Great Lakes Shire Council v Dederer & Anor: Roads & Traffic Authority of NSW v Dederer & Anor  NSWCA 101
The NSW Court of Appeal recently dismissed a claim for personal injury against a local Council where the Council was joined to the action after the commencement of the Civil Liability Act 2001 (NSW). The Court however maintained a claim arising from the same facts against the RTA. A finding of liability was maintained even though the RTA had erected signs prohibiting the activity that caused the injury. The Court held that a sign no matter how appropriate is not an automatic, absolute and permanent panacea.
On 31 December 1998 the claimant dived off the Forster/Tuncurry bridge and was rendered a paraplegic. The claimant was 14 years and six months old at the time.
The RTA having designed and constructed the bridge, was regarded as having created whatever danger that it constituted. The bridge forms part of a main road and the Council was the roads authority in respect of it. In addition the council exercised a substantial degree of de facto control over the bridge and assumed responsibility for certain aspects of it.
There were pictograph signs on or at the approaches to the bridge prohibiting climbing and diving from the bridge. Prior to climbing the claimant saw and understood these signs, but ignored them.
The trial judge held that both the RTA and the Council were negligent, and apportioned responsibility between the RTA as 80 percent and that of the Council as 20 percent, responsible. The trial Judge found that the claimant was guilty of contributory negligence for his own injury in the order of 25 percent.
The RTA and Council appealed against the findings of negligence and apportionment of liability made by the trial judge.
On Appeal - Liability Of The Council
The Council was not joined as a defendant until after the commencement of the Civil Liability Act 2001 (NSW) (the Act). The Act provides, for no liability for harm suffered from obvious risks of dangerous recreational activities. The question of whether the risk is obvious is to be answered by reference to a reasonable person in the position of the claimant.
The Court held that the risk that materialised was an obvious risk of a dangerous recreational activity that the claimant was engaged in and that this would have been obvious to a reasonable 14 year old and that this would be the case even without the pictograph sign prohibiting diving. The court upheld the appeal by the Council and dismissed the claim against the Council.
On Appeal – Liability Of The RTA
The Civil Liability Act 2001 (NSW) did not apply to the claim against the RTA as that action was brought before the Act commenced. It was held that the RTA was to be held responsible for the construction of the bridge in such a way that it made it very easy for young persons to jump or dive off. Thus the bridge constituted an allurement to young people to engage in a dangerous activity. In these circumstances it was held that the standard of care that the RTA had to exercise was higher than that required from an authority that controls land where natural features constitute a danger to the pubic.
The Court held that the no diving pictograph impliedly warned against the danger. However in the circumstances a sign that prohibited diving and expressly explained why would have been more appropriate and would have been an inexpensive and reasonable step for the RTA to take and should have been taken.
The Court further held that the existing flat top hand rail did not comply with the geometric requirements specified in the 1992 Austroad Bridge Design Code. A triangular handrail would have made diving more difficult and it was not unreasonable to expect the RTA to modify the handrail. Thus the Court held that the RTA had breached its duty of care.
This decision highlights the effect of the Civil Liability Act 2001 (NSW). However in circumstances where the Civil liability Act 2001 (NSW) is to apply and where the danger is not obvious, it is important that the signage erected not only prohibit a dangerous activity but also explain why the activity is dangerous to effectively discharge any relevant duty of care.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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