Australian Case On Negligence: Roads And Traffic Authority Of NSW V Dederer

1.Research on an Australian case on negligence from the list below.

2.Select the party you wish to represent – i.e. Plaintiff or Defendant. There is no need to choose both parties.

3.Read the original text of your case and understand it.

4.Group report: Write a report outlining the following:

a.Case introduction.

b.The facts of the case.

c.The issues raised by both plaintiff and defendant.

d.The arguments presented by both parties.

e.The judgment of the court.

f.Critical analysis of why the court decided in favour of or against the party you chose (i.e. plaintiff or defendant). Some points to consider for your analysis:

i.If your chosen party won the case, why was its case stronger or more compelling than the other party’s case? Why did the court agree with its arguments?
ii.If your chosen party lost the case, why was its case weaker or less compelling that the other party’s case? Why did the court disagree with its arguments?

5.Group report must be submitted via Safe-Assign on Blackboard.
6.Group presentation: Present the report in class or video recording. Your lecturer will advise which is more appropriate.

a.If in-class presentation, all members must present on the day. If video presentation, groups must show to the satisfaction of the lecturer that all group members made a reasonable contribution to the group work. Students not participating in the presentation will merit a mark of Zero for presentation.

b.Non-compliance with this requirement will result in a failing mark or a fail will be recorded.

Video link must be uploaded to a publicly viewable video-sharing platform and the video link uploaded on Blackboard.

In Roads and Traffic Authority of NSW v Dederer (2007) HCA 42 case, the High Court upheld the appeal made by the Roads and Traffic Authority (RTA) regarding overturning the New South Wales Court of Appeal’s judgement. The case was related to a 14-year-old plaintiff who was partially paraplegic when dived off a bridge which was situated in Forster, New South Wales. In August 2007, the judgement was made in favour of RTA by stating that RTA owes a duty of care for ensuring the safety of people by exercising care however a duty cannot be imposed on RTA to prevent any dangerous conduct of people (Jade, 2007). In this report, the facts of the case will be discussed, and argument of both the plaintiff and the defendant will be discussed. This report will present the side of the plaintiff in this case. Furthermore, this report will analyse various reasoning posted by High Court was insufficient for providing justice to Philip Dederer.

In December 1998, 14-year-old, Mr Philip Dederer jumped off Forester Tuncurry Bridge into Wallamba River. Due to such jump, he suffered a serious spinal injury which resulted in making him partial paralysis. After jumping off the bridge, Dederer hit his head on the sandbar due to which he suffered the serious head injury. Forester Tuncurry Bridge was a popular tourist attraction in which people visit to dive into the estuary below. While visiting the bridge, jumping off the bridge into the water was a regular phenomenon at the tourist place. A large number of people had jumped off the bridge based on which many injuries have been reported to the authorities. Mr Philip regularly visited the place because he was a local and he spent his whole childhood in the nearby areas (Mondaq, 2007). He visited the place in his childhood and spent holidays there. During his visits at the place, he closely observes the young and adults who dive off the bridge into the water.

In the previous day before the incident, Dederer jumped twice from the bridge however his feet did not touch the bottle of the water. He knew that a large number of people dive off the bridge and he decided to try it himself on the day of the accident. Seeing other people diving in the water encouraged and excited him, and he wanted to try diving himself. There were pictograph signs established near the bridge which prohibits diving and prohibiting claiming the bridge however the plaintiff saw and ignored these signs (Jade, 2007). Evidence was given that RTA was aware that people were jumping off the bridge and into the water. The RTA confer with the police to prevent the diving of people into the water however the enforcement of the prohibition regarding the diving of people proved futile because it was not enough to stop people from diving (Parliament, 2007). The RTA changed the signs to “No Diving” signs however this change did not have any effect because people contributed to ignore the signs and kept jumping in the water.

The issues raised by both plaintiff and defendant

It was held that no previous serious accident was reported which caused due to dividing from the bridge. The estuary was in the nearby area of a beach in which tidal activities were substantially high. The death of the water was unpredictable, and due to tidal activities the level of water dropped from time to time close to the edge of the sandbar. The water flowing under the bridge was considerable deep which makes it risky for people who dive into the water during high tides. It was surprising that even though the RTA and the police knew about the number of people jumping off the bridge which was extremely risky yet still no action was taken by them (Austlii, 2007). After suffering from the injury, Mr Philip Dederer failed a suit of negligence against the RTA of the Great Lakes Shire Council.

Mr Dederer raised an issue of breach of duty by the RTA because it failed to take appropriate care to prevent the people from jumping off the bridge. Furthermore, based on the principle of the calculus of negligence and probability, the plaintiff filed a claim for negligence. The issue of ‘obvious risk’ was raised by the plaintiff as well (Gleeson, 2013). The RTA of NSW raised the issue that a duty of care to ensure the safety of people is present in this case however a duty of preventing the dangerous actions of people cannot be imposed.

• The plaintiff jumped off the bridge without any external influence, and it was his own decision to jump off the bridge.
• Different pictograph signs were set up by the RTA of NSW on the bridge to prohibit diving of people into the water (Austlii, 2007).
• No previous serious accident was reported which was caused because of people’s diving in the bridge.
• A duty of care to prevent the dangerous or hazardous conduct of people cannot be imposed over RTA of NSW.
• It was argued by the defendant that it was ‘obvious risk’ based on which a case of negligence cannot be formed.

