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The Case

Discuss about the Road and Traffic Authority Vs Dederer for Planfiff Side.

In August 2007, the High court of Australia gave the hearing in favour of the RTA stating that a duty of care imposes a responsibility to exercise care and not the duty of RTA to prevent any dangerous conduct by the people.

This article will throw light on the different argument posed by the defendant as well as the RTA and the Council. It will focus on how the various reasoning posed by the High court was insufficient in rendering justice to Philip Dederer, the injured party in the case.

In that fateful day of December in the year 1998, Mr. Philip Dederer aged 14 jumped off Forester Tuncurry Bridge into Wallamba River that led to a serious spinal injury resulting in partial paralysis. He dived off into the bridge and hit his head on the sandbar which caused the injury.

This place was a popular tourist attraction attracting people to dive into the estuary below. Jumping off the bridge into the water had been a regular phenomenon and numerous young people did so with no injuries being reported. Mr Philip was a regular visitor of the place since his childhood to spend holidays there. He had been a close observer of young and adults diving off the bridge. The previous day, Dederer jumped twice from the bridge but his feet did not touch the bottom. Since he had seen people diving into the water before he decided to try doing that himself on the day the accident took place. These instances may have excited him to try diving himself. When asked at the court on why he did not pay any heed to the signs of warning, the boy said that he never attached any thought of danger to “No diving” sign.

Although there were various pictorial signs of no diving displayed there, people didn’t pay any heed to the images. The RTA then replaced the pictures with signs of “NO DIVING” and “NO CLIMBING”, but they failed to make an impact through this initiative as well. The estuary was in the area of beach where tidal activity was at a very high level. Depth of the water was unpredictable and it dropped from time to time at the edge of the sandbar. The water flowing from under the bridge was indeed very deep making it extremely risky for people to dive in high tides.

Decision of Trial Court

It is surprising that in spite of all these warning signs there were still people who would jump into the estuary from the bridge without any serious action taken by the RTA or the Police.

Mr. Philip Dederer filed a case of negligence against the RTA Great Lakes Shire Council.

In the verdict of Judge Dunford of the Supreme Court found the RTA and the Council negligent. According to him it was the duty of the RTA and the Council to make the general visitors aware of the probable danger of diving off the bridge, knowing the uncertainty of the depth of the water and the sandbar. The failure of people to follow the warning must have awakened the RTA and Council about the danger surrounding the bridge. They should have worked out various other options or found some other initiatives to make the bridge safer. The bridge had horizontal railings which made it easier for the visitors to jump off.

The Judge also said that the RTA violated its duty in taking necessary action such as altering the terminologies in order to draw attention to its probable danger such as, “danger”, “shifting sands”, “variable depths” etc; steps should have been taken to also change the railings from horizontal to vertical in order to prevent diving. They were also unsuccessful in changing the top handrail from flat to something more difficult to stand upon and dive or jump.

The Judge also assigned 25% blame on Mr. Philip for being negligent and not considering safety aspects before diving into the water.

It was also observed that RTA had the total control of the bridge since they had a greater access to funds which could have enabled them to make modifications to the bridge for the safety of the visitors but they did not take any initiative. Therefore he apportioned 80% of the blame to RTA and 20% to the Council.

The verdict obviously made the RTA and Council upset and they appealed against the findings of the Judge about their negligence and well as the blame apportionment.

The majority of the Court of Appeal, Tobias JJA and Handley agreed that the Council as well had a considerable de facto control over the bridge which made them responsible to care for the safety of people, including the plaintiff.

It was also said that the boy was big enough to understand his own ability to make that dive or not as well, even in the absence of the sign boards he should have gauged the possibility of danger in jumping from the bridge.

Court of Appeal

The term “obvious risk” in Division 4 of the Civil Liability Act 2002 released the Council from legal responsibility of the boy’s physical injury as there was an obvious risk of diving from there without any doubt.

Over a long period of time the common law has stated that defendants are not liable for risks which are common or obvious argued in cases such as Philips v Daly (1988) 15 NSWLR 65. However even though there is a obvious risk factor it does not negate the duty of care towards people. The Court of Appeal found RTA in the violation of its common law duty due to the plaintiff’s safety. They failed to meet the standard of safety that was required under this circumstance.

This is the first Court of Appeal case where the defendant had banked on the ‘obvious risk’ provision in the Civil Liability Act, 2002 and won.

The evidence stated that the bridge was an allurement to the visitors there especially the youth who knew not much about their own safety aspects given their age factor. The RTA could not have denied witnessing young children diving off that bridge several times in the past. Therefore in spite of probable threat to safety no initiatives were taken by the RTA. Furthermore, modifying the sign boards to suggest danger may have been inexpensive and could have avoided this accident which the RTA failed to do either.

