Two victories for personal responsibility

Penalizing others for your own foolish deeds did not wash this time

Two men crippled in divings accident have had their appeals rejected by the [Australian] High Court on the basis that they should have been aware of the risks involved. Ernie Vairy, now 46, became a tetraplegic when he dived off a rock platform at Soldiers Beach on 24 January 1993 during an outing with his sister's family and was awarded verdict of $5.05 million. The NSW Court of appeal found for the local Wyong Council and by an excruciating 4-3 margin, Mr Vairy failed to win back his damages. The majority said the council's duty of care did not include erecting signs warning against diving and that an experienced adult could be assumed to appreciate the risks of diving into the sea from a rock platform.

Garry Mulligan, now 36, from Ireland, was in Australia on holiday with his girlfriend when he was rendered a quadriplegic while diving in Coffs Creek at Park Beach near Coffs Harbour on 24 January 1999. He sued for negligence over a lack of warning signs erected by Coffs Harbour City Council but lost at trial and in the court of appeal. In its unanimous decision, the court said it was not essential to post warning signs at Coffs Creek when the danger of diving into water of variable depth existed at most beaches and waterways.


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