Roads and Traffic Authority of New South Wales v Dederer: 20/20 hindsight or an accident waiting to happen? A timely opportunity to revisit and reappraise Shirt

Abstract

In August 2007, the High Court of Australia handed down its decision in Roads and Traffic Authority (RTA) of New South Wales v Dederer. The High Court, by a 3-2 majority (the majority comprising Gummow, Callinan and Heydon JJ, and the minority being Gleeson CJ and Kirby J), allowed the appeal by the RTA. It held that a duty of care imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct. The leading Judgment for the majority was given by Gummow J and the principal judgment in dissent was given by Kirby J. Both judgments took as their 'texts' the classic passage from the judgment of Mason J in Wyong Shire Council v Shirt. This article will focus on the different reasoning between these two judgments, contending that the judgment of Kirby J, who essentially supported the reasons of the majority in the NSW Court of Appeal, is to be preferred. As will be developed in the article, this conclusion follows because the NSW Court of Appeal adopted a dynamic as opposed to a static analysis of the risks associated with activity on the Wollamba bridge. An explanation is undertaken by utilizing diagrams in the context of the Australian and New Zealand Risk Management Standard AS/NZS 4360 which incorporates a matrix of likelihood and consequences in calculating a risk ranking. This article will also attempt a reappraisal of the two part test in Shirt for statutory authorities and, given the passage of the Civil Liability Acts (or their equivalent) in most States, a new section entitled General Principles for Statutory Authorities is proposed.