Roads and Traffic Authority of NSW v Dederer

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ.,Gummow J.,Kirby J.,Callinan J.,Heydon J.
• Judgment Date: 30 August 2007
• Neutral Citation: 2007-0830 HCA A,[2007] HCA 42
• Docket Number: S122/2007
• Date: 30 August 2007

[2007] HCA 42

HIGH COURT OF AUSTRALIA

GLEESON CJ, Gummow, Kirby, Callinan and Heydon JJ

S122/2007

Roads and Traffic Authority of Nsw

Appellant

and

Philip James Dederer & Anor

Respondent

Representation

B W Walker SC with A C Casselden for the appellant (instructed by Henry Davis York Lawyers)

D F Jackson QC with D T Kennedy SC and G R Graham for the first respondent (instructed by Emery Partners)

Submitting appearance for the second respondent

Civil Liability Act 2002 (NSW), s 5L ..

Roads Act 1993 (NSW), s 7(4) ..

Transport Administration Act 1988 (NSW), Pt 6, Sched 7 Div 5 ..

Roads and Traffic Authority of NSW v Dederer

Negligence — Duty of care — Scope of duty — Roads authority — The first respondent was injured after jumping into shallow water from a bridge erected by the appellant's predecessor — Whether the scope of the appellant's duty of care encompassed the circumstances in which the first respondent was injured — Distinction between the exercise of reasonable care and the prevention of harm.

Negligence — Breach — Standard of care — Prospective assessment of breach — Characterisation of relevant risk — Assessment of probability of risk — Assessment of gravity of risk — Assessment of practicability of precautions — Relevance of voluntary conduct and obviousness of risk — Relevance of ‘allurement’ — Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 was correctly applied.

Negligence — Contributory negligence — Reduction of damages by Court of Appeal — Whether Court of Appeal erred in disturbing trial judge's assessment.

Courts — Appeals — Limitations on appellate review of findings of fact — Meaning of ‘concurrent findings of fact’.

Costs — Sanderson orders — Circumstances in which it is appropriate to make a Sanderson order.

Words and phrases — ‘allurement’, ‘concurrent findings of fact’, ‘reasonable care’, ‘roads authority’, ‘scope of duty’.

ORDER

• 1. Appeal allowed.

• 2. The first respondent to pay the appellant's costs.

• 3. Set aside orders 4, 5, 6 and 7 of the Court of Appeal of the Supreme Court of New South Wales made on 5 October 2006 and in their place order that:

  • (a) the appeal to that Court by the Roads and Traffic Authority of NSW (‘the RTA’) be allowed;

  • (b) set aside so much of the orders made by Dunford J in the Supreme Court of New South Wales on 18 March 2005 as disposed of the action against the RTA and in their place order that there be judgment for the RTA against the plaintiff; and

  • (c) Mr Dederer to pay the costs of the RTA at trial and in the Court of Appeal.

• 4. Application for special leave to cross-appeal dismissed with costs.

1 Gleeson CJ. The principal question to be decided is whether this Court should overturn findings on negligence and causation made in the Supreme Court of New South Wales by the primary judge (Dunford J) 1 and the Court of Appeal (Ipp and Tobias JJA; Handley JA dissenting) 2 in an action for damages for personal injuries brought by the first respondent.

2 The facts and issues are set out in the reasons of Kirby J. The appellant is a public authority responsible for the construction and management of the Forster-Tuncurry bridge. The first respondent, then aged 14, dived from the bridge, with catastrophic consequences. It is not in dispute that the appellant owed the first respondent a duty to take reasonable care for his safety. That the first respondent's own serious carelessness contributed to his injuries is plain; a large deduction from the damages he was awarded was made on account of his contributory negligence. Nevertheless, the appellant owed him a duty of care, and there was an issue whether, by its acts or omissions, it failed to take reasonable care for the safety of the first respondent. There was also an issue whether such failure was a cause of his injuries. Those issues, essentially factual, were resolved by the primary judge, and the Court of Appeal, adversely to the appellant. The bridge was not designed to be a platform from which people might, for their own amusement, jump or dive into the water below. That was not its intended use. Yet it was a use that was regularly made of it, even though diving was prohibited. A claim, by a young person who disregarded the prohibition, that the bridge authority failed to take reasonable care for his safety is not immediately attractive, and would not be accepted lightly. Its wider implications are obvious. Even so, the first respondent succeeded in his claim for damages (subject to a substantial reduction for contributory negligence) and his success was affirmed on appeal.

