Skip to content.

Home

Allens

Focus: Dispute Resolution – September 2007

Obvious risks, reasonable responses and muddy waters

In brief: The High Court of Australia has found that a roads authority did not owe a duty to young persons using a bridge to prevent them from jumping and being injured by the shallow water below. However, as Partner Michael Quinlan (view CV) and Senior Associate Mark Lindfield explain, the split decision muddies the waters around the circumstances in which appellate courts should overturn factual findings by lower courts.  

How does it affect you?

  • Some risks, such as the risk of injury by jumping from a bridge into shallow water, are obvious. The reasonable response to such risks is, however, a matter for debate. In this case, a majority of the High Court found that erecting a sign was a reasonable response and there was no need to erect preventative railings.
  • On one view, this decision assists insureds in identifying their risk management responsibilities - it suggests that there is no duty to prevent injury to entrants who use property contrary to its intended purpose and expose themselves to risks beyond the control of the occupier.
  • On another view, this decision highlights the capacity for one judge to take a very different view of the same factual matrix as another judge. Here, three High Court judges and one Court of Appeal judge took one view, while two High Court judges and two Court of Appeal judges took the contrary view. In this case, as in poker, three of a kind beat two pairs.
Background

It was lunchtime on New Year's Eve, 1998. Philip Dederer, a strapping 14-year-old boy measuring nearly six feet tall, walked across the Forster/Tuncurry Bridge with his mate, Grant Cunial. The water below, feeding into the estuary at the mouth of the Wallamba River, was too inviting.

Philip had earlier noticed a sign posted on a telegraph pole at the end of the bridge that showed a pictogram depicting 'no diving'. Nevertheless, he decided to climb out onto a handrail, as he had done the previous day, and dive eight or nine metres from the rail and into the water below.

Unfortunately for Philip, the tide was running out, leaving only two metres of water between the surface of the water and the estuary bed. He struck the bottom of the channel with his head, rendering him partially paraplegic.

Philip sued the Roads and Traffic Authority of NSW (RTA) and, when he was 19, joined the Great Lakes Shire Council (the council) to the proceedings in the New South Wales Supreme Court, seeking damages for their negligence.

At trial, the evidence made clear that local youths had jumped and dived for many years from the bridge. Despite attempts by the council to curtail this activity, including the sign referred to above but also including rangers chasing away the locals and a police boat attempting (and failing) to round them up from the water, it remained a popular pastime at the end of 1998. Up to that time, there was no recorded instance of any jumper or diver being injured from the activity. The court found that the RTA would also have been aware of the practice through its maintenance crews.

The RTA designed and built the bridge and was responsible for its maintenance. The council was responsible for day-to-day management of traffic over the bridge, including pedestrian traffic. Almost six years before the incident, the council had written to the RTA expressing its concern about young persons jumping from the bridge. Both the RTA and the council were aware of the danger posed by shifting sands and variable depths of water beneath the bridge, which the trial judge found constituted 'an accident waiting to happen'.

Six years after the incident, Mr Dederer was asked at trial what the sign had conveyed to him and he replied:

It just told me I shouldn't dive – it did not put any danger into it.

  

The trial judge found that the sign erected by the council, in conjunction with the RTA, constituted a 'prohibition' and not a 'warning'. On that basis, the court found that both the Council and RTA had breached their duty of care to Mr Dederer for failing to erect warning signs.

It also found that the RTA had breached its duty of care by failing to modify the handrail. An engineering report had been obtained by the RTA in 1995 (three years before the incident) and one of its recommendations for a new cycleway/walkway was the installation of a new handrail at a projected cost of $108,072. Failing to implement that installation or any other alternative handrail, the court held, was a failure to take reasonable care on the part of the RTA.

The council argued that the risk of harm to Mr Dederer was an 'obvious risk' and that the action of diving off the bridge was a 'dangerous recreational activity' within the meaning of sections 5F and 5K of the Civil Liability Act 2002 (NSW) (the CLA). Justice Dunford held that 'obvious risk' means 'obvious risk of harm' and not 'obvious danger' and that because, on the evidence:

  • the water had appeared to be deep;
  • Mr Dederer was unaware of any injuries by previous divers;
  • Mr Dederer was unaware of attempts by the authorities to stop the practice; and
  • Mr Dederer lacked maturity,

the risk of harm would not have been 'obvious' to a reasonable person in his position.
The court also rejected the council's argument that it could rely on the protection afforded by s5M of the CLA, which applies where risk warnings are given, because in the view of the court, the sign did not constitute a warning.

