Roads and Traffic Authority of NSW v Dederer

[2007] HCA 42

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

ROADS AND TRAFFIC AUTHORITY
OF NSW  APPELLANT

AND

PHILIP JAMES DEDERER & ANOR  RESPONDENTS

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
30 August 2007
S122/2007

ORDER

1.Appeal allowed.

2.The first respondent to pay the appellant's costs.

3.Set aside orders 4, 5, 6 and 7 of the Court of Appeal of the Supreme Court of New South Wales made on 5 October 2006 and in their place order that:

(a)the appeal to that Court by the Roads and Traffic Authority of NSW ("the RTA") be allowed;

(b)set aside so much of the orders made by Dunford J in the Supreme Court of New South Wales on 18 March 2005 as disposed of the action against the RTA and in their place order that there be judgment for the RTA against the plaintiff; and

(c)Mr Dederer to pay the costs of the RTA at trial and in the Court of Appeal.

4.Application for special leave to cross-appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with A C Casselden for the appellant (instructed by Henry Davis York Lawyers)

D F Jackson QC with D T Kennedy SC and G R Graham for the first respondent (instructed by Emery Partners)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Roads and Traffic Authority of NSW v Dederer

Negligence – Duty of care – Scope of duty – Roads authority – The first respondent was injured after jumping into shallow water from a bridge erected by the appellant's predecessor – Whether the scope of the appellant's duty of care encompassed the circumstances in which the first respondent was injured – Distinction between the exercise of reasonable care and the prevention of harm.

Negligence – Breach – Standard of care – Prospective assessment of breach – Characterisation of relevant risk – Assessment of probability of risk – Assessment of gravity of risk – Assessment of practicability of precautions – Relevance of voluntary conduct and obviousness of risk – Relevance of "allurement" – Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 was correctly applied.

Negligence – Contributory negligence – Reduction of damages by Court of Appeal – Whether Court of Appeal erred in disturbing trial judge's assessment.

Courts – Appeals – Limitations on appellate review of findings of fact – Meaning of "concurrent findings of fact".

Costs – Sanderson orders ­­– Circumstances in which it is appropriate to make a Sanderson order.

Words and phrases – "allurement", "concurrent findings of fact", "reasonable care", "roads authority", "scope of duty".

Civil Liability Act 2002 (NSW), s 5L.
Roads Act 1993 (NSW), s 7(4).
Transport Administration Act 1988 (NSW), Pt 6, Sched 7 Div 5.

1. GLEESON CJ.   The principal question to be decided is whether this Court should overturn findings on negligence and causation made in the Supreme Court of New South Wales by the primary judge (Dunford J)[1] and the Court of Appeal (Ipp and Tobias JJA; Handley JA dissenting)[2] in an action for damages for personal injuries brought by the first respondent.

   [1]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792.

   [2]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860.

2. The facts and issues are set out in the reasons of Kirby J.  The appellant is a public authority responsible for the construction and management of the Forster-Tuncurry bridge.  The first respondent, then aged 14, dived from the bridge, with catastrophic consequences.  It is not in dispute that the appellant owed the first respondent a duty to take reasonable care for his safety.  That the first respondent's own serious carelessness contributed to his injuries is plain; a large deduction from the damages he was awarded was made on account of his contributory negligence.  Nevertheless, the appellant owed him a duty of care, and there was an issue whether, by its acts or omissions, it failed to take reasonable care for the safety of the first respondent.  There was also an issue whether such failure was a cause of his injuries.  Those issues, essentially factual, were resolved by the primary judge, and the Court of Appeal, adversely to the appellant.  The bridge was not designed to be a platform from which people might, for their own amusement, jump or dive into the water below.  That was not its intended use.  Yet it was a use that was regularly made of it, even though diving was prohibited.  A claim, by a young person who disregarded the prohibition, that the bridge authority failed to take reasonable care for his safety is not immediately attractive, and would not be accepted lightly.  Its wider implications are obvious.  Even so, the first respondent succeeded in his claim for damages (subject to a substantial reduction for contributory negligence) and his success was affirmed on appeal.

3. It is to be noted that the evidence in the case deals with the bridge and the railings as they were at the time of the injuries to the first respondent.  They were still the same at the time of the trial.  The bridge, in its present state, is there for anyone to see.  At the time of the injury to the first respondent, and at the time of the trial, the railings on the northern side of the bridge consisted of three flat horizontal members.  It was not difficult for a young person to mount the top rail and thereby use the bridge as a platform for jumping or diving.  That is what the first respondent, and, according to the evidence, many others before him, did.  The primary judge, and the majority in the Court of Appeal, criticised the appellant for not having installed a barrier (such as pool-type fencing) that would have been much more difficult to mount and use for diving.  The fact that, in 1998, the design of the railings made it comparatively easy to climb on to or over the railings was an important part of the case against the appellant.  There is no foundation in the evidence, or in common experience, for inferring that the only way to deter people from climbing and jumping would have been to adopt extreme and fanciful measures such as erecting a very high fence topped with shards of glass or razor wire.  If the appellant had attempted, in argument, to persuade the Court to that view then it might have been challenged by questions prompted by the design of the present barrier.

4. The conclusion of the trial judge and the Court of Appeal that the appellant was negligent turned upon findings of primary fact, some of which were disputed and some of which were undisputed, inferences from those primary facts, and judgment as to what reasonableness required in the circumstances.  Similarly, the issue of causation turned upon primary facts, inferences, and judgment on questions of probability.

5. In an appeal of this nature, the function of this Court, as a second appellate court and a court of final resort, is not simply to give a well-resourced litigant a third opportunity to persuade a tribunal to take a view of the facts favourable to that litigant.  "It is well settled that a second appellate court, such as this Court is in the present case, should not, in the absence of special reasons such as plain injustice or clear error, disturb such concurrent findings"[3].  This is a principle of long standing, and its importance has not been diminished, but rather has been increased, in the circumstances of modern litigation.

   [3]Louth v Diprose (1992) 175 CLR 621 at 634 per Deane J.

6. In Graham Barclay Oysters Pty Ltd v Ryan[4], I referred to what was said about the principle by the House of Lords during the nineteenth century in Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd[5].  That case concerned a collision between two ships.  The question which vessel was to blame turned upon evidence about lighting.  The Lord Chancellor, Lord Herschell, said that, weighing the probabilities, he would have been disposed to accept a particular view of the evidence, but he declined to give effect to that disposition because of what the House of Lords had said previously as to "the importance of not disturbing a mere finding of fact in which both the Courts below have concurred."[6]  Such a step should be taken, he said, only "when it can be clearly demonstrated that the finding was erroneous."[7]  Lord Watson said that it was "a salutary principle that judges sitting in a Court of last resort ought not to disturb concurrent findings of fact by the Courts below, unless they can arrive at ... a tolerably clear conviction that [those] findings are erroneous."[8]

   [4](2002) 211 CLR 540 at 568-569 [53]-[54].

   [5][1893] AC 207.

   [6][1893] AC 207 at 215.

   [7][1893] AC 207 at 215.

   [8][1893] AC 207 at 216.

7. In Major v Bretherton[9], a fraud case, Isaacs J discussed a "highly important question" which he said was raised "for the first time definitely in this Court".  He referred to the "rule" as to the approach of a second appellate court to concurrent findings of fact.  A judge in the Supreme Court of Victoria (Dixon AJ) had found that the defendant had not acted fraudulently.  The Full Court of the Supreme Court upheld that finding.  Isaacs J, after referring to decisions of the Privy Council and the House of Lords, said that the rule was as stated by Lord Herschell LC and Lord Watson in the case of The P Caland.  He went on[10]: 

   "By following it, I do not mean that as soon as I see there are concurrent findings I abstain from forming my own opinion.  I am bound to consider the evidence and to form my own opinion consistently with judicial obligation and precedent.  But when I have done so, the rule comes into play, and, unless I reach the point of clear conviction predicated by the House of Lords in the P Caland Case, the appeal should, in my opinion, fail."

   [9](1928) 41 CLR 62 at 68.

   [10](1928) 41 CLR 62 at 70-71 (references omitted).

8. The principle was referred to by Barwick CJ, with whom Stephen, Mason, Jacobs and Aickin JJ agreed, in Baffsky v Brewis[11] in relation to a finding as to whether a moneylender acted honestly and ought fairly to be excused for a breach of certain statutory requirements.  It was also referred to by Mason J in connection with a finding about contributory negligence in The Commonwealth v Introvigne[12].

   [11](1976) 51 ALJR 170; 12 ALR 435.

   [12](1982) 150 CLR 258 at 274.

9. In Louth v Diprose[13] (a case about unconscionable conduct) Deane J said:

   "[I]t is immaterial that the concurrent findings of fact by the court of first instance and the first appellate court encompass both findings of primary fact and conclusions and inferences of fact drawn from primary facts or that some conclusions or inferences of fact are based on different reasonings as between the two courts.  Nor is it relevant that there has been a dissentient in the first appellate court."

   [13](1992) 175 CLR 621 at 634 (references omitted).

10. In the same case, Deane J referred to what he had earlier said in Waltons Stores (Interstate) Ltd v Maher[14] (concerning findings about mistaken belief in a contractual setting) as to the modern rationale of the principle, and the importance of litigious finality as a means of preserving equitable access to justice: 

    "[I]t is in the overall interests of ... the preservation of at least some vestige of practical equality before the law that, in the absence of special circumstances, there should be an end to the litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal."

    [14](1988) 164 CLR 387 at 434-435.

11. Callinan J and I invoked the principle in our dissenting reasons in Bridgewater v Leahy[15].  It is a principle that stands alongside, and applies in addition to, the principle concerning appellate intervention in factual judgments where a primary judge enjoys some particular advantage[16].  The principles exist for different reasons, although in many cases they work to the same end.

    [15](1998) 194 CLR 457 at 471 [43].

