Wyong Shire council V Shirt | Assignment help

Introduction

Wyong Shire Council v Shirt is a case between plaintiff Shirt and defendant Wyong Shire council. On the day of the events in 1980, Shirt, an inexperienced and novice water ski enthusiast took upon himself to ski in deep water. Since it is easier to ski in deeper waters than in shallow waters, the idea was perfect. The only concern now was to decide where the water was steep, and where it was shallow. Shirt was guided by a sign, reading “Deep water” and pointing towards the shore, according to his judgment. He crossed the region assuming that the water was deep after that point, while in actuality, the water was shallower after the sign. Shirt fell and hit his head on the water bed below, causing paralysis. The main aim of the case was to demand justice for the plaintiff, Shirt, who lost functionality of his body due to the incident. Defendant Shire has appealed to the higher court after the lower court has decided in favor of Shirt. The case on Shire is to not foresee plausible damage that could be caused due to the erection of the signs on the lakeside, and in this case, for a reasonable man, it is a breach of duty. Plaintiff understands that the signs erected were either wrongfully erected to misguide people, or erected with negligence as to what happens in the future if people, such as the plaintiff, wish to water ski at the lake.

Background facts

Plaintiff [Shirt] was gravely injured after water skiing in a lake.
The water was really shallow in some places, and that is why the Plaintiff was injured.
The Defendant erected a ‘deep water’ sign close to where the Plaintiff was hurt, which meant to serve as a border – beyond it, the water starts getting shallower.

Legal issues

Breach of Duty – Reasonable foreseeability
Breach of Duty – Calculus of negligence

Metrics of Negligence

The primary objective is to understand:

Breach of Duty: It is the defendant’s duty to take standard care and align actions accordingly, which is like to be taken by any reasonable man who is not ignorant and wishes the best for everyone. Breach of duty as a cause can be verified if the act of putting up sign boards by Shire were not sufficient to prove reasonable standard care criteria. In such cases, we can verify breach of duty by reasonable foreseeability.

Reasonable foreseeability: Points towards the calculation of standard care. In order to have taken standard care by the defendant, the defendant must foresee the cause and effect relationship between the actions and their reactions. Negligence and forfeiting duty of care, namely in a situation where the care is of utmost priorities to future actions, is a check on negligible foreseeability¹(Chapman vs. Hearse, 1961). For actions that have a chance or probability of ending up on the wrong side, the standard care envelops being able to find and understand the future risks involve, or foresee, and accordingly take decisions² (Green L, 1961). Moreover, the likeliness of the risk is a secondary parameter, but first comes the identification of whether the wrong doing is negligent, or there is a failure to identify breach of duty³ (Terry H, 1915). Another important metric is to calculate the risk involved for future happenings while foreseeing the events.

Calculus of negligence: The calculus only comes into picture after the establishment of the fact that the foreseeability was in fact reasonable, and the events that followed were in the hand of the defendant to be avoided by taking standard care and being reasonable. Once established so, negligence takes into consideration:

Probability: If the events that follow negligence are common occurring and have repeatability, the probability of the event was high. In such cases, the risk of injury is common and is likely to happen. For the higher probability of risk, more care has to be taken along with stringent methods.
Gravity: It has to be identified that a particular negligence would result in a situation with what magnitude and gravity. In the cases when the event might be very improbable, but it causes damage that is very grave, intensive care should be taken to foresee it. In case when the event is common occurrence and the damage caused due to the event is grave, very intensive care should be taken to foresee it. If the event is highly probable yet the damages caused by the event are under control, proper care should be taken to avoid it and certain measures should be established to ensure the occurrence can be avoided in all circumstances. In case of an improbable event with less damage, standard care should be taken. The idea of understanding the magnitude is important to establish whether the event, however unlikely or likely, however damaging or not, could have been avoided if proper care of foreseeing had occurred. In cases when the idea of the occurrence of event and the damage is “far-fetched” or “unforeseen”, the liability of the defendant decreases.

