Wyong Shire Council v Shirt [1980] HCA 12

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Wyong Shire Council v Shirt [1980] HCA 12

ORDER Appeal dismissed with costs. Application for special leave to appeal refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1980, May 1 Stephen J.

I have had the advantage of reading the judgment of my brother Mason and am in full agreement with it.

Mason J.

According to Lord Atkin's statement of principle in Donoghue v. Stevenson [1] , as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v. Dorset Yacht Co. Ltd [2] ; Anns v. Merton London Borough Council [3] ). It has not been suggested that there were present in the instant case any considerations which negated the duty. Indeed, the appellant Council conceded in this Court that it was under a duty of care to persons water skiing in that part of the lake in which the plaintiff sustained injury.

1. [1932] A.C. 562, at p. 580. 2. [1970] A.C. 1004, at pp. 1027, 1034, 1054, 1060. 3. [1978] A.C. 728, at pp. 751-752.

The issue, then, is whether it was reasonably open to the jury to conclude, as they did, that the Council was in breach of its duty to take care. The majority in the Court of Appeal thought that this question should be answered in the affirmative when, as Glass J.A. put it, "allowance is made for the undemanding test of foreseeability" [4] .

1. [1978] 1 N.S.W.L.R., at p. 641.

Glass J.A. described the test as "undemanding" because in his view in its application to breach of duty the test involves the defendant in liability for injury which, though foreseeable, is extremely unlikely and may be described as "only a remote possibility" [5] . His Honour specifically rejected the notion that the test denotes only events which are "likely to happen" or "not unlikely to happen" [4] . He relied on Lord Reid's observations in Koufos v. C. Czarnikow Ltd. [6] and comments made by the Judicial Committee in The "Wagon Mound" [No. 2] [7] . But he made no reference to the opposing view expressed by Barwick C.J. in Caterson v. Commissioner for Railways [8] , where the Chief Justice stated his preference for the "not unlikely to occur" formulation.