Very sad facts in Town of Port Hedland v Hodder, [2012] WASCA 212. Reece Hodder was born with cerebral palsy and mild to moderate intellectual disability. He is profoundly deaf, almost blind, virtually unable to speak and afflicted with spastic diplegia, amongst other conditions. Family members took the 23-year-old to the public swimming pool in Port Hedland, Western Australia, and left him unattended. Hodder mounted one of eight diving blocks placed at the shallow end of the pool, dived in and struck his head on the bottom of the pool. He was rendered quadriplegic. Hodder sued. The trial judge found that there had clearly been negligence: the diving blocks were known to pose a danger, placing them at the shallow end was essentially an invitation to dive off them, there was no lifeguard and warning signage was inadequate. The trial judge did, however, reluctantly feel bound by authority to apportion 10% of the liability to Hodder, and to make that assessment on an entirely objective basis, without regard to his disabilities.  

In the Western Australia Court of Appeal, the 10% apportionment was overturned, but with all three judges expressing a different view on the matter, based on a comprehensive canvass of the Australian and English case law. Martin CJ thought that finding Hodder to some extent the author of his injuries at the pool displayed ‘harshness, injustice and unfairness’ in that it assumed ‘a miracle of biblical proportions’ requiring the court ‘to assess the question of contributory negligence in some parallel universe in which the blind can see, the deaf can hear, the lame can walk or even run, and the cognitively impaired are somehow restored to full functionality’. McLure P agreed that the 10% apportionment should be set aside, but not that the standard for assessing contributory negligence should be subjective: ‘generally, the standard of care in negligence is both objective and impersonal’ and the attenuation of the standard made for children ‘has not been widened to include other classes of people with impaired capacity for foresight or prudence.’ The trial judge had erred, however, in President McLure’s view, by finding that Hodder had been contributorily negligent: the placement of the diving blocks was an implicit invitation to use them, and even on the objective standard of an ordinary person, what Hodder had done in response to that invitation could not be said to have been negligent. Murphy JA thought the trial judge was correct about the 10%. Result: Hodder received 100% of his damages.