I see that the High Court has allowed an appeal from the NSW Court of Appeal in a matter called Swain v Waverley Municipal Council, thereby effectively restoring the original jury verdict that had awarded Swain damages of $3.7 million for injuries sustained when he dived into a sandbank between the flags at Bondi Beach and rendered himself a quadriplegic. Swain is now a big winner in the tort lottery, although whether it’s much consolation to him in his wheelchair is unknown.
A bare majority of three (Gleeson CJ, Gummow and Kirby J) held that there was enough evidence for a jury to be able to conclude (if so minded) that Waverley Council had been negligent, and that the Court of Appeal had impermissibly substituted its own opinion of what swimming flags on a beach meant for that of the jury. The minority (McHugh and Heydon JJ) concluded that there was simply no evidence to allow a jury to properly conclude that the Council beach inspector had any other practical choice (or at least any safer choice) in placing the flags than to put them where he did.
For local councils and surf lifesaving clubs, the High Court’s decision presents a major headache. As a professional lifeguard on Sydney’s northern beaches for several seasons during my younger days, I reckon I’m reasonably well-qualified to comment on the factual situation as well as the law. Any surf beach consists of alternating sandbanks and gutters or rips. It’s a formation necessarily created by wave action. Swimming flags are most safely placed where a sandbank is, and away from major gutters and rips. Placing flags where rips and gutters are located may result in swimmers being swept out to sea and drowned. Hence you have no practical choice but to place flags delineating a sandbank area, even though some of the water covering the sandbank will be very shallow so that there’s a theoretical possibility that some dickhead (like Swain – who had consumed several beers immediately before swimming and an ecstasy tab the previous evening) might dive too deeply and ineptly into an oncoming wave and hit his head on the sandbank. However, the majority reasoning in Swain seems to proceed on the basis that there is (or at least might be) some other spot on the beach where the flags could safely have been located. Presumably they were thinking about some place where there is neither a rip nor a sandbank. But on a surf beach there is no such place.
Moreover, the majority reasoning proceeded on the basis that the plaintiff had merely to suggest the possibility that there might have been a safer place for the flags, and that the burden of proof then instantly shifts to the defendant Council to disprove that possibility!! As McHugh J discusses, this is legal and logical nonsense, but it’s nonsense that is now part of the Australian common law.
The decision in Swain leaves councils and surf clubs with a classic Hobson’s Choice. Should they place flags adjacent to a rip and get sued by people who get swept out to sea, or on a sandbank and get sued by idiots who dive deeply without checking the water depth or holding their hands in front of them? If the decision was mine, I’d simply give up completely the practice of putting out swimming flags, and retire to the clubhouse until governments legislate to overcome the effect of this absurd High Court decision.
For those wanting a cogent, sensibly reasoned approach to the issue, I recommend McHugh J’s judgment, and in particular the following passages:
In the present case, it was probably open to the jury to find that, on this day, swimming or bodysurfing between the flags at Bondi Beach exposed the swimmer to a risk of injury that was reasonably foreseeable. The risk arose from the possibility that, if the swimmer dived through a wave in an area about 15-25 metres from the shore, the swimmer might strike an unseen sandbar. I say that it was probably open to find that that risk was reasonably foreseeable because there was no evidence as to how long the risk had existed. For all that the evidence disclosed, the risk might have been confined to only a small part of the flagged area and might have existed only for a short period. If the risk had only recently arisen, the appellant would have had the difficulty at trial of showing that the Council should have known of the risk and taken immediate action to avoid it. Assuming, however, that there was a reasonably foreseeable risk of injury to the appellant, there was no evidence whatsoever that there was a reasonably practicable means available to avoid it. There was no evidence that the risk was not also present at other parts of the beach outside the flagged area or that there were parts of the beach within the flagged area that did not have the same degree of risk. There was no evidence that other parts of the beach were free from other dangers associated with swimming and could have been safely used by swimmers including the appellant. Indeed, the fact that the flags directed bathers to swim between them strongly indicates that areas of the beach outside the flagged area were more dangerous than the part of the beach within the flagged area. Furthermore, in this Court the appellant accepted that reasonable care did not require the Council to warn him of the danger of striking the sandbar. And no-one, not even counsel for the appellant, suggests that, on this day with a calm surf running, a reasonably practicable alternative means of eliminating the risk would have been to close Bondi Beach or even the flagged area where he swam. …