3 It is to be noted that the evidence in the case deals with the bridge and the railings as they were at the time of the injuries to the first respondent. They were still the same at the time of the trial. The bridge, in its present state, is there for anyone to see. At the time of the injury to the first respondent, and at the time of the trial, the railings on the northern side of the bridge consisted of three flat horizontal members. It was not difficult for a young person to mount the top rail and thereby use the bridge as a platform for jumping or diving. That is what the first respondent, and, according to the evidence, many others before him, did. The primary judge, and the majority in the Court of Appeal, criticised the appellant for not having installed a barrier (such as pool-type fencing) that would have been much more difficult to mount and use for diving. The fact that, in 1998, the design of the railings made it comparatively easy to climb on to or over

the railings was an important part of the case against the appellant. There is no foundation in the evidence, or in common experience, for inferring that the only way to deter people from climbing and jumping would have been to adopt extreme and fanciful measures such as erecting a very high fence topped with shards of glass or razor wire. If the appellant had attempted, in argument, to persuade the Court to that view then it might have been challenged by questions prompted by the design of the present barrier.

4 The conclusion of the trial judge and the Court of Appeal that the appellant was negligent turned upon findings of primary fact, some of which were disputed and some of which were undisputed, inferences from those primary facts, and judgment as to what reasonableness required in the circumstances. Similarly, the issue of causation turned upon primary facts, inferences, and judgment on questions of probability.

5 In an appeal of this nature, the function of this Court, as a second appellate court and a court of final resort, is not simply to give a well-resourced litigant a third opportunity to persuade a tribunal to take a view of the facts favourable to that litigant. ‘It is well settled that a second appellate court, such as this Court is in the present case, should not, in the absence of special reasons such as plain injustice or clear error, disturb such concurrent findings’ 3. This is a principle of long standing, and its importance has not been diminished, but rather has been increased, in the circumstances of modern litigation.

6 In Graham Barclay Oysters Pty Ltd v Ryan4, I referred to what was said about the principle by the House of Lords during the nineteenth century in Owners of the ‘P Caland’ and Freight v Glamorgan Steamship Co Ltd5. That case concerned a collision between two ships. The question which vessel was to blame turned upon evidence about lighting. The Lord Chancellor, Lord Herschell, said that, weighing the probabilities, he would have been disposed to accept a particular view of the evidence, but he declined to give effect to that disposition because of what the House of Lords had said previously as to ‘the importance of not disturbing a mere finding of fact in which both the Courts below have concurred.’ 6 Such a step should be taken, he said, only ‘when it can be clearly demonstrated that the finding was erroneous.’ 7 Lord Watson said that

it was ‘a salutary principle that judges sitting in a Court of last resort ought not to disturb concurrent findings of fact by the Courts below, unless they can arrive at … a tolerably clear conviction that [those] findings are erroneous.’ 8

7 In Major v Bretherton9, a fraud case, Isaacs J discussed a ‘highly important question’ which he said was raised ‘for the first time definitely in this Court’. He referred to the ‘rule’ as to the approach of a second appellate court to concurrent findings of fact. A judge in the Supreme Court of Victoria (Dixon AJ) had found that the defendant had not acted fraudulently. The Full Court of the Supreme Court upheld that finding. Isaacs J, after referring to decisions of the Privy Council and the House of Lords, said that the rule was as stated by Lord Herschell LC and Lord Watson in the case of The P Caland. He went on 10:

‘By following it, I do not mean that as soon as I see there are concurrent findings I abstain from forming my own opinion. I am bound to consider the evidence and to form my own opinion consistently with judicial obligation and precedent. But when I have done so, the rule comes into play, and, unless I reach the point of clear conviction predicated by the House of Lords in the P Caland Case, the appeal should, in my opinion, fail.’

8 The principle was referred to by Barwick CJ, with whom Stephen, Mason, Jacobs and Aickin JJ agreed, in Baffsky v Brewis11 in relation to a finding as to whether a moneylender acted honestly and ought fairly to be excused for a breach of certain statutory requirements. It was also referred to by Mason J in connection with a finding about contributory negligence in The Commonwealth v Introvigne12.

9 In Louth v Diprose13 (a case about unconscionable conduct) Deane J said:

‘[I]t is immaterial that the concurrent findings of fact by the court of first...