THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY v. BLOOM [1999] NSWCA 229

Reported Decision : (1999) Aust Torts Reports 81-502

New South Wales Court of Appeal CITATION : THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY v. BLOOM [1999] NSWCA 229 FILE NUMBER(S) : CA 40536/97 HEARING DATE(S) : 11 November 1998 JUDGMENT DATE : 5 August 1999

PARTIES : The Council of the Muncipality of Waverley (Appellant) Philip Bloom (Respondent) JUDGMENT OF : Mason P at 1; Sheller JA at 35; Powell JA at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 97/95 LOWER COURT JUDICIAL OFFICER : Solomon DCJ

COUNSEL : M. T. McCulloch (Appellant) M.J. Joseph SC (Respondent) SOLICITORS : Phillips Fox (Appellant) Carroll & O'Dea (Respondent) CATCHWORDS : NEGLIGENCE - Local council - Control and management of surf beach - Surfer struck by surfboard - Whether surfboard within prohibited area - Council's duty of care - Whether breach of duty - Whether breach causative of damage; JUDGMENTS AND ORDERS - Statement of reasons for decision - Inadequacy of reasons DECISION : By majority: Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40536/97 DC 97/95

MASON P SHELLER JA POWELL JA

5 August 1999

THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY v. BLOOM

JUDGMENT 1 MASON P: On a Saturday afternoon in February 1994 the respondent was injured in the surf at Tamarama Beach. He was body surfing between the flags some 60 to 70 metres from the beach. The flags had been located near the southern end of the small beach by employees of the appellant. As the respondent rode a wave he was struck in the neck by a fibreglass surfboard. He remonstrated with the surfboard rider, who then paddled off with a companion on another board in the direction of Mackenzie Bay, a bay immediately to the north of Tamarama. The respondent made his way back to the beach where he "collapsed on the sand". 2 Tamarama Beach is part of the municipality of Waverley and under the care, control and management of the appellant. It is now common ground that the appellant owed the respondent a duty of care in the circumstances. 3 The respondent recovered a verdict of $39,911.81 plus costs. The appellant was found to have been negligent on three bases which will be set out below. 4 One ground of appeal can be disposed of briefly. It was submitted that the trial judge, Solomon DCJ, failed to give sufficient reasons for his decision. I disagree. He found the relevant facts, some of the findings turning upon his acceptance of the evidence of the respondent and of his son who was surfing with him. The critical issues, both at trial and on appeal, were negligence and causation. The trial judge exposed his reasoning process on these matters with sufficient clarity. I shall refer further to the judgment below. 5 The real issues in the appeal can be summarised by this question: Did the appellant fail in its assumed duty to exercise reasonable care to keep surfboard riders out of Tamarama Beach on the afternoon in question, and did such failure cause or contribute to the respondent's injury?