The tort of negligence

This paper presents case studies discussing negligence law and looks at the law surrounding breach of the duty of care in negligence in the case of Vairy v Wyong Shire Council. The purpose of this paper is to find out the particulars of the case and list the points that are necessary in order for someone to be found negligent. It is important for the repellent to be aware of the facts and circumstances in which public authorities have been found to be negligent, and the way in which the courts dealt with the matters. This paper also explores some of the principles that the judges use in order to decide whether a person has broken his/her duty of care in the tort of negligence.


The tort of negligence is largely dependent upon the recognition of the existence of a duty of care owed by one person to another being breached by a failure to exercise care and skill. Within the remit of the law of tort, the recognition of a duty of care is a legal obligation placed upon an individual so that they must look to adhere to what is considered to be a reasonable standard of care so as to avoid any foreseeable harm to others. It is to be appreciated that, in tort, it has long been recognized that it is not possible for there to be liability in negligence without the claimant in any give case first looking to establish that they were owed a duty of care by the defendant and there had been a consequent breach of that same duty.

It is worth examining the decisions made by the judges in one of Australia’s leading and most contentious negligence cases in recent years. In the case of Vairy v Wyong Shire Council, the High Court dismissed the appeal in a 4:3 split decisions in which Vairy had failed in his bids to recover damages from the public authority in circumstances where there had been an alleged failure to warn of a risk of injury in connection with diving into coastal waters of variable depth. The plaintiff dived from a rock platform into the sea and was rendered a telephratic. There were no signs warning of the risks of diving into water and this was argued, constituted a breach of duty owed by the defendant. The trial judge awarded damages on the basis that there had been a breach of duty of care but the New South Wales (NSW) Court of Appeal overturned this in a 2:1 decision.

(Please refer to Annex A for the full case details of Vairy v Wyong Shire Coucil)

The Litigation

At trial, Justice Virginia Bell (Bell) held that Wyong Shire Council (Wyong) owed Vairy a duty to take reasonable care to avoid a foreseeable risk of injury being occasioned to him. Wyong had the care, control and management of the platform and was aware of the use by the public. The council knew or ought to have known that the ocean floor adjacent to the rock platform would vary in depth as a result of the significant movements in sand along the eastern coast and those variations in the level of the seabed posed a danger for people diving from the rock platform.

Bell considered that the obviousness of the risk was relevant in determining the content of the reasonable response of Wyong to what she had held to be a foreseeable risk of injury. She found the risk of significant injury was not so obvious and that it’s magnitude required its elimination by placing a sign prohibiting diving or at minimum a warning sign. She found the council liable for Vairy’s injuries as they had failed to take adequate steps to warn the public of a foreseeable danger and thus breached the duty of care that it owed him. However she also found Vairy 25% for contributory negligence as he had failed to assess the depth of the water before diving.

NSW Court of Appeal

The majority of the judges held that the danger of diving into water of unknown and variable depth was both obvious and inherent . Wyong’s knowledge of the variation in depth was neutralized by the obviousness of the risk of injury attached to diving into water of variable and unknown depth and thus Wyong’s reasonable response did not require a warning. The judges also held that Bell had erred by defining the risk at too narrow a level of abstraction. They noted that the Bell’s findings regarding causation were not in error but she had failed to give significant weightage to factors relevant to contributory negligence. Based on the fact that Vairy had seen other people dive into the water without mishaps on numerous occasions, contributory negligence a should be 55% instead of 25%. The decision was further accentuated by his knowledge of his former uncle-in-law’s diving injury. As Vairy had failed to take proper care of his safety in the face of a risk that was obvious under the circumstances, the failure to warn or to take any steps did not constitute to a breach of any owed duty of care.

