PARTIES:					NORTHERN TERRITORY OF AUSTRALIA			
						v
			
						GARRY SHOESMITH & ORS	

						AND

						KATHERINE TOWN COUNCIL

						v

						GARRY SHOESMITH & ORS

JURISDICTION:				In the Court of Appeal of the Northern Territory of Australia Supreme Court of the Northern Territory of Australia exercising Territory jurisdiction		

TITLE OF COURT:				COURT OF APPEAL

FILE NOS:					No.AP22 OF 1995 and
						No AP23 of 1995

DELIVERED:					Darwin, 24 May 1996  

HEARING DATES:				21, 22 December 1995

JUDGMENT OF:				Kearney, Angel and Mildren JJ	

CATCHWORDS
Negligence - Occupier’s liability - Degrees of negligence -
risk of injury reasonably foreseeable - Whether sufficient proximity - Whether mere ownership sufficient - Whether legal interest necessary - Provision of funds and administration of work sufficient to create occupier status - Dual occupier

Hackshaw v Shaw (1984) 155 CLR 614, applied
Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479, applied
Wheat v E Lacon & Co Ltd (1966) AC 552, applied
Conservation Commission Act (NT) s19(a)

Negligence - Occupier’s liability - Dual occupiers - Apportionment 
of responsibility and damages - Based on degree of control

Negligence - Contributory negligence - Whether behaviour involved 
inadvertence, inattention and misjudgment - Duty to provide against such 

Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 38-39, applied
Inverell Municipal Council v Pennington [1993] A Torts R 81-234, applied

REPRESENTATION:
Counsel:
Appellant:		T Pauling QC, R Webb
Appellant:		D Bleby QC, J Stewart
Respondent:	J Coombs QC, R McIwaine

Solicitors:
Appellant:		Northern Territory of Australia:
			Solicitor for the Northern Territory
Appellant:		Katherine Town Council:  Ward Keller
Respondent:	Elston & Gilchrist

Judgment category classification: 	A
Judgment ID Number: 				ang96006
Number of pages: 				25
Distribution: local published

ang96006

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. AP22 of 1995

						BETWEEN:

						NORTHERN TERRITORY OF AUSTRALIA
								Appellant

						AND:

						GARRY SHOESMITH & ORS
								Respondent

No. AP23 of 1995				BETWEEN:

						KATHERINE TOWN COUNCIL
								Appellant

						AND:	

						GARRY SHOESMITH & ORS
								Respondent

CORAM:   KEARNEY, ANGEL and MILDREN JJ

	REASONS FOR JUDGMENT

	(Delivered 24 May 1996)

KEARNEY J:		I respectfully concur in the reasoning and conclusions of Mildren J, and in the orders his Honour proposes.

ANGEL J:		These are appeals from a judgment of Martin CJ in an action for damages for negligence brought by the respondent, Garry Shoesmith, against the Northern Territory of Australia and the Katherine Town Council.  There are two appeals and they were both heard together.  The facts as found by the learned trial Judge are set out in the judgment of Mildren J and need not be repeated.

	I agree with Mildren J that both appellants were liable as occupiers and I agree with Mildren J’s reasons therefor.

	As to apportioning that liability the learned trial Judge ordered that liability be borne equally as between the appellants.  Reaching this conclusion his Honour stated nothing had “been put in an endeavour to show that the Council had any greater control or responsibility for the waterhole because it was in the municipal area and had taken steps to improve its amenity, than did the Territory as owner.”  With respect, I can not agree, and consequently nor with the decision that liability be apportioned equally.

	The process of apportionment involves a finding of degrees of fault as a question of fact.  However, “It is different in essence from a mere finding of fact in the ordinary sense.  It is a question, not of principle ... but of proportion, of balance and relative emphasis and of weighing different considerations.”; British Fame (Owners) v The MacGregor (Owners) [1943] AC 197 at 201.  The first appellant, The Northern Territory of Australia, (“the Territory”) in addition to being the owners of the land, acted in a supervisory and advisory capacity in respect of the land.  The Territory knew of the activities being conducted by the Council (through the “Wage Pause Program”) on that land and was in a position to control the Council regarding the use of the land.  It chose not to.  The Territory’s involvement was, on the facts, one of intermediate control.  The second appellant, Katherine Town Council (“The Council”) exercised immediate de facto control over the waterhole.  Whereas the Territory had knowledge regarding the waterhole, the Council actively participated in its management.  It was the Council that constructed the weir and the rock ledge and constructed carparking facilities.  The Council sought funds administered by the Territory to do this.  The Council removed rubbish and actively controlled the area, having removed at least one fallen tree and trimmed the fallen log in question.  It created the danger.  With a minimum of effort and expense the Council could have trimmed the log further, removing or minimising the risk of an injury of the type that occurred.  Importantly the Council played the primary role in encouraging visitors to the area; it had placed a sign on a major roadway pointing to the waterhole.  As Martin CJ found, the Council had “assumed responsibility”.  On the facts, the Council in ‘assuming responsibility’, was exercising practical control over the area.  The Council exercised control in a very functional manner such that, when combined with the primary role payed in encouraging use of the area, their obligation to ensure the area’s safety was paramount.  That is not to say the Council’s positive assumption of responsibility exculpates the Territory from liability as dual occupiers.  The Territory is not divested of responsibility by virtue of indirect activity.

