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Date: Fri, 31 Aug 2007 07:04 From: Neil Foster Subject: Yet another diving case in the HCA
Dear Colleagues In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 (30 August 2007) the High Court of Australia by 3-2 overturned a verdict of breach of duty in a negligence case which had been decided in the plaintiff's favour by both the NSW Court of Appeal (2-1) and the trial judge. The case involved the then-14-year-old Mr Dederer who had dived off a bridge at a popular tourist spot and was severely injured. The initial claim had been made against both the RTA (the "roads authority" mainly responsible for maintenance of the bridge) and the Great Lakes Shire Council, generally responsible for the local area. The claim had succeeded initially on the basis that better signs should have been put up warning of the danger of diving into this shallow and shifting channel, and also that the RTA should have made the fence on the side of the bridge in such a way as to have deterred people from using it as platform to dive from. One interesting sideline of the litigation (which was not revisited directly in the High Court) was that the action against the Council (who had been joined in 2003 after the initial litigation against the RTA commenced) was governed by the "tort reform" provisions of the Civil Liability Act 2002 (NSW). At the CA level the Council succeeded due to s 5L of the CLA, which effectively immunises a defendant from liability for harm caused "as a result of the materialisation of an obvious risk of a dangerous recreational activity". (Callinan J in the HC quotes the provisions at length in footnote 227, at [253].) The action against the RTA, however, having been commenced prior to the CLA, had to be determined on common law grounds. It is sad (in my view) to compare the detailed analysis of the issues at common law against the RTA, with the sledge-hammer dismissal of the action against the Council under the CLA. What general principles emerge from the HC decision on the RTA's liability? (1) A majority of members of the court seem to now dismiss the principle that a superior appellate court ought normally defer to lower court fact-finding where there are "concurrent findings of fact" of a trial judge and a lower appellate court. However, the rejection of the principle comes from an unusual mix of the judgements. The majority in favour of the rejection of the plaintiff's action are Gummow J, Callinan J (in what must be close to his Honour's last judgement) and Heydon J. But of those only Callinan & Heydon JJ distinctly reject the "concurrent findings" principle - [265]-[269], [284]-[293]. Kirby J, who is in the minority on the breach issue, interestingly agrees at [163] with Heydon J's rejection of the "concurrent findings" rule. (Interesting because his Honour relied on the principle in the recent decision in NSW v Fahy [2007] HCA 20, at [153], [172].) Gleeson CJ argues strongly in favour of it, but as far as I can tell Gummow J does not comment on it. (His Honour takes the view at [43] that the errors of the CA were fundamental errors of law, and hence there is no need to deal with principles relating to errors of fact.) However, given that there is at least a "majority of the majority" opposed to the concurrent findings rule, it perhaps should be regarded as authoritatively rejected. (2) There is still, at least in the mind of Gummow J, confusion still over the relationship between duty and breach in the law of negligence - [17]. In my view, to be frank, this is a battle that Gummow J lost in the previous diving case of Vairy - the question whether a duty of care is best expressed simply as a "duty to take reasonable care" or whether it should be elaborated as a "duty to do X, Y, and Z". A majority of the Court in Vairy held that the "broad" expression of the duty was the way to go. (3) I must say that I also have some problems with the way his Honour expresses the issue he describes as "reasonable care, not prevention" at paras [49] ff. With respect, he seems to be confusing two separate issues and comparing apples with oranges. At [51] he says that "an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others". No. One contrast is between "reasonable care" and "absolute liability"- no-one argues that the law of negligence requires the latter. Another contrast is between an obligation based on "misfeasance" (doing something) as opposed to "nonfeasance" (doing nothing.) That is quite a different contrast, which his Honour seems to blur. On the facts of this case his Honour seems to suggest the case is analogous to Modbury, where the issue was of failure to control criminal actions of 3rd parties (see the citation of that case at [51]). But that was not the plaintiff's case here. Whether or not it was right, his case was that the RTA had done something carelessly - put up the wrong sign, erected the wrong type of fence. There is also a somewhat enigmatic and wistful comment at [57] about the way that equity would deal with these issues as opposed to the messy common law! (4) In the end, the decision to find against the plaintiff is really neither more nor less than a decision by the majority that the lower court judges got it wrong on the facts. One must wonder whether this encouragement from the High Court for, as Gleeson CJ notes at [12], well-funded unsuccessful litigants to keep on fighting all the way up the judicial ladder, is really going to be helpful in the long run.
Regards Neil Foster
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