Bowman v Nambucca Shire Council

HIS HONOUR: By an amended statement of claim filed on 27 August 2018 (“the ASOC”), Mr Colin Bowman (“the plaintiff”) brought negligence proceedings against Nambucca Shire Council (“the defendant”). The proceedings arise from a slip and fall by the plaintiff that occurred on 22 February 2015 on the Scotts Head Marine Boat Ramp (“the boat ramp”) at Forster Beach, Scotts Head (“the accident”). The defendant had the care, control and management of a boat ramp. The boat ramp was constructed with the approval of the defendant.

On Sunday, 22 February 2015, due to the rough seas caused by a cyclone, Forster Beach was closed from 8.30am to 2pm. Later that afternoon, the plaintiff, together with his family, drove to the north-eastern end of Forster Beach to enjoy afternoon tea at a popular picnic spot which adjoined the beach on the headland at Scotts Head (“the headland”). The plaintiff’s son, James Bowman (“James”), was the driver. In addition to the plaintiff, there were two other passengers in the vehicle: Debora Bowman, the plaintiff’s wife at the time of the accident, and James’ then girlfriend. James drove the family down to a picnic spot via an access road which moved in a northerly direction up the headland (“the access road”), which road eventually ended with a wooden staircase continuing north towards the Scotts Head Lookout.

Driving north to the picnic spot, the family drove through two car parks and past the Scotts Head Surf Life Saving Club (“the surf club”) and the boat ramp. The boat ramp was used by members of the public accessing Forster Beach and/or launching boats.

The first car park was situated south of the boat ramp (“the southern car park”). To the east of the access road, on the opposite side of the road to the southern car park, was the surf club. Continuing north up the access road, prior to reaching the second car park (“the northern car park”), the family drove past the boat ramp. The northern and southern car parks were referred to, interchangeably, as the upper and lower, the northern and southern, and the eastern and western. For avoidance of doubt, any reference to the upper, northern or eastern parking concerns the car park to the right of the boat ramp when facing the boat ramp (which shall hereinafter be referred to as “the northern car park”).

On either side of the boat ramp was signage. The signage to the north of the boat ramp entrance was clearly visible and featured the words “WARNING” in large red letters (“the warning sign”). Prior to the accident, the defendant was aware that the boat ramp was slippery due to contamination by moss or other vegetation growth. The defendant erected in the area pictogram and written signs to warn the area was slippery.

Photograph 2 (below) is a picture of the access road leading to the northern car park, with the boat ramp and warning sign visible.

After passing the boat ramp and the warning sign, James parked the vehicle in the northern car park, adjacent to the picnic area. The picnic area consisted of a grass area, trees and featured tables and benches overlooking the water. The picnic area was bordered by a combination of rocks on the water’s edge (“the rock wall”) and a row of logs marking the border of the northern car park (see pictured below in Photograph 3).

The family walked from their vehicle, parked in the northern car park, over to a distinctive “whale-shaped” table (“the table”), situated north of the northern car park in the picnic area and overlooking the beach, to enjoy afternoon tea together.

When moving from the table to the boat ramp, which provided access to the beach, there was a worn and well-trodden path, referred to as the dirt track throughout the proceedings, that track proceeded through the picnic area to the boat ramp by passing behind the warning sign (“the dirt track”). The dirt track ended at a rocky area to the north of the boat ramp entrance, where people would climb down. The distance between the table and the boat ramp was around 20 metres.

In Photograph 4 (below), the table is in the foreground, with the northern car park in the background. The northern-end of the access road appears to the left. The dirt track stretches south behind the logs bordering the northern car park.

A close up of part of the dirt track is pictured below.

Following afternoon tea, at some stage that afternoon, James stepped in dog faeces and decided to wash his feet in the water. He walked from the table towards the boat ramp. He made his way down to the water via the rocks on the northern side of the boat ramp, which were approximately 2 metres away from the boat ramp, to the water to wash his feet. At the time of his father’s fall, James was at the bottom of the boat ramp, with his feet submerged.

In Photograph 6 (below), the rock wall is pictured extending from the boat ramp, bordering the northern car park and continuing north up the headland into the water. There is all a rock wall bordering the southern park and continuing south towards the beach (see Photograph 7).

The plaintiff made his way towards his son. He walked from the table along the dirt track, behind the logs bordering the northern car park, and continued south towards the boat ramp. He followed the dirt track, which continued, as mentioned, behind the warning sign, before finally stepping over some rocks to reach the surface of the boat ramp.

As the plaintiff reached the surface of the boat ramp, Mrs Bowman was standing on the grass, within the picnic area, on the northern side of the boat ramp. Both Mrs Bowman and James saw the plaintiff on the surface of the boat ramp from the grass area and water’s edge, respectively. Upon taking a few steps at a walking pace the plaintiff slipped and fell on the boat ramp.

I will return to a more detailed account of the accident later in this judgment.

The plaintiff was a fisherman and boat owner. He would fish from rocks, the beach and his boat from time to time. As to fishing from his boat, he described the process of launching the boat from the land to the water “[b]y a car and trailer, reversing” down a boat ramp. (I will return to particulars with respect to the plaintiff’s health prior to the accident later in this judgment).

During the hearing, the plaintiff gave evidence that he had used boat ramps at, inter alia, Georges River and La Perouse. Whilst he had visited Scotts Head previously and prior to the accident, he had not used the boat ramp (namely, at Scotts Head) prior to January 2015.

Between 2005 and 2015, the plaintiff rented and/or owned holiday accommodation in South West Rocks. He would stay at that holiday accommodation, with his family, throughout the year. Most visits would result in a day trip to Scotts Head. During re-examination, the plaintiff clarified that “most” amounted to about once a year, on average, prior to the accident.

Prior to the accident, the plaintiff was employed as a “security operations controller for traffic and security, for all security matters and for traffic matters” at Sydney University. He also worked on a casual basis with Southside Security.

The defendant is a local government council within the mid north coast region of New South Wales, Australia. That region consists of the following, inter alia, towns: Allgomerra, Bowraville, Hyland Park, Macksville, Medlow, Nambucca Heads, Scotts Head, Talarm, Wirrimbi and Yarranbella. It may be noted, following the commencement of proceedings, the defendant changed its name to “Nambucca Valley Council” in 2019.

The parties did not agree a common set of issues in the proceedings, although the characterisation of responsive sets of issues by the parties given by the defendant, namely, that apart from the plaintiff repeating its case as set out in the pleadings, as summarised below, the difference was essentially one of form.

It might also be noted that the plaintiff identified the two remaining issues in dispute, in the broad, at the outset of the hearing, as follows:

Putting aside particular factual issues and noting that the parties submissions will be further discussed below, the defendant’s statement of issues as to liability then represents a reasonable starting point.

The defendant’s statement of issues filed on 14 November 2018, as to liability, intersects with the two discrete issues raised by the plaintiff asset out above, in particular, their relevant intersections with the Civil Liability Act 2002 (NSW) (“CLA”). They are extracted below:

Similarly, the defendant’s statement of issues as to damages is broadly adequate:

The plaintiff pleaded that at all material times the defendant was under a duty to take precautions against the risk of harm (set out below), which was foreseeable, not insignificant and, in the circumstances, a reasonable defendant in the defendant's position would have taken precautions (ASOC at para 13).

The defendant denied para 13 and each particular of the precautions to be taken. Further, in answer to para 13 stated “that the precautions which it took with respect to the ramp including a routine system of cleaning and signage were reasonable and sufficient to satisfy any obligation further to Section 5B(1) of the Civil Liability Act, 2002”.Additionally, with respect to duty, the defendant further pleaded:

Nonetheless and subject to the availability of stator defences, in written submissions, the defendant submitted: “as the occupier of the boat ramp at the time of the accident, the defendant owed a duty of care to the plaintiff. The duty owed by an occupier is to exercise reasonable care so that the premises are safe for pedestrians and other users”. Reference, in that respect, was made to the following authorities: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [24].

The precautions were particularised at para 13 of the ASOC, they are extracted below:

As mentioned above, the defendant denied the above pleading and particulars.

The risk of harm was pleaded at para 14A of the ASOC:

The defendant did not admit para 14A. In written submissions, the defendant contended that the relevant risk of harm was “the risk that a pedestrian might slip on the ramp and suffer physical injury”.

The plaintiff contended that the loss and damage suffered by the plaintiff, as particularised in the Third Statement of Particulars (set out below), was a result of the defendant’s breach of duty.

The following was pleaded at paras 11, 11A and 12 of the ASOC:

The defendant did not admit paras 11, 11A or 12. Further, the defendant stated that whatever be the reason the plaintiff fell it was not because the boat ramp was slippery in or about the location of where the plaintiff alleged he slipped and fell.

The breach of duty was particularised at para 14 of the ASOC, extracted below:

In answer to the plaintiff’s pleading, with respect the alleged breach of duty, the defendant denied the allegations of breach of duty of care pleaded at para 14.

In answer to the whole of the ASOC, and without limiting its defence, the defendant it relies upon s 42 of the CLA and says it is a public authority limited in its functions by financial and other resources available to it for the purposes of exercising its functions.

Further, in answer to the whole of the ASOC, at para 20, the defendant said:

The loss and damage suffered by the plaintiff, pleaded at para 12 of the ASOC, was set out in the Third Statement of Particulars.

The Third Statement of Particulars sets out particulars of “injuries received” and “continuing disabilities”, as follows:

By that same statement of particulars, the following was also included:

The plaintiff claims damages, interest and costs (see para 15 of the ASOC).

As to the relief claimed by the plaintiff, the defendant provided the following answer:

Before turning specifically to the issues in the proceedings, it is appropriate to traverse a series of controversies, largely factual in nature, raised in the submissions of the parties. Expressed broadly, those topics concern the following subjects or, more particularly, subsidiary subjects:

The boat ramp commences at the north-eastern end of Forster Beach (also referred to, interchangeably, as “Scotts Head Beach” throughout submissions). The boat ramp is within a reserve area that includes a bitumen sealed road (the access road), car parking spaces overlooking Forster Beach (namely, the northern and southern car parks), picnic facilities and the beach. The boat ramp extends generally westwards down to the water’s edge. The entrance to the boat ramp is at its eastern end, where it joins an access road. A photograph of a portion of the boat ramp with the photograph facing east is found in Photograph 8.

