THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and HANDLEY JJA 28 November 1991, 28 February 1992 [1992] NSWCA 192 NEGLIGENCE — Omissions — Causation — But for test — Liability of local council for injury to person diving into a bay from a fence around a council pool — no pictogram warning sign — no finding by trial judge that but for the absence of the warning sign the plaintiff would not have dived. NEGLIGENCE — Contributory Negligence — trial judge's finding of contributory negligence — eighty-five percent — trial judge's finding that plaintiff was substantially the author of his own misfortune reflects back on causation issue — finding of eighty-five percent contributory negligence inconsistent with conclusion concerning causation — trial judge must have applied the wrong test of causation. NEGLIGENCE — Causation — Liability of local council for injury to a person diving into a bay from a fence around a council pool — plaintiff's claim based on absence of pictogram warning sign — trial judge finds council negligent and awards verdict for plaintiff but assesses contributory negligence at eighty-five percent on basis that plaintiff was substantially the author of his own misfortune — plaintiff appeals and defendant cross-appeals — no finding that but for the absence of the warning sign the plaintiff would not have dived — both parties agree on hearing of appeal and cross-appeal that "but form test was, in the circumstances, the test to apply — HELD — the trial judge must have applied the wrong test and, applying the correct test, the plaintiff had not established causation and the defendant should have succeeded. Considered Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 Hotson v East Berkshire Area Health Authority [1987] AC 750 Wilshire v Essex Area Health Authority [1988] 1 AC 1074 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Parramatta City Council v Lutz (1988) 12 NSWLR 293 March v E and MH Stamare Pty Ltd (1991) 65 ALJR 334 Gleeson CJ This appeal has had an unfortunate history. The original appellantwas the late Peter Saroukas ("the deceased"). In 1988 the deceased commenced an action in the Common Law Division of this Court against the respondent Council claiming damages for personal injury. The action came on for hearing before Gyles AJ, and in December 1989 his Honour gave judgment for the deceased in the sum of $323,298. Mr Saroukas appealed, and the Council cross appealed. The appeal was expedited and came on for hearing in June 1990. The Court reserved its decision. Thereafter, and before we had delivered judgment on the appeal and cross appeal, Mr Saroukas died. There was then a period during which the lawyers for the parties considered what action was to be taken. Ultimately, two motions were brought before us. The first, which was 2 UNREPORTED JUDGMENTS unopposed, was a motion that the Public Trustee as administrator of the estate of the deceased be substituted as appellant and co respondent. That order was made. The second was an application for leave to call fresh evidence to prove the death of the deceased. This was a motion of the respondent, and was aimed at endeavouring to persuade the Court, if the issue of damages arose, to reduce the damages that would otherwise be payable by the respondent. The question involved was similar, although not identical, to that involved in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. For reasons that will appear below, in the view I have formed as to what should be the ultimate outcome of the appeal, that issue does not arise. I would indicate, however, that if it had arisen for decision I would have regarded Doherty as different but not distinguishable from the present case and would have considered that the outcome should have been the same as in Doherty. I now proceed to deal with the facts and issues in the appeal. The respondent Council, which was the defendant at first instance, at all material times had the care, control and management of a park on the foreshores of Gunnamatta Bay near Cronulla, a suburb of Sydney. The park is extensively used, especially in summer, for picnics and other recreational activities. Tidal baths have been erected in part of Gunnamatta Bay adjacent to part of the western boundary of the park, and those baths also are controlled and managed by the respondent Council. They are surrounded by shark proof netting. Around three sides of the baths there is a walkway which is about one and a half metres above the water level. Around the external perimeter of the walkway there is a rail fence which is attached to the walkway from the outside. Whilst it is possible to climb through or over the fence, it would be difficult to stand on the walkway outside the fence without hooking one's arms or legs through a rail. Diving from the walkway into the waters of Gunnamatta Bay is obviously hazardous. The depth of the water varies with the tides and the surface of the bay varies both in its physical characteristics and in relative height from mean bottom level. The water is frequently unclear, and its surface is subject to disturbance. As a consequence, accurate depth assessment by eye from the walkway is very difficult, and frequently impossible. The Council has erected numerous signs around the baths and the walkway warning of the danger. The signs are in the following terms. In red letters there appears the word "Danger". Below that are the words "Diving in this pool is dangerous". Following that also in red is the word "Beware". That is followed by the words "Tidal water variable depth". The baths contain depth indicators. In 1985 the Council took professional advice as to the risks to which users of the pool were subject, and as to the precautions which it could take to minimise those risks. Subject only to one