	In consideration of all these factors, I would apportion liability 75% as to the Katherine Town Council and 25% as to the Northern Territory of Australia.  Fully accepting that a range of apportionments can be said to be ‘just and equitable’ in the circumstances, I am unable to argue with the other members of the Court that the Council is four times as responsible as the Territory.

	Both appellants submitted that the respondent Shoesmith was guilty of contributory negligence.  A person will be held guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable and prudent person, he would expose himself to a risk of injury: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 per Mason J.  A thoughtless or inadvertent act can amount to contributory negligence when a reasonably prudent man would take thought or be vigilant; Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24.  The learned trial Judge said, “Factors such as inadvertence, inattention or misjudgment” should be excluded when determining contributory negligence.  On the contrary, inadvertent though an act may be its occurrence may still constitute contributory negligence.

	Where a risk exists that through the provision of recreational or other facilities, a person may act inadvertently and without sufficient care, the law recognises a duty, in some cases, to provide against such inadvertence; Inverell Municipal Council v Pennington [1993] A Torts R 62,397, per Mahoney JA (with whom Meagher JA agreed).  In my view this appeal is such a case.  Although the offending tree was not ‘provided’ in a literal sense by either appellant it was provided as a public “recreational or other facility” by the Council.  The appellants’ failure to provide for inadvertence or lack of care does not preclude the respondent from liability for contributory negligence.  The respondent’s movement with a view to making a “quicker exit” from the log, while endeavouring to escape from his friends, evinced a lack of care.  The fact the respondent had negotiated the same path several times before without incident indicates that this “quicker” exit was executed without due care.  The requisite amount of attention was not paid.

	An elderly woman inadvertently falling down some hospital stairs - stairs she intended to walk past - was held guilty of contributory negligence by the New South Wales Court of Appeal in Western Suburbs Hospital v Curry (1987) 9 NSWLR 511.  Finding the hospital negligent in failing to provide a gate to guard the flight of stairs, two members of the court (McHugh JA and McLelland AJA) held the elderly woman, albeit distressed and shielding her eyes from the sun, was liable in contributory negligence in falling.  She failed to pay full attention to the task at hand:  walking past the stairs.  McLelland AJA, found no negligence on the hospital’s part but said if negligence were to exist then the woman would be liable in contributory negligence.  McHugh JA, making due allowance for the woman being worried and distracted, said there must still be contributory negligence.  The elderly woman’s intention was to locate a friend in the hospital car park, but due to distracting factors (although understandable) she paid insufficient attention.

	Due allowance being made for the inadvertence of the respondent in this case, I am of the opinion that he contributed to his own injuries by not showing thought where a reasonably prudent man would take thought and by acting inadvertently (in horseplay) when a reasonably prudent man would have been vigilant.  A reasonably prudent man, aloft upon a wet log and aware of the existence and location of a submerged rock ledge beneath - as was the respondent - would have exercised more care and less haste in his attempt to exit.

	I am of the opinion the respondent was guilty of contributory negligence.  I would assess the respondent’s responsibility for his loss at 15 per centum.

	For the reasons stated, I would set aside the learned Chief Justice’s order that liability be borne equally as between the appellants, allow the Territory’s appeal, and order that liability be apportioned between the appellants as follows:  75% to be borne by the Katherine Town Council and 25% by the Territory.  I would uphold the appellant’s contentions that the respondent was guilty of contributory negligence.  I would order that the respondent’s damages be reduced by 15% on account of his contributory negligence.  The appeals should otherwise be dismissed.  I would hear the parties as to costs and any other orders.

