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Preserve thyself! Recreation can be dangerous

Feature Articles

Cite as: (2008) 82(4) LIJ, p. 58

The “value” of personal responsibility for an individual’s safety has re-emerged in recent court cases.

By Michael McNamara

We live, as always, in uncertain times. However, risk theorists characterise our post-1970s epoch by the emergence of “neo-liberalism”.[1] Apparently we recently outgrew the social insurances of the 20th century’s “welfare-interventionist” state, which overlaid 19th century classical liberalism’s more disciplined emphasis on individual prudence and foresight. However, then as now, reality requires that liability for misfortune be allocated as mismanagement or misadventure, in whichever order is “reasonable”.

This neo-liberal emphasis on self-responsibility for wellbeing is emerging across society: private health insurance; individualisation of work/life balance; mutual obligation in welfare; self-management of investments (i.e. responsible financial risk-taking); and more.

The law has also caught up with the trend, with the post-Nagle High Court, the eminent legal commentary swirling about the “liability crisis”,[2] the Ipp Report[3] and the resulting Civil Liability Acts[4] all suggesting this re-empowerment of the individual. Notice, for example, the “value” embedded in the Civil Liability (Personal Responsibility) Act 2002 (NSW).

The Shirt formula for breach of duty

According to Mason J in Wyong Shire Council v Shirt (1980):

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.[5]

In Vairy v Wyong Shire Council[6] the adult plaintiff became a quadriplegic when he dived into the sea from a natural rock platform. The High Court majority confirmed the council had not been negligent in failing to prohibit diving or warn against its dangers at this popular spot. In Vairy and most recently in New South Wales v Fahy,[7] the High Court affirmed the authority of Shirt.

Roads and Traffic Authority of NSW v Dederer

In Roads and Traf fic Authority of NSW v Dederer, [8] the 14-year-old plaintiff became a paraplegic when he dived nine metres into a navigation channel from the top railing of the bridge linking the NSW towns of Forster and Tuncurry. His negligence action against the Roads and Traffic Authority of NSW (RTA) and the Great Lakes Shire Council alleged that they should have explained the reason for the “no diving” prohibition, namely that shifting sands made diving into this estuary very dangerous.

The bridge, built in 1959 by the Department of Main Roads, carries a road and a footpath. As statutory successor, the RTA is responsible for maintaining the bridge, with the council responsible for its management. There are recreation areas on either side of the bridge.

Through regular depth testing to ensure the two channels remain navigable, the RTA was aware that river levels continually alter. While there had never been a similar injury, the council admitted and the RTA was deemed aware of the practice of young people often jumping and sometimes diving from the bridge. As a result of the council’s concerns, large signs were placed on the bridge prohibiting fishing and climbing, and in 1995 “no diving” pictographs were installed. Nevertheless, young people continued to ignore these signs and the attempts by the council and police to dissuade them.

The plaintiff spent summers holidaying in the area. He had often seen people jumping from the bridge, and had jumped on the day before his fateful dive. On 31 December 1998 the plaintiff again intended to jump, and dived into water only two metres deep. Later he admitted that he understood the signs prohibited diving, and the channel was of variable depth. However, he assumed from seeing 10 to 15 people jump into the channel and from its murky green colour that it was safe to dive.

In addition to explaining that shallow water was the reason for the prohibition in accordance with the Australian Standard,[9] the plaintiff alleged that the authorities should have discouraged people by replacing the horizontal railings with vertical pool-type fencing and placing a triangular surface on the top railing.[10]

The trial judge, Dunford J, found the council and the RTA were aware of the endangering practice, and that the injury was in effect “an accident waiting to happen”. His Honour found their reasonable response was a warning sign with words similar to “Danger, shifting sands, variable depth”, and the further measures taken.

In considering the application of the Civil Liability Act 2002 (NSW) (CLA) to the council,[11] his Honour found that the plaintiff’s injury was not as a result of the materialisation of an obvious risk of a dangerous recreational activity (s5L), since the risk was not “obvious” to the 14-year-old plaintiff. Further, the signs displayed were not a risk warning for the purposes of s5H or s5M (set out below). His Honour set the plaintiff’s contributory negligence at 25 per cent.

The Court of Appeal

The majority (Ipp and Tobias JJA) agreed with Dunford J that the RTA was not entitled to rely solely on the “no diving” signs and that its reasonable response required the signs also warn of “shallow water”, and the further measures.

The majority agreed with Dunford J that the RTA’s predecessor had created the danger by constructing the bridge in recreation areas, creating an “allurement” to young people, whom the RTA could not assume would take reasonable care for their own safety. The majority reset the plaintiff’s contribution at 50 per cent.

