Negligence Is Considered As Breach

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Negligence Is Considered As Breach

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Negligence Is Considered As Breach

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Introduction
Negligence is considered as a breach of duty of care, which results in the other person incurring loss or injury, due to the actions of the breaching party (Latimer, 2012). For making a claim of negligence, there has to be a duty of care, the breach of duty, the resulting injury, direct causation between the injury and breach of duty, the foreseeability of loss and the loss being not too remote (Bailey, 2016). Only when these elements are present, can a successful claim be made for negligence. And only then the claim for damages can be made. However, there are cases, where the amount of damages awarded to the plaintiff, are reduced. One of such incidents takes place when a case of contributory negligence is established, as per which, the plaintiff himself is held as a contributing factor for the injuries received by him (Gibson & Fraser, 2014).
The case of Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, is one of such cases, where both of these principle where held as being present by the court (Sappideen et al. 2009). In the following parts, a summary of this case has been presented, along with the claims made by the plaintiff.

Facts of Case
In the case of RTA v Dederer, Mr. Dederer was a 14 year old boy, who was the plaintiff in this. He had dived off the Forster/Tuncurry Bridge, as a result of which he was rendered a paraplegic. This particular area was a famous Accounting amongst the tourist and since past few years, the same had been used by the youth to jump and dive frequently, into the estuary below, off the bridge. Since the plaintiff was a child, he had spent his holidays in this area and had observed the children, as well as, the adults indulging in jumping or diving in the river from the bridge and that too frequently (The Federation Press, 2007).
The plaintiff knew that the estuary was prone to tidal action, specially the particular area. And he also knew that the depth of the water could drop in a sudden manner at the sandbar’s edge. Along with this, he knew that the water was very deep in the channel. But due to the flow of water under the bridge, the depth of the water could not be judged easily. When the plaintiff dived into the river from the bridge, his head was struck over the sandbar, as a result of which, he became paraplegic (Hemming, 2007).
There was a presence of pictography signs when an individual approached the bridge, which prohibited diving and the wordings of these restricted the climb over the bridge. Even though these signs were seen by the plaintiff, he ignored the same. There was a clear evidence to show that RTA knew that people humped off this bridge frequently. And yet the only step RTA took was to confer with police so that the same could be prevented. Though, the prohibition against jumping did not bear any fruit. The pictorial signs were replaced by the RIA with “No Diving” signs and yet the same could not prove as much help (Jenkins, 2007). And the jumping by people off the bridge was continued. No accidents have occurred in the past with regards to the diving off the bridge. Upon being asked that the signs prohibited diving and yet the plaintiff jumped, he replied that the signs only asked not to jump and did not warn him about the dangers of jumping in the river. As a result of this incident, claims were initiated by the plaintiff against RTA and Great Lakes Shire Council owing to their negligence (High Court of Australia, 2007).