The Court of Appeal held the plaintiff 50% at fault for not recognising his safety issues.

The high court stated that the RTA did not owe completely to the risk of injury. The warning signs should have caused people to exercise some level of caution which they failed to do.

His Honour also said that the failure of warning signs and the necessary negligence on part of the RTA could not be attributed to the RTA’s care of duty. Just because the people failed to heed to the warning does not mean that RTA was at fault.

Gummow. J found that the Court of Appeal’s and the Judge of the Supreme Court, His Honour Dunford J’s findings were flawed. They failed to see the limited scope of RTA to determine the actual risk of injury in the plaintiff’s case. The RTA did not control the plaintiff’s voluntary decision to dive in nor the natural variables such as depth of the water.

Dederer did notice the ‘No diving’ signboard however did not consider jumping off such a small height, fatal. He did not recognise the impending danger following his jump. Following are the reasons cited by Dederer in his defence against the RTA and the Council.

Liability of the Road Traffic Authority

Design of the bridge: It was quite evident that the bridge was used by many tourists to dive down or jump. The construction of the bridge made it easier for people to jump from there. The railings were horizontal and the top most railing was flat which made it easier to find grip to stand over it. This arrangement obviously allured people into diving. The RTA should have considered increasing the height of the bridge and changed the railing to vertical position to prevent diving.

Lack of initiative: Additionally the age group of people who jumped was mostly young which the RTA is aware of and it did not cause them to take any initiative for the safety aspect of those visiting there. 

Change of warning signs: When the RTA observed that the pictures for warning were not paid attention to, they should have thought of changing the warning signs. The ‘No diving’ sign did not suggest danger. It could have meant a statutory obligation without actually expressing the idea of a probable danger. RTA should have taken steps to put sign boards that said “danger”, “variable depths of water” etc to make the people aware.

Council’s Approach: The council, recognising the inadequacy of the signage approached the RTA to take steps but it proved futile. This clearly showed the negligence on part of the RTA. Had they taken precaution in dealing with this issue Dederer’s accident could be prevented.

Risk- Management Analysis: There weren’t any risk management analysis done by the RTA to make the place safe for the visitors. The process of Risk management analysis can be explained through the following diagram. The procedure involves thorough communication and consultation followed by monitoring and reviewing the effectiveness of the initiatives taken. The RTA failed to perform the basic requirements to make the place safe. 

Conclusion

The decision of the majority of the High Court Judges in the Dederer case that a minor should take full responsibility of the accident shows a complete disregard in accidents and tragic incidents involving children. According to them a child is supposed to understand the impending danger and act accordingly, which is an uncommon expectation from a child. The very fact that the Law and Order shows leniency to individuals under the age of 18 and considers them as amateurs should be proof enough that children do not have the ability to understand or make sense of what is right and wrong for them, especially where their hormones have the better of them. The High court failed to see what is clearly evident to others that what the RTA should have taken responsibility for is rendered liable to the child. Cases such as Vary V Wyong Shire Council (2005), Cole v South Tweed Heads Rugby League Football Club Ltd (2004) shows the apathy of the High Court towards general public. The RTA held NSW Department of Main Roads liable for the design of the bridge constructed. There was a constant shifting of blame and zero responsibility taken for the accident. 

References:

Curwoods Lawyers. (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

Hemmin. A. (N. D. ) Roads and Traffic Authorityof New South Wales V Dederer: 20/20 Hindsight or an accident waiting to happen?A Timely Oppurtunity to Revisit and Reappraise Shirt. Pages 54, 69. Retrieved from https://www.austlii.edu.au/au/journals/JCULawRw/2007/3.pdf

Hill. S. (N. D.) "Sec 5F of the Civil Liability Act - obvious risk defence succeeds" : Great Lakes Shire Council -v- Dederer & Anor; Roads & Traffic Authority of NSW -v- Dederer & Anor [2006] NSWCA 101

Afridi. A. (2014) Case : Roads & Traffic Authority vs Dederer. Retrieved from https://prezi.com/mmw5y105-med/case-roads-traffic-authority-vs-dederer-2007/

Stewart. P., Monahan. G. . G. Roads and traffic authority of new south wales v dederer* negligence and the exuberance of youth.  Introduction. Plaintiff’s Claim. Volume 32. Pages 740, 741.

Federation Pres. (N. D.) Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761; [2007] HCA 42 (High Court of Australia) Page. 2

Sidney Lawyers. (2014) 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/

Jade. (N. D.) Roads and traffic authority of nsw  appellant and philip james dederer & anor  respondents. Retrieved from https://jade.io/article/13922

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