MILDREN J:
These appeals, which were heard together, are brought by the appellants who were the defendants to an action for damages for negligence brought by the respondent, Gary Shoesmith, who sustained severe injuries on 21 August 1987 as the result of slipping from off a log which projected over a waterhole known as the Katherine Hot Springs.  The action was brought against the appellants as occupiers of the land.  The learned trial judge, Martin CJ, found in favour of the respondent and dismissed the appellants' claims that the plaintiff was guilty of contributory negligence.  His Honour apportioned liability as between the appellants equally.  The quantum of the respondent's damages was agreed.
	The appellants have appealed to this Court claiming that Martin CJ was wrong in his findings of liability in favour of the respondent.  Alternatively they have both challenged his Honour's finding that there was no contributory negligence on the part of the respondent, and both claim that his Honour erred in his apportionment of liability as between the appellants.
	The facts as found by Martin CJ are as follows.
	The land in which the waterhole is located was Crown land vested in the appellant Northern Territory of Australia ("the Territory") as a consequence of the operations of the Northern Territory (Self‑Government) Act 1978, s69(3).  It was under the general administration of the Minister for the Crown Lands Act, (s7).  No action had been taken by the Territory to reserve the land for any particular purpose pursuant to s103 of that Act.  No interest in the land had been alienated from the Crown in right of the Territory.  It lay within the boundaries of the municipality of Katherine, over which the appellant Katherine Town Council ("the Council") was charged with the peace, order and good management (sic - this should read "government") in the performance of its functions (Local Government Act, s120).  It had made no specific by‑laws in respect of the area.
	The waterhole is located within the banks of the Katherine River which flows through the town.  It is immediately adjacent to the built‑up area.  It is fed by hot springs flowing in the bed of the river which also carries water from rainfall in season.  The area in and around the waterhole is well‑treed, with sandy bottom and banks, and was a popular area for recreational purposes for the people of Katherine and visitors alike.  The Council's activities in relation to the area prior to 1983 was limited to removing rubbish.  In that year the Commonwealth made funds available for expenditure throughout Australia under what was called the "Wage Pause Program".  The Territory was the body through which those funds were distributed and administered.  Proposals were put by local authorities and other organisations in the Territory to officers of the Territory for funding under the program.  The Council sought $201,800 to employ 35 persons on "development, beautification and rehabilitation projects" including "c) Hot Springs development - 13 weeks for 10 people".  The Territory was not told exactly what was proposed to be done.  The application was successful and the Council implemented its proposal through Mr March, the then Town Clerk, and Mr Hennig, the then Works Manager.  It was designed to improve the recreational value of the waterhole and provide better access to it.  Amongst other things, a weir was built across the river bed to retain the water flowing from the spring and thus deepen the swimming area, access was improved by constructing a pedestrian track, grading a roadway and a car park, and a foot bridge was built across the area where the spring flowed.  The waterhole and surrounding area were cleaned of debris and rubbish.  As those works progressed it was decided to build a rock terrace of flattish flag stones cemented together along part of the course through which the spring water flowed prior to reaching the weir.  The rock terrace was only a few metres in length and was designed to provide a means for easier entry to and exit from the water, prevent the bank from being slippery and provide users of the waterhole with a surface upon which to sit.  The top of the ledge was but a few inches below the normal level of the water and extended horizontally from the bank by about 18 inches.  The work was completed in late 1983.  With the water held behind the weir some 20 or 30 people could then be in the waterhole.  The Territory was not informed of that work by the Council.
	Within a few months after the completion of those works storm winds caused a large tree to fall onto a Paperbark tree which, in turn, fell across the waterhole but not into it.  Its roots remained embedded immediately adjacent to the water course through which the spring water flowed.  Photographs of the relationship between the fallen tree and the waterhole show that it extended almost across the body of water with the trunk projecting upwards from its roots at an angle of about 70 degrees from the vertical.  The tree was approximately 8 to 10 feet long and approximately 12 inches in diameter, though tapering from the root end, and it fell short of the opposite bank by about four feet.  It was thicker at the lower end and forked at the upper end.  Looking in one direction from the log was the weir at which point the water was deepest; in the other direction lay the ledge in shallower water.  The Council removed the large tree which had fallen, and carried out other repairs that were necessary as a result of the storm but left the Paperbark in the position where it came to rest.  However, it was pruned making it more useful and access to it easier.  It presented an obvious and enticing means of entering the water by diving and jumping from it.   It would have been simple and inexpensive to remove.  There was nothing put in place to inhibit access to the log, nor any signs prohibiting people from climbing on it or warning them of any danger.
	The Council continued to maintain the area in and around the waterhole and keep it clear of rubbish after the improvements had been made and the tree had fallen across it.  It had a policy that no ratepayers' money would be expended in areas within the municipality which were not under its control except, including in the case of this particular waterhole, such as was required to keep the area accessible and tidy for the benefit of residents and visitors.  It also paid regard to safety.
