SHARP V PARRAMATTA CITY COUNCIL [2015] NSWCA 260

Decision Date: 2 September 2015

Leading judgment: Meagher JA (with Ward JA and Gleeson JA agreeing).

BACKGROUND FACTS:

On 25 January 2009, the Appellant (Sharp) attended the Parramatta War Memorial Swimming Centre (‘the Centre’) with her partner and two friends. The Centre was run by Parramatta City Council. 

A few hours after the Appellant arrived at the Centre, the Centre’s 10metre diving platform was opened. The Appellant watched people jumping from the platform for approximately 15-20 minutes. The Appellant and a friend walked to the diving tower and ascended the stairs, which were at the time crowded. 

Once reaching the top of the platform the Appellant became nervous and decided that she did not want to jump. In addition, and although it was a real possibility, the Appellant determined that she could not descend the stairs.  Accordingly, the Appellant sought instruction from the lifeguard situated at the top of the platform, who advised that she jump falling vertically feet first into the water. 

The Appellant jumped falling feet first, but ultimately entered the water at an angle with her buttocks making first contact with the surface.  Landing in this position caused the Appellant to sustain a compression fracture of her T11 vertebral body.

PRIMARY JUDGMENT:

At trial, and despite a multitude of particulars of negligence being pleaded, Curtis DCJ identified two main complaints alleged by the Appellant:

  1. The Respondent ought not have been permitting patrons to jump from the 10 metre board by permitting them to run and jump into the pool. Rather, the Appellant argued that the Respondent should have properly instructed and supervised or the activity should not have been permitted at all. 
  2. The Respondent owed a duty of care [1],  and the duty required that reasonable care was taken to avoid foreseeable risks of injury to persons using the pool. Ultimately the Appellant argued that this duty would be satisfied with adequate supervision and instruction. 

At trial there was a factual dispute regarding the instructions that were given to the Appellant by the lifeguard. Nevertheless the primary judge ultimately found that it was probable that the Appellant had been instructed to “fall vertically, feet first into the pool below”.

Ultimately, the Respondent denied the existence of the alleged duty of care and breach of same. Further, the Respondent relied on defences in the Civil Liability Act 2002 (NSW) (CLA). It was argued that the risk of harm of jumping from a 10 metre platform constituted an “obvious risk” [2],  a “dangerous recreational activity” [3],  and accordingly, the Respondent owed “no proactive duty to warn of obvious risk” [4] and was not liable in negligence for the harm suffered by the Appellant as a result of the materialisation of ‘harm suffered from obvious risks of dangerous recreational activities’.[5]

Significantly, the primary judge did not perceive it to be necessary to determine the above issues because he held that, in accordance with s 5M of the CLA that no duty of care exists for recreational activities which have been the subject of a “risk warning”.[6]  Fundamentally, as the risk of jumping of the platform was the subject of a “risk warning”, s 5M applied and was in and of itself a complete defence to the Appellant’s claim. 

Curtis DCJ held that even if the Respondent owed a duty of care in responding to a request for advice as to how to jump, such a duty was satisfied by the instructions provided by the lifeguard that one ought “fall vertically, feet first into the pool”. 

THE ISSUES BEFORE THE COURT OF APPEAL:

The key issue for determination before the Court of Appeal concerned whether the primary judge had erred in holding that the Respondent had discharged any duty of care to supervise and instruct.

The Court of Appeal affirmed Curtis DCJ’s judgment in concluding that s 5M of the CLA applied. The Court of Appeal held that “the sign was placed in a manner reasonably likely to result in [the Appellant] being warned of the risk” .[7]

With regard to the question of whether the instructions of the lifeguard (allegedly to “just take a run and jump”) contradicted the risk warning, the Court of Appeal affirmed that the primary judge did not err in his judgment. Ultimately“such advice as to how [the Appellant] should fall and enter the water implicitly acknowledged that there was a risk of injury in jumping from the platform, particularly if the Appellant did not execute her jump in accordance with that instruction”.[8]

Finally, despite the primary judge not considering the defences available to the Respondent beyond s 5M of the CLA, the Court of Appeal in this instance did consider the defence available in accordance with s 5L of the CLA, namely the‘materialisation of a dangerous recreational activity’.

The Court of Appeal determined that the risk of jumping off a 10 metre platform would have been “clearly apparent to and understood by a reasonable adult in the Appellant’s position”.[9]  Further, the obviousness of the risk was highlighted by the placement of the warning sign at the bottom of the platform as well as by the presence of the lifeguard on the platform. Fundamentally, the Court of Appeal held that s 5L(1) was satisfied and the Respondent was not liable in negligence for that harm. 

IMPLICATIONS:

Importantly this decision outlines the availability of the defences available in the CLA as well as their application.

With regard to s 5M of the CLA, this decision clarifies that a “risk warning” must warn of the “general nature of the risk …. given in a manner that is reasonably likely to result in people being warned of the risk before the recreational activity”.[10]  Ultimately it becomes a question not of whether the relevant person understood the warning, but rather whether the warning was likely to result in people being warned.[11]

This case note was drafted by Annica Leal.