The fundamental difficulty in the way of Mr Swain’s case is that there was no evidence that the areas to the north or south of the flagged centre area were safer than the flagged area. Nor was there any evidence that a portion of the flagged area did not have as high a risk of injury from the sandbank, rips and guttering as existed at the point where Mr Swain suffered his injury. Mr Nightingale was not asked whether there was a safer place to put the flags. Indeed, there was no direct evidence about whether there was a safer place to put the flags. The very fact that the flags were placed where they were points strongly to the conclusion that the areas to the north and to the south of the flagged centre area were more dangerous than the area between the flags. Moreover, there was no evidence about the conditions to the north or to the south of the flagged area where Mr Swain swam. Nor was there any evidence about the conditions of the flagged area other than what can be accepted or inferred from the evidence of Mr Swain, Mr Wilson and Ms Galvin. Hence, there was no evidence whether the channel and sandbank between the flags ran along the whole length of the beach. However, it seems unlikely that they did so. The evidence indicated that, on a beach such as Bondi, the typical formation of the beach would have been a rip, a sandbar, a rip, a sandbar. A jury could infer – although it does not help Mr Swain’s case – that there would have been other rips and other sandbars along the beach on the day in the formation of a rip, a sandbar, a rip, a sandbar. In light of the evidence about the variable dimensions and locations of channels and sandbars, no inference could be drawn about the locations or dimensions of any other channels and/or sandbars at Bondi on the day. There was, as I have indicated, evidence that the North Bondi area was marginally safer than the area in the centre of the beach. There was also evidence that the South Bondi area was more dangerous than the centre area. And there was evidence that a beach such as Bondi typically consists of a series of channels and sandbanks and that the channels and sandbanks vary from day to day and during the course of the day. A reasonable jury could infer from this evidence that the location and dimensions of channels and sandbars are not uniform, that there probably would have been other channels and sandbanks outside the flagged area, and that the dimensions of these channels and sandbanks would vary. But it would be sheer speculation to infer from any of this general evidence that the sandbanks and inevitable channels to the north and south of the flagged area would not have exposed swimmers to the same, similar or other risks of injury as the centre area did. No inference could reasonably be drawn that the channels and sandbanks outside the flagged area in the centre of the beach would have been any smaller or would have exposed swimmers to a lower risk of injury than the channel and sandbank where the accident occurred. Nor could any inference be drawn that, within the flagged area, there was an area where swimmers could swim without running risks of injury. Just as no inference could be drawn that the “ditch or hollow” extended uniformly along the whole of the channel in the flagged area, no inference could be drawn that it did not so extend.
As I have indicated, a plaintiff is required to identify an alternative means of eliminating a risk and to provide evidence that the alternative is indeed a practicable one. The plaintiff may be required to lead more evidence (or perhaps technical or expert evidence) as to an alternative and the feasibility of that alternative where the defendant has followed a generally accepted practice – which the Council had in this case. The plaintiff is also required to adduce technical or expert evidence concerning the practicability of the alternative unless it is one where common knowledge or common sense is all that is required to prove the reasonably practicable alternative. However, this was not a case where the jury could use its common knowledge or experience to find that the flags could be moved to another area of the beach because there was no evidence concerning the conditions of the surf and the seabed at other parts of the beach on that day.
As a result, Mr Swain’s evidence did not disclose whether it would have been reasonably practicable to move the flags from that part of Bondi Beach on the day to another part of the beach. As the cases show, where a suggested alternative carries its own risks, the plaintiff is required to provide evidence that these alternatives would have been practicable. Moving the flags would have carried its own risks to the safety of swimmers. Mr Swain did not suggest that the beach itself should have been closed or even that the flagged area in the centre of the beach should have been closed. Nothing short of expert evidence to that effect could have enabled the jury to find that closing the beach or its centre area was the only reasonably practicable way of responding to risks arising from the size and shape of the sandbank that caused Mr Swain’s injury.
Counsel for Mr Swain boldly contended that he did not need to tender evidence that there was a reasonably practicable precaution that would reduce or eliminate the risk of injury to Mr Swain. He contended that Mr Swain was “entitled to succeed if we can demonstrate that it is apparent that by a simple manoeuvre, that is, moving the flags, the problem may be resolved.” He argued that it was then “for the 1 to deal with that by coming along and saying, ‘Could not do it’, and that did not happen.” This submission reverses the onus of proof in a negligence case. …
Quite so. But that’s what the majority in the High Court has now done. Although it might be a triumph of social justice (at least for Mr Swain), this case is not the High Court’s finest hour in terms of sound legal reasoning or even basic commonsense