	The waterhole and its surrounds constituted a recreational area available to the public.  It was a popular place to go for a swim.  The log was used as a place from which to dive and jump into the water by adults and children alike.  All that was well known to the Council, as was the relationship between the weir, the water, the log, and the ledge.  Its officers were not aware of anyone having been injured whilst using the area, but that is not to say that people had not fallen or slipped from the log.
	The respondent was a member of the Regular Army, a Lance Corporal, on an exercise in the Katherine area.  He was camped at the Showground, just a short walk from the waterhole.  He had been to the same area years before; he knew of the waterhole and had been to it on two occasions in the two or three weeks preceding the accident.  He knew of the log and he knew of the ledge which he acknowledged was clearly visible.  He knew that the water was about 4 feet deep immediately under the log, five feet at the weir.  He and some Army friends had lawfully left their encampment and gone to the waterhole for a swim.  The plaintiff was not affected by alcohol or drugs and he was in good health.  He was in the habit of checking the conditions on each occasion he visited, including the depth of the water.
	Immediately prior to his fall, the respondent had been sitting on the thicker part of the log and some of his friends were approaching him through the water.  Because he thought the men were intending to pull him into the water, he moved to the forked end intending to jump onto the bank, a distance of three or four feet.  He had done that before.  He wanted to get out of the water and off the log "a lot quicker".  As he moved he slipped and fell in the direction of the ledge.  He has no recall of what then happened.  He then suffered a blow to his head and a dislocation of his spine.  It is possible he landed on a part of the bank or bed of the river other than the rock ledge, but on the whole of the evidence his Honour found, on the balance of probabilities, that his head struck the ledge.
	His Honour found that the men were together enjoying the benefits of the waterhole; they were using the log as a means of entering the water by jumping and diving from it and, on occasions, by "bombing", which he understood to entail the holding of the knees to the chest so as to create a greater impact on the water.  The respondent had done that, and, in the ordinary course of such events, some of his friends decided to drag him into the water from the log and deal with him in a form of playful retribution.  He wished to escape; he slipped and fell.
	Martin CJ found that this was simply a case of a group of grown men playing about in and around a waterhole and utilising the log for that purpose.  It was the type of activity which may well have been expected.  One of them, the respondent, whilst endeavouring to escape from the others as part of the play slipped from the log with tragic results.
	His Honour found that the appellants were both occupiers of the land.  The Territory was the owner of it and had not divested itself of any interest in it.  The Conservation Commission, an emanation of the Territory established under the Conservation Commission Act, was exercising a supervisory and advisory role in respect of the land, including the waterhole, as part of its function to "promote the conservation and protection of the natural environment of the Territory" (s19(a)).  After discussing the evidence, his Honour found that, in addition to its legal status as owner of the land, the Territory became aware of the developments in and around the waterhole from the Wage Pause Scheme from information conveyed to it by the Council and inspections, after late 1983, by Officers of the Conservation Commission. His Honour concluded that it knew, or ought to have known, of the features of the waterhole; that it knew of the activities being conducted there by the Council; and that it was in a position to control the Council in its activities in relation to the land.
	As to the Council, Martin CJ found that it was well aware of the improvements carried out at the waterhole, and it was aware of the log, and it carried out a maintenance and cleaning service in relation to the waterhole.  His Honour also found that both appellants knew that the waterhole was an area frequented to by members of the public for recreational purposes; the Territory knew or ought to have known about the log and the rock ledge; and the Council, although it had no legal right to occupy the area, exercised powers with the knowledge and consent of the Territory to make improvements and keep the area clean.  Additionally, the Council promoted the waterhole as a recreational area and provided facilities enabling visitors to use it, thereby assuming responsibility in relation to persons attending at the waterhole for those purposes.  Implicitly his Honour found that there was a relevant relationship of proximity between the respondent and the appellants giving rise to a duty of care.
	His Honour concluded that the risk of injury to a person on the log in the course of recreational pursuits slipping from it in the direction of the rock ledge was reasonably foreseeable.  His Honour concluded that the appellants breached their duty to the respondent by not erecting an appropriate warning sign prohibiting persons from going upon the log; alternatively by removing the log or at least that part of the log above the rock ledge.  His Honour found that if a sign prohibiting access to the log had been erected, the respondent would have obeyed it; and if the log had been removed, (and, by inference, trimmed) the respondent could not have fallen onto the ledge.
	His Honour concluded that the appellants had not proven that the respondent was guilty of contributory negligence, because, inherent in the use of the log, was the likelihood of inadvertence, inattention or misjudgment on the respondent's part, and the appellants had not shown that the respondent had, in the circumstances, failed to take reasonable care for his own safety.
	As to apportionment between the appellants, his Honour concluded that nothing had been put in an endeavour to show that the Council had any greater control or responsibility for the waterhole than the Territory and that it was just and equitable that the damages should be borne equally as between the appellants.