qualification the Council's performance was found to be "exemplary". The Council was advised that, with one exception, there were no significant areas where the Council could be found wanting. The qualification was as follows. The Council's advisers drew attention to the fact that the park and the pool are regularly used by groups of people, described as "ethnic", who do not speak or read the English language. The Council was given the following advice: "Although Council's existing pool warning signs are of an excellent standard, they are all in English. Due to the presence at the pool(s) of ethnic persons, many (of whom) have limited facility with the English language, as well as illiterate and dyslexic persons, Council should prepare and install side by side with those existing URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Gleeson CJ) warning signs against diving an appropriate pictogram incorporating appropriate symbols and the internationally accepted prohibition marking of diagonal red bar as per the sketch attached." By the summer of 1987 the Council had not got around to complying with that recommendation. On a summer Sunday in January of that year the deceased, who was an "ethnic person", attended a picnic at Gunnamatta Bay in the company of other members of the Greek community. The park and the pool were crowded. During the afternoon the deceased and some friends went for a walk along the walkway. The deceased was wearing thongs and, apparently, light summer clothing. He stood to lean on the railing looking out into the Bay and one of his thongs dropped off into the water of the Bay outside the baths. It seems that at the time the water there was about three feet deep. The deceased decided to go after his thong. Instead of walking back along the walkway and wading into the Bay, or even jumping into the Bay, he climbed through the rail and, without removing his clothing, dived head first. He became a quadriplegic. He sued the Council for damages for negligence and the learned trial judge calculated the amount of his damages at a figure in excess of $2 million. The trial judge found that the Council was negligent but also said that he regarded the deceased as "very substantially the author of his own misfortune'. He found that the deceased was guilty of contributory negligence to the extent of eighty five percent. There was judgment for the deceased in the sum of $323,298. The deceased appealed, contending that the finding of contributory negligence was wrong or alternatively that a far greater portion of the responsibility for his injuries than was appropriate was attributed to him by the trial judge. He also complained that in various respects his damages were under estimated. The Council cross appealed, contending that there should have been judgment for the defendant in the action. It is convenient to consider the Council's cross appeal before dealing with the subject of contributory negligence. If the Council's cross appeal succeeds the issue of contributory negligence will not arise. Furthermore, an accurate understanding of the basis of Council's liability, if any, to the deceased may be of significance in a consideration of the subject of contributory negligence. Before turning to the relevant principles and to the learned trial judge's findings, it is necessary to go in a little more detail into the circumstances of the accident. At the time he suffered his injuries the deceased was aged twenty nine. He had been born on the island of Kalymnos in Greece and had left school at the age of thirteen years after completing his primary education. He had spent a good deal of his life around boats and the water, and was evidently confident of his diving and swimming abilities. Another witness who knew him well described him as "a very good diver". He came to Australia at about the age of sixteen and he later married and had two children. He was employed by a man who carried on the business of painting and building maintenance. He earned some extra money gardening, and in addition, he and his wife bought a small mixed business. The mixed business was principally conducted by the wife but the deceased used to work in it for several hours a week. Later on, they divorced. The deceased gave his evidence in English without the aid of an interpreter. It is not entirely easy, from a reading of the transcript, to gain a clear picture of the extent of the deceased's ability to read English, and there is no specific finding of the trial judge on the point. However, the tenor of the deceased's evidence 4 UNREPORTED JUDGMENTS appears to be to the effect that he had some, although limited, ability to read English, and it is at least implicit in the learned judge's reasoning that this was accepted. His Honour regarded the deceased generally as a reliable witness. In relation to the signs referred to earlier, it seems that the deceased, if he had seen them, and taken the trouble to read them, would have known the meaning of the word "Danger" and possibly also "Beware", but not the rest of the wording. The deceased gave evidence that on the day in question he did not see the signs because of the crowd of people in the area. He had been to the park and the pool on previous occasions, and there is no specific evidence as to whether he had ever previously seen or noticed the signs. Photographs in evidence, and a video tape of the scene, admittedly taken when there are very few people around, indicate that the signs are numerous and prominent. It is not easy to accept at face value the reason given by the deceased for not noticing them, and it is more likely that he simply ignored them because they were irrelevant to his purpose in going onto the walkway. He did not intend to go into the water on that afternoon. In