The northern and southern car parks are depicted pictorially below. Photograph 9 is the view of the northern car park from the northern end of the access road, looking south towards the boat ramp. Photograph 10 is the view of the southern car park from the boat ramp, looking south-east, with the surf club in the background.

As mentioned, the surf club is also located to the south-eastern side of the boat ramp, as is Scotts Head Reserve. It may be noted the surf club was not operated seven days a week. It was operated on weekends from October until late April.

On the northern side of the ramp there is a rock wall forming the coastline. On the south-western side of the ramp is Forster Beach. A map showing the geographic location of the boat ramp was before the Court and appears at the outset of this judgment.

In 2012, three years prior to the accident, the boat ramp was refurbished by the defendant. Before turning to the dimensions and features of the boat ramp at the time of the accident, in light of the course of argument pursued by the parties, it is useful to set out the background with respect to the refurbishment of the boat ramp. Throughout this section reference will be made to “the old ramp” and “the new ramp” in order to distinguish between the pre- and post-refurbished status of the boat ramp, respectively.

In 2011, the defendant applied to the NSW Government for funding under the “Better Boating Program” (“BBP”). The application form was entitled “Better Boating Program Application Form” (hereinafter, “the BBP application form”). The program concerned the provision of financial assistance for the provision of waterway infrastructure on New South Wales waterways. By the application form, the defendant sought financial assistance for the refurbishment of the boat ramp.

Section B of the application form set out the details of the project manager. The project manager for the project was Stephen Fowler, a structural/civil engineer and employee of the defendant. Stephen Fowler was not called to give evidence. (He may be distinguished from Mr Kenneth Fowler, a Risk Safety Officer with the defendant who did give evidence).

Section C of the application form set out the “Project Details”. The project name was described as “Scotts Head Boat Ramp”. Under the heading “Project Description”, the defendant provided the following description:

Under the heading, “Consultation” appeared the following question and answer:

Section D was entitled “Evaluation Criteria” and required a response by the defendant with respect to seven categories of evaluation, outlined below:

As to the “lasting nature” of the project, the defendant provided the following response:

The section addressing “benefits” listed five benefits, as follows:

The section on ongoing operation/maintenance costs stated:

Under the heading “Desirable Criteria”, the project was described as having “a high level of community support” (based upon on-site interviews with boat ramp users), including from the Macksville Scotts Head Surf Life Saving Club and “two local fishing clubs”. All three clubs provided letters of support.

Section E set out the cost breakdown of “the major project elements”. The following details were included on the application form:

The total project costs were $95,467. The defendant had already committed to funding $47,734 of the project. By the application form, the defendant applied for a “BBP funding grant” of $47,733.

By a letter dated 9 January 2012, the Minister for Roads and Ports offered a grant of $47,733, being half the costs of the project. The Hon Duncan Gay MLC stated:

On 16 January 2012, the Roads & Maritime Services (“RMS”) confirmed that the grant was subject to certain conditions. Those conditions are extracted below:

The BBP grant of funding was accepted by Mr Michael Coulter, General Manager of the defendant, as an authorised representative of the defendant.

On 8 May 2012, Mr Tim Woolnough, A/Project Officer, BBP, sent an email to Mr Noel Chapman, Manager Civil Works for the defendant and Ms Coleen Henry, Grants Officer for the defendant.

The subject of the email was “Scotts Head Boat Ramp Reconstruction – Maritime Feedback” and followed Mr Woolnought’s review of the plans for the boat ramp and a consultation with the local Boating Safety Officer. He provided the following feedback:

Under the heading “Summary”, Mr Woolnought made the following further observations:

The structural engineering plan for the new ramp was prepared by Dennis Partners (“the engineering plan”). The engineering plan shows that the new ramp was to comprise of several concrete slabs. The three primary slabs were identified as follows:

I now turn to a summary of the features of each slab.

On the eastern and southern sides of the boat ramp, nearest to the entrance to the boat ramp from the access road and the southern car park area was to be a 160mm thick concrete slab. This slab was described on the plan as “parking/entry”. The section of the engineering plan relating to this slab shows that its surface was not to have grooves.

For a much shorter distance, the eastern slab also extends south-westerly. The beach then continues towards the south-west. This section of the boat ramp was described by Mr Warwick Kiernan, engineer, as “the southern leg”.

Occasionally during the course of the proceedings the parties referred to the eastern slab or, more particularly, the southern leg, as the south eastern slab or south eastern extension. These concepts should be treated as being coextensive.

At about the middle of the boat ramp was a retained concrete slab from the old ramp, described as “existing slab”. The plan did not provide for any changes to this slab.

At the western end extending towards the water line there was to be a 200mm thick concrete slab with 25mm x 25mm grooves (which were also described interchangeably, throughout the proceedings, as “gaps”) cut into the surface, 100mm apart. This slab was described on the plan as “boat launching ramp”. The section and surface finish detail for this part of the ramp shows that the grooves were to be cut horizontally as one goes north towards the water line.

It is uncontroversial that these grooves were not present at the completion of the construction of the boat ramp or at the time of the accident. In answer to that issue, the defendant stated the grooves were to promote vehicle grip in the use of the boat ramp by vehicles and are irrelevant to pedestrian access (and, it follows, as a precaution against the risk of slipping). I will return to this consideration, below, in the context of causation vis-à-vis precautions to be taken by the defendant.

The overall dimensions of the boat ramp were approximately 26 metres from the access road to the end of the western slab and approximately 21 metres from the rock wall on the northern edge to sand covering the concrete to the south.

Mr Kiernan produced a report with respect to the proceedings. The report was entitled: “Colin Bowman: Investigation of a Slip and Fall Incident on a Boat Ramp at Forster Beach Scotts Head, NSW”, dated 18 February 2016 (“the investigation report”). The following summary is based upon the evidence of Mr Kiernan, an expert witness in these proceedings.

The dimensions and the slope towards the water of each concrete slab were variable. They were distinguished by Mr Kiernan as follows:

Based on Australian Standards AS 1657-1992 and RMS Boating Guidelines, the maximum gradient for pedestrian surfaces is 1 in 8 (12.5%). In light of that criterion, Mr Kiernan observed, “some ramp slabs exceed the maximum pedestrian gradient for pedestrian surfaces”.

The plaintiff contended that the gradient of the boat ramp is relevant to causation, namely, the defendant had a duty of care to take precautions to reduce the risk of slipping and falling, which included, inter alia, “to ensure that the boat ramp complied with Australian Standard AS 1657-1992”.

As to the gradient of the slopes at the location of the plaintiff’s fall, Mr Kiernan opined:

It may be noted that opinion is based upon a presumption that the location of the plaintiff’s slip occurred on the western slab. In light of that opinion, the plaintiff contended that the boat ramp exceeded a 1 in 8 gradient, in contravention with that standard. I will return to that argument under the heading “Location of the Plaintiff’s Fall” but I do not find that the defendant slipped at that location.

As mentioned above, in his report, Mr Kiernan referred to the eastern and western levels of the boat ramp as the “upper” and “lower” levels, respectively. There was a distinction between the eastern (higher) and western (lower) levels of the boat ramp, separated by the existing slab. The distinction between the two levels of the ramp is evident by the colour change between the two slabs, visible in Photograph 8 above.

The colour change reflects the different concrete surface colour of the new 160mm “upper” concrete slab which is brighter on the photograph (the eastern slab), and the older retained concrete slab from the previous ramp (the existing slab). According to Mr Kiernan, the part of the ramp that was retained as well as a south eastern extension in the reconstruction was obvious from the surface when he inspected it after the accident. During cross-examination, Photograph 8 was shown to Mr Kiernan. The expert accepted:

He also accepted, on the basis of the engineering plan, the “new material” would be 160 millimetres thick.

Mr Kiernan gave evidence as to the following matters, which are uncontroversial:

The boat ramp from time to time was covered by seawater to varying depths for varying periods of time. In consequence, it was subjected to the growth of marine life on its surface. The following summary as to the surface of boat ramp is also derived from the evidence of Mr Kiernan.

Mr Kiernan opined: “[t]he surface finish of the concrete slabs was inconsistent”. During cross-examination, the expert explained what he meant by “inconsistent”:

The “upper levels” of the boat ramp have a “safe dry slip resistant surface”. As mentioned earlier, it is not controversial that the eastern slab is considered an upper level of the boat ramp. Upon observing the site, Mr Kiernan opined that it “would not be inundated by the tidal waters, as often as the lower [western] levels of the ramp”. Turning to the western level, the “end slab” had a “green stained surface” (see Photograph 11, below). This indicated that the area was “constantly inundated and subject to marine growth”.

The elements of the design and construction of the boat ramp that suggest that pedestrian access vis-à-vis the boat ramp was directed from the eastern slab of the boat ramp in a southern direction were as follows:

As earlier mentioned, Mr Kiernan inspected the site on 8 February 2016. Following his inspection, Mr Kiernan observed that following differences between the engineering plan and the boat ramp as constructed:

Following his observation as the steep sections between the southern leg and western slab and the absence of grooving, Mr Kiernan turned to pedestrian access. He opined:

In the inspection report, particular attention was placed upon the western slab and pedestrian access at that point. He observed:

Mr Kiernan captioned “Photograph 3”: “northerly view of the westernmost concrete slab near where Colin Bowman slipped”. That photograph is extracted below. However, as earlier found, that is not the location of the plaintiff’s slip and fall.

The scope of Mr Kiernan’s report did not extend to whether the slabs that “exceed[ed] the maximum gradient” were, in fact, “pedestrian surfaces”.