Proximity
	The first contention of the Solicitor General, Mr Pauling QC., who appeared for the Territory, was that Martin CJ erred in law in finding that the Territory owed any duty of care to the respondent.
	The Territory does not challenge the findings of Martin CJ that (1) the relevant risk of injury was falling or slipping from off the log in the near vicinity of the submerged ledge; or (2) the risk was reasonably foreseeable.  The Territory does however challenge the trial judge's finding of a relationship of proximity between the Territory and the plaintiff such as to give rise to a duty of care by the Territory.  The way this argument was developed involved the following propositions:
1.	Although the Territory was the owner of the land, it was not obliged to control or manage it, and in fact, in relation to the waterhole at least, did not do so.
2.	The Territory, so far as the waterhole was concerned, did no more than carry out a supervisory and advisory role to promote the conservation and protection of the environment.
3.	The Territory's "awareness" of the log, and of the ledge, if at all, came from inspections of the area carried out for the purpose of advising on soil conservation, erosion control, and beautification of the area.
4.	The Territory was not the "occupier" of the land, and in particular, the waterhole, contrary to Martin CJ's findings.
5.	In these circumstances, mere acquiescence with respect to the Council's activities or the use of the land by the public is not enough to give rise to a relationship of proximity.

	This submission was not made the subject of a separate ground in the Territory’s notice of appeal, but as no objection was taken to it, I consider that we ought to entertain it.
	Moreover, Mr Pauling Q.C. urged upon us to find that the Council was the occupier of the waterhole because it controlled and managed the area in relation to recreational pursuits at the waterhole, and, as the trial judge had found, assumed responsibility for the safety of visitors to it, whom it encouraged to use the waterhole for recreational purposes.
	Mr Bleby Q.C., who appeared for the Council, submitted that the Territory was the true occupier of the land, not the Council, because the Territory reserved the right to exercise effective control over the land.
	Counsel for the respondent, Mr Coombs Q.C. submitted that the evidence at the trial established that the Territory knew of and encouraged the use of the site by the public for recreational purposes including swimming, and took an active role in inspecting the site and advising as to its management and use.  Accordingly Mr Coombs Q.C. submitted that Martin CJ was right in his finding that a relationship of proximity existed between the Territory and the respondent.  As to the Council, it was submitted that it was not necessary for the plaintiff to show that Council was in any technical sense an occupier, nor that it had either the legal right or intention to control the land; it was sufficient if the Council encouraged the use of the waterhole for recreational swimming to give rise to a relationship of proximity.
	As it was not suggested that the respondent was a trespasser, a relationship of proximity giving rise to a duty of care would exist between the respondent and whoever was the occupier of the land given that the relevant risk of injury was reasonably foreseeable:  see Hackshaw v Shaw (1984) 155 CLR 614 at 663 per Deane J; Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479 at 488.  The basis of Martin CJ’s finding of the existence of the relationship of proximity rested upon his conclusion that both appellants occupied the waterhole.  It is this finding which the appellants attack.
	His Honour found that the land was vacant crown land under the general control of the Minister.  It had not been reserved for any purpose.  The Conservation Commission, an emanation of the Territory established under the Conservation Commission Act, exercised a supervisory role in respect of the land, including the waterhole, as part of its functions to “promote the conservation and protection of the natural environment of the Territory”:  (s19(a)).
	There is no finding that the land was a place to which the public could enter as of common right.  His Honour found that the Territory was aware of the developments in and around the waterhole from the Wage Pause Scheme, that it knew or ought have known of the features of the waterhole, including the log and the rock ledge, knew of the activities conducted there by the Council, and was in a position to control those activities.
	Mr Pauling Q.C. submitted that mere ownership of the land is insufficient; to confer on the Territory the status of occupier, the Territory must have either actually controlled and managed the land or have had a legal duty so to do for the benefit of the public:  Shire of Burrum v Richardson (1930) 62 CLR 214 at 228, 237, 238; Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 123-124, 134.  Mr Bleby Q.C. submitted that it is enough if the Territory was in a position to control the activities on the land:  Wheat v E.Lacon & Co Ltd [1966] AC 552; Demczuk v Polish Society (1987) 46 SASR 223 at 231; see also Barwick CJ in Schiller v Musgrave, at 120.
	On the other hand in Wilmot v State of South Australia (1993) 62 SASR 562; (1993) A.Torts R 81-259, the South Australian Full Court appears to have held that the Crown owed no duty of care where the land was unalienated Crown land, the Crown was not under a duty to manage and control the land and had not assumed this function, the respondent had not entered the land as of common right or as a result of any invitation or inducement to the respondent, the relevant risk was self‑evident, and not created by the Crown.  Nevertheless the Court treated the Crown as the occupier of the land.  An application for leave to appeal to the High Court was dismissed.