Burden: Negligence is also affected by the constraints that are faced by the event. In case there are huge practical and economical constraints which cause burdens in foreseeing the event, a person shall be excused if the standard of care is lowered. The difficulty in maintaining the standard care and foreseeing is important to judge whether or not a person is equipped enough to foresee a certain or uncertain event.

Utility: Utility is another important criterion as it identifies the effect of the negligence. Negligence becomes of supreme importance if the social utility of it is high. If it affects a substantial amount of crowd, and the society in whole, the utility of negligence cannot be avoided. In many cases, small mistakes can often lead to an event that affects a large crowd. The conundrum here is to understand whether a person can be blamed on the basis of fault or on the basis of liability due to direct damaged caused based on a moral standard norm, or standard care.⁴ (Fletcher P, 1972)

Judgment

Reasonable foreseeability

Reasonable foreseeability in breach has a very wide scope. It is not about the likelihood or probability of the event – that is a different inquiry which comes later.
- “Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.”
Foreseeability in this context means that the risk is not far fetched or fanciful.
- “Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.”
In this case, the risk was that the ambiguity of the sign might induce people to believe that the water was deep and therefore safe for water skiing.
This is a foreseeable risk.

Case Summary

The ongoing case of the plaintiff was based on the fact that the utility of the negligence was high along with the probability of the occurrence of the event and the gravity of the situation. There was very less burden to erect proper signs, or ensure people read them correctly.
For the defendant, it is important to prove otherwise, to ensure no liability. As the events of the case go, plaintiff Shirt registered the case in a lower court and was deemed correct, as per judgment. Defendant Shire was found to be negligible in their proceeds of putting up sign boards. Wyong Shire Council felt that the ruling in the favor of Shirt was incorrect and the idea of the sign boards put up in the lake were farfetched to have taken into consideration for water skiing, and hence appealed to the higher court. The basis of the argument by Shire was the initial purpose of the channel and lake. The construction and design of the channel was done in such a way, that people swimming towards the lake would be forthcoming from the jetty’s side. The side of the jetty had most swimmers, and hence was the one with the most utility. In such a case, the Shire council ensured that three boards are put up in the direction of the channel, allowing young and inexperienced swimmers to identify the depth of water. The “DEEP WATER” signs were clearly to be used for swimmers, as per the argument put forth by the Shire council. The utility of the channel in question increased when the same was being used by various enthusiasts to water ski, and now it was upon the court to identify whether or not the standard care was taken. In ruling against Shire, the lower courts had also taken a judgment that could prove to be a debacle, since both the defendant and the plaintiff seemed to have put forth their arguments successfully. It was clearly established by the higher court that the idea of standard care in this case was “far-fetched” or “fanciful”, as opposed to being in line for forseeability since the channel and lake were not initially developed for skiing.
Moreover, further understanding of the case provides the idea that a very subjective approach was established to provide judgment. It was established that many a times, risk involved with injuries when the events are unlikely to happen cannot be foreseen easily⁵(Bolton vs. Stone, 1951). Delving further, it was established that the events cannot be separated justly into “unlikely to happen” and “not unlikely to happen” since an event with risk which is “not unlikely to happen” does not justify proper actions.⁶ (Caterson vs. Commissioner for Railways, 1973).

Calculus of negligence

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of 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.”