In summary, Mr Kiernan’s evidence, as to pedestrian usage of the boat ramp, was as follows:

Mr Fowler, Risk and Safety Officer of the defendant, gave evidence that the boat ramp served a dual purpose, namely, to launch boats and provide vehicle access for four wheel drives to the beach. During cross-examination, he gave evidence that he was not aware that “pedestrian access” was an intended purpose of the boat ramp. That evidence is extracted below:

That evidence needs to be considered in the context of the following:

As to his knowledge of pedestrians frequenting the area, Mr Fowler gave the following evidence:

The reference to “off” in the second question appears to be an errata and the question should read “When did they go on”. The reference to “white squares” appear to be a reference to the pedestrian crossing markings pictured in the photographs annexed to Mr Fowler’s statement (referred to above).

Mr Coulter, General Manager of the defendant (as earlier mentioned), gave evidence that the boat ramp was not for pedestrian access to the beach and identified the relevant pedestrian access to the beach as being “around 70 metres away from the bay”. By that evidence he referred to “stairs down the other end of the surf club were still available. They were wooden type stairs that went down”.

During cross-examination, Mr Coulter was taken through the BBP application form and accepted that, the defendant’s position, at the time of submitting that application, was that the boat ramp “was for use for persons wishing to get down to the beach” – not just persons launching boats.

During cross-examination, Mr Coulter also gave evidence that participants in the surf club’s “Nippers” program utilised the boat ramp. That evidence is extracted below:

The plaintiff sought adverse findings be made against the defendant, particularly in light of the position held by Mr Fowler, namely, that the two employees of the defendant were unaware that pedestrians used the boat ramp to access Forster Beach.

The plaintiff submitted:

In reply, the defendant contended, the objective reasonableness of the defendant’s response to the risk cannot rationally be determined from Mr Fowler’s subjective understanding of the facts giving rise to that risk. In any event, Mr Fowler had no involvement in the boat ramp, or any investigation into its slipperiness, until two months after the plaintiff’s accident. This is evident, it was contended, from Mr Fowler’s first statement. Further, it was contended, that the factual conclusions flowing from the analysis concerning the place of the fall and the characteristics of the ramp in that location deprive the submission of relevance.

The defendant also highlighted the following aspects of Mr Fowler’s evidence from the hearing:

In reply, the plaintiff submitted:

Overall, I accept the submissions of the defendant in this respect.

Mr McNally gave the following evidence as to pedestrian usage of the boat ramp:

As to evidence of pedestrian access to Forster Beach via the boat ramp, in a westerly direction from the eastern to western slab, the following was before the Court:

As to the intention of the boat ramp being used as “access to the beach”, the defendant contended that submission was “only partially correct”. Reliance, in that respect, was placed upon the engineering plan and the evidence of Mr Kiernan (summarised above). It was contended, in light of that evidence:

The photograph referred to in that submission is extracted below as Photograph 12.

In reply, the plaintiff submitted there is no evidence to indicate that pedestrian access, as described by the defendant above, did or did not occur. It was contended, to speculate as to where pedestrians would be walking at any particular time on the boat ramp “is to ignore the evidence including the defendant's own evidence of a knowledge that the boat ramp was there for persons to use to access the beach area”.

Save for the above evidence with respect to design and construction of the boat ramp, there appears to be little evidence called by the parties as to whether pedestrians accessed Forster Beach via the eastern slab or southern leg. The evidence of usage of the boat ramp by members of the surf club and surfers suggests that a common route, with a view to entering the water, in an east to west direction.

The BBP application made clear that the boat ramp was intended to provide better access for boat launch by the construction of a wider and longer ramp (for high and low tides and the elimination of dip at the access road end) and to provide pedestrian access to the beach after the demolition of a wooden stairway to the beach (a replacement not being possible due to erosion). Regard was had to disabled or frail persons not being able to traverse the rock wall.

The reconstructed ramp was to provide “safe and easy access to the beach” removing “the sharp drop off onto the rocks which occurs with the current ramp”. It may be inferred that this is a reference to the southern eastern side of the existing ramp.

Reference was made to potential safety issues for beach goers and the general public from the reconstruction of the boat ramp, but this was subject to the engineering design.

The engineering plan (and construction of the boat ramp in accordance with the plan, save for some minor variations) demonstrated that a different engineering regime was drawn between the western and eastern slabs both in terms of the thickness of the slab and the gradient of the slab which corresponded to the location and use of the slab. The eastern slab would have much less exposure to the sea and bear less load from launching boats and was accordingly thinner. The gradient on the eastern slab (including the southern leg) was 7-10%, which was within the maximum gradient for pedestrian access under the Australian Standard whereas the western slab was between 10-16% corresponding to the ramp extending to a lower level, to give little water access. The existing slab, situated between the eastern slab and western slab, it follows, had a gradient between 7-10% (corresponding with the gradient of the respective slabs bordering the existing slab).

Mr Kiernan also opined that the “upper levels” had a safe slip resistant surface in contrast to the lower levels which were smoother and more greatly affected by algae and the like.

The design and construction of the boat ramp provided access to the beach from the access road and northern and southern car parks via the eastern slab using a south-western transit. It was not suggested that that “pathway”, which was marked after the accident with a zebra crossing, was unsafe either in terms of gradient, surface or mode of access or egress.

Access to the water or beach via the western slab, or the additional concrete slabs between the western slab and southern leg, presented much greater risk of harm by virtue of gradient, slab surface and/or the increased presence of seawater and the growth of algae and moss.

Evidence as to the use of the boat ramp for pedestrian access to the beach at or about the time of the accident was limited, although the complaints to which I will refer in the next section of this judgment and the evidence of Mr McNally would suggest that some persons were travelling down the boat ramp to the sea in a western direction.

There is little or no evidence as to access by pedestrians to the beach via the south eastern extension or southern leg.

Overall, however, it is clear that the boat ramp was used for pedestrian access to the beach at and before the accident.

One view taken after the accident reveals a substantial number of persons accessing the beach via the boat ramp. Mr Kiernan’s evidence is, in effect, that persons were traversing the ramp in a south westerly direction to access the beach. It would appear this occurred at the lower section of the boat ramp travelling down the ramp in a westerly direction.

Mr Fowler also referred to alternative route taken by the pedestrians. In response to a slip and fall that occurred at the western slab, he described a “short cut” route taken by “lazy pedestrians” which was not the “pedestrian ramp”. Whilst the short cut was not precisely defined it may be inferred that he was referring to the lower levels of the boat ramp. His reference to the “pedestrian ramp” was, it may be inferred, referring to the upper levels on the eastern slab and a pedestrian movement in a south easterly direction across the eastern slab. That reference to a “pedestrian ramp”, however, gives rise to an inference that at least the Risk and Safety Officer of the defendant perceived that such a route was an acceptable pedestrian pathway. This is further illustrated by the fact that after the accident, Mr Fowler arranged for the painting of pedestrian crossing markings (in the form of “white squares” resembling a zebra crossing) onto that section of the boat ramp.

Further, as to plaintiff’s contentions vis-à-vis the knowledge of the defendant as to the fact of pedestrians accessing the beach, I accept, as previously noted, the submission of the defendant that the objective reasonableness of the defendant’s response to the risk cannot rationally be determined from Mr Fowler’s subjective understanding of the facts giving rise to that risk.

Prior to turning to drawing a conclusion with respect to the risk of slipping at the boat ramp, in light of the Court’s finding as to the relevant risk of harm and pedestrian access at the boat ramp, consideration must be given the evidence as to the slipperiness of the boat ramp vis-à-vis each concrete slab both at the time of the accident and prior to the same.

At this juncture I will turn to a summary of the evidence relevant to the slipperiness of the boat ramp, both prior to and at the time of the accident. Reference will also be made to the inspection of the boat ramp after the accident. Whilst part of this evidence will be relevant to arguments vis-à-vis inspections and cleaning regiments, I will return to deal with those arguments separately in the context of precautions.

The following summary of correspondence set out the correspondence before the Court, received or sent prior to the accident, with respect to two incidents of slipping on the western slab of the boat ramp in 2013 and 2014, respectively. The first complaint was by Mr Jaimie Lamont, a surfer, in 2013. The second complaint concerned a sixty-year-old woman and was made by Mr McNally in 2014.

On 5 February 2013, by email from Jamie Lamont to Mr Coulter, an accident was reported by Mr Lamont that as a result of there being “a large amount of slime” on the boat ramp and “no traction”. An extract of that communication appears below:

On 6 February 2013 at 7.38am, Mr Coulter forwarded the email of Mr Lamont onto Ms Joanne Hudson, Manager of Human Resources for the defendant. That communication is extracted in full below:

By an email dated 6 February 2013 at 8.43am, Ms Hudson directed her reply to Mr Coulter’s inquiry to Mr Chapman (with Mr Coulter copied into the communication). Her response is extracted in full below:

Mr Coulter sent a reply to Ms Hudson at 8.55am, again including Mr Chapman, in the following terms:

Shortly after the receipt of the communications from Ms Hudson and Mr Coulter, Mr Chapman sent the following communication at 9.31am:

An email communication was sent by Ms Hudson to Mr Lamont at 3pm on 7 February 2013, responding to his complaint. That communication was not before the Court. However, Mr Lamont’s reply to that communication was tendered and is extracted below:

A further email sent by Ms Hudson to Mr Lamont at 5.33pm on 8 February 2013, responding to his above communication. That communication was not before the Court. However, Mr Lamont’s reply to that communication was tendered and is extracted below:

By email dated 24 January 2014 at 8.37am, between Mr McNally and Mr Coulter, notice was given of a fall that occurred on 23 January 2014 on the boat ramp. That communication is extracted in full below:

On 24 January 2014 at 8.56am, Mr Coulter forwarded the communication from Mr McNally to Mr Chapman and made the following request:

Mr Fowler and Mr Richard Watts, another employee of the defendant, were also copied into that communication.

At 9.33am, Mr Chapman sent the following reply to Mr Coulter:

Following that response from Mr Chapman, Mr Coulter sent the following communication to Mr Fowler at 10.10am:

In response to the 9.33am email of Mr Chapman, Mr Watts sent the following reply at 10:01am (and copied in Mr Coulter):

Mr Coulter forwarded the email of Mr Watts to Mr Fowler at 10.11am.