	Duggan J at 575 concluded that there was no proximity of relationship.  Debelle J at 581 concluded that the Crown owed no duty of care to the respondent.  Both Duggan J and Cox J relied upon considerations of policy.  Cox J, at 569 concluded that “the duty of care to any trail bike rider ... was a modest one”; and at 571 that there was no “relevant” duty of care.  It is difficult to reconcile those conclusions with the passages in Deane J’s judgment in Hackshaw v Shaw and in the majority judgment in Australian Safeway Stores Pty Ltd v Zaluzna to which I have referred above.  However, the point of distinction may not be important in the end if the proper conclusion is that although a duty existed, there was no requirement on the part of the Territory to do anything by way of response to the risk, and therefore no breach of duty.
	In this case, however, there are added factors which I think clearly establish the relevant relationship of proximity.  The Territory knew of the works conducted on the land once they were completed.  The Territory must have been aware that the purpose of those works was to encourage the public to enjoy the recreational use of the waterhole.  Having administered the scheme which provided the funds for those works, I consider that the clear inference to be drawn is that it encouraged what the Council was doing, and thereby indirectly encouraged the public to use the waterhole for recreational purposes.  The Territory did not merely acquiesce in what the Council was doing because it administered the funds:  it knew in general terms the kind of work which was proposed before the scheme was approved:  see Ext P30, AB467‑8; AB110, 141.  I therefore consider that Martin CJ was right to conclude that the Territory owed the respondent a duty of care.
	As to the Council, I do not accept Mr Bleby’s argument that the Council was not an occupier of the waterhole.  Mr Bleby submitted that the Council was not in control of the waterhole and did not intend to assume control over it.  It is not necessary for the Council to have had any legal interest in land to become an occupier; neither is it necessary for the Council to have had entire control over the whole premises, nor to have had sole control:  see Wheat v E. Lacon & Co Ltd, at 578 per Lord Denning; Law Courts Limited v Attanasio (unreported Court of Appeal, New South Wales, 13 February 1987); Bendall v Haines (1990) Aust.  Torts Reps. 81-006 per Carruthers J, (upheld on appeal, (1990) Aust. Torts Reps. 81‑005).  The facts show that the Council constructed the weir and the rock ledge, trimmed the fallen log, removed rubbish, kept the land clean, and assumed responsibility for safety. (see the evidence of the former Town Clerk, Mr March, at AB183; the evidence of the Council’s Works Overseer, at AB216.)  In those circumstances the Council had assumed some degree of control over the waterhole despite its intentions, and that is enough to make it an “occupier”, see Wheat v E. Lacon & Co Ltd esp. at 578, 580.  I consider that the Chief Justice was right in concluding that the Council was an occupier and owed a duty of care to the respondents.
The response to the risk
	It was submitted on behalf of the Territory that in all the circumstances the Territory was not required to do anything in response to the risk (see grounds of appeal 2, 4 and 4A), and that his Honour had erred in failing to assess the response required by the Territory separately from that of the response required by the Council (ground 1).
	In Romeo v The Conservation Commission of the Northern Territory (unreported, 8 December 1995) this Court recognised that the response to a risk depends upon all the circumstances of the case, including the circumstances giving rise to the relationship of proximity, the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, other conflicting responsibilities which the appellant may have, as well as other relevant matters:  see Martin CJ with whom Thomas J agreed, at 19-21; and my own observations at 44‑50.  The Territory argued that having regard to those circumstances, no response was called for by it.
	In part, that submission depended upon a view of the relationship of proximity which overlooked the indirect encouragement which the Territory gave to the public to utilize the waterhole for recreational purposes.  Absent that factor, the risk being an obvious one known to the respondent, there is much to be said for this submission:  c.f.  Wilmot v State of South Australia, and Romeo v The Conservation Commission, supra.  The Chief Justice concluded, inter alia, that removing that part of the log above the ledge would have been enough to have prevented the injury.  By this I take his Honour to have meant that part of the log in the near vicinity of the rock ledge.  It is hard to see why such a simple exercise would have involved any difficulty or significant expense.  In those circumstances even if the risk had been minimal, as Gibbs CJ pointed out in Turner v South Australia (1982) 56 ALJR 839 at 840, ordinarily the failure to take such a step constitutes negligence.  I would not consider the risk in this case to have been minimal.  It is not necessary to consider the question of signs or whether the log should have been removed.  I agree with his Honour’s conclusion that the Territory breached its duty of care to the respondent.
