Wyong Shire Council v Shirt
High Court of Australia · 1980
Wyong Shire Council v Shirt (1980) 146 CLR 40
The risk was foreseeable and nobody guarded against it, and the plaintiff was badly hurt. Is that a breach?
The civil liability statutes did not simply codify Shirt. Section 5B of the Civil Liability Act 2002 (NSW), set out in full by French CJ, Gummow, Hayne, Heydon and Crennan JJ at [13], adds a threshold Shirt does not contain: a person is not negligent in failing to take precautions unless the risk was foreseeable, "the risk was not insignificant", AND a reasonable person in the position would have taken those precautions (s 5B(1)). Section 5B(2) then lists the considerations -- probability of harm, likely seriousness, burden of precautions, and the social utility of the activity -- "amongst other relevant things". One difference of wording is worth holding onto: social utility appears expressly in the statute, while Mason J's formulation instead names "any other conflicting responsibilities which the defendant may have". Neither list is closed -- s 5B(2) says "amongst other relevant things", and Mason J's considerations are likewise illustrative. Their Honours also warn at [13] that the "Duty of care" heading above ss 5B and 5C "is apt to mislead": these are breach provisions. Identify whether a statutory provision applies before choosing your framework: the civil liability statutes differ between jurisdictions, some (such as the Northern Territory) have no general statutory replacement for the Shirt calculus, and even where one exists it has exclusions -- in New South Wales, ss 5A(2) and 3B.
What happened?
Wyong Shire Council had dredged a channel in a lake and placed signs reading "DEEP WATER". Shirt, a novice water-skier, understood the sign as indicating that the water beyond it was deep, skied there, fell and struck his head on the bottom, suffering severe injury. The Council's argument on appeal was directed at foreseeability: that it was not open to the jury to find that a reasonable person in its position would have foreseen a risk of injury of that kind.
What did the Court decide?
The jury's verdict for Shirt stood. The Council's appeal on foreseeability failed: it was open to the jury to find as it had, and the finding was not one an appellate court could take away.
Proposition
What is the principle?
Foreseeability gets you to the question of breach; it does not answer it. Mason J set out the sequence: the tribunal of fact "must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk" ([14]).
The first hurdle is deliberately low. "[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But ... the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty" ([15]).
The second step is the work, and it is a weighing (146 CLR 40 at 47–48): "[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
Why does this case matter?
Because you will almost never apply it directly, and you will use its words every time. Every Australian civil liability statute that governs breach was drafted against these reasons: the considerations in s 5B(2) of the Civil Liability Act 2002 (NSW) and its interstate equivalents are Mason J's list, rearranged and added to. So the authority you cite is the statute and the structure you argue within is his.
The other thing to take from it is what the Court was actually doing. The Council did not argue that it had behaved reasonably; it argued that no jury could lawfully have found against it. That is an appeal about the limits of a tribunal of fact, and the answer — that a finding open on the evidence stands — is why the case is cited far more often for its framework than for its result.
Exam and application relevance
Check the statute first — and check whether one applies. Most Australian jurisdictions have a civil liability provision governing breach, and where one applies it is that provision you work from; the Northern Territory has no general statutory replacement, and statutes that do exist carry exclusions (in New South Wales, ss 5A(2) and 3B). In New South Wales s 5B(1) adds a threshold Shirt does not contain — the risk must be "not insignificant" — and s 5B(2) lists the considerations, including social utility expressly, "amongst other relevant things". Shirt remains the reasoning behind the provision, and is still the authority on how low the foreseeability hurdle sits.
Then do the second step properly, which means naming a precaution and pricing it. Say what the defendant should have done — here, a sign saying where the deep water was rather than that it was there, or a marked channel, or no sign at all — and then work the considerations against that precaution: how likely was the injury, how bad, what would this particular step have cost in money, delay and inconvenience, and what else was the defendant responsible for that pulls the other way. An answer that names no precaution has nothing to weigh, which is why it ends up asserting a breach instead of demonstrating one.
Check your understanding
A risk is foreseeable, it eventuates, and the plaintiff is injured. Name two distinct reasons why there may still be no breach.