Roads & Traffic Authority of NSW v Dederer & Anor [2007] HCATrans 96 (2 March 2007)

Last Updated: 7 March 2007

[2007] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S388 of 2006

B e t w e e n -

ROADS AND TRAFFIC AUTHORITY OF NSW

Applicant

and

PHILIP JAMES DEDERER

First Respondent

GREAT LAKES SHIRE COUNCIL

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 11.48 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR A.C. CASSELDEN, for the applicant. (instructed by Henry Davis York)

MR D.T. KENNEDY, SC: If your Honours please, I appear with my learned friend, MR G.R. GRAHAM, for the respondent. (instructed by Emery Partners)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, for this to be a useful vehicle, notwithstanding being an action for personal injuries held to have been caused by the negligence of my client, it is obviously important for us to be able to transcend the particular facts. However, it is true of every personal injuries action that where the cause of action is in negligence that ever gets to this Court that there are particular facts.

The particular facts in this case are sufficiently typical, typical not only for time and place but probably of humankind to warrant the attention of this Court to what could be described as the startling outcome on what might be called the merits. The way in which we generalise is as follows.

We are talking about a 14-year-old boy, although the actual chronological years at which boys become strong enough to do terrible things to themselves and become bold enough to want to take risks might vary over the centuries, clearly enough, there is always going to be such a time in the growing up of a male. Second, it is a boy who knew of a risk. Third, it is a boy who knew that organised society had forbidden the activity, quite specifically, by a pictogram he had no difficulty in interpreting, “Do not dive”.

There is no difficulty in holding, as a matter of generalisation, that this is therefore a case concerning what is to be done by way of reasonable response by a State authority with pervasive and diffuse responsibility all over the territory of this State when a bridge over water is constructed in such a way usual for bridges for thousands of years that you can jump off it. It could be that the common law might be seen by some as gradually converging to a point from rulings of this kind where a bridge must be a cage. In our submission, that is absurd. If it is not a cage then jumping is possible.

This is a case where the Court of Appeal held by way of what might be called judicial engineering they designed, as it were, what should have been done without any expert evidence to support this. Not only the unsupported notion, contrary to the uncontradicted evidence, that there should be words for the literate on a pictogram forbidding diving, and there is no suggestion that this is a boy who would have paid more attention to words forbidding something than to a pictogram forbidding it. Not only that but that the top railing which, after all, the young boys would have to climb in order to get into the position to launch themselves off the bridge into the water below, that that ought to be constructed in such a way as to deter by rendering physically more difficult sufficiently balanced standing or poising on the balustrade before they jumped in.

In our submission, simply to state that as an appropriate appellate finding of negligence is in our submission to go well beyond the bounds of a judicial finding of what is a reasonable response to the circumstance prevented of this perennial kind. After all, the very device which the two judges in the majority engineered in their reasons is a device that makes the boys less stable on the top of the balustrade.

One asks rhetorically, “Is that likely to stop them trying or is it likely simply to increase the risk that instead of simply jumping into the water and, in very rare cases diving into the water, as happened in this unfortunate case, maybe they will wobble and fall backwards into the traffic which the evidence showed in this case was the main source of engineering and safety concerns on this very important bridge between Forster and Tuncurry.

Your Honours, when stated in that fashion this is not therefore a case simply applying the absolutely well-known principles pronounced by this Court time and time again. It is a case which at an intermediate appellate level bound to have, however informally, a precedential value in the courts of this State concerning the simple sign “No diving”. That then comes to what, in our submission, is the relation of this case to relatively recent litigation in this Court, including the Mulligan and Vairy decisions.

What, in our submission, emerges from that is that it is important for this Court to do nothing, including by leaving unattended decisions of this kind, which would prevent the well-accepted, socially sensible expedient of signs informing people that they should not do certain things for reasons which are self-evident as to risk. No one has ever suggested in this case that the possibility when one jumps of landing not only in shallow water but, also, for example, on a swimmer or a boat, no one has ever suggested that was not inherent in the exercise of descending from a relatively great height into the water for the thrill of it.