    [16]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 569 [54].

12. In past times, in most Australian jurisdictions, including New South Wales, a decision on the issue of negligence in an action for damages for personal injuries would be made by a jury as the tribunal of fact.  Since no reasons would be given for such a decision, the practical possibility of an appeal on the issue would be very limited[17].  Nowadays, as in the present case, the issue of negligence is normally dealt with by a trial judge who sits without a jury and who delivers a fully reasoned decision.  This procedure facilitates (and in some cases invites) appellate review.  The decision of a court of appeal also takes the form of a reasoned judgment, or of reasoned judgments, delivered after a reconsideration of all the evidence and arguments.  The law continues to value finality[18], which, as Deane J pointed out, is related to questions of reasonable and equal access to justice.  The more litigation becomes a process of attrition, the greater will be the tendency for the outcome of litigation to depend upon the resources, or financial support, available to litigants.  That is not good for the administration of civil justice.  Given the substantial reduction of jury trials in the administration of civil justice, the respect which a second appellate court shows to concurrent findings of fact is an important counterweight to the seemingly inexorable tendency to prolong litigation.  As Isaacs J said, it does not mean that this Court abdicates its own responsibilities; but it discharges those responsibilities with an appreciation that, for good reason, it requires to be clearly convinced of error before it will disturb such findings.

    [17]Swain v Waverley Municipal Council (2005) 220 CLR 517 at 519-522 [1]-[8].

    [18]D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.

13. Two examples involved in the findings on negligence and causation in the present case illustrate the point.  The primary judge and the majority in the Court of Appeal found that the appellant was aware, over a period of years, of the propensity of many people to jump, and of some people to dive, from the bridge.  That inference was based largely on two facts:  first, a number of witnesses said they saw these things happen, and there is no reason to think such occurrences were not widely known; secondly, the appellant erected a sign which appeared to reflect an awareness of the practice.  Again, the primary judge and the majority in the Court of Appeal inferred that a more expansive sign, and a differently constructed railing or fence on the bridge, would have prevented the first respondent from diving.  Those inferences were contestable, but they were open on the evidence, and the appellant's arguments on those matters were considered and rejected, for cogent reasons, by a trial judge and an appellate court. 

14. A conclusion that a differently designed railing or fence on the bridge, or a differently expressed warning sign, would have deterred an over-confident youth, prepared to disregard an existing prohibition, from diving is a matter on which judgments may differ.  Yet it is a judgment of a kind routinely made in negligence actions.  When, in a given case, such a finding is reviewed and affirmed by an intermediate appellate court, then this Court should reverse the finding only when it is clearly convinced of error.

15. Subject to those additional observations as to the nature of the exercise that is involved, I agree with Kirby J, for the reasons he has given, that the findings on the issues of negligence and causation should not be overturned.

16. I also agree with what Kirby J has said about the matters of contributory negligence and costs, and with the orders he proposes.

17. GUMMOW J.   In Berrigan Shire Council v Ballerini[19], Callaway JA remarked that "[t]he relationship between duty and breach in the law of negligence is causing more perplexity than it used to do".  This appeal bears out the force of that statement.

    [19](2005) 13 VR 111 at 115.

18. The errors of which the appellant rightly complains, regarding both the reasons of the trial judge and those of the New South Wales Court of Appeal, did not turn on factual matters upon which reasonable minds might differ.  Rather, they concerned the misapplication of basic and settled matters of legal principle.  These principles may be restated shortly.  First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care.  Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct.  Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury.  Fourthly, breach must be assessed prospectively and not retrospectively.  Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt[20].

    [20](1980) 146 CLR 40 at 47-48.

    The facts

19. The facts are set out in greater detail in the reasons of Callinan J, but it is convenient to set out the main aspects here.

20. The estuary of the Wallamba River divides the twin towns of Forster and Tuncurry on the mid-north coast of New South Wales; Forster lying on the eastern bank, Tuncurry to the west.  The estuary contains navigable channels as well as a large central sandbar of shifting depth and dimensions.  The towns of Forster and Tuncurry are linked by a bridge which is 632 m long and which carries a two-lane bitumen roadway and a footpath on its northern side.

21. The facts established at the trial included the following.  The footpath was enclosed by a wooden post and rail fence around 1.2 m high and consisting of a flat wooden top railing, two horizontal wooden cross-members, horizontal wires and vertical posts.  Depending on tidal conditions, the top of the railing was around 9 m from the surface of the water.  There was a pictogram indicating the prohibition "no diving" at each end of the bridge, and signs in words prohibiting fishing from, and climbing on, the bridge.  The then current "no diving" pictograms were erected by the second respondent, the Great Lakes Shire Council ("the Council"), in 1995, with funding obtained from the appellant, the Roads and Traffic Authority of NSW ("the RTA").

22. The bridge was built in 1959 by the Department of Main Roads, the predecessor of the RTA.  The RTA became the universal successor of that Department and the Commissioner for Main Roads pursuant to the Transport Administration Act 1988 (NSW), Sched 7 Div 5, and now exercises the powers and functions set out in Pt 6 of that Act. Pursuant to s 7(4) of the Roads Act 1993 (NSW), the Council was the relevant "roads authority" within the meaning of that statute. The extent of the obligations of such a "roads authority" was recently considered by this Court in Leichhardt Municipal Council v Montgomery[21].

    [21](2007) 81 ALJR 686; 233 ALR 200.

23. The interplay between the statutory functions of the Council and the RTA with respect to the bridge was not fully considered at trial or in the Court of Appeal.  It was concluded, however, that the RTA was responsible for the erection and maintenance of the bridge and that the Council was responsible for the day to day management of the bridge including, among other things, the enforcement of the prohibition contained in the various pictograms and signs.  Each entity thus answered the common law description of a roads authority, namely, as Dixon J put it, "an authority exercising powers for the construction, maintenance, repair and control of highways"[22].

    [22]Buckle v Bayswater Road Board (1936) 57 CLR 259 at 286.

1. There was ample evidence that diving and jumping from the Forster-Tuncurry bridge was a widespread and longstanding practice among young people, although the precise frequency and extent of this practice was disputed in this Court.  Be that as it may, there was no dispute that until the accident that befell the first respondent, Mr Dederer, there were no reported injuries to those who jumped or dived from the bridge.

2. It was as a result of Council concern about jumping and diving that the "no diving" pictograms were erected.  There had also been concern about the danger posed by divers to boats passing under the bridge rather than simply the danger to the divers themselves.  Nor, for that matter, was the safety of divers the only potential risk associated with the bridge.  Mr Alexander, an RTA officer, gave evidence that the safety issue relating to the bridge that was of most concern to the RTA was the potentially unsafe lack of separation between the traffic on the bridge and the large number of pedestrians and cyclists using the footpath.

3. On 31 December 1998, Mr Dederer was rendered partially paraplegic after he dived from the bridge into shallow water and struck his head on the estuary bed.  Mr Dederer was then aged 14.  He climbed onto the railing of the bridge and although he originally intended to jump into the water he changed his mind and dived head first instead.  Mr Dederer and his family were familiar with the area, and he had seen many other young people jump or dive from the bridge.  He had done so himself on the previous day without any harm.  He admitted that he saw and understood the signs forbidding diving and climbing, and that he knew that the sandbar moved and that the channels were of variable depth.

   The decision at trial

4. At trial in the Supreme Court of New South Wales (Dunford J sitting without a jury) Mr Dederer succeeded against both the RTA and the Council.  His Honour found that Mr Dederer saw, understood, and deliberately disregarded the "no diving" pictograms, and that he knew that the water was of variable depth and that jumping from heights could cause injury.  Nonetheless, Dunford J placed great emphasis on the fact that many people jumped or dived from the bridge both before and after the then current signs prohibiting diving were erected in 1995.  He said[23]:

   "I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff's accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays.  The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing along the outside boundary of the bridge, and the ease of access to that railing by reason of the wooden cross members which provided steps up to the top railing.

   Even if it was not anticipated prior to the construction of the bridge that it would be used in this way, it soon became apparent after its completion and foreseeable that the culture was likely to continue.  Although the jumpers and divers entered the water in or near the main navigation channel, both the RTA and the Council were aware of the moving sands and variable depths underneath the water, and it was therefore reasonably foreseeable, and not far fetched or fanciful, that if the practice continued someone engaging in the activity was liable to suffer serious injury.

   I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risks should have been so apparent to the officers of both defendants with knowledge of the estuary bed that it was in effect 'an accident waiting to happen'."

   [23](2005) Aust Torts Reports ¶81-792 at 67,528-67,529.

5. The Council, but not the RTA, admitted that it was aware of this pattern of behaviour.  Nonetheless, his Honour found that the RTA "must have known" of it, and because of the "continuing practice" or "culture" of diving Dunford J found that it was:

   "not sufficient to ignore the fact that the signs were being disregarded and it is necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care"[24].

   [24](2005) Aust Torts Reports ¶81-792 at 67,529.

6. His Honour held that the RTA breached its duty of care and was negligent in failing to erect a "warning sign containing words similar to 'Danger, shifting sands, variable depth'"; in failing to replace the existing handrail with one composed of vertical (not horizontal) members like "a 'pool' type fence"; and in failing to modify the flat top of the handrail by attaching to it a triangular strip "making it difficult and uncomfortable to stand on, and almost impossible to balance on before jumping or diving"[25].       The evidence upon which the trial judge came to his conclusions respecting breach will require some explanation later in these reasons.

   [25](2005) Aust Torts Reports ¶81-792 at 67,531.

7. His Honour reduced Mr Dederer's damages by 25 per cent on account of his contributory negligence.

   The decision of the Court of Appeal

8. An appeal by the Council was allowed on the basis that it was not liable to Mr Dederer because his injuries were "a result of the materialisation of an obvious risk of a dangerous recreational activity" within the meaning of s 5L of the Civil Liability Act 2002 (NSW)[26].  That Act did not apply to Mr Dederer's action against the RTA.  The Council was joined as second respondent in this Court but played no active part in the appeal.