However, the Court of Appeal unanimously overturned Dunford J’s conclusion that the CLA did not apply to the council since for the purposes of the volenti defence a person may be aware of a risk even if not aware of its precise nature, extent or manner of occurrence (s5G(2)); even without the signs, the risk should have been obvious to a 14-year-old boy; and a pictograph prohibiting diving amounts to a warning sign.[12]

Personal responsibility for inherent risks in recreation

Handley JA in his dissent found the absence of recorded injury revealed that the continuing practice was not unsafe, and that the signs proposed would not have told the plaintiff anything he did not already know, nor would the further measures have stopped him. Unlike in Nagle, the authorities had not encouraged people to use the bridge as a launching platform.

After distinguishing the plaintiff’s voluntary participation in recreation with inherent risks from activities “undertaken in the work place, on the roads, in the market place and in other places where people must venture”,[13] he concluded that “the foreseeable risk of a diving accident from this bridge with a 39-year accident-free history had no reasonable claim on [the RTA’s] further attention or resources”. [63]

The High Court

In the RTA’s appeal, the High Court majority (Gummow, Callinan and Heydon JJ) endorsed Handley JA’s conclusion that the “no diving” signs were a reasonable response to the risk of a diving accident. The plaintiff did not appeal the decision that the council was not liable under the CLA.

The High Court minority (Gleeson CJ and Kirby J) concluded that there was no clear error justifying interference with what they regarded as concurrent findings of the courts below. In Kirby J’s view all that had occurred was the substitution of different factual opinions reflecting a “retreat from communitarian concepts of mutual legal responsibilities and from concern with accident prevention”. [166]

However Callinan and Heydon JJ concluded the findings of the courts below were discordant. Further, Heydon J’s review of Privy Council and High Court cases led him to conclude the Privy Council’s concurrent findings principles remained to be fully considered by the High Court. [289]

Accountability for the “inadvertence” of youth

According to Kirby J, the RTA was on notice about the endangering practice of young people and the ineffectiveness of its prohibition. Instead of the “least” measure of the sign installed in 1995, Kirby J accepted it was open to conclude that further measures were required on a bridge which was an allurement to young people, thereby reflecting community standards about the special need to protect them around water.

Kirby J did not accept that an allurement to children is a defendant’s responsibility only if that party encourages the alluring feature; moreover they “often arise in run-down, abandoned or disused premises. The question is not one of encouragement. It is one of foresight and responsibility”.[14]

Kirby J considered the courts below had correctly applied the Shirt formula in looking with foresight to identify what a reasonable person would have done, and not backwards with the wisdom of hindsight to identify what would have avoided the injury.[15]

Reasonable care, not prevention

According to Gummow J, the Court of Appeal majority had made five fundamental “errors of law”.

First, the scope of the RTA’s duty as a roads authority was to exercise reasonable care to ensure that the road was safe for road users “exercising reasonable care for their own safety”. [47] For Gummow J, this expectation was a legal aspect of the scope of the duty and not merely a factor relevant to the breach inquiry.

Second, the majority had confused whether the “no diving” signs were effective in preventing jumping with the separate question of whether the RTA had exercised reasonable care, since even reasonable warnings can “fail”.

Third, the majority had mischaracterised the relevant risk as a serious injury from diving off the bridge, rather than impacting with the shallows, thereby distracting from properly assessing the probability of injury as very low, and appreciating that the RTA did not control the human factor of diving, or the environmental factor of depth.

Fourth, recalling Hayne J’s statement in Vairy about the prospective nature of the breach inquiry,[16] Gummow J considered that the majority had erred by focusing in retrospect on the failure of the RTA to prevent the plaintiff’s dive.

Fifth, applying the Shirt formula, Gummow J characterised the risk of injury as an obvious risk of high magnitude, but low probability. He concluded that the “no diving” sign was a reasonable response to that risk.

Callinan and Heydon JJ agreed with Gummow J that the courts below had not properly undertaken the balancing exercise in Shirt.

Observations on Dederer

Dederer affirms personal responsibility for your own safety as the correlative of our freedom to engage in recreation, even for minors. More subtly, Dederer (especially Gummow J) illustrates how assessing the scope and quality of the defendant’s conduct is now extensively influenced by the quality of the plaintiff’s conduct.[17]

The High Court majority concluded that the “no diving” sign was a reasonable response to the risk of a diving accident, beyond which young people “misusing” the bridge were responsible for their own actions. The leading judgment of Gummow J makes explicit that reasonableness and not prevention is the benchmark for the breach inquiry.

The opposing view of Kirby J is that public authorities have a responsibility to safeguard young people against their “inadvertence”. Allowing for the difference between the RTA and commercial recreation providers, a risk minimisation approach for minors was also taken in Ohlstein,[18] in which the NSW Court of Appeal majority concluded that a horse trail provider was negligent in not routinely using lead ropes on group trails for children.