For all of those reasons, in our submission, this is a case which presents the opportunity for the Court to vindicate as a reasonable response the simplicity of unambiguous, uncluttered signs of prohibition, prohibition to boys being, in our submission, a far more reasonable approach than
seeking to reason, as it were, with them concerning the possibility that their perceived immortality is not so.

There is a suggestion that this is a case which has become, as it were, a dead letter, historically, because of the Civil Liability Act in this State and analogues in some other States. However, that raises in turn the question for this State under section 5M of the Civil Liability Act as to whether this truly is a warning sign or a prohibition. That was held at trial in this Court to render irrelevant 5M.

We do not suggest that raises a matter for special leave. It is enough to demonstrate, in our submission, that the question of the clarity of a prohibition sign as an appropriate response to a position with a foreseeable risk ought to be the subject of pronouncement and support by this Court rather than leaving it to this decision to give rise to what can only be described as a complication of sign and a risk that judicial engineering of things like the balustrade in this case, will simply create a new category of case. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Kennedy.

MR KENNEDY: Your Honours, the matters involved in this case are essentially factual findings that were found by the trial judge and also the Court of Appeal. The basic facts seem to have been, your Honours, that he was a 14-year-old boy. He had been going to this area for some time up at where the bridge was. He had observed young boys jumping into the water from the bridge, he had observed them diving into the water from the bridge, and there was other evidence to that effect and the court concluded that the applicant was aware that in fact that practice was occurring and, indeed, way back in the late 1980s it had installed a “No diving” sign and then had replaced the same sign in 1995 when something further excited their interest and in that time the evidence was that boys were regularly diving off the bridge.

The question was not so much the sign, the question was that the sign, as the court found, was completely and utterly ineffective to prevent boys from diving and what was required was some better sign and in fact what was looked at by the Court of Appeal by way of notice of contention was the standard and the standard required that where a person would be diving and could sustain serious injury, which is what occurred in this case, that there ought to have been the “No diving” sign with words that indicated shallow water.

Mr Justice Ipp even went as far as to suggest - picking up a finding by the trial judge – it would even be better to say, “Shallow water and shifting sands” because the problem that arose was mainly by reason of shifting sands in the estuary and the tidal effect of the river and the sea. The applicant was intimately aware of the nature of that problem and in relation to signs and as to why they did not put up other signs they failed to call two gentlemen, Mr Saxby and Mr Selway, who in fact were experts in signs, but they were never called to give evidence about why it was that that sign was put up or some other sign was not put up in light of the knowledge.

GLEESON CJ: Do they still have a dredge operating between Forster and Tuncurry?

MR KENNEDY: I am not sure, your Honour. I am not sure. So, your Honour, that was the factual matrix and that was the basis of his Honour’s original decision and there have been now three judges who have looked at the matter in depth in relation to all of these factual matters, found those basic facts and said, “Well, there was a response required from the Council”. One of the responses was to put up a sign that actually warned because the respondent said he saw the sign on this day, he had never dived before and he had jumped before, and he dived impulsively. He thought it was deep enough, from his observation of the water.

GLEESON CJ: I thought he said he got up on the rail intending to jump and then he changed his mind at the last minute.

MR KENNEDY: That is so and then impulsively dived at the last moment. He said that he was aware that other boys dived.

GLEESON CJ: How do you stop somebody doing something like that?

MR KENNEDY: There were three things that the Court indicated should have been done in this case. One was a sign that actually warned of the danger and his evidence was that the sign that was there “No diving” did not give him any sense of warning knowing that other boys dived without any problems in the past and that - - -

CALLINAN J: Why did he think there was a sign forbidding climbing on the bridge? Was there not a sign?

MR KENNEDY: There was a sign which was a different sort of sign.

CALLINAN J: What did he think was the purpose of that and how high was the climb?

MR KENNEDY: It would depend upon where you were climbing in relation to the superstructure of the bridge.

CALLINAN J: But where he jumped or dived?