As a consolation, the court did reject Mr Dederer's argument that the council had breached its duty of care by failing to enforce the 'no diving' sign. The court found that by applying s43 of the CLA, this failure by the council was not 'so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its function'.

The court apportioned liability between the RTA and the Council 80 per cent and 20 per cent, respectively. The court also reduced the quantum of Mr Dederer's claim (agreed prior to trial) by 25 per cent for contributory negligence, but rejected arguments of voluntary assumption of risk because Mr Dederer 'did not fully comprehend the nature and extent of this risk involved'.

Return to top

Court of Appeal

The judgment against the council was set aside unanimously by the judges of the New South Wales Court of Appeal in 2006. The Court of Appeal held that the CLA relieved the council of any liability for Mr Dederer's injuries. The RTA's liability was re-affirmed by a majority of the appeal judges, however Mr Dederer's contributory negligence was increased from 25 per cent to 50 per cent.

The RTA obtained special leave to appeal this decision to the High Court of Australia and Mr Dederer also obtained special leave to cross-appeal the assessment of 50 per cent contributory negligence.

Return to top

High Court of Australia

Iste On 30 August 2007,1 the High Court allowed the RTA's appeal and dismissed Mr Dederer's cross-appeal.

However, the court was split 3:2. The majority, comprised of Justices Gummow, Callinan and Heydon, held that the RTA owed an obligation as a roads authority to exercise reasonable care to ensure that the road (and bridge) was safe for users exercising reasonable care for their own safety. The risk to Mr Dederer, however, arose not from the state of the bridge but from the risk of jumping into the shallow water and estuary bed below. These were things outside the control of the RTA. It was true that the RTA could have erected a new handrail at a cost of just over $100,000 and, perhaps, new fencing for an additional $150,000. However, the majority restated the principle from Wyong Shire Council v Shirt2 that the magnitude of the risk and the probability of injury had to be balanced against the expense, difficulty and inconvenience of any action necessary to alleviate it. Even if the RTA had incurred the necessary expenditures, the majority concluded that this would not necessarily have stopped people jumping from the bridge. In the circumstances, the posting of 'no diving' signs was a reasonable response to the risk and the RTA had not breached its duty of care.

Chief Justice Gleeson and Justice Kirby disagreed with the majority.

Chief Justice Gleeson cautioned against the view that appellate courts provide a third opportunity to well-funded litigants to persuade a tribunal to take a view of the facts that is favourable to them. His Honour noted that the trial judge and the appeal judges had each considered the steps available to the RTA to alleviate the risk of people jumping from the bridge. Each had found that differently designed railings or signs would have deterred Mr Dederer from jumping. In Chief Justice Gleeson's view, the High Court should not reverse such findings unless it is clearly convinced of an error. His Honour was not convinced in this case and supported Justice Kirby's finding that there was no error in the Court of Appeal's factual findings or legal analysis. The majority in the Court of Appeal had (correctly, in Chief Justice Gleeson and Justice Kirby's view) found that the warning signs on the bridge were useless and that this, combined with a failure to install railings, were the cause of Mr Dederer's injury. The finding of 50 per cent contributory negligence was, according to Chief Justice Gleeson and Justice Kirby, open to the Court of Appeal.

Return to top

Comment

This case highlights that whether a risk is an 'obvious risk' depends not only upon the particular facts of the case, but also upon the interpretation of those facts by the judges called upon to determine liability.

This is one of the last judgments of Justice Callinan, who retired from the High Court on the day after the judgment was delivered. His Honour's departure leaves the remaining members of the High Court in this appeal evenly divided as to the issue of the RTA's liability for Mr Dederer's injuries.

On one view, almost 30 years after the High Court's judgment in Shirt and more than five years after the passage of the CLA, we are probably no closer to reaching a clear formulation of what response will be expected of an occupier to the risk of injury to a third-party entrant and in what circumstances such risks will be obvious. It will be interesting to watch the approach of Justice Callinan's replacement, Justice Susan Kiefel, to those issues.

Footnotes
  1. Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 (30 August 2007).
  2. [1980] HCA 12.

Return to top

For further information, please contact:

Return to top

Share with

What are these?

 

 

Recent Litigation & Dispute Resolution publications