In this recent decision, the New South Wales District Court held that the Federation Council owed and breached a duty of care despite contracting operations to a third party, awarding damages of $165,000 to the plaintiff and enforcing indemnity obligations requiring Remlap to indemnify the Federation Council for the plaintiff’s claim.
In issue
- The primary issues for determination were whether the Federation Council (the defendant), owed and breached a duty of care to the six-year-old plaintiff. Secondary issues included whether the cross-defendant & lessee of the premises, Remlap Company Pty Ltd (Remlap), breached its lease and indemnity obligations owed to the defendant (which included an evaluation of whether an individual was an employee or an independent contractor), whether Remlap had delegated any duty owed to the pool managers, Mr & Mrs Sigmund (the Sigmunds), and whether the plaintiff’s claim was statute barred.
The background
The plaintiff suffered personal injuries when she fell through a gap between the railing from a three metres high diving board at Corowa Swimming Pool (the premises) on 12 February 2012 and struck the concrete below. The plaintiff, aged six at the time of the incident, sustained a skull fracture and mild traumatic brain injury.
The plaintiff issued proceedings against the defendant in the District Court of New South Wales, claiming damages in negligence for personal injuries caused by the defendant failing to ensure the safety of the diving board platform, which lacked adequate railings or enclosed sides. The defendant denied the plaintiff’s claim on the basis that it was not the occupier of the pool and alleging the plaintiff’s claim was statute barred. The defendant also filed a cross claim against Remlap, alleging that as the lessee of the premises, Remlap was the correct occupier and therefore responsible for the premises’ maintenance and management.
Remlap maintained that it met its duty of care by appointing the Sigmunds as pool managers, noting that Mr Sigmund was an experienced pool manager with specialist qualifications including an aquatic facility licence, lifeguard certificate and first aid qualifications. The Sigmunds were not joined to the claim.
The decision at trial
The Court ultimately found in favour of the plaintiff and awarded damages against the defendant totalling $165,000. The Court then found in favour of the defendant in the cross claim and ordered Remlap to indemnify the defendant for its liability to the plaintiff.
Despite the defendant denying occupier status, the Court determined:
- The defendant was an occupier due to its extensive obligations and rights in relation to the pool as set out in the Lease with Remlap. This included that the defendant conducted repairs when requested by Mr Sigmund, undertook inspections infrequently had an entitlement to take extensive steps under the Lease and owned the premises.
- Both the defendant and Remlap were occupiers of the premises.
- The defendant, as owner and occupier of the premises, owed a duty of care to lawful entrants including the plaintiff to take reasonable care in relation to the suitability, safety and structural integrity of the diving board platform so as to avoid reasonably foreseeable risks of harm to users of the platform.
- The defendant breached its duty by failing to identify the absence of a mid-rail or mesh between the railing and diving board platform as a significant and foreseeable risk to children using the platform.
The defendant’s limitation argument was unsuccessful because the cause of action was not ‘discoverable’ by the plaintiff until the receipt of medical expert evidence which confirmed the causation and seriousness of the plaintiff’s injuries.
However, the Court accepted that Remlap met any duty of care owed to the plaintiff by appointing the Sigmunds as pool managers. The Sigmunds were determined to be independent contractors, to have undertaken the management and supervision of the pool and controlled day-to-day matters at the pool. Remlap was not vicariously liable for the actions of the Sigmunds.
Notwithstanding the above, the Court held Remlap liable to indemnify the defendant for the plaintiff’s claim pursuant to the contractual indemnity and insurance provisions contained in the lease. The Court considered the wording of the lease in detail and with reference to relevant authorities on the contractual principles in relation to the proper construction of commercial contracts such as leases. Whilst the lease was described as not carefully drafted, it still entitled the defendant to a complete indemnity by Remlap.
Implications for you
This decision reiterates that simply entering into a lease will not automatically relieve an owner from the obligations owed to entrants as an occupier. Owners and occupiers must therefore act proactively upon notification of safety risks. A failure to act or a delay in responding to known safety risks may result in a finding of a breach of duty of care, even where day‑to‑day operations of a premises are contracted out.
It otherwise highlights the importance of ensuring the wording of any contractual indemnities and/or insurance obligations are drafted as narrowly and unambiguously as possible, to ensure the intent of the parties is clearly expressed. Finally, it demonstrates the need to carefully consider the joinder of other parties depending on the causes of action pleaded, even where a party may have a defence at law.