MR KENNEDY: He was about eight to nine metres from the water.

CALLINAN J: No, but how high did he have to climb in order to dive?

MR KENNEDY: Your Honour, that was the other matter of significance in that the court found that the bridge was an allurement to young boys of his age.

CALLINAN J: I just want to know how high it was.

MR KENNEDY: The height of a railing, your Honour. The height of this - - -

CALLINAN J: What did he think was the purpose of the sign? He was not likely to injure himself by climbing on something as high as that. It was what he might do once he got on top of it.

MR KENNEDY: That is so, your Honour, but - - -

CALLINAN J: Whether he dived or jumped, no matter what he did?

MR KENNEDY: Your Honour the sign was a “No diving” sign, I agree, but, your Honour, he said he did not put to that a particular danger, that is, that he would end up with an injury of the type he ended up with and therefore he dived. He knew that other boys had dived in the past without any problem. He knew that there was shifting sand but he did not think that there would be a lumping of sand in the middle of the channel and he also dived because he had observed vessels use the channels – one of which – into which he dived – which were relatively large channels - in the sense of fishing trawlers and pleasure boats and things of that nature.

GLEESON CJ: Was this on the Forster end of it or the Tuncurry end of it?

MR KENNEDY: It was the Forster end of it, your Honour, yes. This problem of the diving and the jumping seems to have confined itself to that area. So, your Honour, what we say is that the Australian standard indicated that if in fact you had shallow water, and it was shallow. There was a document referred to by Mr Justice Ipp as to one sounding that was taken – we do not know the actual date – but in the channel in which he dived it was between 2.1 and 2.9 metres in depth from the water to the bottom.

So, we have the allurement, that is that it is easy to get up and to dive, we have a sign that merely prohibits diving rather than indicating what the danger of diving would be and he said if he had seen a sign that indicated that danger, that is, you might become injured or there was shallow water or the water was sort of shifting around him he would not have dived.

GLEESON CJ: You have going for you, and if we were to grant special leave this might be a very powerful consideration in your favour, you have concurrent findings of negligence by a primary judge in the Court of Appeal, but can you just remind me whether the prescription, as it were, of the majority in the Court of Appeal as to what should have been done was the same as that of Justice Dunford at first instance?

MR KENNEDY: Mr Justice Dunford said that there should have been attached to the sign a writing which indicated “Danger, shifting sands, variable depth”. Mr Justice Ipp relied upon the Australian standard and said that the Australian standard ought to have been complied with because there was a risk of injury. It should have had writing on it with “Shallow water” and he also suggested the words “shifting sand” and that appeared to be the position of the majority as regards the question of appropriate signage.

GLEESON CJ: What would that have told your client that he did not already know?

MR KENNEDY: Your Honour, he did not believe, from his observation and his knowledge of the passage of the vessels and his own time in the area on previous occasions that it was dangerously shallow. He looked and there was a view held at the very point where he dived, and there are some observations about that in his Honour’s judgment, so he did not know that there was a problem of depth which was likely to be injurious to him. He thought it was deep, deep enough to dive.

If he had have been told that it was shallow and that there were shifting sands then he would not have dived, and as he said in his evidence, whilst he knew that sands shifted he did not think that they shifted in a way whereby they lumped up in the middle of the channel. That was his evidence as to his belief, and he had been there before, some years before, with his family where they had been picnicking on the bar – the bar that was there – and gone off the bar into water that he said was very deep. You could not stand up in it, and he had jumped on two previous occasions and nothing untoward had occurred.

GLEESON CJ: It is shallow, Mr Kennedy. Before there was a bridge there there used to be a punt and the punt used to bump on the bottom on the sand as it went across.

