Not to cut quantum meruit’s grass or anything, but I presume that some whining about Dederer v Roads and Traffic Authority [2005] NSWSC 185 (Lawlink, AustLII) is in someone’s future, possibly Janet Albrechtsen’s or Overlawyered’s. The SMH story gives some of the flavour.
Before, uh, jumping to conclusions, I think it’s somewhat instructive to, well, read the case, much like my friend Nick, with whom I agree, has.
The lead of the SMH’s story is that there were “no diving” signs. Indeed there were. And the plaintiff saw them, and still dived. So shouldn’t it be caveat diver? Perhaps not. The evidence showed that the defendants (the RTA and the local council) both knew that people were still diving off the bridge, despite the signs (at [46]). The bridge’s design was part of its popularity for jumping (at [54]).
But they put up signs! What more could they do? Dunford J held (at [67]–[69]) that there was no risk assessment done after the sign was erected, and the sign didn’t turn the viewer’s attention to why jumping was prohibited, i.e., because it was dangerous, particularly because of the shifting size and position of a sandbar. Which leads to this passage, which I doubt will be reported (at [70]):
In my opinion, a warning sign containing words similar to “Danger, shifting sands, variable depth” should have been displayed either on the telegraph post or the bridge railing near where the plaintiff dived. Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed.
Alternatively, the RTA and the council could have made at least the handrail on the bridge conform with the current Australian Standards, at a cost of about $100,000, possibly less (at [71]–[75]).
In relation to the council, Dunford J had consistent reasoning (at [83]):
I am satisfied [the council] owed a duty of care to persons jumping and diving off the bridge to warn them of the danger, and when the “no diving” pictograms proved to be ineffective in this regard and the practice continued, it was not sufficient to do nothing, but it required the provision of warning, as opposed to prohibition, signs.
Other particulars of negligence were alleged (at [77]). The judge dismissed them all, except for the failure to properly sign (at [78]–[90]). He concluded (at [91]):
I am satisfied that the plaintiff has established a breach of the Council’s duty of care to him in the failure to provide adequate warning signs notifying of the danger of diving from where he did, but not otherwise.
And, as the SMH report notes, the damages award was reduced by 25% because of the diver’s contributory negligence. That he was only 14 and that he saw and disregarded warning signs was taken into account (at [92]–[93]).
I think this is one of those cases you’ll read about by someone railing for tort law reform, as an uncited entry in a litany of ills. But, I think, a proper reading of the case supports the view that the judge’s conclusion is sound, and hardly unreasonable.
Indeed, Overlawyered has noticed the case.
Dunford J’s point is, I think, well illustrated by this sign (via Boing Boing, though I’ve seen it somewhere else recently, too):
TOUCHING WIRES CAUSES
INSTANT DEATH
☠ $200 FINE ☠
Newcastle Tramway Authority
The sign doesn’t simply say: “do not touch wires”. It explains why someone shouldn’t touch the wires. (The fine is a nice touch, too.)