   [26](2006) Aust Torts Reports ¶81-860 at 68,891-68,895.

9. The appeal by the RTA to the Court of Appeal regarding contributory negligence succeeded, and the proportion of Mr Dederer's contributory negligence was increased from 25 per cent to 50 per cent.  That order is the subject of an application for special leave to cross-appeal to this Court, which is addressed later in these reasons.  However, by majority (Ipp and Tobias JJA, Handley JA dissenting) the appeal by the RTA on liability failed. 

10. The Court of Appeal rejected the RTA's ground of appeal relating to the trial judge's finding that it knew of the continued jumping and diving from the bridge[27].  In any event, Ipp JA held that:

    "the serious risk of devastating injuries to those engaged in such activities must have been obvious to the RTA.  The RTA knew or ought to have known that particularly in the summer months, jumping and diving was occurring with startling frequency, involving at times, groups of young people every five or ten minutes, with a group capable of comprising 10 to 15 children aged 10 years to 16 years."[28]

    [27](2006) Aust Torts Reports ¶81-860 at 68,899.

    [28](2006) Aust Torts Reports ¶81-860 at 68,900.

11. Tobias JA, who agreed with Ipp JA's disposition of the appeal, endorsed these remarks and added that[29]:

    "given the knowledge of … the RTA that for children to jump from the bridge was dangerous and that diving from the bridge was a fortiori dangerous … it is but a small step to conclude that, with the knowledge that children continued to dive from the bridge in circumstances where the water below (depending upon tidal influences) was of variable depth and at times quite shallow, it would be reasonably foreseeable that at low tide in particular, when the water was shallow on the one hand and the height between the railing and the surface of the water is some 9‑10 metres on the other, sooner or later a child would dive in a manner resulting in serious injuries.  As I have indicated, I would regard such a conclusion as a matter of common sense."

    [29](2006) Aust Torts Reports ¶81-860 at 68,918.

12. For the majority in the Court of Appeal, it was of central importance that the risk was one "created" by the RTA itself through its statutory predecessor.  Ipp JA stated that[30]:

    "In the present case the RTA is to be regarded as having created the danger by erecting the bridge and by constructing it in a position and configuration that, since its construction, attracted young people to jump and dive from it into the water some nine to ten metres below.  In a material sense, in the present context, creating the risk of harm is at least equivalent to increasing the risk." (emphasis in original)

    Tobias JA agreed, saying that[31]:

    "the RTA had made the danger worse as its predecessors were responsible for the construction of the bridge and, in particular, the type of external railing which provided an easy platform to the RTA's knowledge for children to utilise for the purpose of jumping into the waters below".

    [30](2006) Aust Torts Reports ¶81-860 at 68,908-68,909. See also at 68,896, 68,901, 68,903.

    [31](2006) Aust Torts Reports ¶81-860 at 68,920-68,921.

13. Their Honours then fixed upon the fact that the "no diving" signs had not in fact prevented young people from diving from the bridge.  Ipp JA stated[32]:

    [32](2006) Aust Torts Reports ¶81-860 at 68,900.

    "There have been many decisions, including decisions of the High Court, holding that the erection of prohibitory signs is sufficient to discharge the duty of care owed by an entity in control of land on which dangerous activities may be undertaken by members of the public.  But, breach of a duty of care is a question of fact, and each case depends on its own circumstances.  In the present case, the signs that were erected (and that includes the signs prohibiting climbing on the bridge as well as the pictographs) were not serving the purpose for which they had been erected.  They were being ignored and the practice was continuing unabated.  This was common knowledge.  Mr Alexander referred to it as a 'well known event' and Mr [Pevitt] and the police had found enforcement of the prohibitions displayed on the sign impossible.

    On the evidence of Mr Dederer, his father, Mr [Pevitt], Mr Keegan [two officers of the Council], Mr Cunial [a friend of Mr Dederer, born in 1980 who was with him on the day of the accident] and Mr Alexander himself, the practice of jumping and diving off the bridge continued with considerable frequency after 1995 notwithstanding the erection of the pictographs and the other prohibitory signs.  The signs were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months.

    In these circumstances, the RTA must have known that the signs were, in a word, useless.  And they must have known this from at least shortly after the pictographs were erected in 1995.

    As part of the general duty of care owed by the RTA to users of the bridge, it should – in any event – have ascertained whether the pictograph signs were proving effective.  On that basis, the RTA ought to have known that they were not".

    His Honour amplified this conclusion under the heading "The reasonableness of the RTA's response to the risk"[33]:

    "The obvious risks involved in jumping and diving off the bridge were not a deterrent.  Many of the visitors to the bridge were children and young people.  The RTA could not assume that these persons would take reasonable care for their own safety.  Experience over many years had shown that, in large numbers, this was not what they were doing.

    …

    In my opinion, the RTA was not entitled to rely solely on the signs once it became apparent that they were not serving their purpose and were not having any noticeable effect on persons jumping or diving off the bridge."

    [33](2006) Aust Torts Reports ¶81-860 at 68,900, 68,902.

14. The result in the Court of Appeal was that the trial judge was correct to hold that "by the time Mr Dederer was injured … the erection of the signs was no longer a reasonable response to the risk that the RTA had created"[34].

    [34](2006) Aust Torts Reports ¶81-860 at 68,903.

15. Tobias JA held that it was not reasonable for the RTA "to simply ignore what it clearly knew to be a dangerous activity in which children were partaking and who could be expected to be oblivious to the risks involved"[35].  This statement sits rather oddly with the Court of Appeal's finding that the risk was of such obviousness even to a 14 year old that the Council was absolved of all liability.

    [35](2006) Aust Torts Reports ¶81-860 at 68,921.

16. The majority thus upheld the trial judge's ruling that the RTA was negligent in failing to attach a triangular top to the handrail and in failing to install vertical pool-type fencing[36].  Although the Court of Appeal correctly considered, contrary to the trial judge, that a sign of prohibition did constitute a "warning", the majority regarded a "mere" sign of prohibition to be unreasonable in the circumstances.  However, their Honours considered the trial judge's proposed sign would have been similarly ineffective because "Mr Dederer in fact knew that there were shifting sands and variable depths and this did not prevent him from diving"[37].  Instead, their Honours found that a "composite sign" conveying the danger of "shallow water" would have been a reasonable response[38].  This conclusion was at odds with the trial judge's undisturbed finding that it was "probable that [such a] sign would also have been ignored, just as the 'diving prohibited' sign was ignored"[39].

    [36](2006) Aust Torts Reports ¶81-860 at 68,905-68,906.

    [37](2006) Aust Torts Reports ¶81-860 at 68,904.

    [38](2006) Aust Torts Reports ¶81-860 at 68,905.

    [39](2005) Aust Torts Reports ¶81-792 at 67,530.

17. Handley JA dissented.  His Honour found that the trial judge had been in error in attributing to the RTA knowledge of continued diving from the bridge, as distinct from jumping therefrom, and that "[t]he absence of any recorded injury over the 39 years before the plaintiff's accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe"[40].  His Honour added that "[i]f this was an accident waiting to happen it had been waiting for a very long time"[41].  So far as the exercise of reasonable care was concerned, his Honour summarised his views as follows[42]:

    "The signs proposed would not have told the plaintiff anything he did not already know, a triangular section on the handrail would not have discouraged the plaintiff from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge."

    As his Honour pointed out, Mr Dederer did not give direct evidence about whether any of these matters would have caused him not to dive.  A finding of causation in his favour was, at best, a matter of inference[43].

    [40](2006) Aust Torts Reports ¶81-860 at 68,876.

    [41](2006) Aust Torts Reports ¶81-860 at 68,876.

    [42](2006) Aust Torts Reports ¶81-860 at 68,880.

    [43](2006) Aust Torts Reports ¶81-860 at 68,880.

18. Handley JA concluded that, in light of the State-wide obligations of the RTA and in light of Mr Dederer's voluntary participation in a recreational activity involving inherent risk, "the foreseeable risk of a diving accident from this bridge with a 39 year accident free history had no reasonable claim on [the RTA's] further attention or resources"[44].

    [44](2006) Aust Torts Reports ¶81-860 at 68,881-68,882.

    The appeal to this Court

19. The appeal by the RTA to this Court should be allowed.  Unlike many recent appeals to this Court in negligence cases, the resolution of this appeal does not require consideration of factual matters regarding breach, upon which reasonable minds may differ[45].  Nor, despite submissions by the RTA, was the error of the Court of Appeal to be found in discrete and perhaps peripheral disputes of fact.  Rather, the errors on the part of the majority of the Court of Appeal lay in fundamental matters of law:  matters against which concurrent findings of fact are no insulation.

    [45]Examples include Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Neindorf v Junkovic (2005) 80 ALJR 341; 222 ALR 631; Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161.

    The scope of the RTA's duty of care

20. Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation.  First, duties of care are not owed in the abstract.  Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question.  Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care.  They do not impose a more stringent or onerous burden.

21. Regarding the first point, a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs).  Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his "neighbour" principle in 1932[46].  The law now recognises types of loss and kinds of relationships which are different from those of earlier days.  Five members of this Court observed in their joint judgment in Sullivan v Moody[47]:

    "Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care.  Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party.  Sometimes they may arise because the defendant is the repository of a statutory power or discretion.  Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits.  Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships.  The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle." (citations omitted)

    [46]Donoghue v Stevenson [1932] AC 562 at 580.