In reply to that communication, Mr Fowler sent the following message to Mr Coulter (which is extracted earlier in this judgment, but repeated below for ease of reference):

The conditions on the day of the accident were earlier mentioned. In summary, the relevant evidence was as follows:

On 23 April 2015, Mr Fowler conducted an inspection of the boat ramp in response to the plaintiff’s complaint and produced a report with respect to the same. The plaintiff’s complaint was described as follows: “[s]lipped on Boat ramp during a high rain fall event”.

Under the heading “Inspection Findings”, as to whether the complaint was valid, Mr Fowler reported:

Six photographs “relating to the complaint” were annexed to the report. Four photographs were close up shots of the boat ramp surface, which appeared to be wet but not fully submerged by water. The remaining two photographs were of the signage at the entrance of the boat ramp.

Mr Fowler opined that there was no need for further investigation with respect to the plaintiff’s complaint.

It is not disputed that the boat ramp was subject to tidal inundation, which results in the presence of algae growth and moss, particularly on the western end of the boat ramp which, by its location and design is more frequently covered and/or submerged by water. The tidal levels impact upon access to the boat ramp, in particular, for the purpose of any cleaning regiment. The above correspondence repeatedly sites the requirement of “low tide” in order to carry out pressure cleaning.

The factors of algae and/or vegetation growth and tidal levels create a risk of slipping on the boat ramp. However, as mentioned in the discussion of pedestrian access, the nature of the risk varied depending upon the section of ramp a person may stand. The two documented complaints do not provide precise locations as to the respective falls. On the account of Mr Lamont, he distinguished between two areas of the boat ramp: the dry area and the wet area. He identified the area of his fall as occurring in “the wet area”, which he walked to as a means of entering the water “to go for a surf”. Similarly, turning to the complaint reported by Mr McNally, the location of the woman’s fall occurred at “the bottom of the ramp”. The bottom of the ramp was exposed due low tide and had visible algae growth. It may be inferred that “the wet area” and “the bottom of the ramp” referred to the western slab of the boat ramp, although the part of the western slab where the accidents occurred is not clear on the evidence.

Whilst the defendant accepted that there was a risk of slipping when walking on the boat ramp, as will be discussed later, the defendant contended such a risk was obvious.

In light of the above evidence I make the following findings with respect to the slipperiness of the boat ramp:

On 8 May 2012, prior to the construction of the new ramp, RMS notified the defendant that the then maritime signage was outdated and that the local Maritime Boating Safety Officer would be able to work with the defendant on some suitable signage encased in one frame, or on a single signage board.

By February 2013, the defendant had installed three sets of signs at the left-hand (southern) side of the entrance to the boat ramp (I will return to the controversies surrounding signage at the site below). The location of these signs as at February 2013 can be seen in the photograph below.

The location of the signs as at the time of the accident appears below. Photograph 14 depicts the signage to the south of the boat ramp entrance. Photograph 15 depicts the signage to the north of the boat ramp entrance.

A close up of the above pictured warning sign appears below:

At the top left of the sign is the word “WARNING” in red and large print. At the top right of the sign are the words: “This beach may be dangerous. Look out for hazards to yourself and people in your care.” There is also a picture of a boat ramp with the words “Boat ramp” beneath it. The sign also depicts slippery ground (with squiggles), a person slipping over onto their back, and the words “Slippery Area” below it. That sign shall hereinafter be referred to as “the warning sign”.

During cross-examination, the plaintiff accepted that he had seen the information displayed on the warning sign at the boat ramp prior to the accident. He gave the following evidence:

During re-examination, the plaintiff returned to his evidence with respect to seeing the warning sign “before the day of the accident” (as opposed to immediately prior):

Mr McNally also gave evidence with respect to his perception of the warning sign. He stated that he had only noticed the “slippery” warning, depicted on the warning sign, two days prior to giving his evidence and was critical of the functionality of the sign based upon its size.

Whilst he conceded the sign was warning of danger, he said “it’s warning of too many things in the one sign” and suggested that “nobody” gets up close enough to read all the warnings.

During cross-examination, Mr McNally was asked the following questions:

On 23 April 2015, as earlier mentioned, Mr Fowler visited the site of the accident some two months after the accident. During cross-examination, Mr Fowler gave the following evidence in response to questions concerning the adequacy of the sign:

The defendant contended that the above responses had nothing to do with “the adequacy of the sign in warning people of slipping on the ramp and nor did it relate to the slipperiness of the ramp for pedestrians”. I accept that submission. The above evidence supports a finding that the boat ramp signage, based upon the experience and knowledge of Mr Fowler, met the requisite “guidelines” and was not dissimilar to the signage posted at the remaining boat ramps within the defendant’s control including those providing pedestrian access to the sea.

At this juncture, it is sufficient to note the controversy that existed vis-à-vis the adequacy of the warning sign. It is not in dispute that the defendant erected a warning sign. I will return to a resolution of the issues in dispute, in this respect, in the context of a discussion of the law and submissions as to the availability of statutory defences under the CLA.

On Sunday, 22 February 2015, due to the rough seas caused by a cyclone, Forster Beach was closed from 8:30am to 2pm. Mr Coulter was rostered on as Forster Beach Patrol Captain from 8:30am to 1:30pm on that day. During the hearing, he provided evidence of the conditions in the weeks and months leading up to the accident:

He provided the following information regarding the weather conditions during his shift on the day of the accident in his “Patrol Status” documentation:

As to the presence of marine growth on the boat ramp on the day of the accident, Mr Kiernan observed, using photographs taken by James of the boat ramp surface on the day after the accident, “the tidal water is well above low tide, and the slip point could not be identified on these photographs. There was no marine growth (mossy, slime) shown on the concrete surface in the photographs”.

The defendant submitted that there was no evidence as to the extent of marine growth, visible or otherwise, on the boat ramp as at the day of the accident, nor evidence as to the extent of marine growth at the specific part of the ramp where the plaintiff slipped and fell. I accept that submission.

On 22 February 2015, at around mid-afternoon, the plaintiff arrived at Scotts Head in a car with Mrs Bowman, James and James’ then girlfriend. James gave the following account of the decision to drive to Scotts Head in his evidentiary statement:

As earlier mentioned, there is a car park on both the northern and southern sides of the entry to the boat ramp. As mentioned, James, who was driving at the time, drove past the boat ramp and parked the car in the northern car park. The northern car park was to the right of the boat ramp entrance and was closes to the table that the family wished to have afternoon tea. Upon parking the car, the family proceeded to have afternoon tea at the “whale-shaped” table overlooking the beach.

Photograph 4 depicts the view from persons seated at the table, looking south in the direction of the boat ramp.

The plaintiff gave evidence that the normal way in which he negotiated between the table and the boat ramp was to walk along the dirt track. However, as to the precise route he took on the day of the accident, he could not recall.

As earlier mentioned, the dirt track is a worn path, which proceeds to the boat ramp by passing behind the warning sign, which was erected near the top of the boat ramp on the northern side, and in front of some trees. In written submissions, the plaintiff submitted that the sign was “facing in a generally south western direction”. The photographs before the Court reveal that whilst only the rear of the signage, which was unmarked, was visible from the dirt track, the signage provided a prominent display that was visible to vehicles driving north on the access road. A photograph of the signage from the viewpoint of the dirt track appears below as shown in Photograph 18.

The plaintiff gave evidence that he does not recall being at the boat ramp at Scotts Head on 22 February 2015, his last memory of events on that day was prior to arriving at the boat ramp, this was due to the impact of the plaintiff’s head with the concrete ramp when he fell. His evidence, in that respect, is extracted below:

In the result, the evidence as to the day of the accident, in particular the events surrounding the plaintiff’s slip and fall were primarily derived from the accounts of James and Mrs Bowman.

At this juncture, it may be noted the defendant submitted that no finding can be made as to the plaintiff’s footwear, if any, at the time of his fall. He had no recollection of what he was wearing, and no evidence was adduced on the issue.

Following afternoon tea, at some stage that afternoon, James decided to wash his feet in the water. He walked down the rocks on the northern side of the boat ramp, which were approximately 2 metres away from the boat ramp, to the water to wash his feet. During cross-examination, James marked a photograph to indicate the “rough” location at which he climbed down the rocks to the water. That picture appears below.

In his evidentiary statement, James provided the following account of his approach to the water:

During examination-in-chief, James gave the following evidence as to his path to the water:

During cross-examination, James provided further details as to making his way past the rocks or “boulders” to the water. That is extracted below:

Mrs Bowman also provided an account of James’ approach to the water and his proximity to the plaintiff. The account is extracted below:

During cross-examination, Mr Kenneth Neil Fowler was also questioned about the “rocks” on either side of the boat ramp:

A fact in issue was whether or not James had view of his father whilst making his way down the rocks. His evidence-in-chief appears below:

During oral evidence, James gave evidence that the plaintiff approached the boat ramp by walking along the dirt track, adjacent to the parking spaces in the northern car park, then between the back of the warning sign and a bush, before stepping over some rocks down to the surface of the boat ramp. That evidence, it may be noted, was not included in his evidentiary statement.

Photograph 18 shows the approach of the plaintiff behind the warning sign. The annotation was completed by the plaintiff to indicate a path he previously had taken to the boat ramp.

Prior to his father’s fall, James gave evidence that he observed his father at the top of the boat ramp. During re-examination, James drew a circle on a photograph of the boat ramp to indicate his understanding of “the top” of the boat ramp. That image appears below.

In that same photograph, a hand drawn “X” is also visible. During re-examination, James was also asked to mark with a cross where he first saw his mother at the top of the ramp. He said “it was basically the same site”. This was consistent with the evidence of Mrs Bowman who stated she was “a couple of metres” from the boat ramp and “standing on that grassed area”.

During cross-examination, Mrs Bowman gave evidence that the plaintiff was, at the time James was beginning to make his way down the rocks, “within a couple metres of me”.

