Swain v Waverley Municipal Council [2005] HCA 4

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HEYDON JJ

GUY EDWARD SWAIN APPELLANT

AND

WAVERLEY MUNICIPAL COUNCIL RESPONDENT

Swain v Waverley Municipal Council

[2005] HCA 4

9 February 2005

S619/2003

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 April 2003 and in their place order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P Menzies QC with D J S Jenkins for the appellant (instructed by Beston Macken McManis)

J R Sackar QC with M T McCulloch and S P W Glascott for the respondent (instructed by Phillips Fox)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Swain v Waverley Municipal Council

Negligence – Standard of care – Breach – Swimmer injured by diving into sandbank while swimming between flags – Jury finding of negligence on part of Council – Whether finding reasonably open on evidence.

Appeals – Civil trial by jury – Function of appellate court – Appellate review of jury finding on issue of breach of duty of care.

Words and phrases – "risk", "obvious", "reasonably practicable alternative".

1. GLEESON CJ. Actions for damages for personal injury suffered by a plaintiff allegedly in consequence of the negligence of a defendant in the past were commonly tried before a judge and a civil jury, usually of four persons. In New South Wales, and in some other Australian jurisdictions, the use of civil juries in such cases has become less common. This appeal draws attention to the different considerations involved in appellate review of primary decision-making, according to whether the decision-maker is a judge or a jury. 2. In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind. 3. At a trial by jury, the functions of judge and jury are clearly distinguished. The judge decides issues of law; the jury decides issues of fact. A judge, whether sitting alone or presiding at a jury trial, gives reasons for his or her decisions. An appellate court, having the benefit of a statement of a judge's reasons for a decision, may be well placed to identify error. Juries give no reasons for their decisions. Leaving to one side cases where a special verdict is taken, ordinarily a jury at a civil trial will simply announce a verdict for the plaintiff or the defendant and, where necessary, an award of damages. The jury will reach that verdict after receiving directions from the trial judge as to the relevant principles of law, and their relationship to the evidence in the case and the arguments of opposing counsel. Where unanimity is required, the jurors need be unanimous only in relation to the ultimate issue or issues presented to them for decision. So long as individual jurors act in accordance with the directions they are given, different jurors might be impressed by different parts of the evidence, or by different arguments of counsel. Jurors are instructed that they may take a selective approach to the evidence, and even to different parts of the evidence of a particular witness. They may arrive at their joint conclusion by different paths. There may be no single process of reasoning which accounts for a jury verdict. 4. In an action framed in negligence, the judge (if necessary) will decide, as a matter of law, whether the facts alleged by the plaintiff are capable of giving rise to a duty of care in the defendant towards the plaintiff. A legal issue of that kind is often capable of being decided on the pleadings. On the other hand, the alleged duty of care might depend upon contested facts that need to be resolved as part of the trial process. In order to be entitled to a verdict, the plaintiff will need to establish a duty of care, conduct on the part of the defendant in breach of that duty (negligent conduct), and consequential damage. 5. In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers. 6. Where an action for damages for negligence is tried before a jury, the question whether the conduct of the defendant has been negligent, that is, whether it has departed from what reasonableness requires, is presented as a question of fact for the jury. The jury's decision will ordinarily involve both a resolution of disputed questions of primary fact and an application, to the facts as found, of the test of reasonableness. Depending upon the nature of the case, and the findings of primary fact, the application of the test of reasonableness might be straightforward, or it might involve a matter of judgment upon which minds may differ. Either way, it is a jury question. In 1845, in Tobin v Murison[1], the Privy Council identified a fundamental error of procedure in a Canadian trial where a jury was asked to find particular facts and then it was left to the judge to decide whether, on those facts, the defendant was negligent. Lord Brougham said[2]: "Negligence is a question of fact, not of law, and should have been disposed of by the Jury." Of course, it may be a complex question. To the extent to which it requires the application to disputed primary facts of a contestable standard of reasonable behaviour, it may require different kinds and levels of judgment. 7. The resolution of disputed issues of fact, including issues as to whether a defendant's conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly. The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision. In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community, properly instructed as to their duties, deciding the facts, on the evidence, as a group. In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given. In the administration of criminal justice in Australia, the former process is normal, at least in the case of serious offences. In the administration of civil justice, in New South Wales and some other jurisdictions, in recent years there has been a strong trend towards the latter process. Originally, there were no procedures for appealing against the verdict of a jury, reflecting what Barwick CJ described as "the basic inclination of the law towards early finality in litigation"[3]. He referred, in another case, to the move towards trial by judge alone in civil cases as an abandonment of "the singular advantage of the complete finality of the verdict of a properly instructed jury"[4]. In many areas, the law seeks to strike a balance between the interest of finality and the interest of exposing and correcting error. In a rights-conscious and litigious society, in which people are apt to demand reasons for any decision by which their rights are affected, the trend away from jury trial may be consistent with public sentiment. Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards. 8. Although the question whether certain conduct is a departure from a requirement of reasonable care, notwithstanding its normative content, is treated as a question of fact for the jury, a related, but different, question is treated as a question of law. That is the question whether there is evidence on which a jury could reasonably be satisfied that the defendant has been negligent. To the extent to which the dispute in a particular case is about the objective features of a defendant's conduct, that will come down to a question whether there is any evidence from which a jury could reasonably reach a conclusion about those features. There may also be a dispute about what reasonableness requires in a given case. When a trial judge, or an appeal court, asks as a matter of law whether a judgment adverse to the defendant is reasonably open to a jury, the enquiry may be affected by the nature of the judgment required of the jury. A judgment about whether the evidence could support a certain finding of primary fact might require nothing more than attention to the detail of the evidence, and a consideration of its probative potential. A judgment about whether behaviour is reasonable might involve the application of a measure that is to be found, not in the evidence, but in the wisdom and experience of those who make the decision. 9. The present appeal provides an example of a case where the jury was required to engage in both kinds of decision-making. The facts are set out in the reasons of Gummow J, with which I agree. The appellant, the plaintiff, suffered serious injury as a result of diving into the surf at Bondi Beach. He said he was swimming between the flags. His case was that he struck his head or neck on a sand bank which was invisible to him, and which he could not reasonably have been expected to see, and that the conduct of the respondent Council, in the circumstances, involved a lack of reasonable care for his safety. The jurors had to decide disputed facts about the conduct of the appellant and the circumstances in which he was injured, they had to consider substantially undisputed facts about the conduct of the respondent, they had to take into account circumstances relating to other people for whose safety the respondent also had to be concerned, and then they had to make a judgment about the reasonableness of the respondent's conduct. The trial judge said to the jury: