Edition 05/2003
Bondi Beach Appeal
Successful
No
doubt many councils, surf lifesaving bodies, sport and recreation
providers would have breathed a sigh of relief when the New South
Wales Court of Appeal allowed the appeal and set aside the verdict and
judgment in favour of the injured party (G E Swain) in the case of
Waverley Municipal Council v Swain.
(Reference Waverley Municipal Council v Swain [2003] NSWCA
61 (3 April 2003).
The
background to the case is that Guy Edward Swain was injured while
swimming between the flags at Bondi Beach on 7th November
1997 in a calm sea. He
dived into a wave and hit a sandbar, suffered a spinal injury and is
now a quadriplegic. He
brought action against the Waverley Municipal Council, which, it is
accepted by both parties, has care, control and management of Bondi
Beach. AJ Taylor and a
jury of four heard the case. The parties agreed on the quantum of damages at $3.75 million
and litigated only on the issue of liability for that damage.
The jury found the Waverley Municipal Council liable to Swain
in negligence. They
further found contributory negligence of twenty five percent on the
part of Swain. The
Waverley Council appealed to the NSW Court of Appeal.
The
appeal was heard before CJ Spigelman, JA Handley and JA Ipp.
They unanimously agreed that there was no evidence before the
jury capable of justifying a finding that the Council had breached its
duty of care to Swain by failing to warn of the risk of a sandbar and
that there was no evidence of the content and practicality of the duty
to erect relevant warning signs.
Handley and Ipp (Spigelman dissenting) agreed that there was no
evidence capable of sustaining a finding that the council was
negligent with respect to the placement of the flags on the beach.
There was no evidence that Swain relied on the flags as an
assurance of safety with respect to diving.
The risks of channels and sandbars on the ocean floor are
obvious and inherent in the activity of diving near the shore.
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This
article outlines some of the matters reported on in the judgment that
bare relevance not only to this case but others associated with
negligence and claims for breach of duty of care. No
issue arose in regard to the Waverley Council owing a duty of care.
The trial judge stated, “….Let me tell you as a matter of
law the Council being in control of the beach and having the care of
this and management of it owed a legal duty to take reasonable care
for the safety of those citizens who are using the beach. What
the law requires is the council exercise reasonable care in all the
circumstances to protect the plaintiff from unnecessary risk of
injury.” The
critical issue was one of breach.
The relevant risk, which fell within the accepted duty, was the
risk of a person diving into a sandbank formation at a time when his
or her ability to see that there was a sudden rise in the level of the
sand was obscured by a breaking wave.
What, if anything, should a reasonable Council have done by way
of a response to the existence of this risk?
Specifically should the Council have provided some sort of
warning of the risk and/or should it have ensured that the position of
the flags was such as to avoid a section of the beach where there was
a sudden rise in the sand level of the character suggested in the
evidence of the case? First
we will consider breach by failure to warn. One
factor that generally arises in a warning case is the degree of
obviousness of the risk.
This may arise at the level of causation, i.e. would a warning
have made any difference, and it also arises at the level of
reasonableness of the conduct suggested to have been necessary to
avoid or minimize the risk.
The ‘obviousness’ issue is complicated by a further
consideration – to what degree is it appropriate for a person who
owes a duty of care to assume that persons to whom the duty is owed
will take reasonable care for their own safety?
Also, to what degree should the person take into account the
possibility of inadvertence or negligent conduct on the part of
others?
Continued
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