Taylor v Stapley

[5]

To some extent the correctness of this conclusion depends on the effect given to the words "abnormal risk of injury". It was contended on this appeal that a risk should be regarded as abnormal within the meaning of the paragraph if it is a risk to which the worker has subjected himself in the course of some unusual or abnormal activity. But this proposition merely substitutes one difficulty for another since it is impossible to define those activities which may be said to constitute the normal activities of any particular worker during a recess and so to provide a standard of normality. The standard of normality cannot be discovered in the character of the employment for the whole paragraph relates, not to work but to a period of recess which is a period of freedom of action qualified only as to time and the necessity of returning to work. The word "abnormal" seems to mean no more than unusual and a risk may be said to be abnormal where the doing of an act is, in particular circumstances, attended with an unusual degree of risk. But to say this is not to deny that a risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous. Again the want of qualifications of a man for some activity may arise from his being unaccustomed to it and no doubt the risk might be rightly said to be abnormal or unusual in his case through his inexperience, although usual or normal enough with many men. In truth all the circumstances of the particular case must be considered. The words "voluntarily subject himself" require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury. It is an element that in this case has a peculiar importance in the distinction between on the one hand bathing in the river, which the deceased intentionally did, and on the other hand recrossing the river by a route which took him into proximity to deep flowing water, a thing that there is no reason to suppose was anything but an error of judgment. The action of the deceased in crossing the river in a way that in fact exposed him to greater peril may for this reason be put on one side as not a voluntary subjection of himself to the risk. The ultimate question of fact would therefore be whether in going to bathe in the river though it had risen and though he was so poor a swimmer he subjected himself to an abnormal risk of injury.

[16]

It was suggested to Weatherly in examination in chief that when he and the deceased were wading across the river on the way to the sandbank it was "only waist high". But Weatherly replied merely that it was shallow. Again Weatherly said that he - Weatherly - did not notice they were getting swept down as they were getting out. He thus spoke only for himself. It may be contended that it should be assumed that if Weatherly failed to notice he was being swept down by the stream, then that was evidence that the deceased also failed to notice it. But that does not follow. The deceased was a poor swimmer and would be expected to be more alert to a situation of danger in the river than if he could swim. He could just dog paddle and the river was fast flowing. This is an important consideration in the view I propose to take, because I am assuming in the respondent's favour, but without deciding, that the test to be applied in determining whether the particular worker voluntarily subjected himself to an abnormal risk is a subjective test, and that the respondent was entitled to recover if there was evidence that the deceased did not in fact appreciate the risk he took in diving or swimming instead of wading on his way out of the river, no matter how abnormal and obvious the risk was. If it could be found on this evidence that he as well as Weatherly was not noticing that he was being carried down stream, then I would not be prepared to find that he appreciated that he was taking an abnormal risk. But apart from that evidence of Weatherly's state of mind, I think it was impossible to find that, when the deceased began to dive and swim in this swollen and swiftly flowing stream, he did not realize that he was in grave danger of being carried into a deep part of the river where he could not wade and of being drowned, even in the company of a swimmer. Poor swimmers of normal intelligence, as the deceased must be assumed to have been, are not necessarily oblivious to grave risks of drowning because there is a swimmer about. There is no evidence that Weatherly undertook to keep a watch on the deceased in case he got into difficulties. Again, as appears from the evidence already quoted, Weatherly said that they started back from lower down the river; and there is nothing to indicate that this was at a part with which the deceased was familiar and knew to be shallow. Dog paddling in a fast flowing river at an unknown depth involved taking a risk out of the ordinary.

Taylor v Stapley - [1954] HCA 12 - HCA 1954 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties