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Wyong Shire Council vs. Shirt Case Metrics of Negligence Analysis


Task: Discuss in detail the case between Wyong Shire Council vs. Shirt.


Introduction: The case Wyong Shire Council vs. Shirt illustrates the court case between Shirt: the Plaintiff and Wyong Shire council: Who were the defendants in this legal conflict. The source of the conflict between the two parties stems out of an incident that took place in 1980, when the events took place. Shirt, who was a novice ski enthusiast, without any considerable experience in water skiing, decided to ski in the deep waters of the lake. This was done owing to the fact that skiing in deeper waters is easier as compared to shallow waters. Now, in order to ascertain whether the waters were deep or shallow, Shirt took into consideration, a sign which read, “Deep Water” and as per Shirt’s analysis, pointed towards the shore of the lake. Believing the information to be true, Shirt crossed the area where the water was supposedly deep, though actually those were shallow waters. This resulted in an accident, wherein shirt injured his head, causing him paralysis. In Wyong Shire Council vs. Shirt case, Shirt: the plaintiff filed the case against Wyong Shire Council seeking justice and some measure of relief to compensate for the loss of functionality in his body. The trial in the lower court went in favor of the plaintiff and subsequently, Wyong Shire Council appealed in the higher court to have their part heard.

The case that was made towards the Defendant: Wyong Shire Council, was that of breach of Duty, which was evident from the fact that they did not foresee the possibility and quantum of damages that could have been and eventually did befall someone, and in this particular case: the plaintiff, due to erection of incorrect signs, near the lake, containing pertinent information. The plaintiff held that the error which caused him severe physical damage was caused, either due to the defendant’s negligence or for the purpose of misguiding people.

Metrics of Negligence: The purpose behind studying the case, Wyong Shire Council vs. Shirt is to understand the following:

1. Breach of Duty: Taking standard care is the defendant’s duty and the defendant has to subsequently act in a manner befitting his intention to impart standard care, by performing certain actions which would showcase his intentions to not be ignorant. In this case, if putting up the signs was not an act that sufficed to be considered as reasonable care, then verification of Breach of Duty is possible.

2. Reasonable Foreseeability: Now Foreseeability is closely linked to reasonable care. In the Wyong Shire Council vs. Shirt case, in order for the defendant to be able to take reasonable care, the defendant had to have foreseen the possible effects that their actions might have on an individual. Duty of care forfeiture as well as negligence is a test for negligible foresee ability, in a situation where in future actions are closely linked to care (Chapman vs. Hearse, 1961). In situation where certain actions tend to lead to dire consequences, standard care involves foreseeing future risks and taking preventive measures (Green L, 1961). Now, the discovery of whether there is a risk or not is secondary to identifying the fact that the wrong doing is caused due to negligence or if breach of duty’s identification is not possible (Terry H, 1915).

3. Calculus of Negligence: Once it has been established that foresee ability was in fact possible and that by taking standard care, the defendant could have avoided the dire consequences that ensued. Post establishment of foresee ability, negligence is calculated based on the following:

  1. Probability: In case the probabilities of the events that are consequent to negligence are quite probable, then the amount of care should be higher and stringent methods must be followed.
  2. Gravity: The gravity and magnitude of the effects of the negligence must also be ascertained. Even if probability of the event taking place is scare, but the subsequent effects are dire then the amount of care that must be taken should be very high. In case the probability of the event as well as the magnitude of the damage is both high, then the care to be exercised should be very intensive. Thus, it is important to ascertain the probability of the event as well as the magnitude of the damages, to ascertain the kind of care to be exercised.
  3. Burden: Another important factor that has a bearing on the calculus of negligence is the constraints that are there in foreseeing a particular event. In case the possibility of foreseeing an event is diminished due to the constraints that are acting as a hindrance in the ability of the defendant to foresee, then the defendant may, for lowering the standard of care, be excused. An important aspect here is to ascertain whether the person in question is actually rendered unequipped to foresee an event.
  4. Utility: Another criterion that has a huge impact on the identification of the effects of negligence is Utility. If the social utility of the negligence is high then it becomes of paramount importance. For instance of the outcome of the negligence effects a large section of the society then it is difficult to avoid negligence. The dilemma here is to decide whether to charge a person on the basis of liability arising out of the damages caused or on the basis of care (Fletcher P, 1972).

Case Summary: The Wyong Shire Council vs. Shirt case was based on the following criteria:

  1. The utility of the Negligence was rather quite high
  2. The probability of the incident repeating itself was also on the higher side
  3. Another important aspect was the magnitude of the situation, which was also high
  4. The burden to avoid such a situation by erecting readable signs was also very low.

It was now the defendant’s responsibility to prove that this was in fact not their fault and thus they were not liable. When the case was tried in a lower court, it was ruled that the defendant: Wyong Shire Council had not exercised standard care in putting up readable signs with pertinent information. Wyong Shire Council was not particularly happy with the ruling and thus applied to the higher court. The argument of the council was based on the fact that the original purpose of the Lake and channel was swimming and not skiing. The sign boards were erected as a means to guiding novice swimmers about the shallow and deeper waters in the lake. The Lake and channel were constructed such, that the oncoming swimmers to the lake would be coming from the side of the Jetty. Thus the signs were erected facing the Jetty, so that swimmers coming from the Jetty’s side could be aware of the depth of the water. Now, when the case was tried in the lower court, the arguments put forth by both the parties were rather quite fair and reasonable. Thus the decision of the lower court in the Wyong Shire Council vs. Shirt case was supposed to be based on the establishment of whether reasonable care had been taken or not by the shire.

