Vairy v Wyong Shire Council [2005] HCA 62

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ERNEST VAIRY APPELLANT

AND

WYONG SHIRE COUNCIL RESPONDENT

Vairy v Wyong Shire Council [2005] HCA 62

21 October 2005

S493/2004

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P C B Semmler QC with L T Grey for the appellant (instructed by Carroll & O'Dea)

B W Walker SC with D F Villa for the respondent (instructed by Minter Ellison)

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

CATCHWORDS

Vairy v Wyong Shire Council

Torts – Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Local authority – Power of care, control and management of natural reserve – Person suffered injury when diving into a body of water – Whether a reasonable local authority would have erected signs warning against the dangers of diving – Relevance of obviousness of risk to questions of duty and breach.

Local Government Act 1919 (NSW).

Ordinance No 52 under the Local Government Act 1919 (NSW), cll 8, 29(a)‑(b).

1. GLEESON CJ AND KIRBY J. This appeal was heard together with Mulligan v Coffs Harbour City Council[1]. Both cases were actions for damages for negligence brought by young men who suffered serious injury in consequence of diving or plunging into water and striking their heads or necks on the sand below. Both plaintiffs sued public authorities, complaining of a failure to warn of the risk which materialised. In each case, the trial judge accepted that the plaintiff was owed a duty to take reasonable care to protect him from unnecessary risk of physical harm. In the present case, the trial judge (Bell J) held that there had been a breach of that duty, although she reduced the damages substantially on account of contributory negligence. In the case of Mulligan, the trial judge (Whealy J) held that there had been no breach of duty. 2. The issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards[2]. The central question concerns the reasonableness of the defendant's behaviour. It is understandable that, in a search for consistency, comparisons with similar cases will be made. However, as Lord Steyn said in Jolley v Sutton London Borough Council[3], decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases. 3. The proper use of precedent is to identify the legal principles to apply to facts as found. Decided cases may give guidance in identifying the issues to be resolved, and the correct legal approach to the resolution of those issues. But a conclusion that reasonableness required a warning sign of a certain kind in one place is not authority for a conclusion about the need for a similar warning sign in another place. The decision of this Court in Nagle v Rottnest Island Authority[4] is not authority for the proposition that the coastline of Australia should be ringed with signs warning of the danger of invisible rocks. That was a decision about the legal principles relevant to the existence of a duty of care. The majority also held that the primary judge had been correct to find a breach of duty. That was a conclusion of fact, turning upon the circumstances of the particular case. The decision in Nagle did not establish that reasonableness requires a warning sign in all places where there are submerged rocks, any more than the decision in Romeo v Conservation Commission (NT)[5] established that reasonableness never requires a warning sign at the top of a cliff. 4. Where this Court upholds, or overrules, a decision of a trial judge or an intermediate court of appeal about whether a particular defendant has or has not behaved reasonably, the reasons given for the Court's decision may provide guidance as to the relevant legal principles, if those principles are in doubt, but the ultimate factual judgment will depend upon the evidence and circumstances in the particular case. In these two cases, there was no legal inconsistency between the decisions of Bell J and Whealy J. They came to different conclusions on the facts. There was no material difference in their respective views of the law. As will appear, in each case we would uphold the decision of the trial judge. 5. Both cases involve the tortious liability of public authorities responsible for the areas in which the diving accidents occurred. They were areas of recreational land, open to the general public. Many forms of outdoor recreation involve a risk of physical injury. In some cases, while the risk of injury may be small, the consequences may be severe. Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head-first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results. Again, short of a total prohibition, it is impossible to eliminate such risks; and no one suggests that swimmers should be prohibited generally from entering the water head-first. 6. In each case, the breach of duty alleged was a failure to warn. A defendant's duty of care is owed to an individual plaintiff, but it is a duty to do what is reasonable in all the circumstances. The fact that a defendant is a public authority with the responsibility of managing large areas of recreational land may be a circumstance material to a judgment about the reasonableness of its conduct. As Brennan J pointed out in Nagle[6], the duty owed to the plaintiff is, in the ordinary case, owed to him or her as a member of the public. The nature of the premises, and the right of public access, will have an important bearing on what reasonableness requires by way of a response to risks associated with the use and enjoyment of the land. 7. Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out[7]? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign. 8. Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs. It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits. 9. The facts of this case are set out in the reasons of Callinan and Heydon JJ. As has been noted, Bell J found that there had been a breach of duty[8]. The Court of Appeal was divided on the point[9]. Beazley JA agreed with the decision of Bell J. The majority (Mason P and Tobias JA) took a different view. 10. In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water head-first without knowing exactly how deep it is. Even if a swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge head-first into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating. 