Vairy v Wyong Shire Council (2005) 223 CLR 422

Mr Vairy suffered a serious injury to his head after diving from a cliff into some water.
Mr Vairy argued that the Wyong Shire Council (“the Council“) should have provided warning signs about the risk of injury.
Incidentally, a similar injury had occurred approximately 15 years prior in the same location. The Council was aware that this had occurred.
Mr Vairy sued the Council for a breach of duty of care. Mr Vairy was successful at first instance, but appealed the judgment to the High Court to increase the awarded damages.

Should the Council have erected signs warning of the dangers of diving?
Would a reasonable person from the Council have determined that his conduct would have increased the chance of an injury from diving?
Was it reasonably foreseeable due to an earlier similar injury occurring?

The High Court dismissed Vairy’s appeal.
It was reasonably foreseeable that a man could injure themselves diving from the cliff, but it was certainly not reasonable for the Council to place signage on every point in its district wherever a person could possible dive from and sustain injury.
The concept of “obvious risk” can mislead and should not be used to determine questions of breach of duty.
The foreseeability of harm must be assessed prospectively in the sense of as circumstances were at or before the time of injury.

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