The 24-year-old plaintiff suffered a compression fracture to her spine after jumping from the 10 metre diving platform and landing awkwardly at the Parramatta War Memorial Swimming Centre. She sued Parramatta City Council, as the occupier of the Centre.

The plaintiff’s claim was dismissed on the basis that the risk encountered by her was subject to a risk warning, so that section 5M of the Civil Liability Act 2002 offered a complete defence. The lifeguard’s instruction to ‘fall vertically, feet first into the pool below’ satisfied the Council’s duty to provide instruction to the plaintiff after she had sought guidance. This was in spite of the plaintiff’s claim that the lifeguard had also told her to ‘run and jump’ and her allegation that this was inconsistent with any warning.

The plaintiff appealed. The Court of Appeal upheld the trial judge’s findings and found that the ‘critical instruction’ to fall vertically and enter the water feet first was not revoked by any instruction to run and jump.

In addition, the Court of Appeal found that the warning sign adequately warned of the general nature of the particular risk as it was clearly worded and placed at eye level at the foot of the platform.

A further consideration was that the risk of injury from striking the water surface in an uncontrolled fashion would have been clearly apparent and understood by a reasonable adult in the plaintiff’s position by virtue of the signage and placement of a lifeguard. The risk was therefore ‘obvious’ within the meaning of section 5F of the Act.

Lastly, the Court determined that the activity of jumping into water from a 10 metre platform ‘carried with it a probability of harm that was real and present and the consequences of which included serious injury from the impact with the surface of the water’. The obvious risk which materialised made the activity ‘relevantly dangerous’ and therefore section 5L(1) was satisfied, with the result that the Council was not liable in negligence for the plaintiff’s injury.

Sharp v Parramatta City Council

The importance of supervision and placement of warning signs, clearly worded, cannot be emphasised enough to swimming pool operators. However, the Court of Appeal’s decision firmly categorises the activity of diving or jumping from 10 metre heights into swimming pools as a ‘dangerous recreational activity’ for which liability is excluded.