particular, he did not intend to dive into, or swim in, the pool, and the water depth indicators in the pool would have been of no interest to him when he went onto the walkway. Since the accident the Council has erected pictogram signs in compliance with the expert's recommendation. One such sign is located near the commencement of the walkway and if it had been there on the day in question the deceased would have had to walk right past it. Whether he would have taken any particular notice of it is another question. In fact, although there is some inconsistency in the evidence on the point, it seems that the deceased dived into the Bay from a point very close to one of the English language signs to which reference has earlier been made. As I have said, when the deceased went onto the walkway, diving was not on his mind. Since strong reliance was placed upon the Council's failure to comply with the expert's recommendation, and upon the subsequent erection of pictogram signs, it is fair to observe that the Council evidently had some difficulty in working out just what to put on a pictogram sign. There are indications in the evidence that the Council had received legal advice against imposing a blanket prohibition upon diving. The Standards Association prescribes a form of pictorial sign appropriate for use in areas where diving is prohibited. However, where the intention is to convey the message, not that diving is prohibited, but that it is risky, and that the risk varies according to the depth of the water from time to time, the devising of a sign to convey the desired information is not so easy. The sign that was ultimately put up by the Council contains a pictorial indication the full interpretation of which would require some imagination. It does, however, convey in a pictorial form much the same idea as is conveyed in the English language signs. The Trial Judge's Findings: The learned trial judge rejected a criticism that was made at the trial concerning the English language signs, which was a criticism directed at those signs separately from the matter of the absence of pictograms. Both at the trial, and in this Court, it was submitted on behalf of the deceased that the location of the English language signs and the direction in which they were facing, were such that the Council on that ground alone fell short of its obligations to give appropriate warnings in relation to the risks of diving. That submission was rejected, and rightly so. It was the plaintiff who tendered the expert's advice, and, as has been noted, that advice found no inadequacy in relation to the location or URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Gleeson CJ) number of the English language signs but, on the contrary, commended the Council upon the trouble which it had taken in that regard. That report, of course, was not conclusive on the matter and it would have been open to the trial judge to reject the view expressed by the experts. However, having regard to the photographic evidence and the other information placed before the trial judge his Honour was correct in concluding that this complaint against the Council was not justified. The sole basis upon which his Honour found that the Council fell short of the standard of care required of it was in relation to the failure to provide pictogram signs. The precise reasoning in relation to those signs is a matter which calls for some further examination, but it suffices for present purposes to say that his Honour found that the absence of such signs constituted a significant and material shortcoming on the part of the Council in its otherwise commendable efforts to warn people against dangers involved in using the walkway and baths. Having regard to the terms of the advice which the Council had been given by its experts, and subject to various legal considerations as to the significance of that finding, it is impossible to quarrel with it. A factual matter which is not the subject of serious dispute, but which, in the submission of the respondent, is of significance, concerns the account given by the deceased of the approach which he took to his decision to dive. The deceased gave an account of his actions which indicated that he understood that diving into shallow water was a very risky activity, and that he was not in a good position to judge the depth of the water into which he was diving on this occasion. When asked to describe his actions in getting through the fence he gave a description of himself moving deliberately and weighing the risk. He said: "I mean slowly, slowly because may be I hurt myself in the fence or fall just slowly, slowly climb and then climb in between the fence and stand and after see what is going on, see if it was deep enough and decide if you dive. Q. What you did was that you looked at the water to see if it was deep enough to dive into? A. Yeah. Q. And you said to yourself that it was deep enough? A. Well I think because the boats were there and because the water was darker. Q. Darker? A. I mean dark, you couldn't see the sand. Q. You could not see any sand in it? A. Yeah. Q. And so you said 'that is deep enough' and then you dived? A. Yeah, that is what I thought it was." In dealing with an argument that a pictogram warning would have added nothing to what the deceased already knew and understood his Honour said: "There is much to be said for the conclusion of fact that such a sign, if seen by the plaintiff, would have added nothing to his relevant state of knowledge. His association with water and water sports in Greece and Australia gave him a good appreciation of the movement and effect of tide. As an experienced and competent diver he was aware of the risks of diving into water that was too shallow. He was accustomed to swimming in tidal pools on