In dissent regarding breach of duty, Justice Beazley JA noted that in spite of the fact that diving from a rock into the ocean is intrinsically dangerous, Bell was not in error to conclude that the council had breached its duty by failing to erect warning signs based of factors of particular relevance. Firstly, it was impossible to gauge the depth of the water accurately just by observation from the rock platform. Secondly, most people who dived from the platform assessed the risk by observation and reference of other people who were diving. These two factors were taken in conjunction with the fact that the local life guards had occasionally warned people against jumping and diving but were usually peremptorily ignored. Beazley JA took in regards that Vairy had been a frequent visitor to the beach and was an experienced swimmer. Relevantly, he was influenced by a similar case when a user of the beach had become a paraplegic when he jumped into the water from the rocks and after the accident; there was a proposal to put up a warning sign on the rock platform.

In finding that the risk was an obvious one and no warning sign was necessary, the Court of Appeal overturned Bell’s decision and found no obligation on the Council to warn of the danger of diving from the rock platform.

Criticisms against the Court of Appeal decisions

The dissenting judgments arose from a difference of opinions as to whether the evidence at trial established that the rock platform from which Mr Vairy dived was special enough to warrant the erection of a warning sign. The judges were extremely critical of the approach taken by the majority of the NSW Court of Appeal. In their opinions, Vairy should succeed in the claim and Bell was correct in finding that there should have been a sign warning of the dangers of diving off that particular rock platform. Justice McHugh, in particular, was critical of the concept of obvious risk and commented that "it is not the law that a defendant has no duty to take reasonable care for the safety of the plaintiff or that no warning is required if the risk of injury is, or ought to be, obvious to the plaintiff."

The judges referred to the following reasons for their decision:-

• The rock platform where Vairy had dived from into the water was an area fraught with the risk of serious injuries to divers

• If diving from the rock platform into the water contains a risk of injury, its apparent safety by large numbers of people diving into it without apparent harm will make it a trap for the unwary. When such situation arises, it is imperative for the Council to warn participants of the danger. The Council permitted diving to continue at this spot despite its knowledge of the dangers, reasonable care required that it to warn those who did not have the Council’s knowledge (of the variable sand movement) or who had become desensitized to the risk.

The majority of judges disagreed and found no warning sign was necessary. In assessing the extent of the Council’s duty to erect warning signs, the correct approach was to examine whether the risk of injury was reasonably foreseeable to the council and not whether it was obvious to the plaintiff. The duty of the Council did not include an obligation to erect a warning sign to prohibit entry into the water from the platform, or to construct a fence or other barriers to deny access to the platform. Justice Hayne commented that "It was not reasonable to expect the Council to warn of this particular danger. The Council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discoverable by someone contemplating diving or plunging into the water at some point." He further criticized, in the obviousness of risk referred to by the Court of Appeal that “Reference to a risk being “obvious” is apt to mislead and cannot be used as a concept determinative of questions of breach of duty”. Essentially the Court looked at what a reasonable Council's response would be to the risk that a person would be injured by diving or plunging into water that was too shallow.

In conclusion to their decision, the majority of the judges found that;

• in determining what constitutes to a reasonable response, consideration must be given to the magnitude and probability of the occurrence of the risk, expense and difficulty of taking alleviating action and other conflicting responsibilities of the Council

• the public are exposed to a multiplicity of dangers whenever they attend beaches or rock headlands. It was doubtful that there was anything to distinguish the rock platform from the other areas and hazards along the 27 kilometers of coastline which Wyong managed

• the Council had not encouraged people to enter the water from the rock platform. It’s control over the rock platform was not such that it could be said to have created the risk of injury, it had done nothing to make the danger worse and had no knowledge of a feature of the area that was not readily discovered by someone contemplating diving off the platform

• while the risk of injury is always present and foreseeable wherever there is a body of water into which people may dive, it does not follow that the person with care, control and management of the land must always take steps to warn against or prohibit diving. It is necessary to consider what ought to have been done in relation to the rock platform itself, but attention is not to be confined only to the rock platform or diving injuries. Regards must be had to all of the land which the Council was responsible for and any assessment of a reasonable response must not be limited to the prevention of one type of injury with one form of recreational activity.