    [47](2001) 207 CLR 562 at 579-580 [50] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

22. Many of those matters were canvassed in Brodie v Singleton Shire Council[48].  The result of that case is that a road authority is obliged to exercise reasonable care so that the road is safe "for users exercising reasonable care for their own safety"[49].  The expression of the scope of the RTA's duty of care in those terms has long antecedents in the law relating to occupiers' liability.  In Indermaur v Dames, giving the judgment of the Court of Common Pleas[50], Willes J held that[51]:

    "we consider it settled law, that [a visitor], using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger".

    The modern form of that principle has been frequently affirmed in recent times, both with regard to occupiers and roads authorities[52].   Of course, the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case[53], but in the present case it was also a specific element contained, as a matter of law, in the scope of the RTA's duty of care.

    [48](2001) 206 CLR 512.

    [49](2001) 206 CLR 512 at 581 [163].

    [50]Erle CJ, Willes, Keating and Montague Smith JJ.

    [51](1866) LR 1 CP 274 at 288.

    [52]Examples include Phillis v Daly (1988) 15 NSWLR 65 at 74; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [123]; Neindorf v Junkovic (2005) 80 ALJR 341 at 362 [99]; 222 ALR 631 at 656‑657.

    [53]Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at 246 [35].

1. A road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances.  So much was recently reaffirmed in Leichhardt Municipal Council v Montgomery[54].  Such an expression of the duty's scope has an obvious and direct consequence when assessing breach.  As Gaudron, McHugh and Gummow JJ stated in Brodie[55]:

   "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." (citations omitted)

   Their Honours went on to observe that persons exercising reasonable care will be able to avoid injury in some situations, whereas others will present "a foreseeable risk of harm even to persons taking reasonable care for their own safety"[56].

   [54](2007) 81 ALJR 686; 233 ALR 200.

   [55](2001) 206 CLR 512 at 580 [160].

   [56](2001) 206 CLR 512 at 581 [163].

2. The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge.  However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety"[57].  The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones.  In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.

   [57]Brodie (2001) 206 CLR 512 at 581 [163].

3. In the Court of Appeal[58], Ipp JA referred to and adopted remarks he made in the earlier case of Edson v Roads and Traffic Authority[59], in which the plaintiff and many others exercised an obvious disregard for their own safety when they crossed a busy highway on foot.  After referring to the passage from Brodie set out above, his Honour remarked that[60]:

   "the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent.  Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so.  The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care."

   In the present case, his Honour concluded that "the 'factual underpinning' was also absent"[61].  This was in error, as the expectation of reasonable care was not merely a "factual underpinning", but rather a legal aspect of the scope of the duty owed by the RTA.

   [58](2006) Aust Torts Reports ¶81-860 at 68,901.

   [59](2006) 65 NSWLR 453.

   [60](2006) 65 NSWLR 453 at 468.

   [61](2006) Aust Torts Reports ¶81-860 at 68,901.

   Reasonable care, not prevention

4. In simple and complicated cases alike, one thing is fundamental:  while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care.  In Vairy v Wyong Shire Council, McHugh J explained[62]:

   "[T]he duty in negligence is generally described as a duty to take reasonable care.  In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms.  Until the decision of this Court in Zaluzna[63], for example, the duty owed to entrants upon privately owned land varied according to the category of the entrants.  They were classified as invitees, licensees and trespassers.  Similarly, the duty in respect of negligent statements is more specific and limited than a simple duty to take reasonable care in all the circumstances of the case.  In negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care.  As Prosser and Keeton have pointed out, 'the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk'[64]."

   His Honour dissented from the outcome in Vairy, but that does not qualify the cogency of the above observations.

   [62](2005) 223 CLR 422 at 432 [25].

   [63]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

   [64]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 356.

5. Leaving aside matters such as vicarious liability and the potential existence of non-delegable duties of care – neither of which are presently relevant – the exercise of reasonable care is always sufficient to exculpate a defendant in an action in negligence.  In Blyth v Birmingham Waterworks, Alderson B laid down the nature of the action as long ago as 1856[65]:

   "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

   Blyth was a case in which the exercise of reasonable care was sufficient to exonerate the defendants notwithstanding the plaintiff's injuries.  However, the standard of reasonable care also results in the inculpation, rather than exoneration, of defendants.  In the earlier case of Vaughan v Menlove, Tindal CJ was able to say that[66]:

   "The care taken by a prudent man has always been the rule laid down … 

   Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual ... we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe."

   It was therefore insufficient, in the judgment of his Lordship, that the defendant had acted "honestly and bonâ fide to the best of his own judgment"[67].

   [65](1856) 11 Exch 781 at 784 [156 ER 1047 at 1049].

   [66](1837) 3 Bing (NC) 468 at 475 [132 ER 490 at 493].

   [67](1837) 3 Bing (NC) 468 at 474 [132 ER 490 at 493].

6. Such an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others.  The former, not the latter, is the requirement of the law.  In Modbury Triangle Shopping Centre Pty Ltd v Anzil[68], Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman[69] and observed that "the common law distinguishes between an act affecting another person, and an omission to prevent harm to another.  If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable."  In Heyman[70], Brennan J had emphasised that the common law recognises "a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible". 

   [68](2000) 205 CLR 254 at 266 [28].

   [69](1985) 157 CLR 424.

   [70](1985) 157 CLR 424 at 478.

7. That recognition can be seen in the recent rejection by this Court in Montgomery[71] of the existence of a non‑delegable duty of care owed by roads authorities to road users.  Whatever its content, the existence of such a non-delegable duty was inconsistent with the general obligation of reasonable care owed by roads authorities to the users of roads, including pedestrians.  Gleeson CJ observed in Montgomery[72]:

   "The formulation of the duty of care given in Brodie, in its application to cases of misfeasance, and to a case where a roads authority has exercised its powers by engaging an independent contractor … is not a special duty to ensure anything; certainly not a duty to ensure that no worker behaves carelessly.  It is a duty to exercise reasonable care."

   Likewise, as Hayne J succinctly put it, "the test for determining a highway authority's liability … [is] the ordinary test of liability in negligence"[73].

   [71](2007) 81 ALJR 686; 233 ALR 200.

   [72](2007) 81 ALJR 686 at 695 [26]; 233 ALR 200 at 209.

   [73](2007) 81 ALJR 686 at 719 [148]; 233 ALR 200 at 241.

8. The RTA correctly complains that this orthodox approach was not applied at trial or in the Court of Appeal.  The trial judge and the majority in the Court of Appeal each fixed on the failure of the "no diving" pictograms and "no climbing" signs to prevent diving or jumping from the bridge.  The trial judge was "satisfied" that the signs "were not effective in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water", and his Honour found it "not sufficient to ignore the fact that the signs were being disregarded"[74].  In the Court of Appeal, Ipp JA reasoned that the signs "were not serving the purpose for which they had been erected"; that is, they "were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months" and they were being "ignored and the practice was continuing unabated"[75].  Tobias JA asked whether the "known fact" of continued jumping called "for different measures to be adopted by the RTA to prevent the practice at least of jumping off the bridge".  His Honour concluded that it was unreasonable "to ignore the well-known practice of children jumping from the bridge in defiance of 'No Diving' signs"[76].

   [74](2005) Aust Torts Reports ¶81-792 at 67,527, 67,529 (emphasis added).

   [75](2006) Aust Torts Reports ¶81-860 at 68,900 (emphasis added).

   [76](2006) Aust Torts Reports ¶81-860 at 68,919, 68,920 (emphasis added).

9. The error in that approach lies in confusing the question of whether the RTA failed to prevent the risk-taking conduct with the separate question of whether it exercised reasonable care.  If the RTA exercised reasonable care, it would not be liable even if the risk-taking conduct continued.  If the contrary were true, then defendants would be liable in any case in which a plaintiff ignored a warning or prohibition sign and engaged in the conduct the subject of the warning.  Whether or not other persons engaged in that conduct, such a defendant would ipso facto have failed to prevent at least the plaintiff from engaging in it.  If this quasi-automatic form of liability represented the true state of the law, it would be startlingly at odds with the general proposition that liability in tort depends upon proof of fault through the intentional or negligent infliction of harm[77].  More particularly, it would also be at odds with the decision in Montgomery that roads authorities owe only a duty to take reasonable care, and do not owe a more stringent or non-delegable duty.

   [77]cf Northern Territory v Mengel (1995) 185 CLR 307 at 341-342.

10. The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning is given, and if the conduct against which that warning is directed continues notwithstanding the warning, then the party who gave the warning is shown to have been negligent by reason of the warning having failed.  Quite apart from its inconsistency with the scope of the RTA's duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty that is required by Shirt, a matter discussed later in these reasons.

11. Even reasonable warnings can "fail", but the question is always the reasonableness of the warning, not its failure.  Ipp JA's statement, based on a reference to another case[78], to the effect that a warning sign is "not an automatic, absolute and permanent panacea"[79] was no substitute for a proper assessment of reasonableness.  Whether or not the passage referred to by his Honour did in fact bear the meaning attributed to it by him, the words of Windeyer J in Teubner v Humble are apposite[80]:

    "[D]ecisions on the facts of one case do not really aid the determination of another case.  Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law.  Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application …  That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence."

    [78]Waverley Council v Lodge (2001) 117 LGERA 447 at 459.

    [79](2006) Aust Torts Reports ¶81-860 at 68,903.

    [80](1963) 108 CLR 491 at 503.

12. What is demonstrated here is a by-product of the common law technique which looks to precedent and operates analogically as a means of accommodating certainty and flexibility in the law.  Equity, by contrast, involves the application of doctrines themselves sufficiently comprehensive to meet novel cases.  The question of a plaintiff "what is your equity?"[81] thus has no common law counterpart.

    [81]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 216 [8] per Gleeson CJ.

13. The utility of factual parallels lies not in determining the correctness of decisions of fact, but rather in determining whether the correct legal tests were applied.  Apothegms relating to factual matters are unlikely to focus the mind on the resolution of the legal questions that were presented.