It was admitted that Mr Dederer did notice the “No Diving” signs however he did not recognise that jumping from such height could be fatal because he had seen many people doing it. Following are different arguments made by Mr Dederer against the RTA and the Council:

• Bridge Design:A large number of people visited the place and most of which jumped off the bridge which made it easier due to the construction of the bridge. The railings of the bridge were horizontally situated, and the topmost railing of the bridge was flat which made it easier for people to grip and stand over it. Due to this arrangement, people were allured to jump off the bridge. The number of people who dive in the water could have reduced if the height of the railing was increased and they were situated vertically rather than horizontally (Douglas, 2017).
• Lack of Initiative:It was evident that most people who jumped off the bridge were young and RTA was aware of this fact however they still did not take the initiative for improving the safety of the visitors.
• Change of warning signs:After observing that people are not paying attention to warning signs, the RTA did not think about changing the warning signs. It was clear that ‘No Diving’ sign was not suggesting danger to people. The sign could have meant a statutory obligation because it did not express the idea that there is probable damage if people diving into the water. The RTA should have taken appropriate steps to change the signs which said danger or variable depth of water which assist in making people aware of the probable danger.
• Council Approach:It can be clearly seen that the council clearly recognise the inadequacy of the signs set up by the RTA of NSW. However, they clearly showed the negligence on their part by not taking precautionary means to deal with the issue which would have assisted in avoiding the injury of Mr Dederer.
• Risk Management Analysis:Even after observing the failure of signage and the age of divers, the RTA did not do any risk management analysis for making the place safe for visitors. The analysis can be done by evaluating the effectiveness of initiatives taken based on thorough communication and consultation. It also involved monitoring and reviewing the initiatives which are taken by the authority. It was clearly seen that the RTA failed to perform the basic requirements which would have assisted in making the place safer (The Federation Press, 2007).

The High Court held that the RTA did not owe a duty regarding the risk of injury. The RTA has set up warning signs which should have caused people some level of caution however they failed to do so. It was held that the RTA had breached his duty by failure to set up warning signs however it could not attribute to breach of duty. RTA cannot be held liable because people were failing to pay attention to the signs. Gummow J held that the decision given Dunford J in the Trial Court is wrong because he failed to see that limited scope of RTA to determine the occurrence of an injury (Thorpe, 2014). The RTA was not in control of the voluntary decision made by the plaintiff to jump in the water based on which it cannot be held liable for negligence.

The judgement given by the High Court by the majority of judges that a minor should have taken full responsibility for the accident is complete disregard towards incidents which include children. As per the judgement of the court, a child is supposed to understand the dangers which are unreasonable and uncommon expectation from a child. The arguments of the plaintiff were solid however the court gives more weightage to the argument of the defendant based on strictly implementing the definition of negligence. The definition provides that the claimant is required to prove that the defendant owes a duty of care and such duty is breached due to failure to maintain a standard of care. The court gave judgment based on the principle of ‘obvious risk’ however it did not consider that the law considered 18 years as an age when children become smart enough to take serious decisions regarding their life (Stewart and Stuhmcke, 2014). The High Court did not considered that fact that Mr Dederer was just 14-year-old and he did not know the level of risk which he could of the face by jumping in the water. Furthermore, the fact that RTA and the council were completely negligent towards the safety of young people who jumped of the bridge is not considered by the court.

Conclusion

In conclusion, the appeal made by the defendant was accepted by the High Court, and the decision was against the judgment of the trial court. The plaintiff jumped off the bridge into the water which resulted in causing him grave injury. It was argued by the plaintiff that the defendant failed to take appropriate care to prevent the people from jumping in the water which could have prevented the accident. The judgement of the High Court is not right in this case, and the RTA should have been held liable for breaching its duty of care.

References

Austlii. (2007) Roads and Traffic Authority of NSW v Dederer [2007] HCA 42. [Online] Austlii. Available at: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2007/42.html?stem=0&synonyms=0&query=title(Roads%20and%20Traffic%20Authority%20of%20NSW%20and%20Dederer%20(2007)%20) [Accessed on 22^nd May 2018].

Douglas, R. (2017) Duty content under the CLA. Precedent (Sydney, NSW), 140, p.4.

Gleeson, A.M. (2013) Finality. Bar News: The Journal of the NSW Bar Association, p.33.

Jade. (2007) Roads and Traffic Authority of NSW v Dederer [2007] HCA 42. [Online] Jade. Available at: https://jade.io/article/13922 [Accessed on 22^nd May 2018].

Mondaq. (2007) Australia: Roads and Traffic Authority of NSW -v- Dederer [2007] HCA 42. [Online] Mondaq. Available at: https://www.mondaq.com/australia/x/51912/cycling+rail+road/Roads+and+Traffic+Authority+of+NSW+v+Dederer+2007+HCA+42 [Accessed on 22^nd May 2018].

Parliament. (2007) Roads and Traffic Authority of New South Wales v Dederer and Another. [PDF] Parliament. Available at: https://www.parliament.vic.gov.au/archive/council/publicland/Transcripts/%5B2007%5D%20HCA%2042.pdf [Accessed on 22^nd May 2018].

Stewart, P. and Stuhmcke, A. (2014) High court negligence cases 2000-10. Sydney L. Rev., 36, p.585.

The Federation Press. (2007) Roads and Traffic Authority of New South Wales v Dederer. [PDF] The Federation Press. Available at: https://federationpress.com.au/pdf/RTA_v_Dederer.pdf [Accessed on 22^nd May 2018].

Thorpe, D. (2014) Adolescent Negligence,'Obvious Risk'and Recent Developments in Neuroscience. SSRN.