MR KENNEDY: Yes. Your Honour is obviously familiar with it and unfortunately I am not, but we now have the bridge and the bridge, we say, as was found by the majority of the Court of Appeal and the trial judge was an allurement to people of his age. There were other – there were play areas and there were facilities for barbeques and that this encouraged people to come to the area and to use the bridge and encourage young boys to do what they were doing. It was a prevalent activity which has been going on probably from the time - - -

CALLINAN J: I thought we said something about those sorts of examples in either Vairy or Mulligan, that the fact that other people had been doing these things from time to time did not mean that assumptions about the safety of doing them should be made. It was not put in that language - - -

MR KENNEDY: Yes. I am aware of that sort of reference, your Honour, although the Court in that case was dealing with a natural object as opposed to an artificial structure that has been built by the RTA with the obvious sort of duty of care that is attended upon such an organisation in building.

CALLINAN J: I think that the distinction between those two is taken account of either in Vairy or Mulligan and there is a reference to a possible difference in approach but - - -

MR KENNEDY: Your Honours, regard has to be had for the fact that he was a 14½ -year-old boy, not an adult and 14-year-old boys tend, if they are adventurous, to do things that others might regard as a little rash.

GLEESON CJ: I think the Court of Appeal substantially increased the percentage of contributory negligence found against your client.

MR KENNEDY: They did, to 50 per cent, and of course he failed against the Council on the obviousness of the risk issue, so he has paid a very heavy price for some degree of knowledge of what was going on or what he ought to have known at that time. The other matters that the court determined was that one could sort of place a triangular member on the handrail which would make it difficult to climb on to or difficult to stand on or uncomfortable and it would not be as though, as my learned friend has suggested, he would be falling off into the roadway because there is a footpath there.

So what happened was that the boys used to go along the footpath, they would use the horizontal rails to sort of step up as if it were a step, they would stand on the flat top rail which gave them a sort of a launching pad for either jumping or diving into the water and so it was a very easy process for them and one that virtually, in a sense, encouraged them to do that, given the allurement of the bridge and the water below and the excitement of diving into the water.

There were large numbers of people, as your Honour would probably know, who would come to that area during holiday time and children –there would be large numbers of them congregating there and likely to be attracted by the bridge and the activities of diving from the bridge.

Your Honour, the Court of Appeal indicated on the question of knowledge that, “Well, why would you be putting up a ‘No diving’ sign unless you had some knowledge that diving was taking place?” and there certainly was evidence that they knew of jumping from the bridge and therefore if they knew of jumping it must have been the case that it would be likely that adventurous boys would also be diving from the bridge and they ought to have been seized of that knowledge.

CALLINAN J: But to say that a mere prohibition for reasons unspecified is not enough. It does strike you as an odd result. I mean, if somebody puts up a prohibition, a sign prohibiting it because it is dangerous, you do not need particulars of danger, shifting sands, passage of a boat, polluted water, problems about tripping, if you jump or dive.

MR KENNEDY: Your Honour, that is a response that was available to the applicant, but it was a response that showed that it was totally ineffective to prevent jumping and diving activities and therefore it was likely that there was going to be an accident, or foreseeable that there would be an accident of this type at some stage or other.

CALLINAN J: It is a strange credibility. Really, it is a strange credibility to suggest that if you give specifics of the reason for the prohibition you are going to have a different response by the person reading the prohibition. Really, it is an insult to intelligence, with all due respect, to suggest that the - - -

MR KENNEDY: Your Honour, that is what the Australian standard is to a degree there for.

CALLINAN J: I understand that, but it is just out of an excess of caution because a lot of cases go this way.

MR KENNEDY: Your Honours, the other matter to deal with the response was that the Council knew that in fact the bridge railing did not comply with Austroad 92 and there was agitation about making the railing and pedestrian way safer because of - - -

CALLINAN J: It was built in 1959, the bridge, was it not?

MR KENNEDY: Yes, that is so, your Honour.

CALLINAN J: It complied with all relevant standards then, did it?

MR KENNEDY: At that time, your Honour, yes, certainly.

CALLINAN J: How many changes in standards have there been between 1959 and the accident?

MR KENNEDY: In the Australian standard, your Honour?

CALLINAN J: Yes, relevant to a bridge of this kind.

MR KENNEDY: I am not specifically aware, your Honour, of how many changes there have been.

