Vairy v Wyong Shire Council (2005) 223 CLR 422

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  • 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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