Uzabeaga v Town of Cottesloe

[2004] WASCA 57

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Duty of care
5. › Adequacy of measures to prevent foreseeable risk of harm
6. › Signs prohibiting diving
7. › Supervision and enforcement of prohibition
8. › Whether by-law required
9. › Whether physical barrier required
10. › Occupiers Liability Act 1985 (WA), s 5
1. Tort
2. › Negligence
3. › Causation
4. › Whether breach of duty causally connected to injury
5. › Plaintiff who would have ignored warnings
6. › Whether additional supervision would have prevented accident
1. Tort
2. › Negligence
3. › Contributory negligence
4. › Standard of care for child plaintiff
5. › Plaintiff aged almost 15
6. › Knowledge of risk
7. › Whether finding of contributory negligence open on the evidence
1. Evidence
2. › Failure to call witness
3. › Jones v Dunkel inference
4. › Whether inference can be used to fill gap in evidence
5. › Whether evidence of other side required explanation or contradiction

Quick Take

An occupier who erects standard prohibition signs, deploys beach inspectors and surf patrols to enforce the prohibition, and takes other reasonable measures is not required to provide constant supervision or physical barriers to prevent determined individuals from engaging in prohibited activities. The Jones v Dunkel inference cannot be used to establish facts for which there is no evidence — it can only strengthen inferences already open on the evidence. The trend towards greater personal responsibility in negligence law applies particularly where the plaintiff voluntarily assumed an obvious risk despite clear warnings.