    The proper identification of the risk

14. Even if the trial judge and the Court of Appeal had properly ascertained the scope of the RTA's duty of care, and had accurately discerned that its obligation extended only to the exercise of reasonable care, their Honours would still have been led into error if they did not accurately identify the actual risk of injury faced by Mr Dederer.  It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.  In this, too, the majority in the Court of Appeal erred.

15. In the Court of Appeal, the risk faced by Mr Dederer was characterised by the majority as being "serious spinal injury flowing from the act of diving off the bridge"[82].  That risk, it was said, was one created by the RTA through the erection of the bridge by its predecessor.  However, such a characterisation of the risk obscured the true source of potential injury.  This arose not from the state of the bridge itself, but rather from the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary.  This mischaracterisation of the risk led to two consequent errors.  First, the majority were distracted from a proper evaluation of the probability of that risk occurring.  Secondly, they erroneously attributed to the RTA a greater control over the risk than it possessed.

    [82](2006) Aust Torts Reports ¶81-860 at 68,892.

16. The first error can be seen in Ipp JA's characterisation of the "startling frequency" of "large numbers" of people jumping and diving from the bridge; a practice that was "continuing unabated" notwithstanding the pictograms[83].  Such a characterisation incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water.  As Lord Porter observed in Bolton v Stone, "in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused" (emphasis added)[84].  In the present case, the frequency of jumping and diving was only startling if one ignored the fact that no‑one was injured until Mr Dederer's unfortunate accident.  Far from being a risk with a high probability of occurrence, the probability was in truth very low, and this fact was masked by the Court of Appeal's characterisation of the relevant risk.

    [83](2006) Aust Torts Reports ¶81-860 at 68,900.

    [84][1951] AC 850 at 858.

17. Regarding the second error, by focusing on the RTA's role in constructing the bridge from which Mr Dederer dived, the majority in the Court of Appeal overlooked the limited nature of the RTA's control over the actual risk of injury faced by Mr Dederer.  Ipp JA concluded that[85]:

    "The fact that a defendant actually created the structure that gave rise to the risk that materialised, and maintained the structure in a form that maintained the risk, has always been regarded as a matter of great importance in determining liability for negligence."

    Perhaps that is so, but whatever its role in creating the bridge the RTA did not control Mr Dederer's voluntary action in diving, and nor did it create or control the natural variations in the depth of the estuary beneath the bridge.  The present was not a case, for example, in which the plaintiff's injury arose because the bridge collapsed, or because the footpath was defective, or because the side handrail gave way.  Nor was it a case in which the "incentives" discerned by Ipp JA were ones created by the RTA[86].  Rather, the risk arose because of the conjunction of the bridge's location and two factors outside the RTA's control:  one human and the other environmental, namely Mr Dederer diving from the bridge and the natural variations of the estuary bed[87].

    [85](2006) Aust Torts Reports ¶81-860 at 68,912.

    [86](2006) Aust Torts Reports ¶81-860 at 68,901.

    [87]cf Vairy v Wyong Shire Council (2005) 223 CLR 422 at 453 [92].

18. Both the RTA and Mr Dederer in this Court addressed the concept of "allurement" in their submissions.  But this is a concept that is more likely to mislead than to assist.  Even when the term had determinative legal significance, Barrowclough CJ was able to say in Napier v Ryan that the word "has been given a sanctity which I think it scarcely deserves"[88].  One can well agree with that sentiment today, especially as the former technical use of that term in occupiers' liability cases has long since been superseded by the decision in Australian Safeway Stores Pty Ltd v Zaluzna[89].

    [88][1954] NZLR 1234 at 1240.

    [89](1987) 162 CLR 479.

19. The continued use of the term "allurement" as a factual epithet tends to conceal more than it reveals.  First, "allurement" might be used to indicate no more than that many people have encountered the risk, thus leading to a conclusion one way or another about the probability of that risk eventuating.  Secondly, the term might focus attention on the responsibility of the defendant for creating the risk, or for encouraging or enticing people into a dangerous situation.  However, in the present case the RTA did not create the risk of shallow water of variable depth, nor did it exhort or encourage young people to dive from the bridge.  Thirdly, the term might simply indicate the factual proposition that the particular location or activity was attractive to certain kinds of people.  Such an observation is of no legal consequence.

    The proper assessment of breach

20. Having dealt with the relevant risk, it is appropriate to return to the inquiry into the assessment of breach.  Whether reasonable care was exercised in the particular case is a question of fact going to the breach of any duty owed, not to the existence of that duty.  In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant's actions could have prevented the plaintiff's injury.  As Hayne J stated in Vairy[90]:

    "When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered.  That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred.  Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." (emphasis omitted)

    [90](2005) 223 CLR 422 at 461 [126].

1. Each of these principles was misapplied by the trial judge and the majority in the Court of Appeal.  As explained earlier in these reasons, their Honours erred by focusing in retrospect on the failure of the RTA to prevent Mr Dederer's dive, as opposed to asking what, in prospect, the exercise of reasonable care would require in response to a foreseeable risk of injury.  The use of phrases such as "an accident waiting to happen" was redolent of a retrospective, not prospective, approach to the matter.

2. What, then, was the correct approach towards assessing breach?  The particular trap into which the majority of the Court of Appeal fell was that warned against by Hayne J in Vairy[91]:

   "If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness.  It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken."

   [91](2005) 223 CLR 422 at 462 [128].

3. The relevant passage from the judgment of Mason J in Shirt should be set out yet again[92]:

   "[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

   The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far‑fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

   [92](1980) 146 CLR 40 at 47-48.

4. The continuing authority of this passage has recently been reaffirmed by this Court in New South Wales v Fahy[93].  In that case, Gummow and Hayne JJ observed that[94]:

   "There may be cases when the principles stated in Shirt have not been applied accurately.  In particular, arguments of the kind made, and rejected, in Vairy and in Mulligan v Coffs Harbour City Council^[[95]^] may suggest a misunderstanding of the so-called 'calculus' that would seek to determine questions of breach in some cases by balancing the cost of a single warning sign against the catastrophic consequences of a particular accident.  But the fact, if it be so, that Shirt has not always been applied properly does not provide any persuasive reason to reconsider its correctness."

   What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk.  Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention. 

   [93](2007) 81 ALJR 1021.

   [94](2007) 81 ALJR 1021 at 1038 [78].

   [95](2005) 223 CLR 486.

5. Here, the risk of injury consequent upon jumping or diving from the bridge into water of variable depth was reasonably foreseeable.  Indeed, the Court of Appeal correctly found, contrary to the trial judge, that the risk was one that was obvious even to a 14 year old boy[96], and it beggars belief that the RTA could not foresee the very conduct against which its signage warned.  The RTA's evidentiary dispute about whether it did in fact know of the continued practice of diving is beside the point:  reasonable foreseeability is to be determined objectively, and the present risk was plainly foreseeable on any objective standard.

   [96]Mr Dederer challenged that conclusion by way of a Notice of Contention dated 14 May 2007. That challenge should be rejected for the reasons given by the Court of Appeal: (2006) Aust Torts Reports ¶81‑860 at 68,892‑68,895.

6. The magnitude of the risk was self-evidently grave.  Mr Dederer's partial paralysis is among the worst kinds of injuries imaginable.  The probability of that injury occurring was, however, low.  Despite the frequency of jumping and diving from the bridge, no-one was injured until Mr Dederer's unfortunate dive.

7. What, then, of the expense, difficulty and inconvenience of taking alleviating action?  The erection of further warning signs would not have been expensive, but Mr Dederer provided no evidence that they would be reasonable.  The installation of pool-type fencing and a triangular cap on the handrail would have been more expensive and intrusive.  The estimate of the cost of the handrail modification was some $108,072, and it was accepted that the cost of new fencing would be around $150,000 but, again, the reasonableness of such measures is open to doubt.

   The course of the evidence

8. In order to explain these doubts, it is necessary to return to the way the evidence unfolded at trial.  Mr Dederer was never asked whether any of the suggested modifications would have deterred him from diving.  Each suggestion arose only after he gave his testimony.

9. Mr Dederer called Mr Robert Fogg as an expert on safety and signage.  Mr Fogg's uncontradicted evidence was that a "no diving" pictogram was a reasonable response to the risk.  As it happens, Mr Fogg mistakenly believed that such a pictogram had not already been installed, but this misapprehension did not otherwise undermine the force of his evidence about what a reasonable response to the risk would have been.

10. The sign proposed by the trial judge was devised solely by his Honour and there was no evidence that such a sign would have been a reasonable response.  The sign adopted by the Court of Appeal, a pictogram indicating "no diving, shallow water", scarcely seems reasonable in light of the trial judge's explicit finding that it would probably have been ignored as well, particularly as the large number of young persons jumping and diving without incident indicated that the water under the bridge was not generally shallow.  In any event, Mr Dederer admitted that he knew about the variable depth of the estuary and the moving sandbar.  A warning sign would not have told him anything he did not already know.

11. The suggestion that it was negligent not to have installed "pool-type" fencing arose out of the 1992 Austroads Bridge Design Code, which recommended that bridges constructed after 1992 use such vertical balusters.  That design code did not apply to bridges constructed before 1992, and the Forster-Tuncurry bridge conformed to the applicable standards at the time of its construction.  The matter was put to Mr Fogg, whose evidence was that he would be satisfied with the provision of a sign as an alternative to such "pool-type" fencing, and that such fencing was unlikely to deter a person of Mr Dederer's height who wished to dive from the bridge.  The Council's Works Engineer and Asset Manager, Mr Keegan, also gave evidence that such fencing had not prevented people jumping from the nearby Bulahdelah bridge.

