Posted by Jeremy Kriewaldt on October 25, 2005 at 23:31:48 from 202.138.212.58 user JeremyKriewaldt.
In Reply to: Ethics in AR posted by John Nichols on October 25, 2005 at 18:02:58:
The relationship between the legal system and a nation's ethical system is always very complex. However, one interesting series of developments in tort law in Australia should be borne in mind, particularly when we consider the kinds of activities that AR wrote about in the S.A. novels. Last Friday, the High Court (the final court of appeal in this country) considered two appeals in which members of the public who had dived into obviously dangerous water sued the relevant local authority when they suffered significant spinal injuries. In each case they argued that the local authority should have put up a sign warning of the danger. In each case, the High Court said that a sign would have done no good and, in any event, there has to be a limit on the amount of information that needs to be brought the people's attention, particularly when it merely tells people of things that are self-evident.
The following quotes from the judgments follow. I have also put links to the leading of the two cases , in case anyone wants to follow up.
The interesting thing here is the express acknowledgement by some of the judges in this case that there has to be a limit to which risk can be taken out of activities and to which authorities should intervene to tell people what they need to do, particularly in the case of optional leisure activities.
Gleeson CJ and Kirby J
"Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign."
HayneJ
"Every form of physical recreation carries some risk of physical injury. The more energetic the activity, the greater are those risks. Fatigue, lack of fitness, slowness of reaction, general ineptitude can all contribute to injury. The magnitude and probability of occurrence of those risks rise if the activity is one in which there may be a collision between the participant and others, or between the participant and his or her surroundings. That risk of collision is evidently present in contact sports, but the solitary bike rider pedalling along a dedicated cycle track may fall from the bike and suffer serious injury. So too, the solitary swimmer may collide with an obstacle or strike the sea bed.
"There are many dangers associated with bathing in the sea - not least the danger of drowning. The form of danger with which this case is concerned - the danger of diving into water that is too shallow - is only one of the risks that attend this form of recreation. And the Council had to consider many forms of recreation conducted in many different areas of which the Council had the care, control and management. Swimming was but one of these many forms of recreation, every one of which had its risks and dangers. And even if attention could be confined to the risks associated with swimming, the risk of spinal injury brought about by a swimmer's collision with his or her surroundings is not confined to those who dive or plunge into the sea from a natural launching pad like the rock platform.
"Only by looking back at what actually happened in this case would it be right to confine the attention of a reasonable council to the foreseeable risks of swimming in the sea. When judged from the proper standpoint - looking forward at all forms of risk associated with all forms of recreation on or from land of which the Council had the care, control and management - what would the response of a reasonable council have been to the foreseeable risk of a diving injury like the appellant suffered?
"It was not reasonable to expect the Council to warn of this particular danger. The Council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discovered by someone contemplating diving or plunging into the water at this point."
Callinan and Heydon JJ
"The appellant was engaged in a physical recreational activity. This does not mean that the respondent owed him no duty of care but it does mean that the duty was conditioned very much by the fact that the appellant set out to extend himself physically, albeit not in any excessive way, against the elements, in particular, the sea. Callinan J said in Agar v Hyde, that when adults voluntarily participate in sport they may be assumed to know the rules, and to have an appreciation of the risks of the game. The same may be said of diving into the sea from a rock platform, particularly when the dive is undertaken by a person of mature years, with a considerable experience and knowledge of the waters which he was entering. The game in which the plaintiff in Agar v Hyde injured himself was notoriously a dangerous one, but the seas too are dangerous and have been understood to be so for thousands of years.
"And, despite their allure, the sea waters of Australia, notoriously, are far from benign. Depending on how far north the traveller goes, sea lice, flotsam and jetsam, weed, blue bottles, stingers, quicksand, sea snakes, crocodiles, unpredictable waves, sand bars, sharks, absence of effective netting, shifting sea beds, broken bottles on the beach or in the water, sunstroke from sun bathing, and unpredictable tides and currents constitute a non-exhaustive catalogue of the risks a bather runs. Indeed, swimming itself, without more, can be hazardous. Much was made in this case of the tragic case of another tetraplegic within the relatively recent corporate memory of the respondent, but it would be interesting to know how many people have suffered injuries of different kinds from one or other of the risks to which we have referred, including merely swimming itself, an activity in which people of greatly varying abilities participate. We do not think it could be seriously suggested that a shire should erect a multiplicity of signs in the vicinity of its beaches saying "swimming can be dangerous". But the point in particular that we wish to make here is simply that the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be a dangerous thing to do. It is not without significance that according to the appellant, he had never dived there before, and had on other occasions chosen to enter the water from the platform in what clearly was a more cautious manner. Again, as Callinan J pointed out in Agar places of recreation are not places to which people are compelled to resort, and nor are they obliged, if they do, to participate in physical activities there.
"We have already touched upon the second reason why we do not think the respondent was obliged to erect a warning or prohibitory signs. It is that it has within its control 27 kilometres of coastline along which there inevitably would be many places of natural hazard. Just how many of these there are was not, and would not in the nature of things be likely to be able to be proved: it would be very difficult, and probably in the end fruitless to attempt to do so. Some of the hazards are likely however to be greater hazards than the platform, and capable of causing injuries as serious as those suffered by the appellant. Having regard to their existence, and the other demands upon the respondent, and in the light of the other matters that we have referred and will refer to, the respondent should not be seen as having been negligent in not singling out the platform for a special warning, or prohibition of diving."