CALLINAN J: You are not suggesting that every time the standard changes the constructing authority has to remodel the structure, are you?

MR KENNEDY: No, I am not, your Honour, but what was happening, though, was that they were looking at making an alteration to the railing because of other considerations. They were aware that the bridge did not comply with Austroad 92 and that is there ought to have been a pool-type fence as opposed to sort of this horizontal railing that allowed people to get through and stand on and use as a step to get on to the rail and therefore they had set aside moneys in order to put in such a railing and so that - - -

GLEESON CJ: What sort of a fence did you say?

MR KENNEDY: A pool-type fence, your Honour, which had vertical members.

GLEESON CJ: A swimming pool-type fence, I understand.

MR KENNEDY: Yes, a pool-type fence rather than one that had horizontal members.

GLEESON CJ: Those ones that you will get yourself impaled on if you climb up, yes, I see.

MR KENNEDY: In any event, that is what the Austroad standard said in 1992. They were aware of it, they were aware that they did not comply. They were wanting to do something about it for a variety of reasons and they were proposing and had set money aside or sought money to be able to do that. I think it was going to cost about $108,000 for that to be done and we say that was the third thing that they could have done which would have reduced the prospect of the bridge being used in the way it was used by the plaintiff and if you throw all those things together – but even in relation to the warning, if the warning was there it is probable that he would not have – if the Australian standard had been complied with – the warning –he would not have dived.

What we say, with respect, your Honour, is that the case is dependent upon all of its own individual facts. It is what happened there in relation to that bridge, what happened as far as the plaintiff was concerned, what the response was or was not, as far as the applicant was concerned and, really, it is a case where no demonstrable error has been shown by my learned friend indicating that there has been any error that has been made by the court.

GLEESON CJ: Was the failure to put in what you described as a pool-type fence, and I think I understand what you mean by that, one of the aspects of negligence found by either Justice Dunford or by the majority in the Court of Appeal?

MR KENNEDY: Justice Dunford and the Court of Appeal, your Honour, found that that should have been done – a pool-type fence.

CALLINAN J: Was it pleaded? There is a recitation.

MR KENNEDY: I think it was, your Honour. I do not have my statement of claim with me but I think it was, but certainly - - -

CALLINAN J: No. There is some reference, I think, in the trial judge’s reasons.

MR KENNEDY: Certainly, but the trial was conducted on the basis of that being an option that ought to have been adopted by the Council to have materially reduced the risk of injury.

GLEESON CJ: Was there evidence on whether such a fence was subsequently installed?

MR KENNEDY: No, your Honour, but the evidence indicated that it had been proposed to install it. It had not been installed at the time of the accident. We say, your Honour, that the case does not really give rise to any matter of public importance or public significance. It is a case determined upon its own facts and that the decision that was made was correct and that that is where the matter ought lie and we cannot see any basis for any special leave being granted.

A suggestion has been made that there was a process of hindsight in relation to the determination, your Honour, but that was specifically dealt with by Mr Justice Tobias in his judgment where he went through all of the characteristics. This is at page 149 of the application book where he sort of sets out the criterion. What he was saying there was the judge was right in concluding that it was “an accident waiting to happen” because of the changing nature of the estuary, the changing heights, the fact that there were a lot of people who were diving over a regular period of time and that they ought to have been aware that something of this nature could well occur and in fact it did occur and it was easy to see how it could occur. He says that it:

was not one influenced by hindsight but merely confirmatory of what his Honour rightly regarded as reasonably foreseeable given the evidentiary findings which he had made.

He sets out some of those findings himself. So we say, your Honours, it cannot be suggested that there has been any error on the part of the majority of the Court of Appeal in relation to any sort of question of the matter being approached on the basis of hindsight rather than on a prospective basis, as is required by the law. If the Court pleases.

GLEESON CJ: In this matter there will be a grant of special leave to appeal.

MR WALKER: May it please the Court.

AT 12.16 PM THE MATTER WAS ADJOURNED