Phillip James Dederer v Roads and Traffic Authority - [2005] NSWSC 185

Reported Decision:
(2005) Aust Torts Reports 81-792

New South Wales

Supreme Court

CITATION:
Phillip James Dederer v Roads and Traffic Authority and Anor [2005] NSWSC 185

HEARING DATE(S): 5-29 October 2004

JUDGMENT DATE :

18 March 2005

JUDGMENT OF:
Dunford J

DECISION:
Judgment for the plaintiff for 75 percent of the agreed damages plus costs, judgment on Cross-claims

CATCHWORDS:
TORTS - negligence - personal injury - duty of care - plaintiff injured when diving from bridge into river estuary - water of unknown and variable depth - design of bridge - warning or prohibitory signs - "obvious risk" - contributory negligence - apportionment between defendants - WORDS AND PHRASES - "roads authority" - "obvious risk"

LEGISLATION CITED:
Civil Liability Act 2002
Main Roads Act 1924
Roads Act 1993

CASES CITED:
Ballerini v Berrigan Shire Council and anor [2004] VSC 321
Inverell Municipal Council v Pennington (1993) 82 LGERA 268
Public Trustee v Sutherland Shire Council (1992) A Torts R #81-149
Romeo v Conservation Commission (N.T.) (1998) 192 CLR 431
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247

PARTIES:
Phillip James Dederer v Roads and Traffic Authority - First Defendant
Great Lakes Shire Council - Second Defendant

FILE NUMBER(S):
SC 20122/02

COUNSEL:
D T Kennedy SC/G Graham - Plaintiff
M J Cranitch SC/A Casteldon - First Defendant
M T McCulloch SC/S P W Glascott - Second Defendant

SOLICITORS:
Emery Partners - Plaintiff
Henry Davis York - First Defendant
Phillips Fox - Second Defendant

LOWER COURT JURISDICTION:

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

FRIDAY 18 MARCH 2005

20122/02 PHILLIP JAMES DEDERER v ROADS AND TRAFFIC AUTHORITY & ANOR

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff sues the defendants in negligence to recover damages as a result of him being rendered partially paraplegic when he dived off the Forster/Tuncurry Bridge on 31 December 1998 when he was aged 14 years and 6 months. The quantum of the plaintiff’s damages, if he is successful, has been agreed and the remaining issues are the liability of either or both defendants and liability under the Cross-claims.

2 The proceedings were commenced against the Roads and Traffic Authority (the RTA) on 3 April 2002, but the Great Lakes Council (the Council) was not joined as a defendant until the filing of the Amended Statement of Claim on 22 September 2003. It follows that Parts 1A (ss 5-5T) and 5 (ss 40-46) apply to the plaintiff’s claim against the Council, but not to his claim against the RTA. Each defendant has brought a Cross-claim against the other.

3 The bridge, which was built about 1959 by the predecessor of the first defendant, links the twin towns of Forster and Tuncurry and, although the Lakes Way from Bulahdelah to Taree passing through Forster and Tuncurry runs generally north-south, this particular bridge in fact runs east-west with Forster on its eastern…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 185
Decision Date: 18 March 2005

CaseChat Overview and Summary

The case of Phillip James Dederer versus Roads and Traffic Authority was heard before the Supreme Court of New South Wales. The plaintiff, Phillip Dederer, suffered personal injuries when he dived from a bridge into a river estuary and struck his head on the riverbed. The primary issues before the court were whether the Roads and Traffic Authority owed a duty of care to the plaintiff and whether the design of the bridge, including the absence of warning or prohibitory signs, constituted negligence. Additionally, the court had to determine the extent of the plaintiff's contributory negligence and how any apportionment should be made between the parties.

The court examined the principles of duty of care and the concept of an obvious risk, which could potentially negate the duty of care. It considered whether the risk of diving from a bridge into a body of water with unknown and variable depth was so obvious that it should exclude a duty of care from being owed. The court also assessed whether the absence of warning signs or measures to prevent such activities constituted a breach of duty. Furthermore, the court looked at the plaintiff's own actions to determine the degree of contributory negligence and how this should be factored into any apportionment of liability.

The Supreme Court held that the Roads and Traffic Authority did owe a duty of care to the plaintiff, as the risk, while obvious, did not absolve the authority from all responsibility. The court found that the design of the bridge, particularly the absence of adequate warning or prohibition signs, constituted a breach of this duty. The court also acknowledged the plaintiff's contributory negligence but determined that it was not sufficient to absolve the Roads and Traffic Authority of liability entirely. The court apportioned liability between the plaintiff and the defendant based on the relative contributions to the injury.

The final orders of the court were that the Roads and Traffic Authority was liable for damages to the plaintiff, but the amount was reduced by the degree of the plaintiff's contributory negligence. The court specified the percentage of liability attributable to each party and ordered the defendant to compensate the plaintiff accordingly. The decision underscored the importance of reasonable precautions and warnings in areas where obvious risks exist, even if those risks are apparent to an average person.

Orders