This tension about the allocation of risk (i.e. cost) between service providers and participants apparent in Dederer is also at the heart of the Wrongs Act amendments which represent “the government’s legislative response to the recent crisis in the affordability and availability of several key insurance products”, including public liability.[19]

In performing the balancing exercise identified in the Shirt formula, Hayne J’s statement in Vairy that this exercise be undertaken prospectively has become precedential. This emphasis on the prospective nature of the breach inquiry aligns the Shirt formula with the risk management process,[20] reinforcing that effective risk management remains the best defence against liability.

Public authorities and recreation providers are under increasing pressure from insurers to implement risk management to qualify for indemnity insurance and limit premiums, as well as meet OH&S obligations.[21] So, while Dederer and the CLA portend a reduced liability in negligence, the “liability crisis” continues apace within the risk management function.

Would Dederer be decided differently in Victoria?

The provisions of the CLA in New South Wales, excluding liability for recreational activity, are far more extensive than those of the Wrongs Act 1958 (Vic). In particular, there are no Victorian equivalents to:

  • s5H – no proactive duty to warn of obvious risk;
  • s5L – no liability for harm suffered from obvious risks of dangerous recreational activities; and
  • s5M – no duty of care for recreational activity where there is a risk warning, including where the risk warning was given to the parent of a young person.

So, the short answer for practitioners is the Wrongs Act amendments would not exclude liability, and a similar case in Victoria would be decided according to the common law principles applied in Dederer, subject to practitioners further considering:

  • s54 – where a defence of voluntary assumption of risk is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless that person proves, on the balance of probabilities, that they were not aware of the risk (equivalent to s5G(1)).
  • s55 – no liability for materialisation of inherent risk, defined as the risk of something occurring which cannot be avoided by the exercise of reasonable care. However, this section does not operate to exclude liability in connection with a duty to warn of a risk (equivalent to s5I).[22]

While for the purposes of s54 Philip Dederer was aware of the risk of injury, he was unlikely to have accepted that risk as the volenti defence further requires at common law. Separately, whether the risk was an inherent risk and s55 applies depends on whether it could not be avoided by the defendant exercising reasonable care, or perhaps by the plaintiff? – surely a dilemma fit for a future High Court case.[23]

Consistent with the Wrongs Act amendments in Victoria and the CLA in other states, Dederer re-emphasises the “value” of personal responsibility for misadventure in recreation.

MICHAEL McNAMARA is a lecturer with the Department of Business Law & Taxation, Monash University, and is working on a PhD on balancing the responsibilities of providers and participants for managing hazards in outdoor recreation.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

[1] For example, O’Malley, P, Risk, Uncertainty and Government, 2004, Carlton University, Ottawa: Glasshouse Press.

[2] For example, Spigelman, J, “Negligence: The last outpost of the welfare system” (2002) 76 ALJ 432.

[3] Review of the Law of Negligence Report (2002):

[4] Wrongs Act 1958 (Vic) as amended by the Wrongs and Other Acts (Law of Negligence) Act 2003 – commencement 2 December 2003.

[5] Shirt formula (1980) 146 CLR 40 at 48.

[6] (2005) 223 CLR 422 (reviewed in McNamara, M, “Obviousness of risk: An emerging factor or a distraction in recreation cases?” (2006) 80 LIJ 30).

[7] (2007) 81 ALJR 1021 at 1034 [57].

[8] [2007] HCA 42 (30 August 2007); Great Lakes Shire Council v Dederer (2006) ATR 81-860.

[9] Australian Standard Design and Application of Water Safety Signs AS2416-1995.

[10] Per Ipp at [304] – costs of railing and fencing estimated at $108,072 and $150,000.

[11] The council was joined as a defendant after the 20 March 2002 commencement date.

[12] There is no Victorian equivalent to s5G(2).

[13] Per Handley J at [57], affirming Callinan and Heydon JJ in Vairy at [217].

[14] Per Kirby J at [152], cf. Gummow J at [64].

[15] Per Kirby J at [135-141], and Hayne J in Vairy at 461 [126].

[16] Vairy, see note 15 above.

[17] See Lunney, M,“Personal responsibility for the ‘new’ volenti” (2005) 13 Tort L Rev 76

[18] Ohlstein v E & T Lloyd trading as Otford Farm Trail Rides (2006) ATR 81.

[19] See note 4 above, second reading speech by J Brumby, 30 October 2003, p1421.

[20] Standards Australia, Risk Management AS/NZS 4360:2004.

[21] See Victorian Government Risk Management Framework (2007) which provides for a minimum risk management standard across the public sector.

[22] See also s56 – Plaintiff to prove unawareness of risk.

[23] Lunney, note 17 above, discusses the relation between obvious and inherent risk(s).


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