Establishment of Conclusion

It is further established that when Shirt, being an inexperienced ski enthusiast, decided to base his assumption of deep water flowing on the sign that was erected in proximity, had made a grave mistake, since the signs did not mean anything of the kind. The signs were a part of works for Saltwater Creek, a creek work established in 1966, for dredging the lake. The 900 ft. channel work was completed and provided to The Entrance Aquatic Club, whose aim was to promote water sports in the area. This also involved a jetty for the same. Shire had undertaken the dredging of the channel for such purposes as the water bed earlier owned by the Entrance Aquatic Club was not adequate to provide for the water sports needs for their patrons. In such a case, Mr. McPhan, on the completion of the work, erected wooden sign boards facing the jetty to inform and educate the patrons coming from the jetty, especially children and other member of the public who cannot swim in the deep waters. In the absence of any plausible arguments by the defendant in the lower court, and the establishment of strong evidence by Shirt, the plaintiff, in the lower court, the jury was bound to have ruled in the favor of Shirt, as there was no cross examination by the defendant. Moving further, Shirt is liable to prove that these signs were, in fact, erected without due diligence and hence prove their negligence. As a result, the defendant was put through the reasonable foreseeability of the outcomes test, which was the only quantifiable way to end the argument and help the jury decide.⁷ (Mount Isa Mines Ltd. v. Pusey, 1970). The understanding of the court is such that the lake was used as a water skiing circuit for a few years prior to the dredging of the channel, even when it was shallow. In such an event, the circuit was often used by ski enthusiasts with foreseeable risk. As the signs of deep water were erected in the line of the jetty and pointed towards it, it was clear that the signs were meant to be for the swimmers and patrons bathing near the jetty and preventing them from traveling far into the channel, with kids or inexperienced swimmers. In such an event wherein a person has mistaken the signs to be for skiing purposes, the reasonable foreseeing does not come into picture since the Shire is not liable to the damage caused due to mistaken considerations and assumptions. As going forward, the court ruled in the favor of Shire stating that the Shire is not liable for foreseeing the event of a patron assuming the signs to be for water skiing purpose, and established credibility in terms of the erection of signs for bathing. There was no evidence found against the creek or Mr. McPhan, to prove them guilty for negligence. The misconstruing idea of the signs was in fact an unfortunate happening, and could have been either controlled or foreseen clearly by the creek. Finding analogies to a prior case, the court ruled that even if the Shire had failed on their current appeal, the court would have been unable to help the reasoning and favor the plaintiff since the reason for the existence of the club was very different from the reason that the case existed. The primary concern of the creek, Shire and the jetty was foreseeing issues with bathing, and so the signs were erected in the proper directions by taking proper care. In case of increased utility as a circuit for water skiing, the Shire was not liable to undergo changes since the purpose of the Shire was not the same⁸ (Maloney v. Commissioner for Railways, 1978).

References

Tort Cases: Chapman v Hearse [1961] HCA 46. 2016.Tort Cases: Chapman v Hearse [1961] HCA 46. [ONLINE] Available at: https://netk.net.au/Tort/Case5.asp. [Accessed 16 September 2016].
Fletcher, GP, 1972. Fairness and Utility in Tort Theory.The Harvard Law Review Association, [Online]. 85, 537-573. Available at: https://www.jstor.org/stable/1339623?seq=1#page_scan_tab_contents[Accessed 15 September 2016].
Terry, HT, 1915. Negligence.The Harvard Law Review Association, [Online]. 29, 40-55. Available at: https://www.jstor.org/stable/1325735?seq=1#page_scan_tab_contents [Accessed 15 September 2016].
Green, L, 1961. Foreseeability in Negligence Law.The Harvard Law Review Association, [Online]. 61, 1401-1424. Available at: https://www.jstor.org/stable/1119989?seq=1#page_scan_tab_contents [Accessed 15 September 2016].
1951.BOLTON V STONE; HL 10 MAY 1951. [ONLINE] Available at: https://swarb.co.uk/bolton-v-stone-hl-10-may-1951/. [Accessed 15 September 2016].
1973.Caterson v Commissioner of Railways. [ONLINE] Available at: https://jade.io/j/?a=outline&id=66395. [Accessed 15 September 2016].
1973.Willis, John — “Mount Isa Mines Ltd v Pusey (1971) 45 ALJR 88” [1971] MelbULawRw 18; (1971) 8(2) Melbourne University Law Review 329. [ONLINE] Available at: https://www.austlii.edu.au/au/journals/MelbULawRw/1971/18.html. [Accessed 15 September 2016].
1980.High Court of Austrailia. [Online] Available at: https://jade.io/article/66842. [Accessed 15 September 2016].
2008.Miscellaneous Taxation Ruling. [Online] Available at: https://jade.io/article/66842. [Accessed 15 September 2016].

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