Botany Bay. He had been to those this very pool on four or five occasion before." His Honour stressed that it was never suggested on behalf of the deceased, and the case was not conducted on the basis, that the Council should have erected a sign which prohibited diving. What was alleged was that the pictogram in question should have conveyed a warning of some kind to the deceased, but there was a question as to the substance of that warning, and what, if anything, it would have told the deceased that he did not already know (cf Black v City of South 6 UNREPORTED JUDGMENTS Melbourne [1964] 38 ALJR 309). As his Honour found, the deceased knew that diving into shallow tidal waters was dangerous. On the other hand, he did not know that the water into which he was diving was in fact as shallow as it was. In this regard it is also to be noted that the deceased's case was not put on the basis that the Council should have provided depth indicators in the bay outside the baths. His Honour said: "One aspect requiring consideration is whether, if appropriate warning signs had been erected and seen by the plaintiff on the afternoon in question, he might have thought more carefully about the manoeuvre that he undertook, even though the sign in truth added nothing to his state of knowledge. A related point is whether a pictogram sign would have caught his eye more easily. I leave aside for the time being any question of causation. The plaintiff's principal difficulty here lies in the evidence he gave of the conscious assessment of risk. whether the exercise was quite as deliberate as the plaintiff's account would suggest is high by questionable, but there seems no doubt that he did make an assessment of depth, albeit incorrectly.... If an appropriate warning sign had been observed by him, it would have warned him of the danger of diving into variable depth tidal waters. This he knew. It would not prohibit diving. Therefore, a decision whether to dive or not depended upon an assessment of depth. To put it another way, a proper warning sign would not have cured the plaintiff's misapprehension which contributed to his mis judgment of depth. However, as a tribunal of fact I find myself unable to eliminate the possibility that a pictogram sign may have caught the eye, and then caused the plaintiff to pause and consider his position more carefully." In considering the above passage in his Honour's reasons for judgment it is important to bear in mind that what appears was written in the context of a consideration of a particular submission of the Council put in reliance upon the decision of this Court in Warringah Shire Council v Jamieson (Court of Appeal unreported 19 December 1980). In short, that submission was to the effect that the Council had no duty to tell the deceased something he already knew or to warn him of a risk of which he was fully aware. His Honour was not prepared to accept that the deceased's knowledge and appreciation of the danger and risk was as good and complete as it would have been if he had read and understood an appropriate warning sign. Nevertheless, the language used by his Honour in making those findings points to the existence of a real problem, relevant to the issue of causation, arising out of the deceased's own knowledge and understanding, and his account of the circumstances surrounding his decision to dive. What the above passages make clear is the need to attend with some care to the question of what is said to be the substance of the additional warning the Council should have given. The deceased dived, not into the Council's pool, but from the Council's walkway into Gunnamatta Bay outside the pool. The case was not conducted on the basis that the Council should have taken it upon itself to prohibit diving either into the pool or into the Bay. A blanket prohibition upon diving would raise other issues and considerations which were not investigated at the trial. No one suggested that the Council should have provided depth indicators outside its pool, and there was no criticism of the adequacy of the depth indicators within the pool. The report of the Council's expert was directed towards signs warning about diving into the pool, and did not address the possibility that someone might dive from the walkway into the Bay outside the URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Gleeson CJ) pool. The learned trial judge dealt with the matter upon the basis that the pictogram which should have been provided was (like the one ultimately installed) a kind of pictorial version of the existing English language signs, which were at least primarily related to diving into the pool and which conveyed the information that it was a dangerous activity and that the main source of danger was the variable depth of the water resulting from tidal activity. In relation to diving into the pool, that warning was accompanied by the information conveyed by depth indicators. On the other hand, in relation to diving outside the pool, that warning would have stood on its own and, as his Honour found, would have told the deceased little, if anything, that he did not already know. What his Honour found was that he could not eliminate the possibility that a pictogram sign might have the caught the deceased's eye and caused him to hesitate longer. In expressing his conclusions on contributory negligence he again said that he was "not prepared to eliminate the possibility that a pictogram sign may have been seen, and may have influenced the conduct of the plaintiff'. These are, from the deceased's point of view, very modest findings. They fall a long way short of a finding that if such a sign had been displayed the deceased would probably not have dived. No such finding was expressed by the learned trial judge, and the language