High Court reinforces the trend - responding to community expectations on personal injury payouts

In this bulletin we review three recent High Court decisions which offer significant support for defendants in the areas of both liability and quantum.

In recent years, the NSW Court of Appeal has handed down a long line of cases in which verdicts have been found for defendants in personal injury matters. The Court has openly acknowledged that it sees itself as responding to the expectations of the community, as reflected in legislation like the Civil Liability Act.

In general, the Court of Appeal and also the High Court can be seen to be placing more emphasis on the personal autonomy of the plaintiff, rather than concentrating on what the defendant may have been able to do to prevent the accident. For instance, in Cole -v- South Tweed Heads Rugby Football Club Limited [2004] HCA 29, the High Court stressed the fact that the plaintiff’s very considerable intake of alcohol was completely voluntary, and could not be laid at the Club’s door.

Given the trend of these cases, there has been a great deal of anticipation in relation to what the High Court would do with the associated diving cases of Mulligan -v- Coffs Harbour City Council and Vairy -v- Wyong Shire Council. The decision in both these matters was handed down on 21 October 2005. In each case, the plaintiff failed.

Both these cases involved a plaintiff diving into water of unknown depth, and suffering extremely serious injuries. A significant difference between the two cases was that there had been a previous catastrophic injury at the location where Vairy dived into the ocean, but there had been no such prior incidents at the scene of Mulligan’s accident.

When the NSW Court of Appeal decided both these cases, it based its decision to a large extent on the obviousness of the risk facing both men as they elected to dive. However, the High Court has adopted a different approach, paying particular attention in Vairy to whether a warning sign should have been erected. The Court noted that every form of physical recreation carries some risk of physical injury, so questions then arise as to the width of possible dangers which it is alleged should have been covered by any warning sign.

The Court commented that one can’t look at these things in retrospect i.e. it can’t just be said that, because the plaintiffs suffered severe injuries in the way they did, then the risk of diving should have been the subject of a particular warning. Rather, a judgment has to be made in prospect, and an assessment made of what (if any) warnings the Council should reasonably have been expected to make about the possible dangers involved in such recreational activities.

It was also regarded as relevant that the Councils had done nothing to worsen the danger, which occurred naturally, and had no special knowledge of the pattern of water movement and depth which was not readily discoverable by someone contemplating diving into the water.

In both cases, the High Court emphasised that every such case turns on its own facts (as indeed can be seen from the fact that Vairy was only a 4-3 decision, whereas Mulligan was unanimous), after a consideration of all relevant factors as to what actions could reasonably have been expected – which include whether the risks could have been assessed by the plaintiff himself.


The High Court handed down another important decision on 21 October 2005, being CSR Limited -v- Eddy [2005] HCA 64.

This decision was significant, because it overruled the line of cases which had sprung from Sullivan -v- Gordon, namely that an injured plaintiff could recover as part of his own special damages the fact that his injuries rendered him unable to care for other people around him.

The High Court carefully considered how this line of authority had come about, and, in effect, said that it had arisen from a mistake in interpretation of Griffiths -v- Kerkemeyer, the famous case which allows a plaintiff to recover the value of domestic services which are provided to him as a result of his injuries.


There is no doubt that the Sullivan -v- Gordon line of cases looked both expensive and dangerous from the point of view of defendants, as it was not clear how far the doctrine would be extended. However, the High Court has now put an end to those cases, and it was noteworthy that at least some judges queried the ongoing merits of Griffiths –v- Kerkemeyer itself.

At a practical level, it seems to us that CSR -v- Eddy is likely to be more useful for defendants than Vairy and Mulligan. Eddy basically knocks out a whole line of damages which had sprung up in recent years, whereas, at the end of the day, the decisions in Vairy and Mulligan, as the High Court themselves said, depend to a large extent on their facts.

Nevertheless, it is encouraging for defendants that the High Court has found that the Councils had acted reasonably in both Vairy and Mulligan, reinforcing the trend of the New South Wales Court of Appeal and the High Court itself in recent years.