Civil Liability Act Reforms – Were They Necessary?

A recent decision of the High Court in Roads and Traffic Authority NSW v Dederer (2007) HCA42 has clarified the law of negligence in Australia.

The facts

The Plaintiff was holidaying at Forster-Tuncurry a town separated by a 600m long bridge over an estuary.  The Plaintiff had seen youths jump from the bridge in to the water and had done so himself previously.    The Plaintiff was aware that the tide was variable and the sands shifted but believed the boating channel was deep.  He had seen on the bridge signs which prohibited diving.

On the 31st of December 1998, the Plaintiff climbed on to the bridge railing and prepared to jump however on impulse, he dived instead.  He struck his head on the sand and suffered injury.

The Roads and Traffic Authority was responsible for maintaining the bridge and the local council was also held to have some responsibility.  The RTA was aware that the diving prohibition signs were constantly ignored and attempts by the Council and police to enforce them had been ineffective.  The handrail on the bridge had horizontal railings and a flat top making it easy to climb and jump from.  Despite the above, no injuries had been reported from people jumping from the bridge previously.

The Plaintiff sued the Roads and Traffic Authority before the commencement of the Civil Liability Act 2002 but joined the local council after the commencement of that Act.

Trial judge decision

The Trial Judge found both the Council and the RTA negligent.  He found that they should have erected more explicit signs warning of the nature of the danger and should have replaced the handrail with pool type fencing to discourage jumping.  He apportioned liability 80% to the RTA and 20% to the Council

The Trial Judge applied the Civil Liability Act and found that diving from the bridge was not an “obvious risk” to a fourteen (14) year old boy and found that the signs were not a risk warning, rather a prohibition.  The Plaintiff was awarded substantial damages.

New South Wales court of appeal findings

The New South Wales Court of Appeal found the RTA negligent but overturned the finding against the Council.  It found that diving into the water, even to a fourteen (14) year old boy, was an “obvious risk”.  The Civil Liability Act therefore relieved the Council of liability.  That finding was not appealed to the High Court.

High Court decision

The majority (Gummow, Callinan and Heydon JJ) found the RTA not liable (Gleeson, CJ and Kirby, J dissenting).

In the leading Judgment, Gleeson, J found that the Wyong Shire Council v Shirt formula had been misapplied.    He confirmed five principals of assessing liability in negligence as follows: –

1.Negligence depends on the existence and scope of a duty of care;
2.Whatever its scope, the duty is to exercise reasonable care, not a duty to prevent potentially harmful conduct;
3.Breach depends on correct identification of the relevant risk of injury;
4.Breach must be assessed prospectively not retrospectively; and
5.Breach is then assessed by the “Shirt Calculus”.

In respect of (1) and (2), the Court confirmed that a road authority must exercise reasonable care to ensure that the road is safe for users exercising reasonable care for their own safety.  It is not obliged to ensure it is safe in all circumstances.

As to (3), the risk of injury was found to be impacting with shifting sands and potentially shallow water.  The bridge itself did not create the risk.  The frequency of people jumping made the risk look great but the absence of injury over forty (40) years showed the risk of injury was small.

As to (4), it was found that the Trial Judge in the Court of Appeal asked “What could have been done to prevent the injury?”.  This was incorrect.  Those Courts should have asked “What was the reasonable response to the risk?”

In determining the breach as outlined in number (5), the High Court found the risk of injury was clearly foreseeable and magnitude potentially grave but the possibility that it would occur was low.  The proposed remedial steps were expensive and of doubtful effectiveness.  That the RTA had installed prohibition signs was a reasonable response to the risk and nothing more was required.  The Court found that modifications to the fence would not have prevented the Plaintiff from diving.

Conclusion

The High Court has determined that the road authority was not negligent on the basis of common law principles alone without the need for relying upon the Civil Liability Act.  The result in the High Court was the same at Common law as it would have been under the Civil Liability Act.

The case does however demonstrate the difficulty of applying the principles of negligence, given that five (5) judges (the trial judge, two judges in the Court of Appeal and two in the High Court) found the RTA liable and four judges (one in the Court of Appeal, three in the High Court) found it not liable.

by Matthew Garling
Publish Date: March 11, 2008
Article Source: http://www.austlii.edu.au/au/journals/JCULawRw/2007/3.txt/cgi-bin/download.cgi/download/au/journals/JCULawRw/2007/3.pdf