12. The suggestion of affixing a triangular cap to the handrail emerged only in the cross-examination of Mr Keegan.  It was not otherwise the subject of any evidence.  Mr Keegan said that it would be "possible" to affix such a cap to the railing, and that it would be more difficult to balance on such a cap before diving or jumping.  Significantly, Mr Dederer's safety expert, Mr Fogg, gave no evidence about this aspect of the case.  Even if the cap made balancing more difficult, it might be doubted whether this would have impeded Mr Dederer's dive, especially as the risk and danger of diving were part of its attraction.

13. Returning, then, to the assessment of breach mandated by Shirt, it becomes apparent that the RTA did not breach its duty of care.  Though grave, the risk faced by Mr Dederer was of a very low probability, and a reasonable response to that risk did not demand the measures suggested by him.  Those measures lacked evidential support; were of doubtful utility; would have caused significant expense in the case of the modifications to the handrail and fencing; and were in some cases contrary to express findings of fact.

14. This was not a case in which the defendant had done nothing in response to a foreseeable risk.  To the contrary, the RTA had erected signs warning of, and prohibiting, the very conduct engaged in by Mr Dederer.  As this Court stated in Nagle v Rottnest Island Authority, a prohibition is "one form of notice – perhaps the most effective form of notice – warning of the danger of diving"[97].  In the circumstances, that was a reasonable response, and the law demands no more and no less.

    [97](1993) 177 CLR 423 at 432. The suggestion to the contrary by the trial judge, supported by Mr Dederer in his Notice of Contention, should thus be rejected.

    Conclusion

15. The appeal should be allowed with costs.  The RTA did not breach the duty of care it owed to Mr Dederer.  Handley JA was correct to conclude that the risk of a diving accident had "no reasonable claim on [the RTA's] further attention or resources"[98].

    [98](2006) Aust Torts Reports ¶81-860 at 68,881-68,882.

    Mr Dederer's application for special leave to cross-appeal

16. The appeal having been decided in the RTA's favour, there is no occasion to address Mr Dederer's application for special leave to cross-appeal regarding contributory negligence.  Likewise, each defendant having now succeeded on appeal, there is no occasion to address his request for a Sanderson costs order.

    Orders

17. The appeal to this Court by the RTA should be allowed with costs against Mr Dederer, and his application for special leave to cross-appeal dismissed with costs.  Orders 4, 5, 6 and 7 made by the Court of Appeal on 5 October 2006 should be set aside, and in their place it should be ordered that the appeal by the RTA to that Court be allowed; that so much of the orders made by Dunford J on 18 March 2005 as disposed of the action against the RTA be set aside, and in their place order that there be judgment for the RTA; and that Mr Dederer pay the costs of the RTA of the trial and the appeal to that Court.

18. KIRBY J.   At about noon on 31 December 1998, Mr Philip Dederer, then a boy aged fourteen and a half years, dived from a bridge linking the adjoining towns of Forster and Tuncurry in New South Wales.  He plunged some eight or nine metres to a water channel below.  Having regard to the receding tide, the channel was then but two metres deep.  Mr Dederer was a tall boy of about 182 cm (nearly six feet).  His head came into abrupt contact with the bottom of the channel.  As a result, he was rendered a partial paraplegic.

19. Mr Dederer sued the Roads and Traffic Authority of NSW ("the RTA") and the Great Lakes Shire Council ("the Council"), claiming damages for negligence.  The damages to which Mr Dederer was entitled if he succeeded in his action were agreed between the parties before trial.  In the event, he succeeded against both defendants in the Supreme Court of New South Wales before Dunford J ("the primary judge").  On appeal to the Court of Appeal of New South Wales, his judgment against the Council was unanimously set aside.  That Court held that the Civil Liability Act 2002 (NSW) relieved the Council of legal responsibility for Mr Dederer's injuries[99].  However, a majority[100] upheld Mr Dederer's entitlement to recover against the RTA in negligence.  Unanimously, the Court of Appeal set aside the primary judge's conclusion that contributory negligence should be assessed at 25% and increased that figure to 50%[101].  Moreover, in a supplementary decision on costs[102], the Court of Appeal dismissed Mr Dederer's application for an order requiring the RTA to pay the Council's costs[103].

    [99]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 [1], 68,895 [173], 68,916 [325].

    [100]Ipp and Tobias JJA; Handley JA dissenting.

    [101](2006) Aust Torts Reports ¶81-860 at 68,874 [1], 68,915 [323], 68,916 [325].

    [102]Great Lakes Shire Council v Dederer [No 2] [2006] NSWCA 336.

    [103]In accordance with the principle stated in the decision in Sanderson v Blyth Theatre Co [1903] 2 KB 533.

20. By special leave, the RTA appeals to this Court challenging the judgment which the Court of Appeal upheld against it.  Mr Dederer seeks special leave to cross-appeal against its decisions on contributory negligence and costs.  The Council, which was joined as a party in this Court, submitted to the Court's orders.

21. As Tobias JA acknowledged at the end of his reasons in the Court of Appeal, the competing views expressed in that Court (and now urged upon this) "contain powerful arguments in favour and against the RTA's appeal being upheld"[104].  However, alike with his Honour, I have reached the same conclusions on the issues of negligence and contributory negligence as Ipp JA expressed in the Court of Appeal.  The concurrent findings of fact relating to the negligence decision should stand.  Those conclusions of the Court of Appeal contain no error of fact or law to justify disturbance by this Court.  The costs order sought by Mr Dederer in the Court of Appeal should, however, be made.  Otherwise, all of the orders of the Court of Appeal should be confirmed.

    [104](2006) Aust Torts Reports ¶81-860 at 68,923 [375].

    The facts

22. The Forster-Tuncurry bridge:Mr Dederer and his family had a practice of spending summer holidays in the Tuncurry area.  They regularly spent time swimming, water skiing and fishing in the estuary where Mr Dederer was later injured.  He knew that the estuary was "very much given to tidal action"[105].  Over the years, Mr Dederer had frequently observed children and adults jumping and diving off the bridge at the Forster end near Forster beach.  The area is well known as a tourist resort that attracts many families and visitors on vacation.  Swimming and water sports constitute a major attraction of the district. 

    [105](2006) Aust Torts Reports ¶81-860 at 68,884 [90].

23. The bridge from which Mr Dederer dived is 632 metres long[106].  Along its northern side is a concrete walkway for pedestrians, which is about 1.5 metres wide and is bounded by a railing on the outer edge.  The bridge rests on reinforced concrete piles and 47 piers.  It contains two elevated curves over channels respectively at the Forster and Tuncurry ends.  These channels are used by "big trawler boats, fishing boats, ski boats and jet skis" passing up and down the estuary[107].  The channel on the Forster side of the estuary flows between piers 43 and 44.   However, boats also used the water passage between piers 44 and 45, closer to the Forster shore. 

    [106](2006) Aust Torts Reports ¶81-860 at 68,883 [79].

    [107](2006) Aust Torts Reports ¶81-860 at 68,883 [81].

24. On the water side of the railing, a ledge protruded northwards near the point where Mr Dederer dived.  According to the evidence, this ledge and the more elevated upper railing on the northern side of the bridge (together with a water pipe on the southern side) constituted popular platforms for children and young people to dive or jump from the bridge into the water below.  As Ipp JA found[108]:

    "Mr Dederer's dive was by no means an unusual phenomenon.  For many years, almost from the time the bridge was constructed, young people – particularly over the summer months – frequently (often in groups) jumped and (less often) dived off the bridge into the estuary below.  Apparently, until Mr Dederer was rendered paraplegic, no person had sustained injuries in these activities."

    [108](2006) Aust Torts Reports ¶81-860 at 68,884 [85].

25. Construction of the bridge was completed in 1959 by the then Department of Main Roads ("the DMR") of the State.  The bridge was (and remains) part of New South Wales Main Road No 111.  In September 1959, in accordance with the Main RoadsAct 1924 (NSW), the Governor of the State directed the DMR to carry out maintenance of the bridge. This was done with the consent of the two Councils then concerned[109]. 

    [109]Pursuant to the Main Roads Act 1924 (NSW), s 25. See (2006) Aust Torts Reports ¶81-860 at 68,874 [2].

26. When the RTA was established, it became the statutory successor to the DMR[110].  The direction to maintain the bridge continues to apply to the RTA by virtue of later legislation[111].  By that legislation, the RTA is authorised to carry out road work, defined to include work upon any building or structure, including a bridge, constructed for the purpose of facilitating the use of the road as a road[112].  Work as a "roads authority" in relation to the bridge is shared with the Council; but work of a capital nature is the responsibility of the RTA, where necessary acting through the Council pursuant to capital grants provided to the Council by the RTA[113].

    [110]Transport Administration Act 1988 (NSW), Sched 7, Div 5.

    [111]Roads Act 1993 (NSW), ss 62, 63. See (2006) Aust Torts Reports ¶81-860 at 68,874 [3].

    [112]Roads Act 1993 (NSW), s 71.

    [113](2006) Aust Torts Reports ¶81-860 at 68,874 [5].

27. Mr Dederer gave evidence that, over the years of holidaying in the vicinity of Forster, he had frequently observed children and adults jumping and diving off the bridge, a sight that led him to assume that the water beneath "must be deep".  He had been under the bridge from time to time in a boat.  From that vantage point, he said, "the bridge looked fairly high but the water also looked very deep"[114].

    [114](2006) Aust Torts Reports ¶81-860 at 68,884-68,885 [92].

28. There was no suggestion that the bridge had been built other than in accordance with the standards applicable to such constructions in 1959.  Two factors, however, were advanced to support the proposition that the RTA was aware of the particular dangers involved in the manner in which the bridge, as constructed, came to be used, especially by children and young people.  The first was its knowledge of the practice of such people to use the bridge (and especially the ledge and the upper railing) as a departure point from which to enter the water below (to use a neutral expression).  The second was its regular testing of the depth of the water channels below the bridge (and hence in the vicinity of the point of entry into the water from the bridge).  Inferentially, this was done essentially for the purpose of ensuring the safety of the boating traffic beneath the bridge.  In answers to interrogatories, the RTA conceded that from 1 December 1993 it was aware that the river bed levels under the bridge were continually altering and that thereafter soundings were carried out at approximately three-monthly intervals[115]. 

    [115]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,527 [44].

29. Children diving and jumping:  Whereas the Council admitted, for the purposes of the proceedings, that it was "aware of the fact persons had jumped and/or dived from the Bridge" before Mr Dederer's injury, the RTA steadfastly maintained that, although it was aware of jumping from the bridge, it had no notice that diving was also occurring.  This point of distinction featured prominently in the RTA's submissions to the Court of Appeal.  It was accepted by Handley JA and became an important feature of his dissenting reasons[116].  The same distinction was also pressed upon this Court.  However, for reasons similar to those advanced by Ipp JA[117] and Tobias JA[118] in the Court of Appeal, the differentiation between "jumping" and "diving" is not ultimately material to, and certainly not determinative of, the RTA's liability to Mr Dederer.

    [116](2006) Aust Torts Reports ¶81-860 at 68,875-68,876 [18]-[20].

    [117](2006) Aust Torts Reports ¶81-860 at 68,897-68,899 [185]-[204].

    [118](2006) Aust Torts Reports ¶81-860 at 68,916-68,918 [327]-[339].

1. This is not an appeal in which it can be said that the courts below made "concurrent findings of fact" in such a way as to inhibit this Court from allowing the appeal. 

2. Discordant findings.  The findings of the courts below on issues which were crucial to the resolution of the question whether the RTA was in breach of its duty of care were discordant, not concurrent.  It is true that the trial judge and a majority of the Court of Appeal agreed that there had been a breach of duty, and in that sense their findings on breach were concurrent.  The question of breach of duty is an issue of fact, but the ultimate conclusion about that issue of fact is one which operates at an extremely general level.  The crucial findings of the courts below in relation to what measures the RTA, exercising reasonable care, should have adopted were not "concurrent" in the ordinary meaning of language.

   (a)The trial judge found that a sign warning of "shallow water" would have been ignored by the plaintiff[281]; the Court of Appeal majority disagreed[282].  

   [281]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,530 [68].

   [282]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,904-68,905 [247]-[249].

   (b)The trial judge thought that the relevant sign should have warned of "Danger, shifting sands, variable depth" and that that sign would probably have prevented the plaintiff's dive[283]; the Court of Appeal majority disagreed, saying that that sign would have been unlikely to have inhibited the plaintiff from diving, and that the RTA should have erected a composite sign containing a "No Diving" pictogram and the words "shallow water"[284].

   [283]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,531 [70].

   [284]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,904-68,905 [243]-[251] per Ipp JA and 68,923 [373] per Tobias JA.

   (c)The trial judge said that the RTA should have ensured either that the fence had a triangular top or that the fence should have been of swimming-pool style[285]; the Court of Appeal majority differed by saying that the triangular top "may have dissuaded" the plaintiff from diving, but declining to hold that it would have[286], rather saying that that change, taken in combination with pool-type fencing and the different sign, would probably have prevented the accident[287]. 

   [285]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,531 [73]-[74].

   [286]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,906 [258].

   [287]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,906 [259]-[261] and 68,914 [310].

   (d)The trial judge thought that the prohibition against diving communicated by the RTA was not a warning; the Court of Appeal majority said it was[288].  

   [288]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,903 [237].

   (e)The trial judge thought that the risk was not obvious to a 14 year old boy[289]; the Court of Appeal majority thought it was[290].

   (f)The concurrency of the findings is further damaged by the fact that Handley JA, dissenting in the Court of Appeal, was at odds with many of the findings made by both the trial judge and the majority. 

   (g)Further, there is discordance on issues not directly material to the question whether the RTA was in breach of its duty of care, but factually closely related to that question:

   (i)The trial judge found the RTA 80 percent liable for the plaintiff's damages and the Council 20 percent liable[291]; the Court of Appeal found that the Council was not liable at all[292].

   (ii)And the trial judge found 25 percent contributory negligence on the part of the plaintiff[293]; but the Court of Appeal found 50 percent[294].

   [289]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,533 [87] and 67,534 [93].

   [290]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,894 [172].

   [291]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,534 [94].

   [292]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 [1] per Handley JA, 68,891-68,895 [146]-[173] per Ipp JA and 68,916 [325] per Tobias JA.

   [293]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,534 [92]-[93].

   [294]Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860 at 68,874 [1] per Handley JA and 68,915 [316]-[321] per Ipp JA.

3. If the basis of the supposed concurrent findings principle is that what two courts have found to be the case may be safely assumed to be the case, it has no operation here, for in every crucial respect the two courts below were in disagreement.  It is true that some conclusions may be more acceptable if different lines of reasoning support them.  But where conclusions are supported by inconsistent lines of reasoning, one's confidence in the correctness of those conclusions often declines rather than rises.  If this case is an instance where the concurrent findings principle is to be applied, it has been misnamed:  it should be called a concurrent orders principle.   

4. The authorities.  It is common for lawyers to speak of the difficulties facing appellants seeking to overcome "concurrent findings" in two courts below.  In one sense, all that is meant is that if four judges have agreed on what the facts are, it will be difficult in a practical sense to persuade three more to disagree.  From this perspective, the existence of "concurrent findings" creates no technical or rigid bar to appellate intervention.  But in another sense, what is meant is that concurrent findings create a barrier to appellate correction, that appellate correction will not take place if only error is demonstrated, and that the appellant must go further and show a different kind of error – error which is in some sense "clear" or which works a plain or manifest injustice.  And in Louth v Diprose Deane J said that the relevant principle about concurrent findings applied even if "some conclusions or inferences of fact are based on different reasonings as between the two courts", and even if there was "a dissentient in the first appellate court"[295].  In principle these last two propositions are difficult to understand in modern Australian conditions.  As to the first of Deane J's propositions, it is understandable that a third court might feel trepidation in disagreeing with factual findings on which all the judges of two other courts have already agreed:  but it is difficult to understand the trepidation in cases like the present, where the courts below not only did not agree, but were at odds on almost every crucial issue except the ultimate issue of whether there had been a breach of duty.  And, as to the second of Deane J's propositions, in cases like the present, where questions of credit are not involved, and where four judges have sat in the courts below, it is hard to see why the supposed concurrent findings principle applies where the dissentient judge sat in the intermediate appellate court and not where the dissentient judge was the trial judge.

   [295](1992) 175 CLR 621 at 634.

5. The reason assigned by Deane J in an earlier case for the concurrent findings principles he enunciated was the desirability of ending "litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal".  He noted that "the cost of litigation has gone a long way towards effectively denying access to the courts to the ordinary citizen who lacks access to government or corporate funding".  He saw the finality of which he was speaking as being "in the overall interests of the administration of justice and of the preservation of at least some vestige of practical equality before the law"[296].  The reduction of cost and the non-denial of access to justice are, of course, important considerations.  However, Deane J appears to treat them as supporting the view that it is unjust for a litigant who has succeeded twice on an issue of fact to be deprived of the fruits merely because a final appellate court thinks the courts below were wrong.  A competing view is that it is also in the overall interests of the administration of justice that judges reach correct conclusions, and that if their conclusions are erroneous they be corrected on appeal.  It may be thought that the likelihood of judges having reached a correct conclusion is greater where they are unanimous, and reduced if there is a dissentient.  If so, it remains unclear why the precise court in which the dissentient sits is crucial, so that there is a concurrent findings principle if the dissentient was in the intermediate appellate court but not if the dissentient was the trial judge. 

   [296]Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 434-435.

6. Deane J cited authority for the two propositions quoted above – that the concurrent findings principle applies even if the courts below differ in their reasoning, and even if there is a dissentient in the first appellate court.  That authority was the Privy Council decision of Devi v Roy.  In that appeal, decided in 1946, the Board (Lord Thankerton, Lord du Parcq and Sir Madhavan Nair) examined many Privy Council decisions reached over the previous 85 years.  They concluded that the Privy Council had a practice of not disturbing concurrent findings of fact.  Two aspects of that practice were[297]:

   "(2)  That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts.  Therefore a dissent by a member of the appellate court does not obviate the practice^[[298]^].

   (3)  That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice."

   They also said[299]:

   "(7)  That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country."

   That was a consideration mentioned as well in some of the authorities they analysed, and, for the Privy Council, it may well remain a powerful one. In 1946 it was a particularly powerful consideration. In that year, and for many decades earlier, the Privy Council could hear appeals from numerous jurisdictions spread across all five continents. Many appeals would have been heard by judges lacking an understanding of local conditions in these extremely diverse jurisdictions. The position of the Privy Council at that time and earlier was very different from that of this Court, which with limited exceptions hears appeals only from the federal courts and States and mainland Territories of Australia, to which one Constitution applies, and to which a single common law applies unless modified by Commonwealth legislation, usually of universal application, or State or Territorial legislation, often uniform in character. What is more, while there is some social heterogeneity to be observed among the residents affected by the laws of each jurisdiction, there is no radical difference between the jurisdictions in this respect. It is not the case that there are particular aspects of local conditions with which trial judges and intermediate appellate courts are far better equipped to deal than this Court. That difference in position is a reason for strongly doubting the applicability of the concurrent findings principle to this Court[300].

   [297][1946] AC 508 at 521.

   [298]In this respect South Australia v Johnson (1982) 42 ALR 161 at 167 may qualify the doctrine, for there Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ said:

   "This appeal requires the court to review and evaluate a vast body of evidence, much of which is in conflict, yet upon which the findings of the learned trial judge have been substantially confirmed by a unanimous Full Court.  In such a case, the appellant naturally faces a difficult task in showing that the challenged findings were erroneous ...  This court will give the greatest respect to such concurrent findings, although free of course to depart from them if convinced that they are wrong."