Plaintiff’s Claim
It is quite clear in this case that the RTA owed a duty of care towards the plaintiff, as they failed to warn the plaintiff about the danger of the variable depth of the water, which was below the bridge (Hearsay, 2007). Moreover, this duty of care was also breached as RTA failed in installing a redesigned railing alongside the pedestrian walkway over the bridge. As the RTA was the statutory successor to the body, which constructed the bridge initially, i.e., the New South Wales Department of Main Roads, it made the RTA responsible for the maintenance of the bridge, as being the part of the NSW main road (Stewart & Monahan, 2008).
The plaintiff would also like to raise the issue that the bridge, in the manner in which it was both constructed and being maintained, constitutes a huge danger, due to the railing being horizontal, as opposed to being vertical, along with having a flat top railing, which made it relatively easy for the individuals to climb upon these railing, and consequently diving into or jumping in the river. It is accepted by the plaintiff that there was a clear presence of pictograph signs at both of the ends of the bridge, which restricted the diving into the river, and the plaintiff acknowledges to have seen the same. However, the plaintiff would like to clarify that these particular signs are not adequate in nature. This is because these pictographic signs should have acted as a warning to the plaintiff to the dangers of the variable depth of water, which was present below the bridge (Stewart & Monahan, 2008).
Even though the proceedings were only initiated against RTA, the plaintiff would request the court to join to these proceedings the Great Lakes Shire Council, as it was the roads authority, as a result of which, they were partially responsible for the bridge. The plaintiff would also like to the notice of the court that only a few years ago, the ‘no diving’ signs were erected by the Council at the end of the bridge, with the help of funds received from RTA. Along with this, the ranger of the Council patrolled the area on, as well as around the bridge, in a timely manner. This is in addition to the awareness and knowledge of the Council regarding the widespread practice of the youth diving, as well as, jumping in the river from this bridge, even though the signs were present and the activities of the rangers were continued (Stewart & Monahan, 2008).
The key point in this case is that RTA was well aware about the fact that the young people were repeatedly diving of the bridge. This made the risk of a serious injury more obvious and apparent for RTA. Moreover, RTA should have clearly been aware about the ineffectiveness of the pictographic signs as they failed in prohibiting the people from diving. The majority of visitors to the bridge were youth people or children, and RTA could not make an assumption that such young people would be able to take care of their safety in a reasonable manner. The jumping off the bridge was an allurement and gained excitement for the kids, which led to the increase in chances of this risk. Hence, RTA was required to apply a standard of care towards the visitors, and should have exercised higher number of measures, due to being an authority which controlled the land, where the natural features of this land, formed as a grave danger for the visitors (Gleeson et al 2007).
The signs which restricted the diving into the river, had to explain and emphasis in an express manner, the nature of danger, which could have resulted in the signs being more effective than they actually were, or than they were actually proposed to be. This would have been a reasonable and even an inexpensive step on part of RTA, which should have been adopted to take the requisite measures to stop the kids. There was also an absence of a triangular top to the fence, which could have stopped the plaintiff or the other kids from diving into the river. Further, if the same had been combined with a fence as is found in pool, along with a different sign, the accident could have been possibly prevented (Gleeson et al 2007).
Failing to weigh the magnitude of risk, along with the degree of probability that such an incident could take place, the RTA failed in their duty of care. It was the duty of RTA and the Council to warn the individual who jumped in the river, from the bridge, to warn them in an effective manner, of the dangers of doing the same. The defendants could not simply ignore the fact that the signs were being utterly disregarded, Marketing deemed it necessary on them, to take further steps in this regard, in manner of putting different warning signs, which were actually effective, modifying or otherwise amending the bridge, so that the injuries to the plaintiff or the risk of injury to others, could have been avoided (Gleeson et al 2007).

Summary of Case
In this case, both the plaintiff, and the defendant were held as guilty. The defendant was held as being negligent and the plaintiff was considered to have been indulged in contributory negligence, as he ignored the signs which were erected. Moreover, the judges held that a reasonable person, who was the age of plaintiff, would have understood in an obvious manner, that jumping or diving in the river could prove as fatal or risky. A prudent 14.5 year old child would have known that that dive was not only dangerous but also could lead to injuries which would be catastrophic in nature. There was a presence obvious risk as per Division 4 of the Civil Liability Act 2002 (NSW). Moreover, as per Vaughan v Menlove (1837) 132 ER 490 (CP), the plaintiff failed to take the reasonable care (Parliament, 2007). In the quoted case, Menlove had failed in paying heed to the warning given by others and hence, he was held to have breached the duty of care, which led to him being negligent (Commonwealth Legal Information Institute, 2017).
In this case, an amount of $840,000 was awarded to the plaintiff by the Supreme Court of NSW. However, the plaintiff was held to have contributed towards to his injuries by 25% and hence, the awarded damages, were reduced by this percentage. The damages had to be paid in 80% by the RTA and 20% by the Council for their negligence (Glendenning, 2017). When an appeal was made in the NSW Court of Appeal, it was upheld against this particular decision made against the council, though the appeal of decision against RTA was dismissed. Further, the NSW Court of Appeal increased the percentage of contributory negligence of the plaintiff from 25 to 50. An appeal was made to the High Court of Australia against RTA. And on this, a cross appeal was made by the plaintiff for the increase in contributory negligence (O’Grady, 2007).
The cross appeal was dismissed and the appeal of RTA was upheld by the High Court. The court was of the view that the duty of care, pertaining to a reasonable exercise of care, does not put a compulsion or duty for preventing a conduct which could be potentially harmful. It was also established by the court that the duty of RTA was only to make certain that the road was safe for the users, who were taking the requisite care, which was reasonable on their part, towards their own safety. By erecting the “no diving” signs, the court held that RTA had acted in a reasonable manner towards the risk. And it was also held that it was not required on part of RTA to erect the fences in order to stop the people from jumping or diving into the river from the bridge (Sykes, 2008).
Through this verdict, the approach taken in Wyong Shire Council v Shirt (1980) 146 CLR 40 by the High Court, and which was later on reaffirmed in Wyong Shire Council v Vairy (2005) 223 CLR 422, regarding the breach of duty being considered in the light of the view of a prudent individual, for avoiding the risk of injury (Gleeson et al 2007).