	For much the same reason, I would not differ from his Honour’s conclusion that the Council breached its duty of care.  The evidence established that the Council’s employees in fact trimmed the log after it had fallen into the water, as well as cut up and removed the other fallen tree.  It is hard to see why further trimming to this log would have caused the Council any difficulty or expense, or would have been a departure from its stated policies.  Mr Bleby suggested that the Council was not authorised to trim the tree, and without specific authorisation, the Council would have committed an offence against s124(1) of the Crown Lands Act.  However, the fact is that the Council did trim the tree, and there is no evidence of any complaint made about this by the Territory, which must have known about this.  It is probable that had the Territory been asked, permission would have been forthcoming. Further, the question of legal authority to remove or trim the log was not raised by the pleadings and does not appear to have been argued at trial.  It was not raised as a separate ground of appeal.  I am not satisfied that this Court can find that, had it been properly raised at first instance, the plaintiff could not have met the issue by calling evidence.  In all the circumstances it is not just that this issue should now be entertained:  see Water Board v Moustakas (1988) 77 ALR 193.
	As to the Territory’s submission that Martin CJ failed to separately assess the response called for by the Territory, I do not consider that this ground of appeal is made out.  A consideration of his Honour’s judgment as a whole does not indicate to me that his Honour failed to consider the respective positions of each appellant separately, merely because he considered the position of both appellants at each stage of the process of his consideration of proximity, duty and breach.  I would dismiss ground 1 of the Territory’s appeal.
Causation
	The Council submitted that his Honour erred in holding that the respondent’s head struck the rock ledge.  Mr Bleby Q.C. pointed out that the Chief Justice considered that it was possible the plaintiff’s head struck part of the bank or bed of the river.  He submitted that there was no satisfactory evidence that the plaintiff’s head struck the rock ledge.  There was medical evidence that the respondent’s injuries were consistent with his having hit something solid, and inconsistent with having hit sand or water.  In addition a number of statements from eye‑witnesses were admitted as business records pursuant to s5 of the Evidence (Business Records) Interim Arrangements Act 1984 without objection.  The makers of these statements all said that the plaintiff’s head hit the submerged rock ledge.
	His Honour was called upon to evaluate that evidence in accordance with ss9 and 12 of that Act.  His Honour gave careful consideration to the relevant factors.  I do not consider that it has been shown that his Honour’s conclusion was wrong, or that we should draw some other inference.
	Mr Pauling Q.C. submitted that his Honour applied the wrong test of causation in that his Honour applied the “but for” test rather than “commonsense” approach approved in March v Stramere (1990-91) 171 CLR 506.  His Honour dealt with causation in terms of removing the whole log or the placing of appropriate signs near the log; he did not specifically mention trimming the log, although it can be inferred that his finding in respect of removal of the log applied also to trimming it.  It was further submitted that, taking into account the recreational value of the amenity provided, the obvious nature of the risk, and the expectation that the respondent would take reasonable care for his own safety, on any application of “a value judgment involving ordinary notions of language and common sense”, the true sole cause of the respondent’s injuries was his decision to exit the log in the manner in which he did.  However, as Mason CJ pointed out in March v Stramere, at 518, if the appellant’s slipping from the log was in the ordinary course of things, the very kind of thing likely to happen as the result of the defendant’s negligence and was not unreasonable, the jury was entitled to find that the (appellant’s) injuries were caused by the (respondent’s) negligence”:  c.f. Caterson v Commissioner of Railways (1973) 128 CLR 99 at 110.  Even if, strictly speaking, his Honour applied the “but for” test, as a matter of law, his Honour did not err because there is no reason in logic, common sense or policy for refusing to regard it as a cause.
Contributory Negligence
	Both appellants submitted that his Honour erred in failing to find the appellant guilty of contributory negligence.  It was submitted that his Honour erred in holding that the appellants had to show that the respondent failed to take care for his own safety, “and in doing so must exclude factors such as inadvertence, inattention or misjudgment on the part of the plaintiff.  They have not done so.  Those very factors are quite likely to arise in the course of activities in which visitors to the waterhole could be expected to engage... Inadvertence is inherent in horseplay.”
	The law recognises that there may be circumstances where a person who owes a duty to another must take into account the possibility that the person to whom the duty is owed might act inadvertently.  In such a case, there is a duty to provide against inadvertence:  see Inverell Municipal Council v Pennington [1993] A. Torts R. 81-234 at 62,402; Nagle v Rottnest Island Authority [1992-1993] 177 CLR 423 at 431; McLean v Tedman (1984) 155 CLR 306 at 311-312; March v Stramere, supra, at 519, 520, 536-537.  This principle is not confined to master and servant cases.  In Inverell Municipal Council v Pennington, Mahoney JA specifically referred to “people who are brought to a situation of possible injury, by .... the provision of recreational or other facilities....”
	As Windeyer J pointed out in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 38-39, whilst the law knows what is meant by negligence, there is no precise legal definition of inadvertence; but whatever it may mean, mere thoughtlessness or inadvertence is not necessarily negligence.  If an act is inadvertent, it may nevertheless be negligent if the act shows a lack of reasonable care for one’s own safety in all the circumstances.
