Discuss About The Roads And Traffic Authority NSW V Dederer?

Background

Question:

Discuss About The Roads And Traffic Authority NSW V Dederer?

The case of Roads and Traffic Authority of New South Wales v Dederer counters about a very sad incident that unfortunately commonly happens in our community. The decision pronounced in this case narrates the common law’s fixed exit within the collective legal responsibility and accountability for disastrous mishaps and its definite foyer into the kingdom of individual accountability. The supporting available proved that the Roads and Traffic Authority of New South Wales (‘RTA’) was already enlightened about the treacherous performance that many youngsters were involved into. Of which one was jumping from the bridge into the river. Fortunately for others and unfortunately for the plaintiff, since 39 years of the said practice there has not a single casualty until the said incident occurred.

Thus the final call taken by the court in the case that the minor should be accountable for his own deeds and actions shows a detectable change in the attitude of the Common law with regards the individual’s own responsibility and duty with regards the incidents which involved kids and adolescent individuals as well. To the concern of all, there has been a considerable change in the present days in the attitude and outlook of the High Court in errand of emphasizing private accountability and being more conventional and traditional towards the problem of responsibility with regards the perils which should definitely be to all the plaintiffs. However the cases that comprise of this change fail to look upon the age of the plaintiff in discussion. (O’Grady, 2014).

On the new year eve in the year 1998, Mr. Dederer who was a minor at that time jumped into the river from a bridge which connects the two cities of Forster and Tuncurry in NSW and during the said stunt, he met with an accident due to which he was declared as partial paraplegic. Due to the said accident, Dederer filed a case against the appellant ,the Roads and Traffic Authority NSW and further the Great Lakes Shire Council (‘Council’) demanding for the damages it had to suffer due to negligence. The bridge comprised of a footpath which was covered from all sides by a 1.2m high wooden post and rail fencing done comprising of a flat wooden top railing, two horizontal wooden cross-members, horizontal wires and vertical posts. There was a sign board which said that diving was strictly disallowed at the two ends of the bridge and also mentioned the fact that fishing an climbing on the bridge was also disallowed. However, in the year 1995, these sign boards had been pulled off by the RTA who was accountable for the assembly and upholding of the bridge and the council was accountable for the daily administration of the bridge. However the fact that diving and fishing had been two of the most popular activities conducted by young people post construction of the bridge in the year 1959 cannot be denied. Mr Dederer was the first one to have suffered an injury post the construction of the bridge.

The Incident

At the trial held in the Supreme Court, the plaintiff had won against both the RTA as well as the council and the trial judge had lessened the damages suffered by the plaintiff by 25 percent on account of his contributory negligence as well. The Court of Appeal gave weightage to a request made by the council wherein it stated that it was not responsible towards the actions of Mr. Dederer since the wounds he had suffered were because of the materialisation of an understandable jeopardy of a hazardous leisure action within the meaning of s 5L of he Civil Liability Act 2002 (NSW). Further the request made by the RTA regarding the contributory negligence also was successful and the share of Dederer’s contributory negligence was enhanced to 50 percent.

Mr. Dederer stated that he had listened for various boats that may be approaching beneath the bridge. Before jumping into the sea, he waited at the platform for about two to three minutes post which he dived into the water at an angle but straight. According to the plaintiff the angle chosen by him was similar to the one chosen by all the other divers he had noticed earlier. Per his memory, there was no bumping against the water bed or striking the water, but within a few seconds he was aware of the fact that his lower portion had become numb.

The plaintiff here i.e. Mr Dederer’s claim that the RTA had contravened its responsibility of care and due diligence towards him by not putting up a warning notice about the hazards of the variable depth of the water beneath the bridge and also failed to put in a redesigned railing again along the side of the pedestrian walking on the bridge.

 As per the issued raised and the argument presented by the plaintiff, the bridge that was constructed and upheld, posed a hazard since the railings were horizontal instead of vertical with a flat top railing. Due to the same, people could easily climb up the railing and thereby getting an opportunity to try such tricks. On the other hand, there were sign boards installed at the two ends of the bridge which detailed the fact that climbing onto the railing was prohibited and diving is risky. The plaintiff had seen those signboards as well as confirmed. But as per Mr Dederer the issue here was that even though the signboards were put up, the information it gave was inadequate as it failed to mention the depth of the water beneath the bridge due to which it was difficult for the plaintiff to measure the danger.

The Case

While presenting his arguments against RTA, various recommended arguments of carelessness which was mentioned at the start of the trial for Mr Dederer fell away. Nor had the plaintiff insisted an allege that the defendant i.e. RTA was not successful in confirming to the safety on the bridge by ensuring a police force or its own guards to be there for protection. Neither did he impress its own claim that a fencing of some sort or some other barrier should have been stiffed so as to ensure that the age old practice of people diving from the bridge could be stopped. Finally, Mr Dederer’s case stated that the RTA had chosen to undertake a method which was not too expensive, was equally less effective i.e. installing of a signboard and that too which could give a prominent message with regards the risk that the people are actually exposed to by such an act of them. Further to this, he also stated that apart from the uselessness of the signboard,  RTA should have embarked on three initiatives. First and foremost, apart from the pictogram that was already present, the signboard should have been able to provide a more detailed facts which would give appropriate reasons regarding why the diving is a danger. The highlight of the same should have been the shifting sands beneath the bridge of which RTA was well acquainted of, due to which the entry into the water from the bridge was a hazard. Secondly, the flat level railing should have been replaced or improvised which basically acted as a diving platform. The same should have been changed for a triangular surface which surely would have downcast the usage of the railing for diving purposes.  Last but not the least, RTA should have made all efforts to uproot that part of the bridge which was used most for entering the water i.e. the horizontal fencing nearby the light pole which was mostly used. They should have tried to copy the standard Australian swimming pool fencing by replacing the same with vertical railings. The same had been bought to the eyes of the RTA many a times before occurrence of the said event.

