Australia: Roads and Traffic Authority of NSW -v- Dederer [2007] HCA 42

30 August 2007
Gleeson CJ, Gummow, Kirby, Callanan and Heydon JJ

• The High Court upheld the RTA's appeal in overturning the New South Wales Court of Appeal's judgment in relation to a 14 year old plaintiff who was rendered partially paraplegic when he dived off a bridge in Forster, New South Wales.

• The plaintiff was a 14 year old boy who dived off the Forster/Tuncurry Bridge and was rendered a paraplegic.

• The area was a popular tourist destination and for many years young people had frequently jumped and sometimes dived off the bridge into the estuary below.

• The plaintiff had spent holidays in the area since he was a small boy and had frequently observed children and adults jumping and diving off the bridge.

• The plaintiff was aware that, in the area of the beach, the estuary was "very much given to tidal action." He knew that the depth of water dropped suddenly at the edge of the sandbar, and the water in the channel was "very deep". He accepted that the depth of the water in the channels was hard to judge "due to the flow of the water going under the bridge."

• The plaintiff dived off the bridge and struck his head on a sandbar which rendered him paraplegic.

There were pictograph signs on or at the approaches to the bridge prohibiting diving and signs in words prohibiting climbing on the bridge. The plaintiff saw these signs and ignored them.

• There was evidence that the RTA had been aware of people frequently jumping off the bridge. The RTA’s response was to confer with police to prevent this however enforcement of the prohibition against jumping proved futile.

• The RTA replaced existing pictorial signs with "No Diving" signs but these had virtually no effect. The RTA admitted that it knew that the practice of people jumping off the bridge was continuing.

• There were no previous accidents in relation to diving from the bridge.

• When asked in evidence what the sign prohibiting diving conveyed to him the plaintiff stated, "it just told me I shouldn't dive – I did not put any danger into it."

• The plaintiff sued both the RTA and the Great Lakes Shire Council in negligence.

• Judge Dunford in the Supreme Court found both the RTA and Council negligent. His Honour was satisfied that both defendants owed a duty of care to persons jumping and diving off the bridge to warn them of the danger of doing so. His Honour held it was "not sufficient for the defendants to ignore the fact that the signs were being disregarded and it was necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care."

• His Honour held the RTA had breached its duty of care and was negligent in failing to erect a warning sign containing words similar to "danger, shifting sands, variable depths"; in failing to replace the existing handrail with one composed of vertical rather than horizontal members; and in failing to modify the flat top of the handrail so as to make it more difficult to stand on.

• His Honour also found there was 25% contributory negligence on the part of the plaintiff.

• As the RTA had overall control of the bridge, the greater access to funds from those connected with the bridge, had created the danger in the first place and failed to modify the structure when the "no diving" pictographs proved ineffective, his Honour apportioned 80% responsibility to the RTA and 20% to the Council.

• The RTA and the Council appealed against the trial judge's findings of negligence and apportionment. Liability of the Council

• The majority of the Court of Appeal, per Ipp , Handley and Tobias JJA agreeing, held that the Council exercised a substantial degree of de facto control over the bridge and assumed responsibility for certain aspects of it. The Council therefore owed a general duty of care to a class of persons which included the plaintiff.

• It was further held that the risk of serious spinal injury from the act of diving off the bridge was obvious by the objective standard of a reasonable 14½ year old person with knowledge of the area and conditions possessed by the plaintiff. Even without a pictograph sign prohibiting diving, it should have been obvious to a reasonable 14½ year old that such a dive was dangerous and could lead to catastrophic injuries.

• The court held that the "obvious risk" provisions in Division 4 of the Civil Liability Act 2002 (NSW) relieved the Council of legal responsibility for the plaintiff's injuries as the risk was obvious and therefore the Council's appeal succeeded.

• The evidence indicated that the RTA was aware that young people were diving off the bridge. The serious risk of devastating injury must have been obvious to the RTA. The Court of Appeal, per Ipp and Tobias JJA, held that the RTA ought to have known that pictograph signs prohibiting diving were ineffective. Many of the visitors to the bridge were young children and young people and the RTA could not assume that they would take reasonable care for their own safety. The bridge constituted an allurement to young people to jump and to dive off it. Accordingly, the standard of care which the RTA was required to exercise was higher than that required from an authority that controlled land where natural features constituted a danger to the public.

• It was held, per Ipp and Tobias JJA, that a sign which prohibited diving and expressly explained and emphasised the nature of the danger would have been more effective than the sign the RTA erected or the sign proposed by Dunford J. This also would have been an inexpensive and reasonable step for the RTA to take and should have been taken.

• The Court of Appeal held that a triangular top to the fence may have dissuaded the plaintiff from diving and taken in combination with pool-type fencing and a different sign, would probably have prevented the accident.

• After weighing the magnitude of the risk and the degree of probability that it would occur, the expense, difficulty and inconvenience to the RTA in taking the steps identified by Dunford J, and the other competing responsibilities and commitments of the RTA, the Court of Appeal upheld the trial Judge's finding that the RTA had breached its duty of care to the plaintiff.

The Court of Appeal also held that the plaintiff was 50% responsible for his own injuries.

