The Background

On 23 April 2005, a swimming teacher, Ms Balassone, injured her right knee after falling into a public swimming pool while conducting a swimming lesson (incident) at the Eltham Leisure Centre (centre). Ms Balassone brought common law proceedings in negligence against the Victorian YMCA Community Programming Pty Ltd (YMCA) alleging breach of duty as employer and occupier of the centre and against the Nillumbik Shire Council (Council) alleging breach of duty as occupier.

The Decision at Trial

A County Court jury found that negligence on the part of both the YMCA and the Council caused Ms Balassone’s injuries. Judgment was entered against each defendant for $250,000. On the question of contribution, the trial judge found that the YMCA had breached a provision of its contract with the Council requiring the YMCA to hold public liability insurance (insurance provision) and ordered the YMCA to indemnify the Council for breach of contract.

The YMCA and the Council appealed and, in a separate judgment, the Court of Appeal (Ashley JA, Nettle and Hansen JJA agreeing) allowed both appeals- YMCA v Nillumbik [2014] VSCA 197. The YMCA was not required to indemnify the Council because the evidence justified an inference that a public risk policy naming the Council was in existence at the time of the incident. However, there was no primary evidence of the terms of the policy and the Council was unable to establish that the policy would have responded to the incident. The outstanding questions of delegation and contribution were remitted for consideration by a different judge in the County Court, who found that the Council had delegated some of its responsibility for the day-to-day running of the centre, including cleaning, to the YMCA; the Council owed a non-delegable duty as occupier in relation to the state of the premises, including the structure of the handrail; and the YMCA had a non-delegable duty as employer to provide Ms Balassone with a safe place of work.

As the evidence did not support the conclusion that a failure to clean and/or maintain the pool walkway surface was a cause of the fall, the trial judge concluded that the amount of contribution recoverable from the YMCA and the Council should be equal.

The Issues on Appeal

The Court of Appeal considered the interrelated questions of whether the Council owed a non-delegable duty of care to Ms Balassone and contribution between the Council and the YMCA (contribution appeal) and the efficacy of a Calderbank offer and Offer to Contribute served by the YMCA at an early stage of the proceeding (costs appeal).

The Decision on Appeal

In relation to the contribution appeal, the Court of Appeal concluded that, while the Council should be granted leave to appeal, none of the grounds of appeal had been made out and so the appeal should be dismissed. In relation to the costs appeal, the Court of Appeal confirmed the trial judge’s reasoning in declining to depart from the usual costs orders and leave to appeal was refused.

Implications for you

The decision provides insight into the factors a court will consider relevant when determining an occupier’s liability for personal injury. In particular, the court here considered that the cause of the injury related to the state of the premises, for which the Council had retained responsibility under its contract with the YMCA.

Nillumbik Shire Council v Victorian YMCA Community Programming Pty Ltd; Victorian YMCA Community Programming Pty Ltd v Nillumbik Shire Council [2016] VSCA 192