Roads and Traffic Authority of New South Wales v. Dederer: negligence and the exuberance of youth.

• Jurisdiction: Australia
• Date: 01 August 2008
• Author: Stewart, Pam

[This case note examines the decision of the High Court of Australia in Roads and Traffic Authority of New South Wales v Dederer, which marks the common law's continued departure from shared liability for tragic accidents into the realm of personal liability. The decision has particular significance for children and young people who may be held accountable for their reckless actions, notwithstanding the 'exuberance of youth'. In particular, the case note analyses the High Court's emphasis on obvious risks and personal responsibility and the Court's attempt to limit liability through a consideration of the plaintiff's conduct on questions of the scope of the duty of care and at the breach of duty enquiry, rather than confining it to the issue of the plaintiff's contributory negligence.]

CONTENTS I Introduction II The Facts and Case History A The Plaintiff's Claim B Tort Law Reform Legislation C At Trial D NSW Court of Appeal E The High Court 1 The Majority View on the Issue of Liability of the RTA (a) Scope of Duty (b) Obvious Risks (c) Breach of Duty 2 The Dissentient View on the Issue of Liability of the RTA III The Allurement Factor IV Contributory Negligence V Concurrent Findings of Fact and the Role of an Appellate Court VI A Trend Identified VII Conclusion INTRODUCTION

The case of Roads and Traffic Authority of New South Wales v Dederer ('Dederer') (1) involved a tragic event that regrettably occurs all too often in our society. It resonates not only with lawyers, but also with every parent, particularly those of adolescent boys. The decision in Dederer illustrates the common law's steady departure from shared liability for tragic accidents and its firm entrance into the realm of personal liability. In particular, Dederer emphasises a requirement for young people to be held accountable for their reckless actions, despite the effects of the 'exuberance of youth'.

The case concerned Phillip Dederer, the plaintiff, who was rendered partially paraplegic when he dived off the Forster-Tuncurry Bridge into a river in northern New South Wales. (2) The accident occurred at about midday on New Year's Eve, 1998, during the school holidays when the plaintiff was 14 and a half years' old. (3) The evidence established that the Roads and Traffic Authority of New South Wales ('RTA') was well aware of the dangerous behaviour that many young people engaged in, which was jumping from the bridge into the river below. (4) Despite this common practice having continued for many years, there had apparently been no record of injury in the 39 years since the bridge was built until the plaintiff's fateful dive. (5)

The decision of the majority of the High Court in Dederer that a minor should bear full responsibility for the consequences of this tragic accident represents a discernible shift in common law attitudes towards personal responsibility and liability in respect of accidents involving children and young people. In the past, the common law has demonstrated great flexibility in its willingness to accommodate the exuberance of youth through applying contributory negligence against a youthfully careless plaintiff. (6) The common law has typically used such a finding of contributory negligence to apportion liability instead of using the plaintiff's ignorance of a risk, which might be obvious to others, as a crucial determinant of the defendant's liability.

Certainly, there has been a general shift in recent years in the High Court's attitude in favour of asserting personal responsibility and being more conservative in its approach to the question of liability in respect of risks which should be obvious to all plaintiffs. (7) However, the cases that constitute this shift do not focus on the age of the plaintiffs concerned. (8) Furthermore, these High Court decisions have consistently failed to define how, and to what extent, obviousness of risk relates to the question of breach of duty on the one hand and contributory negligence on the other.

There is also a growing tendency within the Court to use considerations of obviousness of risk and failure by plaintiffs to take care for their own safety in limiting the scope of a given duty of care, at least in respect of defendants who are statutory or road authorities or occupiers. (9) This trend, if expanded to include all classes of defendants, would have a profound narrowing effect on the class of persons entitled to recover.

Unfortunately, the majority's decision in Dederer does not definitively resolve any of these issues. Instead, the majority of the High Court employed a technical dissection of the decisions below and almost overlooks the mitigating factor of age in its attempt to define more reasonable duties owed by defendants.