Based on the evidence of both James and Mrs Bowman, the plaintiff walked down the boat ramp from near the beginning of the boat ramp on the eastern side towards the location of his son.

During cross-examination, James was cross-examined at length about his ability to view his father whilst he made his decent down the rocks to the water. First, he was questioned with respect to his need to focus on his decent, as follows:

Second, James was then cross-examined at specifically about his ability to view his father. That evidence continues below:

The defendant contended that James’ evidence, that he saw the path the plaintiff took to the ramp, should be rejected. Further, the defendant submitted that the evidence does not permit a finding as to whether the plaintiff walked behind or in front of the warning sign when approaching the ramp.

In support of those contentions, the defendant advanced the following submissions:

Whilst no written submissions were advanced in reply to the above contentions, the plaintiff relied upon the evidence of James and Mrs Bowman on this question. As earlier mentioned, the plaintiff has no memory of the day but, noted, the dirt track was a path he had previously taken to the boat ramp. Whilst it may be accepted that James did not have an unobstructed or direct view of his father’s path to the boat ramp, I accept his evidence that he saw his father in his peripheral view make his way to the boat ramp via the dirt track. I do not consider that credit findings are required in this respect as the objective evidence adequately supports such a conclusion. That evidence is also supported by the dirt track itself, which is well worn, indicating its regular use as a track to the boat ram; which dirt track, as earlier noted, passes behind the warning sign and in between some trees. Further, the plaintiff recalled previously using that track and the regularity of his actions may also be taken into account. I also reject the submission by the defendant that the “narrow” nature of the path supports a finding that such a path was unlikely to be taken as, notwithstanding the location of a bush that had “pointy palm-like fronds” behind the sign, there appears to be adequate room.

On James’ account, his feet were in the water at the time at which his father fell. Paragraphs 10-11 of James’ statement appear below:

On the day after the incident, James made a phone call to the defendant to tell them his father had slipped on the boat ramp at 4pm.

During examination-in-chief, James gave the following evidence as to his father’s fall:

During cross-examination, with reference to “photograph 38” (extracted above, see Photograph 8), James gave further evidence as to his position proximate to his father at the time of the fall:

For ease of reference, “photograph 38” is also extracted below (see Photograph 20), partially cropped and with annotations added by the defendant, which reflect the plaintiff’s location based upon the above evidence of James.

The defendant also provided an annotated version of the engineering plan to show the same proximate location of the plaintiff at the time of his fall, based upon the above evidence of James (see Photograph 21).

As to the same, Mrs Bowman deposed:

During cross-examination, Mrs Bowman gave evidence that the plaintiff had walked “a few steps” before he slipped. As earlier mentioned, she did not see how he got onto the boat ramp.

As to the pace at which the plaintiff was walking on the boat ramp, during re-examination, Mrs Bowman said: “He was walking at a - at a normal slow pace. Not - not - he wasn't rushing”.

In light of the above evidence, as to the location of the plaintiff’s fall, together with expert evidence, the defendant submitted:

In my view, on the evidence before the Court, the plaintiff slipped at the eastern level of the existing slab slightly after the juncture of the eastern slab and existing slab. That finding broadly conforms with James’ evidence as to the vicinity and the distance his father was from his location. It is also consistent with the slip occurring immediately upon entry of the existing slab as its surface differs from the eastern slab and the gradient increases from 7% to 10% (at the western slab). Further, the evidence does not support, as presumed by Mr Kiernan, that the plaintiff fell on the western slab. It may be inferred that the fall occurred at or around 4pm on the day of the accident.

In his evidentiary statement, James provided the following account of the immediate response to his father’s slip and fall:

As to the same, Mrs Bowman deposed:

During cross-examination, Mrs Bowman gave the following evidence as to her response to her then husband’s fall:

Pursuant to s 5A(1), Pt 1A applies to any claim for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. The CLA commenced 20 March 2002. This matter is not caught by the provisions of s 3B. The parties agreed that these negligence proceedings fell within the ambit of the CLA.

The defendant relied upon the following defences to claim for negligence:

The statutory defences with respect to harm suffered in the course of recreational activity are located in Div 5 of Pt 1A of the CLA.

Section 5M of the CLA is extracted below:

Subsections (2), (6), (7), (8) and (9) do not arise in the present case.

A “recreational activity” is defined in s 5K of the CLA as follows:

Section 5J provides that Div 5 of Pt 1A of the CLA only has application if the plaintiff was engaged in “recreational activity”.

The defendant bears the onus of demonstrating that the relevant activity fits into any one of the definitions of a recreational activity in s 5K: Fallas v Mourlas [2006] NSWCA 32 (“Fallas”) at [122]-[123] (per Basten JA, with Ipp and Tobias JJA agreeing).

Prior to turning to the authorities with respect to s 5M, I turn first the definition of “recreational activity” and the discussion, with respect to the same, by Leeming JA (with whom Beazley P and Meagher JA agreed) in Goode v Angland [2017] NSWCA 311 (“Goode”). The focus of the judgment is upon sport but the judgment provides a useful and broader understanding of the operation of s 5K. Leeming JA stated (at [190]-[198]):

(See also the judgment of Harrison AsJ in Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780. Her Honour considered and applied Goode at [87]-[95]).

A discussion of the relevant authority with respect to s 5M of the CLA follows.

In Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 (“Menz”), Leeming JA (with whom Payne and White JA agreed) observed (at [125]-[127]):

In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 (“Uniting Church”), Leeming JA observed (at [115]):

Both parties relied upon the authority of Sharp v Parramatta City Council [2015] NSWCA 260 (“Sharp”). In Sharp there was a sign at a public pool at the entrance to steps leading up to a 10 metre diving platform that read “Persons using the platform and springboards do so at their own risk”. Meagher JA (Ward and Gleeson JJA agreeing) held at [28]-[31] that this amounted to a “risk warning” under s 5M(1) for the risk of injury from diving or jumping from the platform.

The test applied by Meagher JA, was whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: Sharp at [32]. His Honour observed:

The defendant contended that the plaintiff was engaged in a recreational activity within the meaning of s 5K of the CLA and that activity involved a risk, which risk was the subject of a warning within the meaning of s 5M.

The plaintiff’s claim, therefore, fails at the outset, it was contended, because the presence of the warning sign meant that under s 5M(1) of the CLA, the defendant did not owe a duty of care to the plaintiff to take care in respect of the risk of slipping when walking down the boat ramp. In support of that contention, the defendant advanced the following submissions:

For those reasons, the defendant contended the Court should find that, by reason of s 5M(1) of the CLA, the defendant did not owe a duty of care to the plaintiff to take care in respect of the risk of slipping when walking down the ramp. It was submitted “[t]here should be judgment for the defendant on that basis alone”.

The plaintiff did not cavil with the defendant’s characterisation of the plaintiff’s activity as a recreational activity for the purposes of the CLA. The central dispute as to the availability of s 5M, concerned whether or not the warning sign constituted a “risk warning” for the purposes of s 5M.

In answer to the s 5M defence, the plaintiff contended “there was no risk warning to the plaintiff as provided in s 5M”. Section 5M is directed principally to signage and written disclosures and ultimately to the end that the warning "is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". To submit that the only surface which could logically have posed a risk of slipping was the boat ramp, it was contended, “is to ignore totally the evidence of the rocks surrounding the ramp and/or beach area”. By that submission, the plaintiff appears to rely upon the generality of the warning of “slippery” and the fact the warning was not attached to a particular area and/or surface, namely, the boat ramp.

In support of that argument, the plaintiff relied upon his submissions advanced vis-à-vis the adequacy of the warning sign (albeit with some overlap with arguments as to the defendant’s knowledge of risk):

The plaintiff contended that the Court could find that there had been no warning given that the boat ramp was slippery, notwithstanding the defendant’s knowledge of that fact.

It is uncontroversial that the plaintiff’s activity at the time of the accident, namely, walk towards the beach or seawater to join his son after having afternoon tea at a picnic spot meets the definition of recreational activity pursuant to s 5K(b) and (c) of the CLA, because the plaintiff was, at the time of the accident engaged in a recreational purpose, namely, a “pursuit or activity engaged in for enjoyment, relaxation or leisure” and that activity was engaged in at a place “where people ordinarily engage … in any pursuit or activity for enjoyment, relaxation or leisure”, namely, a beach and recreational park lands adjoining the beach within a reserve.

The defendant’s submissions, summarised above, set out the correct construction with respect to the provisions of s 5M. The risk of slipping when walking down the boat ramp was the subject of a “risk warning” to the plaintiff.

The reasons I give below for that conclusion represent the application of the provisions in s 5M in that respect but are to be reached co-extensively with my later factual conclusions as to warnings (and signage) in the consideration of the application of Div 4 of Pt 1A of the CLA and the discussion of precautions under Div 2. I have dealt separately with whether a warning was required for the purposes of s 5H(1) of the CLA.

The warning sign at the entrance to the ramp contained a specific icon depicting slippery ground (with squiggles), a person slipping over onto their back, and the words “Slippery Area” below it. Pursuant to s 5M(4), a risk warning can be given in writing by way of a sign.

Further, s 5M(5) provides that a risk warning need not be specific to the particular risk concerned, so long as the risk warning warns of the general nature of the particular risk. The warning sign sufficiently provided for the warning of the general nature of the risk of slipping in the vicinity of the boat ramp. That conclusion is supported by following aspect of the sign:

The test under s 5M is not whether the sign made the risk “obvious” to a reasonable person approaching it in the specific way the plaintiff did on the day of the accident. The test is whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: Sharp at [32].

As the concluding words to s 5M(3) provide, the defendant was not required to establish that the plaintiff in fact received or understood the warning or was capable of receiving or understanding the warning. Nonetheless, the fact that the plaintiff conceded that he was aware from previous visits as to the existence of the sign, and as to the fact that it gave warnings, fortifies the conclusion that the warning sign met the test under s 5M(3).

