The legal tide went out for Guy Edward Swain.
Swain dived into the water at Bondi Beach on November 7, 1997. He hit a sandbar, broke his neck and is now in a wheelchair for the rest of his life.
He sued Waverley Municipal Council which managed the beach.
Swain won $2.8 million damages after a trial before a jury of four.
An appeal by the council was allowed by the Court of Appeal this month. Swain is now left with a large legal bill and no damages. Inevitably, he will now be looked after by his own family and the state. It highlights the need for better care for the catastrophically injured who get no compensation, but that’s another story.
At the time of the original award, the case made headlines. Where would it end, all this suing for ordinary accidents? Insurance premiums were going through the roof.
Organisations like Waverley Municipal Council were copping huge rises in insurance premiums for public liability, as were hundred of charitable organisations running money-raising events. Their answer was to abandon surf patrols or to cancel the charitable events, especially as the insurance was often compulsory or required by lenders.
The reaction of State Governments was knee-jerk. They introduced laws to restrict access to damages and to cap the amount of damages. Sadly, the ACT seems to be set to follow suit, because the judges are responding without legislation.
In the 1960s and 1970s the courts lavishly expanded the purview of negligence law. Whenever someone was injured it seemed inevitable that someone somewhere who was insured could be found to foot the bill. Indeed, some judges even cited insurance as a reason for spreading liability.
The judges put aside the Victorian attitude of self-help and embraced at first a softer Christianity which required you to at least look out for your neighbour and later they embraced the welfare state. In short, they moved – albeit slowly – with the times.
In the late 20th and early 21st century the judges have seen that the insurance cash cow does not come free. Premiums became impossible.
Unfortunately, though, the insurance companies have played it up for all it is worth. They were having bad investment years. This was combined with a few major payouts, particularly September 11, 2001 and a series of lunatic cases where courts were finding town council’s liable for injured people’s stupidity or pure misfortune. Councils were ordered to compensate people who tripped on footpaths, dived into sandbars or hit roadworks at dubious speeds. Doctors were forced to pay for every case that went wrong, particularly births.
The councils failed to warn of the danger, the judges ruled, and so must pay. Doctors had to perform beyond ordinary care and deliver perfection. The damages were huge because those same doctors and their medicine were keeping people alive after their accidents so they required expensive care.
Alas, legislatures have moved in too hastily – as they did with motor accidents in almost every state and territory except the ACT in the 1990s. Damages were capped and liability contracted often with a dangerous one-size-fits-all approach.
In the case of motor-accident insurance, those the states and territories that capped damages to the detriment of the innocent injured do not have appreciably different insurance premiums than the ACT where the injured get compensated according to the sound principle of law which says that you should – as far as money can – put the person you injure in the same state as before the injury. That is, you should pay for care and the economic loss of destruction of capacity to earn an income.
Legislatures should have waited. The common-law judges cannot turn suddenly, but they do change with the times.
Swain’s case is one of several recent cases that prove the point. The judgment of NSW Chief Justice Spigelman contains a collection of them. I refer to them as the “scoff” cases. These are cases when discussed at barbecues and at workplaces cause people to scoff – “What. He got damages after he dived in the surf? Give me [and my rates] a break.’’
Appeal courts have overturned or cut the damages of all of the scoff cases in the past two or three years. And the lower courts have been brought into line. A lot of the scoff cases involved alcohol.
“What. He got pissed and fell off a bridge while chundering and gets damages? Give me a break.’’ The council has to prepare itself for every idiot and warn every idiot.
The common law requires common sense, but it also requires time to apply that common sense.
Spigelman quoted a 1986 that said that between 1972 and 1986 “the law ‘progressed’ by giving greater weight to the possibility of inappropriate conduct on the part of others”.
Now, though, “the law has changed in the other direction, i.e. greater weight is being given to the proposition that people will take reasonable care for their own safety.”
On the question of warning signs, a 2001 case said it was silly to say that a sign near the place where the injured person fell would have cost little without looking at how many signs should be erected and where, and what they should say; and of the projected costs.
A council should not have to erect signs which would do no more than state the obvious to people who could see the danger for themselves.
Justice Dyson Heydon (since promoted to the High Court) put this dose of good sense in a 2002 case: “The fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time they have become adults.”
He said it was dangerous to behave boisterously near pots cooking on stoves, broken glass needed to be carefully handled when picked up and rocks along the seashore could be slippery.
“These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks.”
In Swain’s case it was ruled: “No person attending an Australian beach could fail to know that there are sudden variations in the sand level under water.”
See. Good sense is returning. Alas, the good sense is not getting the same media coverage as the scoff cases got when originally decided.
We know courts and lawyers are expensive and inefficient. But that is true only for the cases that are fully argued. The hundreds of other cases that are settled because of what is ruled in the fully argued cases are dealt with efficiently and probably with more justice than some one-size-fits all piece of legislation that will cap damages and limit liability with probably little effect on premiums in the long run.