II THE FACTS AND CASE HISTORY

A The Plaintiff's Claim

The plaintiff claimed that the RTA had breached its duty of care to him by failing to warn him of the danger of the variable depth of the water below the bridge and by failing to install a redesigned railing along the side of the pedestrian walkway on the bridge. (10) The RTA, being the statutory successor to the NSW Department of Main Roads (which initially constructed the bridge), maintained the bridge as part of a NSW main road. (11)

The plaintiff argued that the bridge, as constructed and maintained, constituted a danger because the railings were horizontal (as opposed to vertical) with a flat top railing, making it relatively easy for persons to climb onto the railing and then to jump or dive into the river. Nevertheless, there were pictograph signs at either end of the bridge prohibiting diving which the plaintiff acknowledged having seen. (12) The plaintiff claimed, however, that the signs were inadequate as they should have warned him of the dangers of the variable depth of the water below the bridge. (13)

After commencing the original proceedings only against the RTA, the plaintiff subsequently joined the Great Lakes Shire Council to the proceedings on the basis that it was a roads authority, meaning that it had partial responsibility for the bridge. In fact, some years prior to the plaintiff's accident, the Council had erected the pictograph 'no diving' signs at either end of the bridge with the aid of funding from the RTA. Furthermore, Council rangers patrolled the area on and around the bridge from time to time. (14) The Council was also aware of the widespread practice of young persons jumping and diving from the bridge, notwithstanding the presence of the signs and the activities of its rangers. (15)

B Tort Law Reform Legislation

Interestingly, the recent tort law reform legislation--the Civil Liability Act 2002 (NSW)--applied only to the case against the Council because the Council was joined to the proceedings after the Act had commenced. On the other hand, the proceedings against the RTA were brought before the commencement of the legislation. Consequently, the claim against the RTA was decided entirely on common law principles. In contrast, the case against the Council was determined on the basis of the legislation. On appeal, the case was ultimately decided in the Council's favour.

C At Trial

At first instance, the case was heard before Dunford J in the NSW Supreme Court. (16) Although the plaintiff's claim against both defendants was successful at this stage, his damages were reduced by 25 per cent for contributory negligence. (17) His Honour found that both the Council and the RTA knew of the frequency with which young persons jumped and dived off the bridge and that the bridge was an 'allurement' to young persons. (18) His Honour also held that the RTA and the Council were negligent in their failure to warn the plaintiff of the danger of shallow water beneath the bridge. (19) Furthermore, Dunford J held that the RTA's failure to modify the bridge railings to make climbing onto and jumping off the bridge more difficult was also negligent. (20) The RTA and the Council appealed the decision.

D NSW Court of Appeal

The appeal by the Council was allowed on the basis that s 5L of the Civil Liability Act 2002 (NSW) afforded the Council a complete defence against the claim (21) because the plaintiff was injured by 'the materialisation of an obvious risk of a dangerous recreational activity'. (22)

Meanwhile, although the RTA's appeal failed on the issue of liability, the Court of Appeal increased the reduction to the plaintiff's damages for his contributory negligence to 50 per cent. (23)

Ipp JA, with whom Tobias JA agreed (Handley JA dissenting), held that the RTA owed the plaintiff a general duty of care because it had 'constructed the bridge and created the danger. The danger being the allurement to people, particularly children, to jump or dive off the railings'. (24)

Ipp JA further found that the RTA exercised control over the bridge, was responsible for its maintenance, promoted pedestrian safety, erected signs on the bridge and knew that the pedestrian walkway attracted large numbers of people. Moreover, his Honour held that the RTA knew of the widespread practice of young people jumping and diving off the bridge:

the serious risk of devastating injuries to those engaged in such activities must have been obvious to the RTA. The RTA knew or ought to have known that particularly in the summer months, jumping and diving was occurring with startling frequency, involving at times, groups of young people every five or ten minutes, with a group capable of comprising 10 to 15 children aged 10 years to 16 years. (25) The majority in the NSW Court of Appeal held that the RTA's reliance on the 'no diving' signs was, in all the circumstances of the case, an insufficient and unreasonable response to the risk of injury, particularly as the RTA knew that the signs were ignored by persons jumping off the bridge. (26) A further response was required for the RTA to satisfy the reasonableness criterion, namely, signage which specifically referred to the possibility of shallow water...