in which he expressed the findings referred to above is hard to reconcile with such a conclusion. The apportionment of responsibility in relation to contributory negligence is also hard to reconcile with such a conclusion. Duty of Care: The respondent repeated in this Court a number of arguments that were considered and rejected by the learned trial judge, all of which went to show, in one way or another, that the respondent was under no duty to warn the deceased, by words or pictures, of the risks associated with diving into Gunnamatta Bay. These submissions were correctly rejected by the learned judge. The Council provided and maintained recreational facilities in the form of the park and the baths. It expected and intended that those facilities would be widely used by members of the public. Part of the facilities included a walkway around the baths out into Gunnamatta Bay and, once again, the Council expected and intended that members of the public would use that walkway for recreational purposes. There was no suggestion that the walkway was only available for use by people intending to swim in the baths. Diving from the walkway into the Bay outside the baths was not prohibited, although it was certainly made difficult by the perimeter fence around the walkway. Whilst it is true to say that the Council did not intend that people should dive from the walkway into the Bay outside the baths, nevertheless the Council provided a recreational facility which made that possible, and the risk that a person might dive out into Gunnamatta Bay from the walkway and suffer injury as a consequence was foreseeable. There was a real risk of such injury to persons using the walkway. The possibility that someone might choose to dive from the walkway into the Bay rather than the baths, for any one of a number of different reasons, was not far fetched or fanciful. The necessary relationship of proximity between the respondent and the deceased existed, and the learned trial judge was correct in concluding that the respondent was under a duty to warn those using the walkway of the dangers of diving into variable depth tidal waters. (The Council of the Shire of Sutherland v Heyman (1984) 157 CLR 424; Cook v Cook (1986) 162 CLR 376; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; The Council of the Shire of 8 UNREPORTED JUDGMENTS Wyong v Shirt (1980) 146 CLR 40 at 48; Overseas Tankship (UK) Ltd v Miller Steamship: The Wagon Mound (No 2) (1967) 1 AC 641 to 643). It was submitted on behalf of the respondent that the circumstance that the deceased dived to one side of the walkway rather than the other meant that there was no duty upon the respondent to warn the deceased of the risk involved. As an absolute proposition this cannot be correct. Suppose, for example, that, to the knowledge of the Council, the bed of Gunnamatta Bay immediately outside the swimming pool was covered with large quantities of broken glass. It cannot be the case that there would be no duty upon Council to warn users of the walkway of that danger. The very existence of the Council's walkway going out into the Bay creates the possibility that people will jump or dive from it and once it is accepted as a possibility that the Council's recreational facility will be used in that way then it would be taking far too narrow an approach to limit the Council's obligation to an obligation to give a warning to people who intend to jump or dive in one direction rather than in another. There is in the respondent's submission a strong flavour of distinctions based upon a proprietorial and territorial approach to the liability of occupiers of land which have no place in the modern law on this subject. Alternatively, it was submitted that any duty owed by the respondent to the deceased was satisfied by the provision of the fence around the walkway, which was a sufficient response to the relevant danger. This submission should be rejected as a matter of fact. It may not be difficult to imagine kinds of fence that might have constituted a satisfactory response to the danger, but this particular fence did not. It is true that the process of climbing through it (or, perhaps, over it, or upon it) for the purpose of jumping or diving into the water would involve a degree of awkwardness and difficulty. However, there would be quite a high degree of risk that children would go through or over the fence for the purpose of diving or jumping into the Bay, and, as has been said above, the possibility that an adult might do so was by no means far fetched. It is true that in some circumstances and to some extent the standard of behaviour to be expected of a person who comes on to another's premises is relevant in deciding what it is reasonable to expect the occupier of premises to do (Phillis v Daly (1988) 15 NSWLR 65 at 74). What is involved here, however, is a recreational facility to which people come to enjoy themselves in a variety of ways, not a church or a courtroom. A lot of people were jumping and diving from the walkway into the pool, and the possibility that somebody might decide to jump in the other direction, with the attendant risk, even bearing in mind the presence of the fence, was not something that the Council was entitled to disregard. Finally, it was submitted that this was one of those cases, of the kind referred to in Warringah Shire Council v Jamieson (supra), in which the deceased's own state of knowledge and understanding of the risks involved was such that there was no duty on the part of the Council to give him any warning of the kind contemplated by the trial judge. This is the issue with which his Honour was dealing when he made the finding of fact quoted above. His Honour said that his task in that regard was to assess whether the deceased's knowledge and appreciation