Academic journal article Melbourne University Law Review

Roads and Traffic Authority of New South Wales V. Dederer: Negligence and the Exuberance of Youth

Academic journal article Melbourne University Law Review

Roads and Traffic Authority of New South Wales V. Dederer: Negligence and the Exuberance of Youth

Article excerpt

[This case note examines the decision of the High Court of Australia in Roads and Traffic Authority of New South Wales v Dederer, which marks the common law's continued departure from shared liability for tragic accidents into the realm of personal liability. The decision has particular significance for children and young people who may be held accountable for their reckless actions, notwithstanding the 'exuberance of youth'. In particular, the case note analyses the High Court's emphasis on obvious risks and personal responsibility and the Court's attempt to limit liability through a consideration of the plaintiff's conduct on questions of the scope of the duty of care and at the breach of duty enquiry, rather than confining it to the issue of the plaintiff's contributory negligence.]

 
CONTENTS 
 
  I Introduction 
 II The Facts and Case History 
      A The Plaintiff's Claim 
      B Tort Law Reform Legislation 
      C At Trial 
      D NSW Court of Appeal 
      E The High Court 
          1 The Majority View on the Issue of Liability of the RTA 
            (a) Scope of Duty 
            (b) Obvious Risks 
            (c) Breach of Duty 
          2 The Dissentient View on the Issue of Liability of the 
             RTA 
III The Allurement Factor 
 IV Contributory Negligence 
  V  Concurrent Findings of Fact and the Role of an Appellate Court 
 VI A Trend Identified 
VII Conclusion 

INTRODUCTION

The case of Roads and Traffic Authority of New South Wales v Dederer ('Dederer') (1) involved a tragic event that regrettably occurs all too often in our society. It resonates not only with lawyers, but also with every parent, particularly those of adolescent boys. The decision in Dederer illustrates the common law's steady departure from shared liability for tragic accidents and its firm entrance into the realm of personal liability. In particular, Dederer emphasises a requirement for young people to be held accountable for their reckless actions, despite the effects of the 'exuberance of youth'.

The case concerned Phillip Dederer, the plaintiff, who was rendered partially paraplegic when he dived off the Forster-Tuncurry Bridge into a river in northern New South Wales. (2) The accident occurred at about midday on New Year's Eve, 1998, during the school holidays when the plaintiff was 14 and a half years' old. (3) The evidence established that the Roads and Traffic Authority of New South Wales ('RTA') was well aware of the dangerous behaviour that many young people engaged in, which was jumping from the bridge into the river below. (4) Despite this common practice having continued for many years, there had apparently been no record of injury in the 39 years since the bridge was built until the plaintiff's fateful dive. (5)

The decision of the majority of the High Court in Dederer that a minor should bear full responsibility for the consequences of this tragic accident represents a discernible shift in common law attitudes towards personal responsibility and liability in respect of accidents involving children and young people. In the past, the common law has demonstrated great flexibility in its willingness to accommodate the exuberance of youth through applying contributory negligence against a youthfully careless plaintiff. (6) The common law has typically used such a finding of contributory negligence to apportion liability instead of using the plaintiff's ignorance of a risk, which might be obvious to others, as a crucial determinant of the defendant's liability.

Certainly, there has been a general shift in recent years in the High Court's attitude in favour of asserting personal responsibility and being more conservative in its approach to the question of liability in respect of risks which should be obvious to all plaintiffs. (7) However, the cases that constitute this shift do not focus on the age of the plaintiffs concerned. …

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