Post the commencement of the court hearings and trials, only against the RTA, Mr Dederer afterwards realised that the council was also to be held responsible as it was the roads authority which indicated that the council also had some responsibility towards the same.

Arguments Presented

With regards the defendants side of the argument, even though the subsistence of the duty of care owed by the RTA to the plaintiff was not in disagreement, however two points must compulsorily be narrated about the nature and extent of the liability. Firstly the duty of care is not owed in abstract, in fact these are liabilities covering a particular area which can be expansive or not basis the linkages in the question. Secondly, irrespective of the scope, the duty of care is to be performed by implementing reasonable care. They do not compel a more rigorous or arduous encumber.

Further a road authority such as RTA does not hold any liability to perform actions carefully in the abstract. However, even then it is his liability to guarantee that a road be secure in all perspectives. The defendant, RTA’s duty of care was for all those who used the bridge, and even if they did not take ordinary security of their own self, it did not cease the RTA to guarantee Mr Dederer a duty of care simply due to his own intended and visibly unsafe behaviour in diving from the bridge.

The final judgement of the said case was in the favour of the plaintiff i.e Mr Dederer wherein the Supreme Court of NSW granted damages to be claimed to the tune of $840000 stating that it was a case of contributory negligence of the plaintiff in the order of 25%. The entire amount of the damages was apportioned in the ratio of 80:20, wherein the RTA had to pay the major chunk in comparison to the payment that was to be made by the council. The court of Appeal of NSW, advocated a petition alongside the judgment against the council and discharged a petition of the decision against the RTA. Hence post this, it incremented the contributory negligence from 25% to 50%.

Even though the judge found that Mr Dederer had ignored the sign boards and jumped despite being aware of all the dangers and the possible injuries that can occur, even then Dunford J pressed upon the fact that many people jumped and dived from the bridge both pre and post the sign boards mentioning about the dangers of the said recreational activity was erected. His Honour conformed that the RTA contravened its duty of care and was careless in being unsuccessful to erect a warning sign board which should have mentioned words such as hazard to life, shifting sands and variable depths. Also it was unsuccessful in putting up vertical fences and take off the horizontal ones which was there due to which the diving was made easy.

Judgment

Further an appeal was made by both the defendants post the said judgement was pronounced. The council’s appeal was permitted since it was not obligated to the plaintiff as the wounds suffered by Mr. Dederer was “ a result of materialisation of an obvious risk of a dangerous recreational activity” as per Section 5L of the Civil Liability Act 2001. The RTA’s appeal and petition also was successful with regards the contributory negligence due to which the plaintiff’s proportion was increased to 50%. Even then the final verdict was announced in favour of Mr. Dederer. Thus it can be said that in this case the judgement was pronounced both in favour as well as against all the three parties (High Court of Australia, 2007).

It was found that although on appeal the contributory negligence of Mr. Dederer was increased from 25% to 50%, yet he was in a win position. His case was found to be stronger because as per him he dived in a manner in which all the others were diving successfully. Further to this, Mr. Dederer was totally write that the signboards were inappropriate and failed to give proper information to the people. Further to this, there was no security installed at the bridge who would ensure that no one was diving and those who still dived were punished. His duty was simply to take adequate care while performing any risky task and did not impress any liability on it to prevent performance of potentially harmful acts. Here the problem was that the defendant failed to discharge adequate duty of care by not putting proper fencing which would make the diving impossible, install proper signage which would ensure the reasons of the risk and also did not have safety guards present. Just installing of sign boards was not enough, specially when they knew that it was being ignored. Although the fact that Mr. Dederer failed to act in a sensible and a prudent manner, yet his level of negligence is weighed at only 50%, since he acted due to many others acted in the same manner without any harm for years. Even though this is no reason for him to act in such a manner, even then the failure of the RTA and the council is much more grave than the imprudent conduct of the plaintiff, due to which the final verdict or the majority was in favour of the plaintiff.

References

High Court of Australia, (2007), Business and Traffic Authority of NSW and Philip James Dederer & ANOR, Available at https://eresources.hcourt.gov.au/downloadPdf/2007/HCA/42 (Accessed 17th September 2017)

O’Grady, P.T., (2014), Roads and Traffic Authority of NSW V Dederer [2007] HCA 42, Accounting at https://peterogrady.com.au/2014/08/30/roads-and-traffic-authority-of-nsw-v-dederer-high-court-of-australia-30-august-2007/ (Accessed 17^th September 2017)