of the danger and risk was as good and complete as that which would have been conveyed by an appropriate warning. This question is bound up with the question of his Honour's view as to the substance of the information that would have been contained in an appropriate warning. His Honour dealt with the matter upon the basis that an appropriate warning would have been, in effect, a pictorial representation of the warning contained in the English language signs URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Gleeson CJ) placed around the pool. His Honour decided this issue adversely to the respondent, not upon the basis that the information contained in those warning signs was news to the deceased but, rather, upon the basis that the fact of the warning was more likely to have been brought home to the deceased by a pictogram than by a sign only part of which he could read and that, therefore, a pictogram would have acted as a form of additional caution which may have caught the deceased's eye and may have caused him to pause and consider his position more carefully. On that ground his Honour rejected this particular submission of the respondent, and in my view his reasoning on the point was Where it leaves the deceased on the related question of causation is the matter which must next be considered. Causation: Having regard to the findings of fact made by the learned trial judge on related, although different, issues the question whether the deceased discharged his onus of proving, on the balance of probabilities, that the respondent's negligence caused or materially contributed to his injuries is by no means an easy one. The difficulties were recognised by his Honour. The question is hypothetical in that it calls for a consideration of what would or might have happened had pictogram warning signs been set up by the respondent (cf Mallett v McMonagle (1970) AC 166 per Lord Diplock at 176). The inquiry is subjective, and calls for a consideration of what the deceased himself would have done if warnings had been given (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553). The deceased himself was not asked questions directly on the point and, as has been noted, the evidence indicated that he had some, although limited, capacity to read and understand the existing warning signs. His account of how he came to take no notice of them is not entirely satisfactory. The learned judge's conclusions on the point were expressed as follows. His Honour, having mentioned the matters to which I have just referred, said: "As a tribunal of fact, I must bear in mind that the defendant was negligent in not providing a proper warning. I would not lightly assume that a proper warning sign, if seen, would have been completely ignored by the plaintiff, or that it would have played no part in his decision to act as he did. His lack of evidence on the point is not decisive, as it would of necessity be speculation and reconstruction. Taking all of these factors into consideration, I am satisfied that the plaintiff has established that the failure to erect an appropriate set of warning signs contributed to this particular accident." That conclusion is expressed as a finding of fact, but there are some potentially difficult legal issues underlying it. Where a defendant is under a duty to warn a plaintiff of the existence of danger, and no warning is given, then, depending on the circumstances of the case, the meaning of the question whether the defendant's failure to warn caused or contributed to the plaintiff's injuries may be something that requires close consideration. (See Stapley vy Gypsum Mines Ltd [1953] AC 663 at 681 per Lord Reid). A similar problem arises in cases of medical negligence where a plaintiff suffers injury following careless treatment but has difficulty in proving, on the balance of probabilities that the injury would not have been suffered but for the carelessness. (Hotson v East Berkshire Area Health Authority [1987] AC 750; Wilshire v Essex Area Health Authority [1988] 1 AC 1074). Again, cases where a plaintiff complains of the negligent omission by a defendant, in breach of a common law or statutory duty, to supply safety equipment often give rise to problems of causation. Leaving to one side questions 10 UNREPORTED JUDGMENTS of evidentiary or tactical onus that might arise on the facts or by reason of the way in which a case is conducted, it seems clear that the legal onus in such a case rests upon the plaintiff to prove that the performance of duty would have resulted in the avoidance of the injury. In Sutherland Shire Council vy Heyman (1985) 157 CLR 424 at 467 Mason J said: "When there is a duty to take precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm." In Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 335, McHugh JA said: "As a matter of commonsense, a failure to act is regarded as a cause of harm when 'but for' that failure the harm would have been averted. This is particularly so when the harm causing activity occurs after the failure to act." In Trevali Pty Ltd v Haddad (1989) Australian Torts Report 80.286 at 69,034, Mahoney JA, who has expressed some reservations about the general applicability of what is sometimes called the "but for" test, said, in a case concerning lack of supervision at an ice skating rink: "Tn the present case, as the defendant's argument suggested, if the supervision had been provided the plaintiff might yet have been pushed as she was. But, in my opinion, it is proper to infer that, if the proper supervision had been provided, it is probable that the incident would not have occurred. And that is sufficient to establish the relevant causal link." The High Court has recently rejected the notion that the "but for" test is always the proper test of causation in