Decision in Polglase confirmed by Court of Appeal

06 November 2020

The NSW Court of Appeal has upheld the primary judge’s decision that a local Council breached its duty of care to an infant plaintiff who fell through a railing on a jetty, and that the State of NSW and the plaintiff’s grandparents were not liable.

The background

In September 2011, the plaintiff, who was 5 years old at the time, was walking along a jetty in Coffs Harbour with his grandparents when he fell through a gap in the railing. The plaintiff fell some 4 metres onto the sand below causing him to sustain serious injuries.

The decision at trial

The plaintiff pursued claims against the Coffs Harbour City Council (Council), the State of NSW, and his grandparents on the following basis:

  • the State of NSW designed and constructed a defective railing, and had occupied the jetty in the past;
  • the Council and the Coffs Coast State Park Trust (Trust) were the occupiers of the jetty at the time of the incident; and
  • his grandparents were responsible for the plaintiff at the time of the incident.

The trial judge found in favour of the plaintiff against the Council and the Trust and dismissed the proceedings against the State and the grandparents.

The court held that the Council breached its duty of care by failing to take preventative measures such as modifying the railing to make it safer, carrying out its own risk assessment and obtaining its own building report as had been recommended by its risk coordinator in 2002. The court also 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 Civil Liability Act 2002 (NSW) (CLA).

The court accepted that the State had no relevant control of the jetty at the time of the plaintiff’s accident, despite conducting restoration of the jetty.

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 of the CLA was provided and thus they did not owe a duty of care to the plaintiff. The court held that 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 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.

The issues on appeal

The Council and the Trust appealed the decision at first instance.

The following issues were on appeal:

  1. Whether the Council or the Trust breached their duty of care by reason of occupation and control of the jetty, by failing to install additional railings or a mesh infill to prevent young children from falling from the jetty;
  2. Whether the warning sign placed at the jetty’s entrance meant that no duty of care was owed to the plaintiff;
  3. Whether the State was liable to the plaintiff given its role in restoring the jetty and as a former occupier; and
  4. Whether the grandparents were liable to the plaintiff for his injuries.

The Decision on appeal

The Court of Appeal dismissed the appeal, finding:

  1. The relevant risk was that a young child might fall from the jetty on to the hard sand below and the Council was aware of such risk.
  2. The risk warning sign placed at the entrance to the jetty did not warn of the general nature of the risk of children falling from the jetty onto the hard sand below and the Council was not entitled to rely on section 5M of the CLA.
  3. The Council was obliged to care for, control and manage the jetty and therefore had the power to modify the railing to prevent falls from the jetty.
  4. Although the State had a role in restoring the jetty and was a former occupier, the court found that it did not breach its duty of care to the plaintiff as the Council controlled and managed the jetty for around nine years prior to the incident.
  5. The trial judge was entirely correct in finding the plaintiff’s grandparents had not been negligent.

Implications for you

In this decision, the Court of Appeal provided guidance on the minimum threshold for warning signs to engage the section 5M CLA defence, that being that signs must suggest there is either a hazard or direct attention to a particular hazard.

The decision reinforces the court’s unwillingness to impose a duty of care on individual carers, which goes beyond conduct expected of ordinary members of the public. The Court of Appeal provided guidance on the duty of care imposed on members of the public and how it is contrasted with the duty imposed on public authorities such as Councils.

Insurers will need to be aware of details such as the known history of an incident area, when determining whether an insured was in position to take reasonable precautions to reduce potential risks.

Coffs Harbour City Council v Polglase [2020] NSWCA 265 (23 October 2020)

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