Vairy v Wyong Shire Council

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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


  • When applying the test determining the standard duty of care, one 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 one looks 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, one considers 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.


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