BARRY.NILSSON. Lawyers

Vairy v Wyong Shire Council (2005) HCA 62
Mulligan v Coffs Harbour City Council (2005) HCA 63

The Facts

The two appeals were heard together by the High Court. Both cases involved plaintiffs who had suffered catastrophic injuries as a consequence of diving into shallow water. Briefly, the facts in each case are as follows:-

Vairy: Soldiers Beach is a well known surfing beach half way between Sydney and Newcastle, within the Wyong Shire. It is one of six patrolled beaches within that Shire. Mr Vairy?s accident happened on 24 January 1993 at which time he was 33 years of age. He was a frequent visitor to Soldiers Beach. On the day in question he was swimming in the surf with his young niece. After leaving the surf Mr Vairy and his niece walked to a rock platform where people were diving and jumping into the ocean. Mr Vairy climbed onto the platform at a height of around 1.5 metres at which point he was unable to see the depth of the water below. He assumed it was safe to dive and entered the water head first at an angle of 45 degrees, hitting the seabed, as a consequence of which he became a tetraplegic. The Council had constructed a car park near to the rock platform with access to the platform provided by a set of low wooden steps and gravel path. Lifesavers at Soldiers Beach often warned swimmers against diving off the platform, but these warnings were generally ignored. There had been an earlier tragic accident in 1978 when another diver from the platform had also struck the ocean bed and been rendered a tetraplegic. Members of the Council were aware of the earlier incident.

Mulligan: Mr Mulligan was an Irish tourist holidaying in the Coffs Harbour region. He and a friend had been swimming for about half an hour in a tidal estuary adjoining the Pacific Ocean at Coffs Harbour. Standing in water about thigh deep he dived into the estuary and hit his head on the sand, as a result of which he now lives as a quadriplegic.

The Litigation

Vairy: The trial judge found for the plaintiff. She was satisfied that the risk that a person might suffer severe injury diving from the platform was foreseeable, and that risk ought to have been addressed by erecting warning signs prohibiting diving, or at least warning of the dangers of it. She then reduced the award of damages by 25% for contributory negligence on the part of the plaintiff. Judgment was entered for a bit more than $5 million plus costs. The defendants appealed to the New South Wales Court of Appeal. The appeal was upheld. The Court of Appeal took the view that the risk of injury attaching to diving into water of variable and unknown depth was obvious and ought to have been apparent to Mr Vairy at the time. Mr Vairy appealed to the High Court.

Mulligan: The trial judge found for the defendants and held that reasonableness did not require the public authority to warn of the danger which Mr Mulligan encountered. The incident itself was fairly unremarkable i.e. standing in a tidal estuary and diving into it. The trial judge assessed damages at approximately $9.5 million as the amount the plaintiff would have received if he had succeeded. The trial judge?s decision was upheld unanimously by the Court of Appeal. Mr Mulligan appealed to the High Court.

The High Court Appeal

Vairy: In a 4:3 split decision, the High Court dismissed the appeal.

The majority of 4 came to their decision for the following reasons:-

• The duty of the Council did not include an obligation to erect a warning sign(s) to prohibit entry into the water from the platform, or to construct a fence or other barrier to deny access to the platform entirely.
• The Council had within its control 27 km of coastline, along which there were many places of natural hazard. Having regard to other demands upon the Council, it should not be held negligent for not singling out this particular platform for special warning or prohibition of diving.
• The danger of diving into water that is too shallow is only one of the risks attaching to swimming in the sea. In addition the Council had to consider many other forms of recreation conducted in many different areas over which the Council had the care, control and management. Swimming was but one of these many forms of recreation, each of which had its own risks and dangers.
• The placement of the car park near to the rock platform cannot be seen to be a case of the Council encouraging persons to use the rock platform as a point from which to enter the water.
• Nearby was a patrolled beach and to enter the water from the rock platform was to act contrary to the basic prudential rule governing swimming at a patrolled beach i.e. to swim between the flags.

The 3 minority judges referred to the following reasons for their decision:-

• The area where Vairy dived was one where many people dived. Diving in that area was frought with the risk of serious injury to divers.
• If the water does contain 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 a situation arises it is imperative for the controller of the land to warn swimmers of the danger. Given that the Council permitted diving to continue at this spot despite its knowledge of the dangers, reasonable care required that it warn those who did not have the Council?s knowledge or who had become desensitised to the risk.

Mulligan: The High Court unanimously dismissed Mr Mulligan?s appeal. Reasons supporting the judgment included:-

• The danger that materialised was one that exists at virtually every Australian beach and in most waterways. It is one of the many dangers involved in swimming. It is difficult to see how such common dangers can be addressed by particular warnings at particular locations.
• Short of prohibiting swimming in the channel ? which would probably also mean prohibiting swimming in the creek generally ? there was no practical way that the Council could eliminate the physical risk of a swimmer striking a sand dune unless they greatly deepened the channel.

Comment

It is difficult to argue with the decision in Mulligan and that is reflected by the unanimous decisions of both the New South Wales Court of Appeal and the High Court.

Vairy involved a number of differing opinions. Combining the judges on the New South Wales Court of Appeal and the High Court it was a 6:4 majority in favour of the Council bearing no liability. The High Court was quick to point out that each case of this sort turns on its facts and there can be no one precedent applicable to ?diving cases?. If one of the 4 judges comprising the majority in the High Court had come to the opposite view then the Council would have found itself at the end of an award of damages in excess of $5 million.

It seems that the High Court majority were influenced by the large number of people who actively participate in Australia?s beach culture and the fact that it is not only diving off rock platforms which poses a risk to one?s health, but also dangers arising out of moving sandbars, rips, sharks, blue bottles, sun bathing, large waves and swimming generally. If a Council is required to warn against all such dangers at all points where people may foreseeably enter the water, then there would be a long line of warning signs from Cooktown to the Great Ocean Road and beyond.

For further information on this topic, please contact, Robert Samut.