   Depending on the force of the word "convinced", that is a more defensible proposition.  It would not assist the plaintiff, for here the Court of Appeal did not "substantially" confirm the trial judge's findings, nor was there unanimity in the Court of Appeal.

   [299][1946] AC 508 at 521.

   [300]See Muschinski v Dodds (1985) 160 CLR 583 at 590-591 per Gibbs CJ.

7. A further reason for doubting the applicability of the principle to this Court is that among the propositions stated at the end of the Privy Council's reasoning is the following[301]:

   "(4)  That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure.  That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all.  That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect."

   It cannot be the law in Australia that this Court will only depart from concurrent findings where what "happened [was] not in the proper sense of the word judicial procedure at all".  That is not how exceptions to the concurrent findings principle have been stated in this Court.  If the second and third propositions quoted above lead to, or are integrally linked with, a proposition which is in this Court as erroneous as the fourth is, the applicability in this Court of the second and third propositions themselves must be questionable.

   [301][1946] AC 508 at 521. The language derives from that of Viscount Dunedin in Robins v National Trust Co [1927] AC 515 at 518.

8. Further, as the Privy Council made plain in Robins v National Trust Co[302]:

   "The rule as to concurrent findings is not a rule based on any statutory provision.  It is rather a rule of conduct which the Board has laid down for itself.  As such it has gradually developed."

   It must be seriously doubted whether it is right for this Court to adopt for itself a rule of conduct which the Board laid down without reference to any statutory provision, at least without counsel appearing before this Court, and the Court itself, conducting a close analysis of the constitutional and statutory provisions concerning appeals to this Court in a case in which the existence or non-existence of the supposed concurrent findings principle is crucial to the outcome.

   [302][1927] AC 515 at 517 per Viscount Dunedin.

9. Finally, apart from Privy Council cases, the authorities that support the concurrent findings principle are, with respect, slight.  The point is usually put in passing, as a makeweight for conclusions arrived at on other, more specific and substantial grounds.  Thus in the first case on the point in this Court, Major v Bretherton, only Isaacs J devoted much attention to it[303].  Starke J mentioned it very briefly[304].  Knox CJ and Gavan Duffy J did not mention it at all.  The fifth judge, Higgins J, said[305]:

   "The attitude of the Judicial Committee as the final tribunal of the Empire as to its own practice is not necessarily to be the attitude of this Court; and the question whether we shall treat ourselves as being subject to such a rule in our endeavours to do justice after weighing all the circumstances of the case before us should not be decided until the subject has received much more attention than has been possible in this case.  In my opinion, the question should be left open until such a decision becomes necessary."

   The subject received no attention in argument from the parties on the present appeal, apart from a short submission by the plaintiff that there were some concurrent findings.  The reports of the other well-known cases in this Court do not suggest that the subject received attention in argument in them[306].  What is more, Gibbs CJ maintained that this Court had not adopted the Privy Council rule of practice, and said:  "Where concurrent findings are challenged, it remains the duty of this Court to depart from them if it considers them to be erroneous."[307]  And in the House of Lords the Earl of Halsbury LC said of the Privy Council doctrine:  "I have repeatedly protested against the views cited.  I feel that where a tribunal has to review a question of fact, it must do it to the best of its ability."[308]  In the same case Lord Davey said that the Privy Council doctrine was sound if "regarded merely as a guide to the judgment of the tribunal and not as a rule of law or practice."[309]  He also said[310]:

   "In every case the appellant assumes the burden of shewing that the judgment appealed from is wrong, and when it depends on an estimate of probabilities or inferences so nicely balanced that it is impossible to say that a decision either way would be wrong, every material fact having received due consideration, your Lordships would, I make no doubt, be disposed to affirm the concurrent decision of the Courts below."

   [303](1928) 41 CLR 62 at 68-71.

   [304](1928) 41 CLR 62 at 74.

   [305](1928) 41 CLR 62 at 74.

   [306]Baffsky v Brewis (1976) 51 ALJR 170; 12 ALR 435; The Commonwealth v Introvigne (1982) 150 CLR 258 at 274 (recording a concession by counsel); South Australia v Johnson (1982) 42 ALR 161 at 167; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Louth v Diprose (1992) 175 CLR 621; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 at 618 [39]; Bridgewater v Leahy (1998) 194 CLR 457; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

   [307]Muschinski v Dodds (1985) 160 CLR 583 at 590-591.

   [308]Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 75 (in argument).

   [309]Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 83.

   [310]Montgomerie & Co Ltd v Wallace-James [1904] AC 73 at 83.

10. In these circumstances it is undesirable to treat the concurrent findings principle as beyond argument until proper argument has taken place in a case in which "such a decision becomes necessary". 

11. Exception to concurrent findings principle.  In any event, even if it is appropriate to treat the concurrent findings principle as a rule of law until such time as it is examined closely after full argument, the statements of it in the House of Lords and in this Court accept that it does not apply if the supposedly concurrent findings are "clearly demonstrated ... [to be] erroneous"[311], or there is "a tolerably clear conviction"[312] or a "clear conviction"[313] that they are erroneous, or there are "special reasons such as plain injustice or clear error"[314].  The errors of factual inference identified by Gummow J and by Callinan J are clear, and they led to a plain injustice. 

    [311]Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd [1893] AC 207 at 215 per Lord Herschell LC.

    [312]Owners of the "P Caland" and Freight v Glamorgan Steamship Co Ltd [1893] AC 207 at 216 per Lord Watson.

    [313]Major v Bretherton (1928) 41 CLR 62 at 71 per Isaacs J.

    [314]Louth v Diprose (1992) 175 CLR 621 at 634 per Deane J.

    Breach of duty

12. In recent years attempts to argue that the test stated in Wyong Shire Council v Shirt[315] is erroneous have not succeeded.  Until they do, it is necessary to apply that test, properly understood.  I agree with the reasons given by Gummow J for deciding that its application leads to the conclusion that the RTA was not in breach of duty.

    [315](1980) 146 CLR 40 at 47-48 per Mason J.

    Costs

1. In view of the fact that a majority favour the allowing of the appeal, it is not necessary to consider whether the Court of Appeal was correct in refusing the plaintiff's application for a Sanderson order.  Had it been necessary to do so, I would have agreed with the reasoning of Kirby J on this point[316], and would add only the following. 

   [316]Reasons of Kirby J at [176]-[193].

2. Though no doubt this was not its purpose, the effect of the RTA's conduct was to mislead the plaintiff's advisers into a course which led to him not starting an action against the Council at a propitious time, only starting an action against it at an unpropitious time, failing in that action, and as a result incurring a responsibility for payment of the Council's costs.  Counsel for the RTA defended the Court of Appeal's approach by saying that it was not for the RTA to advise the plaintiff's professional advisers as to whether the Council had any responsibility for the bridge and for the signs positioned on it.  To this there are two answers.

3. First, it may be open to some potential defendants to take that stand.  It seems wrong for a corporation like the RTA to do so in resistance to an application for a Sanderson order.  The RTA is, for the purposes of any Act, a statutory body representing the Crown:  Transport Administration Act 1988 (NSW), s 46(2)(b). Its affairs are managed and controlled by its Chief Executive, who is appointed by the Governor: ss 47(1) and 48(1). The Chief Executive is, in the exercise of his or her functions, subject to the control and direction of a Minister: s 49. The RTA is in that sense a governmental organisation. It is a truism that statutory bodies of that kind should be model litigants: counsel for the RTA accepted that this was so "without question". A terrible thing had happened to a child. The solicitors for that child were not busybodies. Their request of the RTA was not a trivial one. It was possible that the RTA – a very wealthy and powerful organisation – was liable in tort. It was also possible that the Council – doubtless much less wealthy, but better resourced than the plaintiff and his parents – was liable. There is nothing wrong with wealthy and powerful defendants requiring plaintiffs to prove their cases, but in the circumstances, as a matter of common humanity, not legal duty, the RTA ought not only to have attempted to tell the plaintiff's advisers who controlled the bridge, as it did, but also to have stated the underlying facts correctly. This was particularly so in view of what the trial judge eventually found was the close relationship between the RTA and the Council[317].  Counsel for the RTA submitted that no responsibility could be attributed to the RTA because the plaintiff had "professional advisers who bring equality of arms", and hence there was no duty on the RTA to have answered the query of the plaintiff's solicitors at all.  "Equality of arms" is a blessed phrase.  However, many of the factual matters on which the trial judge relied to reach his conclusions as to the responsibilities of the RTA and the Council for the bridge were far from being readily ascertainable by an outsider, being internal to the workings of government, and to some extent being ancient.  There was no equality of arms at all in that respect.  If it be said that the question of who controlled the bridge was not an easy one even for insiders, the insiders had no apparent difficulty in making allegations in the RTA's pleadings about the control of the bridge which turned out to be correct.  

   [317]Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at 67,528 [48]-[53].

4. But whether or not the RTA was under any obligation to respond to the request made by the plaintiff's solicitors, and whether or not it was under any obligation to respond more fully or to respond correctly, the fact is that it did respond in the way it did.  Its response was confirmed by the identical response from the Council.  The response was erroneous.  That error led the plaintiff to lose an opportunity to start proceedings against the Council at an advantageous time, before the germination and enactment of legislation which eventually caused his claim against the Council to fail.  More crucially for present purposes, the reversal by the RTA of the stand it had taken about who was responsible for the bridge, and the RTA's suggestion, by its indication that it wished to amend its pleadings in September 2003, that the Council might be liable to the plaintiff, which it had up to that point denied, caused the plaintiff's advisers to join the Council, but at a much more disadvantageous time.  Thus whether or not the RTA had any duty to cooperate when it was originally asked about who was responsible for the bridge, the fact that it responded as it did, and thereafter behaved as it did, would have made a Sanderson order just had the plaintiff succeeded against the RTA.