Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Tort; breach of the duty of care; assessing reasonable care; factors; likelihood of harm.
Facts: Romeo, a 16-year-old girl, went with friends to a nature reserve (the Dripstone Cliffs) in Darwin. At some point in the night, after drinking some rum, she and a friend wandered near the unfenced edge of the cliffs. Romeo fell from the top of the cliff to the beach and was badly injured. She sued the Conservation Commission of the Northern Territory which was the government authority responsible for the reserve.
Issue: Had the commission breached a duty of care owed to Romeo?
Decision: It was accepted that the commission owed a duty of care to Romeo. However, the High Court held that, in the circumstances, the risk of harm was so unlikely that by failing to take action to avoid it, the commission had not breached its duty of care.
Reason: Kirby J said (at [128]):
"Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. ... Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that 'a reasonable man, careful of the safety of his neighbour, would think it right to neglect it'. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible."