Wyong Shire Council v Vairy

In *Wyong Shire Council v Vairy*, the New South Wales Court of Appeal considered a claim for personal injury arising from a diving accident. The plaintiff, Mr. Vairy, suffered severe injuries when he dived into a lake and struck his head on an submerged object. He alleged that the Wyong Shire Council, as the owner and occupier of the land surrounding the lake, owed him a duty of care to warn of the dangers associated with diving into the lake, particularly the unknown and variable depth of the water and the presence of submerged objects. The Council denied liability.

The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to the plaintiff, and if so, whether it had breached that duty. The Court also had to consider the question of causation, specifically whether any breach of duty by the Council had caused the plaintiff's injuries, and whether the plaintiff had been contributorily negligent. The Court was also asked to consider whether the defence of *volenti non fit injuria* applied.

The Court of Appeal found that the Council did owe a duty of care to the plaintiff. However, it determined that the plaintiff had failed to establish that the Council had breached this duty. The Court reasoned that the danger of diving into a body of water of unknown depth was an obvious one, and that the plaintiff, as an experienced swimmer and diver, was aware of this inherent risk. The Court also noted that the plaintiff had not established that the Council had knowledge of the specific submerged object that caused his injury, nor that it had failed to take reasonable steps to warn of the general dangers. Consequently, the Court concluded that the plaintiff had not proven negligence on the part of the Council.

Accordingly, the Court of Appeal allowed the Council's appeal, setting aside the judgment entered in favour of the plaintiff at first instance. The Court entered a verdict and judgment for the defendant, Wyong Shire Council, and ordered the plaintiff to pay the defendant's costs of the proceedings and the appeal.