Swain v Waverley Municipal Council (2005) 220 CLR 517
Tort; Negligence; breach of a duty of care; proof of reasonably practical ways of avoiding foreseeable harm.
Facts: Guy Swain went swimming on a beach that was under the care, control and management of the Waverley Council. There were lifeguards present, and flags had been placed to designate a swimming area. While swimming in the shallow waters between the flags, Swain dived through a wave and struck an unexpected sandbar. As a result Swain was rendered quadriplegic. He sued the Waverley Council in Negligence.
Issue: Were there sufficient facts on which a jury could conclude that the council had breached a duty of care owed to Swain?
Decision: In a majority decision, the court held that it was open to a jury to find that the council had breached a duty of care owed to Swain, by failing to take reasonable steps to prevent the foreseeable harm.
Reason: In order to establish a breach of a duty of care by a defendant, a plaintiff has the onus of proving that reasonably practical ways of avoiding foreseeable harm existed. In this case, the plaintiff did not do so, but the court held that, even so, a jury could and did infer that the harm could have been avoided simply by moving the swimming flags to another part of the beach. The council had left open the validity of this inference by not leading any evidence to show why the flags had been placed in the position they were, or why they could not have been placed elsewhere. Explaining this point, Gummow J said (at [153]):
"While the plaintiff bears the ultimate burden of proving that his or her injuries could have been avoided by some reasonably practicable alternative course of conduct available to the defendant in some cases, the evidentiary burden which has come to rest upon the defendant may prove decisive of the outcome."