Once the lower court ruled in favor of the plaintiff: Shirt, Wyong Shire Council moved to the higher court, and after carefully analyzing the material facts as well as the situations that ensued, the higher court held that the definition of standard care in this case was rather fanciful and farfetched. It was further noted that, as the original purpose of developing the channel and lake was not to ski and was primarily for swimming, therefore it did not fall under the realm of reasonable foreseeability, for the shire to have assumed the happening of such an incident.

Additionally, it was also established in Wyong Shire Council vs. Shirt case that, often times it is just not possible to foresee certain injuries arising out of unlikely incidents, even after exercising reasonable care (Bolton vs. Stone, 1951). The court further stated that many a times, classification of events arbitrarily into "not unlikely to happen" and "unlikely to happen" is unfair and unjust. This is because in case of a "not unlikely to happen" incident with an associated risk, taking proper preventive measures in not justified (Caterson vs. Commissioner for Railways, 1973).

Establishment of Conclusion: It was later concluded in the Wyong Shire Council vs. Shirt case that the assumption made by Shirt: A ski enthusiast who was inexperienced and was a novice as well, pertaining to the depth of the waters , based on the signs, was erroneous at best, and was a dire mistake. This was owing to the fact that the signs were just a guidance and not statement of material facts. The signs put up by the lake were in fact part of a lake dredging project, and was part of Saltwater Creek works which were established in the year, 1966. The channel associated with the lake, which was 900 ft. long, was provided for the purpose of promotion of water sports to The Entrance Aquatic Club, and for this very purpose a Jetty was also constructed. Wyong Shire Council also undertook the dredging project, due to the water bed of the channel which was insufficient for carrying out successful water-sport activities. Once the work was complete, Mr. McPhan took it upon himself to ensure the erection of wooden planks, bearing sign about the depth of the water being too steep, for novice swimmers and children coming from the side of the Jetty. Even though the defendant had failed to present any reasonable and strong argument in the lower court, and had had the decision ruled against them, the higher courts held that it was in fact the duty of the plaintiff to establish, without reasonable doubt that the signs were in fact raised without exercising reasonable care and that there was in fact negligence on part of the defendant. To establish this, the defendant was put through the test of reasonable foresee ability of outcomes, which made the situation quite clear for the jury to decide (Mount Isa Mines Ltd. v. Pusey, 1970). Upon investigation it was discovered that even prior to the dredging operations had been carried out in the channel, with a reasonable risk, ski enthusiasts were in fact using the channel. The principle of reasonable foreseeability does not come into the picture as the signs erected were meant for swimmers coming in from the Jetty’s side and not meant for ski enthusiasts. Therefore it was held by the court that it was not the shire’s responsibility to foresee an event wherein an individual would mistake signs meant for swimmers, to be viable for ski enthusiasts as well. To conclude, it was held that the creeks primary concern along with the jetty and Shire was to ensure that reasonable care was exercised when it comes to bating in the channel and lake, and any increase in the utility, due to the channel being used as a water skiing circuit, the Shire was not required to make any fresh arrangements for the ski enthusiasts, as that was not the Shire’s original purpose (Maloney v. Commissioner for Railways, 1978). Wyong Shire Council vs. Shirt Case assignments are being prepared by our law assignment help experts from top universities which let us to provide you a reliable assignment help online service.

Tort Cases: Chapman v Hearse [1961] HCA 46. 2016.Tort Cases: Chapman v Hearse [1961] HCA 46. [ONLINE] Available at: [Accessed 16 September 2016].

Fletcher, GP, 1972. Fairness and Utility in Tort Theory.The Harvard Law Review Association, [Online]. 85, 537-573. Available at:[Accessed 15 September 2016].

Terry, HT, 1915. Negligence.The Harvard Law Review Association, [Online]. 29, 40-55. Available at: [Accessed 15 September 2016].

Green, L, 1961. Foreseeability in Negligence Law.The Harvard Law Review Association, [Online]. 61, 1401-1424. Available at: [Accessed 15 September 2016].

1951.BOLTON V STONE; HL 10 MAY 1951. [ONLINE] Available at: [Accessed 15 September 2016].

1973.Caterson v Commissioner of Railways. [ONLINE] Available at: [Accessed 15 September 2016].

1973.Willis, John --- "Mount Isa Mines Ltd v Pusey (1971) 45 ALJR 88" [1971] MelbULawRw 18; (1971) 8(2) Melbourne University Law Review 329. [ONLINE] Available at: [Accessed 15 September 2016].

1980.High Court of Austrailia. [Online] Available at: [Accessed 15 September 2016].

2008.Miscellaneous Taxation Ruling. [Online] Available at: [Accessed 15 September 2016].


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