negligence (March v E and MH Stamare Pty Ltd (1991) 65 ALJR 334), but that decision does not appear to have a direct bearing upon the present case. There has been a good deal of learned debate upon the question whether this "traditional approach" to the issue of causation is appropriate in cases such as the present. For example, in Hotson v East Berkshire Area Health Authority Sir John Donaldson MR in the Court of Appeal ((1987) 1 AC 750 at 759) said, in relation to the matter of medical negligence: "As a matter of common sense, it is unjust that there should be no liability for failure to treat a patient, simply because the chances of a successful cure by that treatment were less than 50 per cent for, by the same token, can it be just that if the chances of a successful cure only marginally exceed 50 per cent, the doctor or his employer should be liable to the same extent as if the treatment could be guaranteed to cure if this is the law, it is high time that it was changed, assuming that this court has power to do so." Commentators upon the decisions of the House of Lords in Hotson and Wilshire have argued strongly in support of the introduction into this area of the law of principles allowing compensation for the loss of a chance, so that a plaintiff who can prove that there has been negligent medical diagnosis or treatment, or a failure to provide a warning or a safeguard by someone bound to do so, but who cannot prove that it is more probable than not that careful diagnosis or treatment, or the giving of the warning or the provision of the safeguard would have averted harm to the plaintiff, may nevertheless be entitled to recover compensation related to the value of the benefit of that which the wrong doer should have done. (See, for example, DPT Price, "Causation: the Lords Lost Chance?'", 1989, 38 ICLQ 735; FC Cownie "Damages for Loss of a URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Gleeson CJ) Chance in Tort.?'", Professional Negligence, 1989 Vol 5 194; Waddams "The Law of Damages" at 625 et seq; SN Pincus "Progress on the Causal Chain Gang", 1986 24 Osgoode Hall LJ 961. See also JG Fleming "Probabilistic Causation in Tort Law" 1989 68 Canadian Bar Review 661). However, neither at first instance nor on appeal was the deceased's case put on that basis, even as an alternative. The learned trial judge did not consider the matter that way. Although many, if not most, of his Honour's findings of fact are expressed in a fashion that suggests that he might have been leading up to a consideration of the proposition that what the deceased was really entitled to be compensated for was the loss of chance, that is to say, the opportunity to take pause and give heed to the effect of a further warning, there is no mention in the judgment of such an issue, and if his Honour had been minded to compensate the deceased on that basis then it is difficult to see how any question of contributory negligence would have arisen. Since the present appeal was not argued on that basis, and since the learned trial judge was not invited to give any consideration to the matter, it would not be appropriate for this Court to pursue that question. It was common ground in this appeal that the proper test of causation for his Honour to apply was that stated in Hart and Honore "Causation in the Law" 2nd Ed at 414 where the learned authors said: "Tn English law, therefore, consideration of policy do not dictate a presumption that a statutory precaution would have averted harm of the type it was designed to avert. A plaintiff must show that in the particular instance on which he relies, the precaution would more probably than not have done so." Senior counsel for both the deceased and the respondent agreed that the test of causation was whether the deceased had proved on the balance of probabilities that if the missing sign or signs had been erected the deceased would not have suffered his injuries. This, it was agreed, involved showing that such a sign or signs would probably have been seen by the deceased, and understood by him, and that, having seen and understood them, he would probably not have dived. Each side sought to draw comfort from this affirmation of the "traditional approach". The deceased, contending that an affirmative finding in relation to these questions must have been implicit in the learned trial judge's conclusion on the issue of causation, then went on to argue, with considerable force, that having reached such a conclusion, his Honour could not reasonably have arrived at the result on contributory negligence to which reference has earlier been made. Once it is accepted, so the argument ran, that inherent in the favourable conclusion on the issue of causation is the proposition that if appropriate warnings had been given the deceased would not have been injured at all because he would not have dived, then the proposition that the deceased was substantially the author of his own misfortune and ought to bear eighty five percent of the blame for his injuries is untenable. The respondent, on the other hand, inverted the process of reasoning. Pointing to the various findings of fact made by the trial judge on related issues, which have earlier been described as modest, and the failure of his Honour to make any specific finding of fact to the effect that if the warnings had been given the deceased would not have dived, the respondent relied upon what the learned judge said and decided on the issue of contributory negligence and submitted that this Court should conclude that it is evident that his Honour did not apply the correct test of causation. The respondent relied on statements, which are to be found throughout the reasons for judgment, which indicate that the most his Honour was prepared to say was that he could not