SWAIN v WAVERLEY COUNCIL – ROUND 3 TO SWAIN

Author: Valentina Misevska

Publish Date: February 15, 2005

Round 3 in the much publicised case of Bondi beach goer Guy Swain and  Waverley Council was recently played out in the High Court.  Swain came out the victor and had his damages award of approximately $3.75 million re-instated in a 3 v 2 split decision.

Round 1– NSW Supreme Court

On 7 November 1997, Swain went to Bondi beach with friends.  He suffered spinal injuries and became a quadriplegic when he dived into a sandbar as he made his way out into the surf.

In 2000, Swain brought an action in negligence in the Supreme Court of NSW alleging that his injuries were caused by the negligence of the Council in that the Council had failed to take reasonable care in positioning the flags ("the flag placement issue"), or in failing to warn swimmers of the sandbar through the use of warning signs ("the failure to warn issue").

The trial proceeded by way of a 4 person jury who found the Council liable but also found Swain 25% contributorily negligent[1].

Round 2 – NSW Supreme Court of Appeal

The Council appealed to the Court of Appeal on the grounds that there was no evidence capable of sustaining the jury's findings or, alternatively, that in its totality, the evidence preponderated so strongly against the verdict that reasonable jurors could not have reached it.  This latter ground failed and was not been revived in the High Court. 

The Court of Appeal unanimously accepted that there was no evidence to support a verdict against the Council on the failure to warn issue and the majority accepted that there was no evidence to support such a verdict on the flag placement issue. 

Round 2 thus was won by the Council.

Round 3 – High Court

Swain appealed to the High Court in relation to the flag placement issue only[2].  He contended that the Court of Appeal erred in concluding that there was no evidence on which a reasonable jury could have found that the Council was negligent in relation to the placement of the flags.

The Council’s application in the Court of Appeal and Swain’s in the High Court both proceeded pursuant to s.108 of the Supreme Court Act which allows a Court to overturn a jury verdict if as a matter of law the losing party is entitled to a verdict in their favour.  In this case the Council would not be entitled to a verdict in its favour if there is evidence on which the jury could reasonably have found for Swain.

The High Court Decision

The majority in the High Court was made up of Gleeson CJ, Gummow and Kirby JJ with McHugh and Heydon JJ making up the minority.  As noted above the majority found in favour of Swain and re-instated the finding of negligence by the Council and the $3.75 million damages award.

The role of the High Court was not to determine what was required of the Council to discharge its obligation to exercise reasonable safety for the care of beach goers rather it was up to the Court to determine in whether on the evidence the verdict against Swain could stand as a matter of law.

Majority

Gummow J (with whom Gleeson CJ agreed)

Gummow noted that the reasoning of the Court of Appeal majority in relation to the flag placement issue was based on the following:

1. there was no evidence on which the jury could conclude that the flags conveyed that the designated area is one in which it is safe to dive; 
2. the dangers of diving into the surf were so obvious that there was no evidence upon which the jury could conclude that the Council had breached its duty of care towards Swain;
3. there was no evidence to suggest that the Council could have taken any course of action with respect to the placement of the flags that would have avoided injury to Swain.

In relation to number 1, Gummow noted that there was much debate at the trial as to what the red and yellow flags signified and then concluded that in the circumstances of this case, it was open to the jury to conclude that reasonable care required the Council, in placing the flags, to consider the possibility that an inadvertent or careless bather would assume that the flags indicated that it was both safe to swim and safe to dive.

In relation to number 2, Gummow noted that ‘obviousness’ was only one factor in determining whether there was a breach of duty and that on the evidence it was open to the jury to find that the sandbar and associated channel were unexpected and concealed hazards.  In Gummow’s view it did not matter that the conditions on the day were not unusual or different to those encountered at other times or other beaches.  Nor did it appear to matter that Swain was an experienced surfer and beach goer.

In relation to number 3, Gummow found that on the evidence there was material before which the jury could reasonably conclude that on the day in question the Council had failed to exercise reasonable care in positioning the flags in front of the sandbar.  He also noted that there was evidence to indicate that changes in beach and weather conditions may require the flags to be moved over the course of the day.

Finally Gummow considered the issue of which party had the onus of proving the existence or non‑existence of a reasonably practicable alternative to the placement of the flags in their location at the time of the accident.  He noted that neither party led any evidence as to the formation of the beach outside the flagged area and that it was not put to the Council lifeguard on duty at the time as to why the flags were noted moved.  He then decided that as the Council led no evidence and asked no questions upon these critical matters despite a Council witness being able to do so it was open to the jury to infer that the Council could have moved the flags.  Gummow further stated that in the circumstances of the trial, the Council had carried at least an evidentiary onus to lead evidence that no reasonably practicable alternative course of conduct was open to it.

Interestingly Gummow noted that in its essence, the reasoning of the majority in the Court of Appeal leads to no more than the conclusion that a verdict for the Council was the preferable outcome on the evidence before the jury however that was an insufficient basis for holding that the Council was entitled to a verdict "as a matter of law".