	In this case, the respondent did not deliberately jump from the log; he slipped whilst making his way along it.  The direction he decided to go, to the end with a view to jumping off, provided a means of escaping from what he perceived was the intent of his friends.  He had successfully jumped off the log in this manner before.  Although he knew of the presence of the ledge below the water, it is plain that he was reacting quickly to the threat of being pulled into the water by the others, a situation which may he wished to avoid.  In my opinion, the Chief Justice’s remarks to which exception is taken by the appellants have to be read in context, and mean no more than that the appellants had to prove that the respondent failed to take reasonable care for his own safety in all the circumstances, including the circumstance that the very risk which the appellants had to guard against was slipping or falling from the log in the vicinity of the rock ledge due to inadvertence by recreational users of the waterhole.  It is in this sense that his Honour pointed out that the appellants had to show more than mere inadvertence.  I do not consider that his Honour erred, as the Territory contended; nor would I draw any different inference on the facts of this case.
Contribution between the appellants
	The Territory’s submission, put briefly, was that his Honour erred in observing that “nothing has been put in an endeavour to show that the Council had any greater control or responsibility for the waterhole because it was in the municipal area and had taken steps to improve its amenity, than did the Territory as owner.”  Mr Pauling Q.C. complained that his Honour overlooked detailed written submissions put by the Territory in this regard, and that the apportionment of liability as between the respondents was so disproportionable to responsibility as revealed by the facts that this Court is entitled to hold that his Honour’s discretion had miscarried. A similar submission was advanced by the Council so far as the division of responsibility was concerned.
	Taken literally, the passage quoted from his Honour’s judgment would suggest that his Honour may well have overlooked the Territory’s submission.  I think in those circumstances this Court should examine this issue itself and arrive at its own conclusions.
	The key factor in apportioning liability is the extent to which each of the appellants is responsible for the respondent’s loss.  This involves obviously a consideration of the position of each of the appellants, the extent of the duty each owed to the respondent, and the degree of departure of each of the appellants from the standard of care of the reasonable man:  Pennington v Norris (1956) 96 CLR 10 at 16.
	So far as the Territory is concerned, it owned the land, and had the power to exercise control over the activities on it.  It knew of the Council’s activities on the land, including the rock ledge and its relationship to the fallen tree.  It indirectly encouraged the use of the land by the public for recreational purposes, including swimming.  The Commission’s employees, took an active role in inspecting the site and advising the Territory and the Council as to its future management and use.  The risk was one which was reasonably foreseeable to it and one which it could easily have avoided.  The Territory was not legally in a position to direct the Council to remove the risk.  The Council was not its agent; nor was it subject to executive direction by the Territory; but it was in a position through its power to control activities on the land to put pressure on the Council to eliminate the risk.  Save for the indirect encouragement of the use of the land by the public, and the obligation this created, the Territory was not obliged to plan or supervise the Council’s activities on the land, whether through the Wage Pause Program funding it administered, or otherwise.
	The Council created the weir, trimmed the fallen log, and assumed some degree of control over the land including responsibility for the safety of users of the waterhole.  It actively encouraged public use of the waterhole.  It knew of the relationship of the log to the waterhole.  It created the hazard by the manner in which the tree was trimmed.  Even if it had needed the permission of the Territory to trim the log, there is no reason to suppose permission would have been refused.  The risk could easily have been removed.  The Council had no power to direct the Territory to trim the log, but likewise it could have exercised pressure on the Territory to do so.  There is nothing in the objective circumstances which would have indicated to the respondent who was responsible for the safety of the waterhole.
	Having regard to the circumstances that the Council created the hazard, its active role in assuming responsibility for safety, and its active role in promoting the use of the waterhole by the public, I consider that it is just and equitable that the Council should bear the greater responsibility.  I would apportion liability between the appellants as to 80 per cent by the Council and 20 per cent by the Territory.
Conclusion
	For the reasons given above I would allow the Territory’s appeal in part, set aside the Chief Justice’s order that contribution between the appellants he borne equally, and order that liability between the appellants be borne as between the appellants 80 per cent by the Council and 20 per cent by the Territory, but would otherwise dismiss the appeals.  Both appellants should pay the respondent Shoesmith’s costs of the appeals.  I would hear counsel for the Territory and for the Council as to whether any further orders should be made as between the appellants.

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