Analogous negligence case

Clearly, in the case of Ballerini v Berrigan Council , the obviousness of risk is less important as compared to Vairy v Wyong Shire Council. This tragic case involves a person diving into shallow water. The court recognized the increasing concern about the extent to which it is appropriate to assume that those to whom a duty is owed will take care of themselves. Whilst the importance of this consideration was acknowledged, it was also recognized that there are other factors which must be considered that may ‘neutralize’ the impact of the obviousness of the risk. In this instance, the Berrigan Council’s swimming area was maintained by the defendant and was known to be a popular summer place for school children. The factors which were deemed to counter the obviousness of the risk were the reputed safety of the swimming hole, the plaintiff’s past experience and the age of the potential plaintiffs. The court said that whilst there is an obvious risk involved in diving into murky water, this was outweighed by the other considerations, meaning that a duty to place warning signs was established.

Comparative Case Law: United States

In terms of comparative law, it is interesting to consider the case of of Hagy v McHenry County Conservation District whereby the court rejected an appeal by a minor who had sued the owner of a creek for injuries sustained when he dived into the muddy water of the creek and was injured. It was held that the muddy water presented an obvious risk that it may be too shallow for the diver to execute a safe dive. Justice Unverzagt J who delivered the opinion of the court, considered that a head first vertical dive from a height into a creek of uncertain depth constituted an obvious risk and one which ought to have been appreciated by the 15-year old plaintiff. He noted that the muddy water presented the obvious risk that will be too deep for the non-swimmer or to shallow for the diver. He also noted that the soft sand on the bottom of a body of water shifts with currents and disturbances and is a condition that an adult reasonably could be expected to understand.

The case of O'Sullivan v Shaw O'Sullivan concerned a man who suffered a spinal injury after diving headfirst into the shallow end of a backyard pool. The dive was executed in the dark of night such that the plaintiff did not know the depth of water into which he was diving. However, the existence of a diving board in the deep end was said to have been suggestive of the fact that the opposite end of the pool was shallow. Although O'Sullivan testified that he knew he was diving into the shallow end and knew he could be injured if he hit his head on the bottom, he argued that the landowners were under a duty to warn him of the dangers of diving into the shallow end of the pool. Justice Lynch J stated that in determining whether there was a duty to warn, the inquiry was to focus upon the reasonable conduct of the defendant, all the while assuming that a plaintiff could be expected to exercise reasonable care for his or her own safety.

The Court ruled that comparative negligence when the plaintiff voluntarily exposes himself to a known danger caused by the defendant's negligence. This case was not a matter of contributory negligence or assumed risk; it was instead a no duty rule. Since no harm was foreseeable, then there is no duty to warn.

Implications for the Council and Tourism Industry

If a tourist is accidentally injured while visiting Western Australia, he or she may seek damages in the tort of negligence. However, what would the result be if it had been a child or an international visitor?

There are many risks associated with recreational activities undertaken by the public. It is clear that the High Court has issued a warning in the case of Vairy that. to classify a risk as obvious is incorrect and proceed to consider other relevant circumstances on the basis that there is some sort of prima facie case for concluding that the risk, by its obviousness, falls beyond the scope of duty of care. In short, the starting point in the resolution of the issue of breach is not to ascertain whether the danger would have been so obvious as to excuse the defendant from contemplating what should be done to eliminate or minimize the risk. What is required is the much broader task of considering what might have been done reasonably and having regard to the predicament and the perspective of the defendant immediately prior to the accident, to eliminate the risk posed by the danger.


The criticisms by the majority in High Court were mainly concerned what was considered to be a misplaced focus and emphasis on the obviousness of the danger encountered by Vairy. A common view amongst members of both the majority and the minority in the High Court was that it is a mistake to examine the question of breach of duty of care from a perspective that begins with an enquiry as to whether the risk that gave rise to the injury was obvious. The point being that many of the most obvious dangers is those requiring some preventative action such as a warning and that a full consideration of all circumstances, such as the number and type of people known to be exposed to the risk, is required.

