The case was reported to be a trigger for New South Wales’ Civil Liability Act 2002, which was aimed at restoring personal responsibility by capping damages and payouts to plaintiffs. As well, the case has sparked public liability reforms across the rest of Australia. But commentators now argue that the only winners, thanks to the Swain case, are insurers, while ordinary people are evidently the losers.

Although the result of the case was positive for Guy Swain, who became a quadriplegic as a result of hitting a sandbar while swimming between the flags at the beach in 1997, it is not necessarily a good thing for the rest of us, said Tom Goudkamp, president, Australian Lawyers Alliance.

Swain sued Waverley Council, alleging that it was negligent in its placement of the flags on the beach on the day of his accident, and for not warning of the dangers of the sandbar. A jury awarded Swain $3.75 million in damages, but the Council appealed the jury’s decision in the NSW Court of Appeal and won. Swain then appealed to the High Court, which ruled on Wednesday last week that the Court of Appeal was not entitled to interfere with the jury’s original decision.

After the initial decision, media reports were filled with analyses of the case and its potential effect on future plaintiffs. Goudkamp told Lawyers Weekly that now “people always say that the guy at Bondi won the case, so why can’t they win their case”.

The case has necessitated tort reform that means there may be no duty of care when we go to the fun park, the beach, or just about anywhere, Goudkamp said. “They don’t have to take much care anymore, and nor do they have to spend money on establishing risk management strategies. If something is dangerous, they don’t necessarily have to warn us,” he said. The case “has sparked changes in civil liability”.

Phillips Fox partner Michael Down, who acted for the Council in the case, said it is unlikely that a council will be liable in similar circumstances in the future. He referred to “significant reforms in the law of negligence following public outcry over the jury’s initial decision”.

“This led to the introduction of New South Wales’ Civil Liability Act and also the public liability reforms across Australia, which puts the onus on individuals to take responsibility for their own actions,” said Down.

The tort reforms mean that many deserving victims will and have missed out on compensation, Law Council of Australian president John North said. It is time to revisit the “drastic consequences of ill thought tort reform that have been hastily introduced”, North said.

When proper safety measures fail, “compensation is rightly owed to the injured”, said North. “Decisions like this also galvanise councils and their insurers to take measures to prevent similar accidents in the future.”

THE JURY decision in the Swain v Waverley Municipal Council case was one that spoke on behalf of the general public, commentators concede. And although many now argue the jury’s verdict has negative ramifications for those of us who ever get ourselves into strife, the jury still plays a necessary role in keeping our system democratic.

Tom Goudkamp of Australian Lawyers Alliance said the insurers in the Swain case must have been “brave and foolish” to let a jury make the decision. A judge would have had to have provided a reason for his or her decision, and that could have possibly been pulled apart in a court of appeal. “You would have something to hang your hat on,” he said.

“A judge may think ‘well, I feel sorry for him’, but they would have to apply the law to the decision. A jury doesn’t have to do this,” he said.

The jury’s decision in this case was the final one. The High Court ruled last week that the Court of Appeal was not entitled to interfere with the jury’s initial decision. The Court held that the jury was able to make to the decision as it did and, in overturning that decision, the Court of Appeal had substituted its own view for that of the jury.

The original decision to award compensation reflected the views of the public. Juries will unlikely reflect the law, however. While a jury’s decision may have its faults and ramifications, we need to accept them for this reason.

Perhaps it should have been obvious that the jury would make this decision for the now quadriplegic Swain, and perhaps a judge would have come to a different conclusion. But still, it reflected the views of this thing we call a society and should be respected for that, if nothing else.

Kate Gibbs