• Handley JA, in dissenting, applied Vairy -v- Wyong Shire Council (2005) 80 ALJR 1, in finding that the plaintiff, in undertaking an activity with a serious risk of risk of injury, failed to exercise an appropriate level of care for his own safety.

• The majority of the High Court (Gleeson CJ and Kirby J dissenting) upheld the RTA's appeal.

• Gummow J, who delivered the leading judgment, firstly affirmed the decision in Brodie -v- Singleton Shire Council (2001) 206 CLR 512 that the duty owed by a road authority was to exercise reasonable care so that the road was safe for users exercising reasonable care for their own safety. In applying this test, his Honour held the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.

• His Honour emphasised that the obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The fact that the RTA knew that people were not exercising reasonable care for their own safety in large numbers in diving off the bridge did not mean the RTA owed a duty to prevent them from doing so.

• His Honour further stated that in simple and complicated cases alike, one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care.

• The RTA successfully argued that the test for determining a highway authority's liability, being the ordinary test of liability in negligence, had not been correctly applied at trial or in the Court of Appeal. The error was in the lower courts’ finding that the known fact that individuals were jumping off the bridge called for additional preventative measures to be taken by the RTA. As his Honour Judge Gummow pointed out, "the error in that approach lies in confusing the question of whether the RTA failed to prevent the risk-taking conduct with the separate question of whether it exercised reasonable care."

• His Honour pointed out that, if a contrary approach were taken, defendants would be liable in any case in which a plaintiff ignored a warning sign. The approach taken by the majority of the High Court was that the party who gave the warning could not necessarily be found to have been negligent by reason of the warning having failed.

• Gummow J found that Ipp JA had erred in his characterisation of the "startling frequency" of "large numbers" of people jumping and diving from the bridge notwithstanding the pictograms. Gummow J held "such a characterisation incorrectly focussed attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water." · The Court of Appeal had also overlooked the limited nature of the RTA's control over the actual risk of injury faced by the plaintiff.

• The RTA did not control the plaintiff's voluntary action in diving, and nor did it create or control the natural variations in the depth of water beneath the bridge. The risk of injury arose from factors which were outside the RTA's control.

• Gummow J considered there was a fundamental flaw in the reasoning of Tobias JA who held that it was not reasonable for the RTA "to simply ignore what it clearly knew to be a dangerous activity in which children were partaking and who could be expected to be oblivious to the risks involved". His Honour pointed out this statement sits rather oddly with the Court of Appeal's finding that the risk was of such obviousness even to a 14-year old that the Council was absolved of all liability.

The concept of "allurement" was also considered by the court. Gummow J was of the view this was a concept more likely to mislead than to assist, particularly noting the technical use of that term in occupiers' liability cases has long been superseded by the decision in Australian Safeway Stores Pty Limited -v- Zaluzna (1987) 162 CLR 479.

• In reaffirming that the principles expressed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 Gummow J stated what the so-called Shirt calculus required was a contextual and balanced assessment of the reasonable response to a foreseeable risk. His Honour held that, ultimately, the criterion was reasonableness, not some stringent requirement of prevention.

• This is not a case where the defendant had done nothing in response to a foreseeable risk. The defendant had erected signs warning of, and prohibiting, the very conduct engaged in by the plaintiff. As the court stated in Nagle -v- Rottnest Island Authority, a prohibition was "one form of notice – perhaps the most effective form of notice – warning of the danger of diving".

• Callanan J was of the view the trial judge and Court of Appeal erred in failing to undertake the balancing exercise required by Wyong Shire Council -v- Shirt in a sufficient and proper way. His Honour observed that, although there was clearly a risk of injury, the degree of its probability was very low given there were no other accidents. His Honour also considered the interests of the community needed to be balanced, in being able to walk across the bridge, enjoy the view and lean in comfort on the flat surface of the top rail.

• His Honour considered the notion that the Plaintiff and other youths would have heeded a worded sign when they flagrantly disregarded a pictograph sign of unmistakable import, strained credibility.

• His Honour pointed out that a defendant is not an insurer. Defendants are not under absolute duties to prevent injury, or indeed even to take all such measures as might make it less likely to occur. They are obliged only to make such responses as can be seen to be reasonable in the circumstances.
  • Heydon J agreed with the reasoning of the majority of the High Court and disagreed with Kirby J and Gleeson CJ that this was an appeal in which it could be said that the courts below made "concurrent findings of fact" in such a way as to inhibit the High Court from allowing the appeal.

• Gleeson CJ and Kirby J in their dissenting judgments both agreed that the High Court should not disturb findings of fact in which both courts below have concurred unless it can be clearly demonstrated that the finding was erroneous.

• The decision affirms the approach taken by the High Court in Wyong Shire Council –v- Shirt (1980) 146 CLR 40 which was reaffirmed in Wyong Shire Council -v- Vairy (2005) 223 CLR 422, that a breach of duty needs to be considered in light of what a reasonable person would have done to avoid the risk of injury. This approach places an emphasis on whether the defendant's response to the risk of injury was reasonable.

• This test is to be applied by asking, prospectively, what the exercise of reasonable care required in response to a foreseeable risk of injury, not by focussing in retrospect on how the defendant could have prevented the plaintiff from diving.

• The court has emphasised that, in applying the principles in Wyong Shire Council -v- Shirt, the criterion is reasonableness, rather than a stringent requirement of prevention of injury.

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