Mason J was referring is not a calculation; it is a judgment. In Ridge v Baldwin[3], Lord Reid observed that "[t]he idea of negligence is ... insusceptible of exact definition". Moreover, depending upon what may be involved in the concept of conflicting responsibilities, in some contexts, of which the present is an example, to treat what was said in Shirt as an inflexible formula could produce a distinctly unreasonable result. Where the suggested alleviating action is putting up a single warning sign at a particular location in a public recreational area, the expense, difficulty and inconvenience involved may be made to appear negligible. The more important question may be why a public authority would choose to single out that particular spot, or that particular risk, as the subject of a warning. In Vairy, according to the evidence, there were clear reasons why the public authority would choose to single out the elevated rock platform. There was an established risk that supported the factual conclusion of the primary judge that a prohibition, or warning, sign should have been erected. Fifteen years before Mr Vairy's injury a similar accident had occurred. A young man who dived from the platform had struck the ocean bed and had been rendered tetraplegic. Contemporaneous reports had indicated a beach inspector's recommendation that a sign be placed in position. Yet it was not. The public authority's employees knew, or ought to have known, of the continued practice of diving from the rock platform in conditions of established danger. No such features were present in the facts of Mr Mulligan's case. 3. This Court recently said, in Thompson v Woolworths (Q'land) Pty Ltd[4], that reasonableness may require no response to a foreseeable risk, and pointed out that householders do not ordinarily place notices at their front doors warning entrants of all the dangers that await them if they fail to take reasonable care for their own safety. That observation was not the product of a calculus; it was simply a statement about community standards of reasonable behaviour. 4. The facts of this case are set out in the reasons of Callinan and Heydon JJ. The appellant and a friend were swimming in the waters of a tidal estuary adjoining the Pacific Ocean in the popular holiday resort of Coffs Harbour. They were not doing anything that was unusual or that was attended by any particular level of danger over and above that which exists whenever and wherever swimmers plunge head first into water of variable depth. The appellant, a capable and experienced swimmer, was standing about thigh-deep in water. He had been swimming in the locality for about half an hour. He could not see the sandy bottom. As he had done, safely, on a number of earlier occasions, he dived into the water. This time, he hit his head on the sand. The appellant knew that the water was of variable depth, and that diving into water of variable depth is risky. The trial judge, Whealy J, found that the variation in depth resulted from bedforms that were "within normal and naturally occurring limits" of such an estuary. 5. In terms of appellate review, a significant difference between this case and the case of Vairy is that, in this case, there are concurrent findings of fact by the primary judge, and the Court of Appeal, adverse to the appellant on the issue of negligence[5]. Whealy J, in a carefully reasoned judgment, concluded that reasonableness did not require any of the public authorities who were sued by the appellant to erect a warning sign relating to the danger which the appellant encountered, and that conclusion was upheld unanimously by the Court of Appeal. 6. The reasoning of Whealy J on all the issues in the case was orthodox. His conclusion on the issue of breach of duty was amply supported by the evidence, and unsurprising. There were features of the place where the appellant was swimming that were distinctive, but the conditions that led to the appellant's injury were not unusual. The danger that materialised was one that exists at virtually every Australian beach, and in most waterways. It is one of many dangers involved in swimming. It is difficult to see how such common dangers can be addressed by particular warnings at particular locations. 7. This has not been shown to be a case of injustice or error such as would justify the interference by this Court in the concurrent findings on the issue of negligence made in the Supreme Court of New South Wales. In any case, having considered the reasons of the Court of Appeal, and of the primary judge, we find no error. 8. The appeal should be dismissed with costs. 9. McHUGH J. The issue in this appeal is whether the respondents negligently failed to erect a sign warning swimmers of the danger of striking the bottom of a channel artificially created in a tidal creek. The appeal is brought by an unsuccessful plaintiff against a judgment of the Court of Appeal of the Supreme Court of New South Wales upholding the finding of the trial judge that the respondents had not been negligent. The respondents also contend that, contrary to the finding of the trial judge, they owed no duty of care to the appellant.