Vairy v Wyong Shire Council

Citation: Vairy v Wyong Shire Council (2005) 223 CLR 422

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 382-4 [12.80]

Background facts

• Plaintiff dove into the ocean from a rock platform and cracked his neck.
• The Plaintiff has seen many others do it without a problem.
• The Plaintiff alleged that signs should have been erected.

Legal issues

• Breach of Duty - Calculus of negligence

Judgment

• When applying the test determining the standard duty of care, we must look forward and not back (as in, position ourselves before the accident not after it)
• When looking forward, all possibilities are considered and proper weight is given to the relevant factors.

  • "Because the inquiry is prospective, all these possibilities must be considered. And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to."

• Obviously, if one is simply looking back, it is easy to say what should have been done to prevent that particular injury.
• In this case, if you look backward, a judge will conclude that considering how severe the injury was, the council should have erected a sign to prohibit diving.
• However, when looking forwards, we consider how the council was actually meant to act:

  • The council can reasonably foresee that there is a risk for divers.
  • However, there were plenty of points where the risk occurs (a diffused risk), the lake being unstable.
  • A reasonable council simply would not erect a sign in every single point where danger occurs, that is just too much of a burden.