Conclusion
This case acts as a landmark verdict in not only the contributory negligence of an individual, but also brings an approach that the response to risk on being reasonable on part of defendant, had to be considered in cases of negligence. And so, instead of applying the stringent requirement of preventing the injury, the reasonableness has to be considered. And aptly, the plaintiff and defendant were held as 50% liable towards the injury received by the plaintiff.

References
Bailey, J. (2016). Construction Law (2nd ed.). Oxon: Routledge.
Commonwealth Legal Information Institute. (2017). Vaughan v Menlove. Retrieved from: https://www.commonlii.org/uk/cases/EngR/1837/424.pdf
Gibson, A., & Fraser, D. (2014). Business Law 2014 (8th ed.). Melbourne: Pearson Education Australia.
Gleeson, C.J., et al. (2007). Australia: Roads and Traffic Authority of NSW -v- Dederer [2007] HCA 42. Retrieved from: https://www.mondaq.com/australia/x/51912/cycling+rail+road/Roads+and+Traffic+Authority+of+NSW+v+Dederer+2007+HCA+42
Glendenning, B. (2017). Great Lakes Shire Council v Dederer & Anor: Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101. Retrieved from: https://www.findlaw.com.au/articles/2084/obvious-risks-of-dangerous-recreational-activites-.aspx
Hearsay. (2007). High Court of Australia Judgments – Summary Notes. Retrieved from: https://www.hearsay.org.au/index.php?option=com_content&task=view&id=181&Itemid=45
Hemming, A. (2007). Roads And Traffic Authority Of New South Wales V Dederer: 20/20 Hindsight Or An Accident Waiting To Happen? A Timely Opportunity To Revisit And Reappraise Shirt. Retrieved from: https://www.austlii.edu.au/au/journals/JCULawRw/2007/3.pdf
High Court of Australia. (2007). Roads and Traffic Authority of NSW v Dederer [2007] HCA 42. Retrieved from: https://eresources.hcourt.gov.au/downloadPdf/2007/HCA/42
Jenkins, L. (2007). Litigation & Dispute Resolution. Retrieved from: https://www.allens.com.au/pubs/ldr/fodrsep07.htm
Latimer, P. (2012). Australian Business Law 2012 (31st ed.). Sydney, NSW: CCH Australia Limited.
O’Grady, P.T. (2007). Roads And Traffic Authority Of NSW V Dederer [2007] HCA 42 | 30 August 2007. Retrieved from: https://peterogrady.com.au/2014/08/30/roads-and-traffic-authority-of-nsw-v-dederer-high-court-of-australia-30-august-2007/
Parliament. (2007). Roads And Traffic Authority Of New South Wales V Dederer And Another. Retrieved from: https://www.parliament.vic.gov.au/archive/council/publicland/Transcripts/%5B2007%5D%20HCA%2042.pdf
Sappideen, C., at al. (2009). Torts, Commentary and Materials (10th ed.). Pyrmont: Lawbook Co, pp. 390-6.
Stewart, P., & Monahan, G. (2008). Roads And Traffic Authority Of New South Wales V Dederer. Melbourne University Law Review, 32, 739-761.
Sykes, P. (2008). Waiver of Legal Professional Privilege. Retrieved from: https://www.ags.gov.au/publications/litigation-notes/LitNote17.htm
The Federation Press. (2007). Roads and Traffic Authority of New South Wales v Dederer. Retrieved from: https://www.federationpress.com.au/pdf/RTA_v_Dederer.pdf

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