On the fact and circumstances of this matter, the only surface that could logically have posed a risk of slipping was the boat ramp, which was directly behind the warning sign, and the presence of which was also the subject of the sign. In any event, any lack of specificity in the warning does not negate its applicability to the boat ramp. Rather, it implies that all surfaces will or may be slippery, including the boat ramp, which is specifically referred to on the sign.

Further, it necessarily follows from the plaintiff’s contention that for the warning sign to satisfy the requirements of s 5M, it would need to contain a separate icon or warning for each slippery surface that anyone might encounter near the ramp. Thus, according to Mr McNally, who gave evidence in the plaintiff’s case, there should have been a separate sign to warn of the risk of slipping on the ramp. Logically, lest any particular risk warning be overlooked as being of lesser importance, each of the slippery surfaces would then need to be the subject of a separate sign; and each of the 15 other warnings on the warning sign would need to be the subject of a separate sign. Not only would this lead to an absurd outcome, as Leeming JA said in Uniting Church at [115]it is plainly contrary to the legislative intent behind s 5M. It would also be contrary to RMS’s advice that there should be a single signage board.

Thus, in the circumstances, by reason of s 5M(1), the defendant did not owe a duty of care to the plaintiff in the circumstances of the accident to take care in respect of the risk of slipping when walking down the boat ramp. This finding constitutes a basis to give judgment for the defendant.

As a starting point for the consideration of a case in negligence, a plaintiff must identify and clearly articulates the “risk of harm” against which it is alleged the defendant would be negligent for failing to take precautions. This has particular resonance for issues arising under s 5B of the CLA but it is appropriate to consider the question prior to evaluating the defendant’s submissions on obvious risk.

Section 5 of the CLA defines “harm” as meaning “harm of any kind, including … (a) personal injury or death, (b) damage to property, [and] (c)_economic loss”.

It is essential to consider this as the starting point and to carefully identify the particular risk of harm to which all of the later steps will be applied. As the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 (at [59]-[61]) clearly demonstrates, it is only through the correctly identification of the risk that an assessment can be made of the defendant’s knowledge of the specified risk of harm, of the probability of that risk occurring, and to evaluate the reasonableness of the defendant’s response, or lack of response, to that risk.

The plaintiff pleaded the risk of harm comprised the risk of the plaintiff suffering personal injury as a result of slipping and falling on the boat ramp due to it being contaminated by algae, moss and/or other substances. Whilst the defendant did not admit that risk of harm, in written submissions the defendant contended that the relevant risk of harm was “the risk that a pedestrian might slip on the ramp and suffer physical injury”.

In the present case the relevant risk of harm was, in my view, the risk that a pedestrian might slip on the ramp and suffer physical injury.

Sections 5F, 5G and 5H of the CLA appear in Pt 1A Div 4 “Assumption of risk”. The relevant sections are extracted below:

Subsections (2) and (3) of s 5H do not arise in the present case.

The test of obvious risk as set out in the statute requires identification of the risk which actually materialised and caused the injury to the plaintiff and then determining, prospectively, whether such a risk would have been clearly apparent to and understood by a reasonable person in the defendant’s position.

In Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308, Basten JA, with whom McColl JA agreed, addressed the question of obvious risk and its operation within the CLA as follows (at [15]-[17]):

A similar approach was taken by Meagher JA in Bruce v Apex Software [2018] NSWCA 330 at [29].

In Collins v Clarence Valley Council [2015] NSWCA 263 (“Collins”), McColl JA (with whom Macfarlan JA) agreed summarised the case law in relation to obvious risk. At [136] it was said:

In Collins, the Court stated that “obvious” means that both the factual scenario facing the plaintiff and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. See also Streller v Albury City Council [2013] NSWCA 348 at [30]-[31] (per Meagher JA).

In making such an assessment, the Court will take into account the age and level of experience of the plaintiff. A risk may be obvious, even if it has a low probability of occurring and is not prominent, conspicuous or physically observable. The plaintiff’s actual knowledge of the risk of harm is irrelevant except insofar as it is relevant to the forward looking inquiry as to whether the risk would have been obvious. However, as the “obvious risk” inquiry is into the knowledge that a reasonable person in the plaintiff’s position should be taken to have had, it may be relevant to know the extent to which they were actually aware of the relevant risk.

It is further relevant to consider what others have done in respect of the risk in considering the question of obviousness of the risk and whilst that in itself, may not be determinative it is a relevant consideration having regard to the onus which lies upon the defendant: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350 at [62]-[64] (per Emmett JA).

In Menz, Leeming JA (with whom White and Payne JJA agreed), made the following observations about the nature of an obvious risk at [70]-[74]:

In Kanwar v Lynch [2020] NSWCA 152 at [44]-[52], Basten JA applied the principles set out in Menz and made the following further observations with respect to the characterisation of risk:

Both parties made reference to the Court of Appeal decision in Fallas. In Fallas, the plaintiff was sitting in the passenger seat of the vehicle being used by a party of men engaged in kangaroo shooting by “spotlighting”. The defendant returned to the driver’s seat and began cocking his gun back and forth. Asked by the plaintiff to stop, the defendant assured him that the gun was not loaded and that it was safe. The gun accidently discharged, injuring the plaintiff. The defendant was held to be negligent. Whilst the appeal primarily concerned whether the activity constituted a “dangerous recreational activity” and whether the defence of s 5L applied, it is the Court’s observation with respect to s 5F that are relevant to the current proceedings.

As to the observations of the Court, which consisted of Ipp, Tobias and Basten JJA, with respect to characterisation of the relevant risk, each differed:

Thus, notwithstanding the differences of approach, the majority held the risk of injury to plaintiff, in the circumstances, was obvious.

The logic of Div 4 of Pt 1A of the CLA is that once the s 5F obvious risk is identified, s 5G deems the person injured to be aware of that risk and places the burden on that person to prove to the contrary. It is irrelevant whether the person is aware of the precise nature, extent or manner of the occurrence of the risk – under s 5G a person will be aware of a risk if the person is aware of the type or kind of risk: Collins at [153], [198] and [202].

Section 5G extends the rebuttable presumption of awareness of obvious risks to cases where 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. Section 5G proceeds on the basis that the “risk of harm” is sufficiently general that it may be described as a “type” or “kind” of risk, whose precise details need not be known. Section 5G should be read with ss 5C and 5B. (See Uniting Church at [112]-[114]).

In Council of the City of Sydney v Bishop [2019] NSWCA 157 (“Bishop”), by majority (per Basten and Macfarlan JJA), the Court of Appeal held that the Council did not owe Ms Bishop a duty of care. Ms Bishop had tripped and fell on a kerb in a pedestrian precinct. She sustained injuries to her right hip as a result. The kerb separated a walkway from a footpath. In the Court below, the primary judge found in favour of Ms Bishop, holding that that the Council owed her a duty of care and had been negligent in failing to install – or requiring the developer to install – a yellow reflective strip along the kerb, and ordered that the Council pay her substantial damages. On appeal, the Court of Appeal held the risk of tripping on the kerb was an “obvious risk”, such that the Council’s duty did not extend to warning her of it: Bishop at [10], [28]-[29]. Further, the risk of a person tripping on the kerb was not such that a reasonable person in the Council’s position would have taken the precaution of installing a yellow reflective strip. (For completeness, even if duty or breach were established, the Court of Appeal found Ms Bishop had not established causation).

Although a finding that a risk of harm is an “obvious risk” eliminates any common law duty to warn, it does not automatically prevent a defendant being held liable for breach of duty: Glad Retail Cleaning Pty Ltd v Alvarenga.

The defendant bears the onus of proving a plea of obvious risk: Fallas at [122].

In Carey v Lake Macquarie City Council [2007] NSWCA 4 at [85], McClellan CJ at CL set out the three elements required to make out the common law defence of volenti non fit injuria, as follows:

The onus falls upon the defendant to establish the defence.

McClellan CJ at CL also provided a summary of the interaction of the common law defence with the Pt 1A of the CLA at [86]-[99], extracted below:

His Honour made the following further observations as to a Court’s assessment with respect to “voluntary” assumption of risk:

During cross-examination, the plaintiff gave the following evidence as to the importance of weather conditions to his decision to launch a boat:

The plaintiff accepted the following propositions put to him in cross-examination, with respect to his knowledge of the impact of tides on boat ramps:

The plaintiff’s evidence was that when he approached boat ramps he would always do so on the basis they could be slippery. That evidence is extracted below:

During re-examination, he clarified that evidence concerned the need “[t]o be cautious”. The plaintiff was cross-examined with his knowledge vis-à-vis slippery boat ramps:

During cross-examination, the plaintiff conceded the following:

In my view, the plaintiff was aware of the risk of harm, namely, the risk of slipping when walking down the boat ramp on the day of the accident.

The defendant advanced the following submissions in support of its case vis-à-vis obvious risk:

As to the availability of the common law defence of volenti non fit injuria, the defendant submitted:

In support of the third element of the common law defence, namely, that the plaintiff “freely and voluntarily agreed to accept the risk”, the defendant relied upon the following evidence:

The plaintiff submitted:

As to warning, the plaintiff submitted:

The plaintiff further submitted:

In reply, the plaintiff advanced the following submissions:

The plaintiff advanced the following submissions in reply with respect to the defence of volenti non fit injuria:

The determination whether the harm suffered by the plaintiff was the result of the materialisation of an “obvious risk” under s 5F requires regard to be had to the particular circumstances in which the harm was suffered and a determination whether the risk which resulted in the harm would have been obvious to a reasonable person in the plaintiff’s position: see Fallas at [98].

As mentioned, in this matter the relevant risk of harm was the risk that a pedestrian might slip on the boat ramp.

The risk of slipping whilst walking on a marine surface such as the boat ramp due to wetness or marine growth is a matter of common knowledge but, in any event, that assessment is buttressed by the concession made by the plaintiff and Mr McNally that any or all boat ramps could be slippery to walk on.

In this case, the plaintiff walked behind the warning sign and commenced walking in a westerly direction from the eastern slab facing his son. He had an unobstructed view of the boat ramp in daylight.

The evidence was that James was situated on the western slab with his ankles submerged in sea water. The evidence does not support a conclusion that the tide had reached the location where the plaintiff fell at the time of his fall but evidence reveals that the beach was closed at 2pm due to rough seas and it had been raining (although not at the time of the fall). The surface of the boat ramp was wet either through the rain or the residue of the receded tidal waters or both. It may be noted, in that respect, the plaintiff’s fall occurred before reaching the water’s edge, and his clothes (which had earlier been dry) became wet after the fall.

The plaintiff’s approach to James would have indicated that there was a downward gradient because of James’ relative position to the plaintiff as the plaintiff looked in a downward direction.

The “slow” pace by which the plaintiff descended the boat ramp, as observed by Mrs Bowman, does not diminish the objective obviousness of the risk but rathe demonstrates the fact of the risk of slipping whilst walking on the day of the accident.

There were alternative means of accessing the beach via the boat ramp which did not involve the risks associated with the plaintiff’s movement towards James, namely, a southerly movement along the eastern slab which could have underscored the risks associated with the pathway taken by the plaintiff.

I accept the contention of the defendant that the obvious nature of the risk is not diminished by the fact that hundreds of people take risk, with some slipping.

The plaintiff erroneously sought to rely upon the apparent frequency at which boat ramp users, namely, Mr Lamont and Mr McNally, used the boat ramp and their corresponding level of knowledge of the risk. The requisite objective standard is that of a reasonable person in the position of the plaintiff and not an assessment informed by evidence or contentions regarding frequent users.

For the above reasons I consider the risk of slipping, whilst walking down the boat ramp at the time of the accident, was an obvious risk for the purposes of s 5F(1) in that the risk would have been obvious to a reasonable person in the position of the plaintiff as he walked down the boat ramp at that time.

Further, the effect of s 5H(1) is that the defendant did not owe a duty of care to the plaintiff to warn him of that risk. In the absence of any duty of care to warn, the “failure to warn” parts of the plaintiff’s case must fail. This includes the allegations that the defendant should have installed different or better warning signs.

Whilst a resolution of the question of warning (and appropriate signage) are, therefore, not strictly necessary, I propose to briefly address the issue and, in doing so, conclude that I do not accept the submissions of the plaintiff that that it was reasonably likely that the plaintiff did not receive or understand the warning said to be given by the sign erected by the defendant at the entrance to the boat ramp and that the signage and warning provided were inadequate precautions (as later discussed).

I will first return to the balance of the plaintiff’s submissions in that respect.

In addition to the submissions of the plaintiff above, the plaintiff contended that the position of the sign was not obvious to sufficiently warn any person visiting the area or who was even regular to the area of the risk of slipping on the ramp. Reliance, in that respect, was placed upon the evidence as to the route taken by the plaintiff to the boat ramp on the day of the accident and the evidence of Mr McNally:

The plaintiff’s submissions should be rejected for the following reasons:

In light of the findings I have made under Div 5 of Pt 1A of the CLA and the further finding I will make below under Pt 1A vis-à-vis negligence, it is not strictly necessary to make a further finding relevant to the common law defence of volenti non fit injuria. However, I note there is substance in the submissions advanced by the defendant in that respect.

It was uncontroversial that as the occupier of the boat ramp at the time of the accident, the defendant owed a duty of care to the plaintiff. The duty owed by an occupier is to exercise reasonable care so that the premises are safe for pedestrians and other users: Australian Safeway Stores Pty Ltd v Zaluzna at 488; [1987] HCA 7; Thompson v Woolworths (Q’land) Pty Ltd at [24].

The question of breach is governed by s 5B of the Civil Liability Act. The relevant sections of that Act are set out in Pt 1A Div 2 and extracted below:

Consistent with my earlier observations, it has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the CLA, because it enables assessment as to whether that risk was “foreseeable” for the purposes of s 5B(1)(a) of the CLA, whether it was “not insignificant” for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35].

The relevant risk of harm must encompass the circumstances of the kind suffered by the plaintiff: see Uniting Church at [110] and [118]. In a case where different risks are present, particularity is required: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]. That particularity requires some articulation of the general causal mechanism of the injury sustained: McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [266] per Garling J (in dissent, but not on this point).

As earlier found, the relevant risk of harm in this matter was the risk that a pedestrian might slip on the ramp and suffer physical injury.

As to the satisfaction of s 5B(1)(a) and (b), the plaintiff submitted:

The defendant does not dispute that it knew of the risk of harm of slipping and falling on the boat ramp for the purposes of s 5B(1)(a) of the CLA; and that the risk of harm was “not insignificant” for the purposes of s 5B(1)(b). The defendant also submitted, as earlier mentioned, that the risk of harm was “obvious”. It advancing that submission, no admission was made with respect to any alleged contamination by algae, moss or other substances on the boat ramp.

I find the requirements of s 5B(1)(a) and (b) are satisfied.

To establish breach of duty under s 5B(1)(c) of the CLA, the plaintiff has the onus of demonstrating that a reasonable person in the defendant’s position would have taken those particular precautions in response to the risk of harm.

The plaintiff’s case is that the defendant failed to take the following precautions in response to the risk of harm:

Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the CLA: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38]. The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197]. I will turn to the evaluation exercise, with respect to the above listed precautions, following a summary of the relevant principles that inform that assessment and my overall conclusion, in a cumulative sense, with respect to precautions.

It is not enough for the plaintiff to show there was a risk, or that before the plaintiff’s accident other people had also reported slipping on the ramp. The Court must still turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 (now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk). As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47], s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.

In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]:

The defendant contended that, on several occasions in the plaintiff’s submissions, the plaintiff incorrectly characterised the inquiry under s 5B(1)(c) as being whether, having knowledge of the risk of slipping on the ramp, the defendant has acted to prevent or to remove the risk. The plaintiff’s case, it was submitted, was thus directed to the means by which an occupier could eliminate risk altogether, which, it was contended, was irrelevant to an assessment of breach: see Neindorf v Junkovic [2005] HCA 75 at [8] (per Gleeson CJ) and [91]-[95] (per Hayne J). I accept that submission.

In Neindorf v Junkovic, Gleeson CJ observed (at [8]):

It is also apt to recall what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 at [23]-[24]. The comments were directed to dwellings, but apply equally to outdoor amenities:

Bryson J (Meagher and Heydon JJA agreeing) warned in Waverley Council v Lodge [2001] NSWCA 439 at [29] about the difference between foresight of risk and an obligation to act on the risk:

As to principles relevant to breach of duty and with particular reference to the later discussion of the burden of taking precautions in this judgment, the plaintiff relied upon the following summary of principles set out by Basten JA in Weber v Greater Hume Shire Council [2019] NSWCA 74 at [94]-[101]:

The parties made very few submissions about the matters referred to in s 5B(2). I will address those issues, where relevant, in the course of considering particular duties and precautions, I note at this stage, with respect to the burden of taking precautions to avoid the risk of harm, the plaintiff contended the Court should not find that the precautions vis-à-vis signage, pressure cleaning and further inspections, constituted a burden that warranted precautions not being taken to avoid the risk of harm because each of them were remedial measures that were already attended to by the defendant at the time of the accident in response to the risk. I accept that submission.

I now turn to deal with the submissions as the adequacy of the precautions taken, as listed above, seriatim.

The plaintiff contended that the defendant had the following duties with respect to signage at the boat ramp:

In light of the submissions advanced with respect to s 5H of the CLA, the defendant correctly submitted that if the Court found that the risk of slipping on the boat ramp whilst walking on it was an “obvious risk” under s 5F of the CLA, the effect of s 5H(1) is that the defendant did not owe a duty of care to the plaintiff to warn him of that risk. In the absence of any duty of care to warn, the defendant also correctly submitted, the allegation that the defendant failed to warn the plaintiff of the risk through better or different warning signs must fail.

In any event, I have earlier rejected the plaintiff’s contentions as to the inadequacy of signage and the failure to give appropriate warnings.

The plaintiff contended that the defendant had a duty to ensure that the boat ramp was cleaned at least once every month. Whilst the plaintiff accepted the defendant had a system of monthly pressure cleaning, it was submitted, the defendant failed to follow it. By its pleadings, the plaintiff said the defendant failed “to regularly pressure clean the said boat ramp”. The plaintiff contended that at the time of the accident the boat ramp had not been cleaned for three months. The defendant disputed that submission.

As to arguments with respect to the defendant’s inspection and cleaning of the boat ramp, the parties both focused upon the evidence of Mr Fowler and Mr Coulter. A summary of their evidence in that respect follows.

In his supplementary statement dated 13 November 2018, Mr Fowler gave evidence by reference to the defendant’s electronic database, the Reflect Maintenance Management System (“the Reflect System”) and hardcopy timesheet records (collectively, “the records”), as to inspections and pressure cleaning of the boat ramp in the months prior to the accident on 22 February 2015.

The Reflect System records all work orders and inspection and maintenance activities carried out by the defendant’s employees and officers. Mr Fowler stated that there was an expectation that the officer’s activities would be entered into the Reflect System as soon as possible after the tasks were completed.

Mr Fowler gave evidence that in 2014 and 2015, the officer performing the task would fill out a timesheet showing the tasks they had completed each week. Their manager would then collect the officer’s timesheets and enter the activities from the timesheet into the Reflect System.

Mr Fowler was cross-examined with respect to omissions from the Reflect System:

Mr Fowler was also cross-examined as to his knowledge of the storm water outfall and the risks that presented:

In light of the evidence of Mr Fowler, the plaintiff submitted:

The defendant submitted that the records show that in the half-year prior to the accident, inspections of the ramp occurred roughly every month, followed usually by pressure cleaning within about a fortnight. A summary of that evidence follows:

I consider the process of inspection and cleaning had not significantly departed from the pattern of above monthly inspections, starting from August. Further, whilst pressure cleaning did not occur between 3 January and 22 February 2015, it did occur slightly before that date range on 30 December

During cross-examination, Mr Coulter was taken through his January 2014 correspondence with respect to the then recent slip and fall at the boat ramp. He confirmed his concerns as to the importance of maintenance of the boat ramp for safety.