Conversely, the court also emphasized that this is not to be elevated into a doctrine or general rule of law. Rather, the importance of considering all of the circumstances was highlighted, including obviousness of the risk. In the cases mentioned, any awareness that the defendants had of the risks were deemed to be ‘neutralized’ by the fact that the injured plaintiffs were aware that the water which they were diving was not only of variable depth, but also of unknown depth, and it was this knowledge which rendered the risk obvious, thus eliminating any duty to warn. Whilst the significance of the nature of the risk was recognized on appeal to the High Court, its decisive role was clearly rejected, with recognition that it will be unusual for the nature of the risk to require no action, and that reference to a risk as ‘obvious’ may well mislead any legal enquiry.

Finally, the decisions mentioned in some cases have reaffirmed the approach taken by the courts and the legislature in recent years. Personal responsibility clearly remains a cornerstone of legal decision-making and legislative reform.

Annex A

Vairy V Wyong Shire Council (2005)

Mr Earnest Vairy lost the court case and pay the

On 24 Januay 1993, Earnest Vairy was rendered tetraplegia when he dived into the sea from a natural rock platform at Solders Beach, a popular New South Wales (NSW) surfing beach. Solders Beach is one of the six patrolled beaches within the 27 kilometers of coastline managed by Wyong Shire Council (Wyong). The rock platform and the lifesaving club are at the northern end of the beach, accessible from the car park provided by Wyong. At the time of the accident Soldiers Beach was a popular surfing and recreation spot. Wyong had provided a number of amenities including a substantial bituminized public car park at the top of the northern headland from which both the beach and rock platform could be accessed. Relevantly, the rock platform was accessible by a set of low wooden steps, which joined a gravel path. This path led to the rocks at the base of the headland near the point where the rock platform commenced its extension into the sea. It was Wyong's policy at the time of the accident to promote tourism by encouraging members of the public to visit the patrolled beaches within its Shire including Soldiers Beach. It was aware at all relevant times that the car park located on the northern headland enabled the public to gain access more readily to a number of points on the coastline including the rock platform.

At the time of the accident, the former contractor, then 33, had been living near Soldiers Beach for approximately four years. He was aware that his former wife's uncle had suffered a severe spinal injury as a result of a diving accident on the Nepean River several years before he and his former wife were married. In the four years leading up to the accident, Mr Vairy had frequented Soldiers Beach in the summer to engage in swimming, snorkeling and fishing. He recalled seeing people traverse the gravel path that led from the car park to the rock platform and observed people diving and jumping from the rock platform. On the day prior to the accident, when snorkelling off the western side of the southern tip of the rock platform, he had duck-dived in an attempt to pick up an object lying on the seabed but was unable to recall how deep the water was, only that he thought it was "a fair way down".

On the day of the accident, Mr Vairy, with members of his extended family, entered the surf for a swim. He first swam at the northern end of the beach before walking to the nearby platform with his 11-year old niece. His niece wished to visit the rock platform and Mr Vairy agreed to accompany her. The platform was visible from where they stood and people could be seen jumping and diving from it. He recalled that as he approached the rock platform he had it in mind to dive from it. Upon arriving at the platform, he and his niece spent approximately five minutes standing and watching people diving, jumping and bombing into the water from it.

While the seabed was visible from the point on the rock platform from which he dived (the dive location), Mr Vairy did not take any steps to assess the water's depth at that point. Instead, he assumed that it was safe for him to dive. The reasons for his assumption were two-fold: firstly, because he had seen others dive in the five minutes leading up to his own dive; and secondly, because he had seen others dive from the rock platform over the years that he had been visiting Soldiers Beach and on no occasion had he seen anyone sustain an injury from doing so. Having assumed that diving from the rock platform was safe, Mr Vairy did so and was injured.

Mr Vairy sued Wyong for failing to warn of the danger by putting up signs or conducting regular patrols. At trail, the judge awarded Mr Vairy $6.7 million but reduced the amount by 25 per cent for contributory negligence, finding that he had failed to take reasonable care for his own safety by not making any independent assessment of the depth of the water before he dived in and this was brought to the NSW Court of Appeal. The Court of Appeal overturned the decision saying the risks of diving from the platform should have been obvious and therefore there was no need to warn swimmers.

Mr Vairy was also ordered to pay the council's costs for both the trial and the appeal.


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