eliminate the possibility that a pictogram sign might 12 UNREPORTED JUDGMENTS have been seen by the deceased and might have influenced his conduct. The very finding on causation itself states that his Honour "would not lightly assume that a proper warning sign, if seen, would have been completely ignored by the plaintiff'. Nowhere, for example, does his Honour make a positive finding that the deceased would have seen a proper warning sign or would have taken notice of it. He certainly did not say that he found that the deceased would not have dived if a pictogram sign had been there. Furthermore, the very strength of the deceased's argument on the issue of contributory negligence was also its weakness on the issue of liability. The trial judge could hardly have apportioned responsibility as he did if he had already concluded that, had a sign been there, in accordance with the Council duty to warn, the plaintiff would not have dived. All the more reason, therefore, for this Court to conclude that his Honour did not apply the proper test of causation. It is very difficult to reconcile a conclusion that the erection of an appropriate warning sign would have averted the injury to the deceased with the statement that the deceased was "very substantially the author of his own misfortune". Contributory Negligence: There is ample authority for the proposition that a trial judge's determination of what is just and equitable by way of apportionment of responsibility where a plaintiff suffers injury partly as a result of his own fault and partly as a result of the fault of the defendant involves a broad decision with which an appellate court will be slow to interfere (Pennington v Norris (1956) 96 CLR 16, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Bankstown Foundry v Braisting (1986) 160 CLR 301). However, it is also established, as Lord Reid observed in Stapley v Gypsum Mines (1953) AC 663 at 682 that a court must have regard to the blameworthiness of each party and to the relative importance of the plaintiff's acts in causing the damage. When the learned trial judge said that the deceased was substantially the author of his own misfortune, and apportioned responsibility accordingly, he was taking an approach to contributory negligence that must raise a strong doubt as to the test of causation that he applied, because it hardly reflects a view that if the Council had fulfilled its duty to warn the plaintiff the accident would probably not have happened. It is difficult to see how, on such a view, the deceased could properly have been required to bear more than fifty percent of the responsibility. Conclusion: It is, no doubt, theoretically possible that the learned judge, without stating it, applied the proper test of causation and was somehow misguided upon the issue of contributory negligence. It is also the case that in many parts of his reasons for judgment his Honour's findings of fact need to be read and understood in the light of the specific issue with which he was dealing at the time. Nevertheless, reading the judgment as a whole, I find it impossible to accept that his Honour found as a fact the matters necessary to entitle the deceased to succeed upon what has been accepted in argument in this Court as the appropriate test of causation. Reference has already been made to the facts that his Honour found and the facts that he did not find. I conclude, therefore, that the respondent's submission in this regard is correct, and the learned judge must have applied a test of causation unduly favourable to the deceased. That makes it necessary for this Court to make up its own mind on the issue of causation. There is no point in ordering a new trial. The judge at the new trial would have to rely on the transcript of the deceased's evidence at the first trial, and we are therefore in as good a position as such a judge would be. URE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF THE LATE PETER SAROUKAS v SUTHERLAND SHIRE COUNCIL (Handley JA) On a reading of the whole of the evidence, and taking the test to be as agreed by counsel, I would resolve the issue of causation in favour of the respondent Council. The relevant facts have been set out above. The impetuous nature of the deceased's conduct in diving into the water (clothed) to recover his thong, the 5 circumstance that when he walked past the point where the pictogram should have been placed he was not even thinking of the possibility of diving, and the fact that there were many other warning signs in the locality are amongst the most significant matters leading me to this conclusion. I am not persuaded that if there had been a pictogram at the beginning of the walkway the appellant probably 10 would not have dived. In the result the issue of contributory negligence does not require resolution. The cross appeal should be allowed and the appeal dismissed. The orders made by the trial judge should be set aside and there should be judgment for the defendant in the action. The appellant should pay the respondent's costs of the 15 appeal and cross appeal and of the trial. The appellant, as cross respondent, should have a certificate under the Suitor's Fund Act if otherwise so entitled. Priestley JA I agree with Gleeson CJ. 20 Handley JA I agree with Gleeson CJ. ORDERS 1 Appeal dismissed. 2 Cross appeal allowed. 25 3 Orders of Gyles AJ set aside. 4 Judgment for defendant in the action. 5 Appellant to pay respondent's costs of the appeal and cross appeal and of the trial. 6 Appellant, as cross respondent, to have a certificate under the Suitor's Fund 30 Act if otherwise so entitled. Counsel: Appellant: A Bellanto QC/A Morrison 35 Respondent: FS McAlary QC/JE Maconachie QC/M McCulloch Solicitors: Appellant: Shillar McPhee Meyer 40 Respondent: Ebsworth and Ebsworth