Council found liable for failing to take preventative measures

03 March 2020

The plaintiff, who was at the time 5 years of age, sustained serious injuries when he fell through a railing on the Coffs Harbour Jetty. The plaintiff was successful against Coffs Harbour City Council (Council) and the Coffs Coast State Park Trust (the Trust) however proceedings against the State of New South Wales (the State) and Mr and Mrs Whitton (the plaintiff’s grandparents) were dismissed.

In Issue

  • Whether there was a duty of care owed by the State arising out of the restoration of the jetty which continued to the time of the incident;
  • The extent of Council’s duty of care in circumstances where it had accepted responsibility for all maintenance associated with the restored jetty; and
  • Whether a duty of care was owed by the plaintiff’s grandparents as carers for the plaintiff at the time of the incident.

The background

On 30 September 2011 the plaintiff was walking along the jetty with his grandparents when he fell through a railing fence affixed to the jetty, falling a distance of over 4 metres onto hard sand below. The plaintiff sued the Council, the Trust and the State on the basis that they were the owners and occupiers of the jetty. The Council issued a cross claim against the plaintiff’s grandparents alleging they were negligent in their care of the plaintiff.

The decision at trial

The court considered that Council breached its duty of care by failing to take preventative measures including modifying the railing to make it safer, carrying out its own risk assessment and obtaining its own building report as recommended by its risk coordinator in 2002. The court held that Council should have also been on notice that steps were required to prevent such an incident occurring as Council was aware of a similar incident on the jetty. The Court did not accept that there was a financial burden on Council by taking such precautions in accordance with section 42 of the CLA.

The Court accepted the State had no relevant control of the jetty at the time of the plaintiff’s accident (despite restoration) and at the time of design, the potential risk of children falling through the railing was not raised and the State was not on notice of any risk.

The jetty had a sign which stated “use of this facility may be hazardous”. The defendants submitted that a risk warning within the meaning of s 5M was provided and thus they did not owe a duty of care to the plaintiff. The court held the sign did not convey a warning, either generally or specifically, of the risk of a child falling through the railing and held that a defence under section 5M of the CLA was not made out.

Further, the court was not convinced that the plaintiff’s grandparents were negligent by failing to act with reasonable care or failing to supervise the plaintiff and took into consideration the fact that the plaintiff was of school age and there was no indication he would do anything other than follow the directions of his grandparents.

Implications for you

The decision reinforces that although there can be little doubt that Council’s financial and other resources are limited, Council is still required to provide sufficient evidence that confirms that the financial burden of taking precautions was such that it would not have been reasonable to have taken such precautions.

The decision also confirms that in order to rely on section 5M of the CLA as a defence the content of a warning sign must be specific to the risk itself.

Further, the decision also confirms that courts are generally reluctant to impose a duty on individual carers beyond that which would be expected of ordinary members of a community, or to punish such carers for acts or omissions which might become apparent with the benefit of hindsight.

Polglase by his tutor Jeffrey Polglase V Coffs Harbour City Council (No 2) [2019] NSWSC 1848

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