Mr Coulter gave unchallenged evidence as to some reasons why despite the monthly schedule, it was not always possible to perform pressure cleaning at exact one-month intervals, particularly during the period immediately before the accident:

Mr Coulter agreed in cross-examination that the boat ramp should be cleaned at least monthly for safety reasons. He also stated the boat ramp should be cleaned as required, although he was unclear as to whether a cleaning system of less than one month had been sought, merely citing “people” who had suggested that course.

In light of the evidence of Mr Coulter, particularly his correspondence in January 2014, the plaintiff submitted:

The plaintiff also sought the Court to draw an adverse inference from the fact that the defendant did not call witnesses other than Mr Fowler and Mr Coulter to give evidence as to the cleaning of the boat ramp, namely, that such evidence would not have assisted the defendant. Those submissions are extracted below:

In reply to that submission, the defendant submitted it put into evidence its documentary records of inspection and cleaning, and exposed Mr Coulter and Mr Fowler to cross-examination on the defendant’s other documentary records. Those records were not challenged, and the plaintiff does not identify any specific inference the Court should draw against the defendant, against which the calling of specified defendant witnesses might detract. The submission of the plaintiff is, therefore, without substance and should be rejected. I accept that submission.

As earlier mentioned, Mr Kiernan produced an investigation report with respect to the accident. The investigation report was requested by the plaintiff’s solicitors. They instructed Mr Kiernan to visit the site of the accident and prepare a report for the purposes of providing an opinion about the circumstances of the accident and the viability of the claim. More particularly, Mr Kiernan was asked to address, inter alia, the following question: How the boat ramp can be made safe through engineering or other means?

Mr Kiernan opined that any remedial measures with respect to improving slip resistance should take into account the different concrete surface finishes and slopes of each concrete slab. For example, the eastern slab is “higher” than the western slab; the investigation report of Mr Kiernan recorded that, as a result, the eastern level would be inundated with tidal water “less” than the western level. This is significant as it is less exposed to water and the risk of algae growth as a result.

Mr Kiernan observed:

By that evidence, Mr Kiernan recognised the limitations within the current cleaning system.

As to the burden of taking precautions to avoid that risk, the plaintiff contended it was not great. That conclusion was based upon the fact the defendant had already committed itself to a course of action in that respect. I have earlier accepted that submission.

As to the social utility of the activity, the plaintiff submitted it was important in view of the fact that the boat ramp was used as an access for hundreds of members of the public and/or children engaged in surf lifesaving training. I accept that factor would indicate the need for a precaution to be taken.

I will return to the consideration of application of s 5B(1)(c) below.

There are four aspects of the plaintiff’s case as to precautions which received little development in final submissions:

I will consider those factors in the overall consideration of precautions, but given the approach of the plaintiff to these issues, they may be shortly dealt with at this juncture before returning to them in conclusions. Each contains issues as to the precautions significance in the light of the accident.

The plaintiff pleaded that the defendant had the following duties:

As earlier mentioned, grooves and gaps were used interchangeably in the proceedings.

Whilst the plaintiff relied upon the specification that “gaps”, which were provided for in the engineering plan but were never constructed when the boat ramp was refurbished, as mentioned, this contention remained undeveloped by closing submissions. I reject the plaintiff’s contention in this respect for the following reasons:

The plaintiff pleaded that the defendant had a duty to ensure that the boat ramp complied with AS 1657-1992 in relation to the gradient of the boat ramp. The plaintiff did not develop submissions with respect to the precaution vis-à-vis gradient, save for relying upon the investigation report of Mr Kiernan (set out earlier in this judgment).

The defendant properly accepted the relevant Australian Standard with respect to gradient and pedestrian surfaces, with the maximum gradient for pedestrian surfaces as 1 in 8 (12.5%). However, as earlier found, the location of the plaintiff’s fall was on the eastern section of the existing slab of the boat ramp, which section had a moderate slope (7% or a maximum of 10%) and was compliant with the applicable Standard; this robs this precaution of any efficacy in support the plaintiff’s case. There was access to the beach via a pathway (the south eastern extension) which did not require walking on a gradient exceeding the Australian Standard.

The plaintiff pleaded that the defendant had a duty to place large rubber mats on the boat ramp. The plaintiff briefly addressed this precaution in written submissions by contending the alternative system of placing large rubber mats on the boat ramp was not investigated but it received little development.

In this respect, I accept the defendant’s submissions, as follows:

The plaintiff contended that the defendant had a duty to investigate means of reducing the risk of persons slipping on the boat ramp due to moss or algae.

In particular, the plaintiff submitted:

As to the same, the defendant advanced two submissions with respect to the plaintiff’s contention in this respect:

Given the manner which the plaintiff developed its case, in this respect, those submissions must be accepted.

Whilst the allegation as to closure of the boat ramp was pressed by the plaintiff in written submissions, it was not developed beyond a recitation for the particular that appears at para 13(v) of the ASOC. I will return to this contention in my conclusions in this respect.

The onus with respect to s 5B(1)(c) falls to the plaintiff to demonstrate that a reasonable person in the defendant’s position would have taken those particular precautions identified by the plaintiff in response to the risk of a pedestrian slipping on the boat ramp.

The Court has previously dealt with particular aspects of the plaintiff’s case in this respect because there is a connection to a related consideration, such as, the discussion of signage and warnings in the case of the consideration of the existence of a “obvious risk” or because the plaintiff less rigorously addressed some precautions relied upon such as submissions concerning grooves, the gradient of the boat ramp, the use of rubber mats, and the conduct of further investigations. The plaintiff’s contentions were rejected for the reasons given in that context.

I propose to deal with two more aspects of the plaintiff’s case in this respect before turning to an overall conclusion, namely, the failure to reasonably maintain the boat ramp by the use of pressure cleaning and a failure to close the boat ramp on the occasion of the accident.

As to the first of those considerations, I do not consider the plaintiff has failed to establish that a reasonable person in the defendant’s position would have ensured that the boat ramp was cleaned at least once every month. Nor do I consider that, if such an obligation existed, it was breached (there are further issues with respect to causation which I discuss below). Mr reasons, in that respect, are as follows:

As to the contentions of the plaintiff as to the closure of the boat ramp at the time of the accident, I do not consider the plaintiff has made good its contentions for the following reasons:

I note that in Tame v New South Wales (2002) 211 CLR 317 at [101]. McHugh J stated:

In all the circumstances of this matter, and when the precautions are viewed as a whole, I do not consider the plaintiff has satisfied the onus of demonstrating that a reasonable person in the defendant’s position would have taken the precautions, as identified by the plaintiff, in response to the risk of harm that a pedestrian might slip on the ramp and suffer physical injury.

The question of causation is governed by s 5D of the CLA. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below:

The application of the CLA requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the CLA.

The relevant authority on causation was summarised in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [85]-[94], which I adopt and extract below:

In addition to submissions earlier advanced with respect to the precautions, summarised above, the plaintiff also made submissions as to causation:

In my view, the plaintiff has failed to establish factual causation for the purposes of s 5D for the following reasons:

Accordingly, I am not satisfied that causation has been established with respect to any relevant breach of duty, if a breach had been established.

The defendant is not negligent for failing to take (to the extent it did fail to undertake) the precautions relied upon by the plaintiff against the risk of harm. In any event, the plaintiff has not demonstrated factual causation for the determination of negligence for the purposes of s 5D of the CLA. I will, nonetheless, discuss or mention the issues of the defendant’s reliance on s 42 of the CLA, contributory negligence and damages.

The defendant raised a defence under s 42 of the CLA.

Section 42 provides:

The Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74, provided guidance with respect to the construction of s 42 of the CLA:

In Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340 (“Bathurst Regional Council v Thompson”), the appellant council submitted the primary judge erred in failing to take into account the principles under s 42. The factual background concerned the respondent who fell when descending the steps of a rotunda and sued the appellant owner and occupier of the relevant park.

In Bathurst Regional Council v Thompson, Hoeben JA (as he then was) observed, to succeed under s 42, there has to be evidence of the financial and other resources that are available to the authority, the general allocation of those resources, and the range of the authority’s activities. Without such evidence, such matters cannot be taken into account by a Court, and there is no subject matter to which the s 42 principles can be applied (at [46]-[50]):

The plaintiff submitted:

The defendant did not develop and has not established on the evidence a statutory defence under s 42 of the CLA.

In McNeilly v Imbree (2007) 47 MVR 536 at [106], Basten JA said of the “just and equitable” test, where used in assessing contributory negligence:

In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, another case of contributory negligence, the High Court said (at 532-533):

The plaintiff submitted:

The defendant contended that the following factors necessitate a finding of contributory negligence in the present case:

Based upon my earlier findings, the defendant’s submissions, in this respect, must be accepted. Further, I have found that there was an obvious risk of slipping whilst the plaintiff walked down the boat ramp.

Taking these matters into account, if required to determine contributory negligence, I would find the loss should be apportioned 10% to the defendant and 90% to the plaintiff.

I have given consideration to expressing my view as to the question of damages, notwithstanding my conclusions as to liability, consistent with the conventional approach of providing such views in the event that my judgment as to liability is found to be wrong. However, I do not consider that an expression of such views is the preferable course in this matter.

In its submissions on damages, the defendant has raised significant issues of credit as to the plaintiff, James and Mrs Bowman. Those submissions, by and large, did not feature in issues going to liability (even though some aspects of the damages submissions traverse relevant questions such as James’ view of his father approaching the boat ramp) and it has been otherwise unnecessary to make credit findings in order to resolve the liability issues.

Upon the findings of the Court pursuant to s 5M of the CLA, as to breach of duty and causation, the plaintiff’s claim in negligence must fail. The plaintiff has not established liability. Judgment should be entered for the defendant and an order for costs made in favour of the defendant.

The defendant is to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.