Bondi Beach Appeal Successful...

It is pertinent to the determination of what reasonableness requires by way of conduct on the part of a person who owes a duty of care, to consider what behaviour can reasonably be expected on the part of persons to whom a duty is owed.  Reference was made to the comment by J Kirby in the case Romeo v Conservation Commission (NT),  “While account must be taken of the possibility of inadvertence or negligent conduct on the part of the entrants, the occupier is generally entitled to assume that most entrants will take reasonable care of their own safety …  Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.”   

Relevant to the case was the fact that no person attending an Australian beach could fail to know that there are sudden variations in the sand level under water.  The assessment was made that the degree of obviousness of the risk of diving into a wave without knowing the formation of the floor was high.  The fact that any danger was hidden was itself quite apparent to the swimmer – he could see the breaking wave and realize that whatever was underneath was hidden.

It was determined that there was no evidence before the jury which could justify a finding that the Council was in breach of its duty of care to users of the beach by failing to warn them of dangers involved in diving arising from sand formation.  In particular, there was no evidence to determine the number, location and content of signs that would be required and whether a reasonable Council would have done so.  There was no proper basis upon which the jury could determine that reasonable conduct on the part of the council required warning signs.   

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We will now consider breach by placement of the flags.

It was considered that the Council had a duty of care with respect to the placement of the flags.  That placement involves an express indication that bathing between the flags is reasonably safe.  It is not, of course, assurance of safety.  It would, for example, be a breach of the standard if a council placed flags without regard to the existence of a strong rip at that point in the beach. 

CJ Spigelman was not prepared to hold that a reasonable jury could not have concluded the Council acted in breach of its duty in its placement of the flags.  In his opinion it was open to the jury to conclude that the Council should have placed its flags so as not to induce swimmers to swim in such an area and that the appeal should be dismissed.   

JA Handley and JA Ipp however disagreed.  Their judgement was that whilst the Council had a duty of care with respect to the placement of the flags, that placement involves an express indication that bathing between the flags is reasonably safe.  The flags are there to designate swimming areas and to indicate to people where they can swim safely.  They do not indicate that it is safe to dive anywhere between them.  They do not indicate, for example, that it is safe to dive at the waters edge, or that it is safe to dive into a channel.  The flags were not intended to convey, and did not convey, any indication to persons in the water of the condition of the sand floor or the depth of water immediately in front of them.

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