11. The appellant dived into the sea from a rocky platform, close to a popular surfing beach. There were various levels in the rock formation. The appellant dived from a height of about 1.5 metres above water level. The trial judge could not find the exact depth of the water into which he dived, but at a nearby location from which he was recovered the depth of water was also about 1.5 metres. Diving from a height of 1.5 metres into water of approximately the same depth is very dangerous, depending, perhaps, on the angle of the dive. Yet the evidence shows that, on the day in question, many other people, with apparent safety, were doing what the appellant did. Diving from the rock platform was a popular activity that had been going on for years. The appellant, a competent swimmer who was familiar with the locality, knew that. The trial judge found that the appellant assumed that it was safe to dive from the rock platform because, on the day of his injury, and many times previously, he had seen people doing so. He did not attempt to assess the depth of the water into which he dived. He simply followed common practice. He said of the rock platform that it was "the place to go, to dive in or to jump in or whatever". 12. The very practice which reassured the appellant was, as the respondent knew, a practice that had alarmed others. Members of the local surf life saving club had often warned people of the dangers of jumping or diving off the rock platform, sometimes going to the platform by boat in order to do so. In 1978, a young man who dived from the highest part of the platform became a quadriplegic. The incident received wide publicity in the area. A local newspaper reported that the beach inspector intended to recommend to the respondent the placing of a "danger" sign on the platform. From one point of view, the most surprising feature of the evidence in the case was that so few serious injuries had resulted from diving from the rock platform over the years. 13. At the trial, the respondent pressed Bell J with the argument that the respondent was responsible for about 27 kilometres of coastline, and that it was unreasonable to expect warning signs to be erected on every outcrop of rock from which someone could dive into the ocean. However, she accepted the evidence of a local government engineer that the rock platform adjoining Soldiers Beach was "most unusual", both in its formation and in its ready accessibility to members of the public attending a popular surfing beach. She also found as a fact that the respondent knew or ought to have known that there could, from day to day, be significant variations in the depth of water adjacent to the rock platform and that, in that respect, the respondent "was armed with knowledge that the [appellant] did not have concerning the danger of diving from the rock platform." She said: "The [respondent] was aware that members of the public commonly dived from the rock platform and that this activity was a dangerous one." The popularity of the activity in a sense increased the danger because it created a misleading appearance of safety. The trial judge concluded that the respondent should have erected signs prohibiting diving from the rock platform. Alternatively, she found that, at the least, the respondent was required to erect signs warning of the danger of diving from the rock platform. 14. The appellant said that, if diving from the rock platform had been prohibited by the respondent and a sign to that effect had been erected, he would not have dived. He also said that if a warning sign, that it was dangerous to dive from that location, had been erected he would not have done so. Bell J accepted that the erection of a sign that served to bring the risk of diving from the rock platform to the appellant's attention would probably have led the appellant not to run that risk. She gave reasons for this conclusion, particular to the case. The conclusion was one of fact dependent, in part, on an assessment of the appellant. 15. Like Beazley JA in the Court of Appeal, we find no error in Bell J's reasoning on what was essentially a matter of factual judgment, and we see no reason to interfere with her ultimate conclusion. There being no appealable error on the part of the primary judge, the majority of the Court of Appeal erred in disturbing Bell J's conclusions and the orders giving them effect. 16. We would allow the appeal with costs, set aside the orders of the Court of Appeal, and in their place order that the appeal to that Court be dismissed with costs. 17. McHUGH J. Wyong Shire Council is a public authority vested with the statutory care, control and management of the land on which there is a rock platform from which the appellant dived into the Pacific Ocean and was injured. The issue in this appeal is whether, in all the circumstances of the case, the Council breached the duty of care that it owed to the appellant when it failed to warn him of the risk of injury associated with diving in that area. The Supreme Court of New South Wales (Bell J) held that the Council had breached its duty by failing to give that warning and that the breach was causally connected with the injury that the appellant sustained. The Supreme Court entered a verdict for the appellant and awarded him a substantial sum of damages. The Court of Appeal of the Supreme Court reversed the decision of the trial judge and entered a verdict for the Council. 18. In my opinion, the trial judge correctly held that the Council had breached the duty that it owed to the appellant. The area where the appellant dived was one where many people dived. Diving in that area was fraught with the risk of serious injury to divers. The Council knew of the risk and, in any event, ought to have known that it existed. The large number of people that used the area for diving increased the probability that, sooner or later, the risk of striking the ocean floor would result in serious injury to one or more divers. So far as the evidence revealed, no other area under the Council's control exposed divers to as high a probability of injury occurring as did this particular area. Erecting a warning sign was a simple precaution that, on the trial judge's findings of fact, would have avoided the catastrophic injuries suffered by the appellant. 19. The Court of Appeal erred in finding that the risk of injury was so obvious that the Council was not negligent in failing to erect a warning sign. Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party. Ordinarily, when the obviousness of a risk requires no action, the magnitude and likelihood of the risk will be so insignificant and so expensive or inconvenient to avoid that reasonable care requires neither the risk's elimination nor a warning concerning its propensity. Hence, the Court of Appeal erred in finding that the Council did not breach the duty of care that it owed to the appellant. It follows that the appeal must be allowed and the appellant's verdict restored.