2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 April 2003 and in their place order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
P Menzies QC with D J S Jenkins for the appellant (instructed by Beston Macken McManis)
J R Sackar QC with M T McCulloch and S P W Glascott for the respondent (instructed by Phillips Fox)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Swain v Waverley Municipal Council
Negligence – Standard of care – Breach – Swimmer injured by diving into sandbank while swimming between flags – Jury finding of negligence on part of Council – Whether finding reasonably open on evidence.
Appeals – Civil trial by jury – Function of appellate court – Appellate review of jury finding on issue of breach of duty of care.
Words and phrases – "risk", "obvious", "reasonably practicable alternative".
GLEESON CJ. Actions for damages for personal injury suffered by a plaintiff allegedly in consequence of the negligence of a defendant in the past were commonly tried before a judge and a civil jury, usually of four persons. In New South Wales, and in some other Australian jurisdictions, the use of civil juries in such cases has become less common. This appeal draws attention to the different considerations involved in appellate review of primary decision-making, according to whether the decision-maker is a judge or a jury.
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.
At a trial by jury, the functions of judge and jury are clearly distinguished. The judge decides issues of law; the jury decides issues of fact. A judge, whether sitting alone or presiding at a jury trial, gives reasons for his or her decisions. An…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Swain v Waverley Municipal Council [2005] HCA 4
Case
[2005] HCA 4
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia concerning a jury's finding of negligence against Waverley Municipal Council. The plaintiff, Mr Swain, sustained an injury when diving into a sandbank while swimming between the flags at Bondi Beach. The jury had found the Council negligent, but this verdict was set aside by the Court of Appeal of New South Wales.
The central legal issues before the High Court were whether the jury's finding of negligence on the part of the Council was reasonably open on the evidence presented, and the extent to which an appellate court can review a jury's finding on the issue of breach of duty of care. Specifically, the court had to consider the plaintiff's burden of proof in establishing a breach of duty, including the requirement to demonstrate the existence of reasonably practicable precautions or alternative courses of conduct.
The High Court, in allowing the appeal, determined that the jury's verdict was reasonably open on the evidence. The court emphasised that while jury verdicts are enigmatic and lack the precedential authority of reasoned judicial decisions, an appellate court should uphold such verdicts unless there are very limited circumstances justifying their setting aside. The majority found that there was evidence upon which a jury could reasonably conclude that the Council had breached its duty of care by failing to adequately monitor and manage the beach conditions, including the presence of sandbanks, and to adjust the patrolled swimming area accordingly. The court noted that the notion of lifeguards being vigilant for changing conditions and shifting flags was not irrational.
Consequently, the High Court allowed the appeal with costs, set aside the orders of the Court of Appeal, and reinstated the jury's verdict. The appeal to the Court of Appeal was dismissed with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 April 2003 and in their place order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
In Dixon v Cementation Co Ltd[61], Devlin LJ appeared to accept that in some cases the plaintiff may discharge the evidentiary burden simply by saying: "If this is dangerous, then there must be some other way of doing it that can be found by a prudent employer and it is not for me to devise that way or to say what it is." With great respect to one of the greatest judges of the 20th century, that statement is wrong. In Australian Iron & Steel Pty Ltd v Krstevski[62], Barwick CJ and Menzies J sought to explain it as depending on a finding that the employers could have altered a system which they knew or ought to have known was unsafe. But this is not the natural meaning of what Devlin LJ said. His statement is contrary to basic principle, and it should not be followed.[61][1960] 1 WLR 746 at 748; [1960] 3 All ER 417 at 419.[62](1973) 128 CLR 666 at 668.The material facts Mr Swain sustained his injury at about 4.30pm on 7 November 1997, which was a fine but overcast day. About 2,500 persons were at Bondi Beach that afternoon. About 3,500 persons attended that beach that day. The surf was light, the swell size in the afternoon being only 0.5 metres. Flags, designating the patrolled swimming area, had been placed in the sand at about 6am by a lifeguard employed by the Council. They were in the same place when Mr Swain was injured. The flags may have been 100 metres apart but were probably closer than that. High tide of 1.5 metres occurred at approximately 2pm. Low tide that morning was at 7.30am and was about 0.6 metres. Mr Swain arrived at the beach at about 3pm with two friends, Mr Earl Wilson and Ms Kathryn Galvin. Mr Wilson and Mr Swain drank some beer. Some time before 4.30pm Mr Wilson went into the surf between the flags. He gave evidence that there was a "normal ... downward slope" in the seabed. He said that, about 15‑20 metres from the shore, he took a slight step down, took "three or four" steps and "kicked a sandbar." In the evidence, the terms "sandbar" and "sandbank" were used interchangeably. Just before the sandbar, the water was about waist deep. Mr Wilson said, "[W]hen I stepped over it, I was at a depth of up to my knees." He said that "it was quite a big step" and that he:"got a bit of a surprise because it was quite a big step and I hadn't been used to such conditions, so I, you know, I did notice it and think, ooh, that's a bit dangerous, because I was thinking of diving when I got to waist-deep, as you do, thinking that it's safe."After he returned to the beach, Mr Swain and Ms Galvin went into the water. Ms Galvin said that there was a "ditch or hollow in the water" just before the sandbank. She stumbled forward on the sandbank and the water became "shallow again without a doubt." At that stage, she said that Mr Swain was about a metre to the right of her. Mr Swain was the last of the three to enter the water. He was 24 years of age and a very experienced surfer. As an 11 or 12 year old, he had taken a Learn to Surf course. He was familiar with rips, able to identify them and knew that they were dangerous. He knew that the safest areas to swim were areas without rips. He had dived under waves many times before. He knew that rocks or other dangers might be under the water. He was aware of the presence of sandbanks in surfing and swimming areas, particularly at North Curl Curl Beach where he had frequently surfed. Asked to define a sandbank, he said: "[Y]ou have this wall of sand that is sticking up from the base of the sand or the bottom of the ocean." He was familiar with the phenomenon of waves breaking on a sandbank, washing over the sandbank and then running out to sea. He was also aware that, where the waves break close to the shore, there is froth from the surf and scour from the sand as it is dragged back to where the waves break. He also accepted that the water tends to be shallower over the sandbank and that it is "deeper again closer to the shore". He agreed that the "slightly deeper area in front of the sand bank is where you have the water going off to the sides and finding its way out towards the rip area and is being fed out to sea". When surfing, he usually used a surfboard. He said that he avoided surfing over sandbanks because inconsistency in water depth meant "the waves aren't always the best over the sand bank." He had been to Bondi Beach more than 10 times before. Only on one occasion had he used a surfboard at Bondi.
Evidence
Evidence Before The Court
The proposition that "evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer"[33] is not relevant in determining whether, as a matter of law, there is evidence of negligence. It applies only where, although the evidence is sufficient as a matter of law, the defendant seeks to set aside the verdict on the ground of unreasonableness. The remarks of Lord Mansfield in Blatch v Archer[34] to which Dixon CJ referred were made in a motion for a new trial. Although the report does not say so, the ground for a new trial must have been that the verdict was against the weight of the evidence. The grounds that would support a motion for a new trial at common law were basically the same then as they are today: evidence wrongly admitted or rejected, misdirection by the trial judge or that the verdict was perverse or against the evidence or the weight of the evidence. The remarks of Lord Mansfield were not spoken in the context of an issue whether, as a matter of law, there was evidence to support the plaintiff's case. They should not be applied in that context.The need for evidence of a reasonably practicable alternative[33]Hampton Court Ltd (1957) 97 CLR 367 at 371-372 per Dixon CJ, citing Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970].[34](1774) 1 Cowp 63 at 65 [98 ER 969 at 970].Evidence of the existence of an alternative The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence[35]. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff[36]. The plaintiff does not establish a prima facie case simply by asserting that there "must be" a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists[37]. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk[38]. [35]De Gioia (1941) 42 SR (NSW) 1 at 3-4 per Jordan CJ.[36]Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 364 per Dixon CJ, 369-370 per Taylor and Owen JJ; Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J; Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 at 725 per McHugh JA.[37]Neill (1963) 108 CLR 362; Vozza (1964) 112 CLR 316.