Kirby

Kirby’s judgement begins by his criticising the majority in the Court of Appeal for making their own assessment of the evidence rather than assessing, by reference to the evidence, what it was open to the jury to find.

Kirby’s judgement focused on evidence on the placement of the flag issue.  He noted that Council did not adduce evidence about what its officers had done or considered with respect to the placement of the flags even though the lifeguard it called to give evidence could have answered that question.  Although Kirby accepted that Swain, as the plaintiff in the action, bore the legal onus of proof, in the context of the trial, he thought it was unreasonable to expect him, on the blind, to have asked that question.

Kirby considered it was for the jury to draw inferences from the facts proved at the trial and that inferences may be drawn by a jury from the omission of a party with the interest to do so to ask such an obvious question.  In these circumstances it was open to a jury to conclude that the failure to elicit the apparently relevant evidence occurred for good reason and it was also open to them to decide that the question was never asked because the answer would not help the Council's case.

Kirby thought that the following were other inferences, on the evidence, which were open to the jury to make:

1. that the initial placement of the flags was incorrect;
2. that lifeguards were in a good position to see the general contours of sandbanks, channels and troughs within the water from their elevated vantage point;
3. a lifeguard from his elevated position could see the sandbank and adjacent trough but that on this day the lifeguards paid no adequate attention to them, or that they noticed them, but decided to place the flags adjacent to the sandbank regardless;
4. although the sandbank was visually clear to the lifeguards it was invisible to Swain.

Finally, even though the lifeguard on duty at the time had said there had been no change in the conditions of the beach during the day, it was open to the jury to conclude that this was unconvincing evidence because he would have been unaware of the original conditions when the flags were first put in position hours before he commenced duty. 

Minority

McHugh

McHugh noted that before a case of negligence can be submitted to a jury for determination, there must be evidence upon which the jury can find:

1. that the risk of injury to the plaintiff was reasonably foreseeable;
2. that a reasonably practicable means of eliminating that risk existed; and
3. that there was a causal connection between the defendant's failure to eliminate the risk of injury and the sustaining of the plaintiff's injury.

McHugh considered it was probably open to the jury to find that the risk of injury to the plaintiff was reasonably foreseeable[3] he did not consider it was open to them to find that a reasonably practicable means of eliminating that risk existed because there was no evidence given whatsoever in relation to this issue.

McHugh considered that a plaintiff (Swain) bears the onus of proof in relation to reasonably practicable means of eliminating or reducing a risk and that the plaintiff must at least provide some evidence from which a jury can make a finding that a reasonably practicable alternative existed. 

McHugh recognised that although in some cases, the plaintiff may satisfy the relevant requirement by relying on common knowledge of alternative actions or precautions that would have eliminated the risk, common knowledge was not sufficient in this case.  What was required in this case – and what was absent in this case – was evidence that other parts of the beach outside or even inside the flagged area did not expose swimmers to risks of injury. 

In this case it did also not matter that the Council had knowledge of facts that may have assisted Swain in relation to this issue.  Swain plainly failed to make out a case of negligence.

Heydon

Heydon agreed with McHugh that the appeal should be dismissed on the ground that there was no evidence that would have entitled the jury to find that there existed a reasonably practicable means of avoiding the risk of the injury which Swain suffered.   Heydon did not agree however with McHugh’s decision that it was open to a reasonable jury to find that the risk was reasonably foreseeable in this case.  

In relation to the issue of no evidence being called as to reasonably practicable alternatives, Heydon reserved for later consideration, if necessary.

Summary

When reading this case it is important to consider a number of things. 

Firstly, this case went to trial prior to the commencement of the Civil Liability Act.  Waverley Council could not, in the case commenced against it by Mr Swain, avail itself of the various legislative changes brought about by that Act although subsequent Councils may be able to.

Secondly, the case was a trial by jury.  As juries are not required to give reasons for their decisions there is no record of what facts or combinations of facts were persuasive to each juror.  This also poses difficulties in using this case as a precedent for non-jury civil cases.

Thirdly, the High Court in such cases as this does not set out to state that the jury’s verdict on the facts was ‘right’ or one they themselves would have come to (in fact different judges explicitly stated in relation to various evidential issues for determination by the jury that it would have been open to the jury to have come to a conclusion opposite to what which they did).  Instead the Court seeks to ensure that the verdict is one which was reasonably available to the jury on the evidence.

Fourthly, defendants need to be extremely careful when making a technical decision not to call evidence within their knowledge even though the plaintiff may have the burden of proof in relation to a legal element to which that evidence relates.

Finally, on a costs issue, because the ground on which Council was successful in the Court of Appeal was one which was only raised on the day of the hearing, Council was denied a costs order in its favour in relation to those proceedings.  The 3 round battle with Swain has consequently proved an extremely expensive exercise for Waverley Council.

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