[38]Kingshott (1987) 8 NSWLR 707 at 727 per McHugh JA, referring to Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666 at 668 per Barwick CJ and Menzies J. Evidence of the practicability of the alternative The plaintiff must also provide at least some evidence from which the jury can find that the alternative is a practicable one that was reasonably open to the defendant[39]. Thus in Vozza v Tooth & Co Ltd[40], the plaintiff suggested two alternatives to obviate the risk of injury arising from the broken bottles he was required to handle, namely, the installation of a system for the mechanical handling of the bottles or the provision of thicker gloves. He did not describe the mechanical handling system in sufficient detail to enable the jury to contrast it with the defendant's manual handling system or to assess its advantages and disadvantages or to say whether or not it would have been practicable and reasonable to install it in the defendant's premises. He tendered evidence that more strongly reinforced gloves were available but there was no evidence that they would be suitable for the plaintiff's task. The defendant called an expert who said he could make a better glove (not an impenetrable glove). This Court held that there was insufficient evidence in relation to any of the alternatives suggested by the plaintiff to support a verdict for the plaintiff as a matter of law. The Court affirmed the decision of the Full Court of the Supreme Court of New South Wales to set aside the jury's verdict for the plaintiff and enter a verdict for the defendant.[39]Neill (1963) 108 CLR 362; Vozza (1964) 112 CLR 316.[40](1964) 112 CLR 316.
Decision
Reasons for decision
GLEESON CJ
HUGH J
(dissent)
HEYDON J
The dissenting opinion in the Court of Appeal approached the issue in the appeal in the legally correct way. Because the correct approach was taken, it is unsurprising that the correct conclusion was reached by Spigelman CJ. History shows that the verdicts of juries on safety questions have sometimes reflected the commonsense of ordinary citizens which experts and established practice have occasionally neglected. The notion that lifeguards on duty on a popular public beach should be vigilant throughout the day for troughs and emerging sandbanks presenting particular dangers to ocean swimmers, and attentive to shifting the flags as required by such changes, is not one offensive to rationality and reasonableness. It may not be a conclusion that every judge would draw in the present case. But once such a conclusion was reached by the jury, the resulting verdict must be upheld by an appellate court save for the very limited circumstances where such a court is authorised by law to set it aside. Conclusion and orders In some ways, the jury's verdict in this case was a surprising one. However, as the dissenting judge said in the Court below, too much should not be read into it[198]. No jury verdict (nor appellate decision reconsidering it) enjoys the authority of precedent that belongs to a reasoned decision of a judge upheld by the judicial process[199]. Of necessity, a jury's verdict speaks enigmatically. It gives neither reasons nor explanations. It gives nothing more than the jury's ultimate decision on the mass of evidence in the particular case. [198]Swain [2003] Aust Torts Reports ¶81‑694 at 63,782 [142]-[143]. [199]Indeed all such judgments are in any case merely decisions confined to their facts. They do not establish principles of law: Joslyn v Berryman (2003) 214 CLR 552 at 602 [158] per Hayne J. In the present case much may have turned on the primary forensic battleground which the Council chose and upon which it obviously failed (swimming outside the flags). It would not have been surprising if that issue had distracted the jury's attention from the truly separate issues of reasonableness of conduct in the case. This case was not one where there was "no evidence" to support the appellant's claim of negligent breach of duty causing him damage. There was evidence. I am not convinced that the jury's conclusion was such that no jury performing their functions properly could reasonably have been satisfied of the facts necessary to sustain the verdict in favour of the appellant. Accordingly, the jury's verdict, and the judgment that followed it, must be restored. The appeal should be allowed with costs. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In place thereof, it should be ordered that the appeal to that Court be dismissed with costs. I agree with McHugh J that the appeal should be dismissed with costs on the ground that there was no evidence that would have entitled the jury to find that there existed a reasonably practicable means of avoiding the risk of the injury which the plaintiff suffered. However, in my opinion, applying existing principle, the factual question whether it was reasonably foreseeable that there was a risk of injury to the plaintiff of the kind he suffered in the circumstances should also be answered in the negative. I do not agree with McHugh J that it was open to a reasonable jury to find that the risk was reasonably foreseeable in this case[200]. [200]cf reasons of McHugh J at [90].