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Ballerini v Berrigan Shire Council

Ballerini v Berrigan Shire Council

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Case Copied 1 September 2004 69 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

common law division

No.5244 of 2001

JASON IAN BALLERINI	Plaintiff
V
BERRIGAN SHIRE COUNCIL & FORESTRY COMMISSION OF NEW SOUTH WALES	Defendants

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 May 2004
DATE OF JUDGMENT:	1 September 2004
CASE MAY BE CITED AS:	Ballerini v Shire of Berrigan & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 321

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Negligence – injuries to a 16 year old as a result of diving into lagoon from a log – duty of care of Council and Forest Commission – breach of duty of care – contributory negligence – apportionment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Galbally QC and Mr F. Saccardo	Maurice Blackburn Cashman
For the 1^st Defendant	Mr P. Scanlon QC and Mr C. Blanden	Phillips Fox
For the 2^nd Defendant	Mr P. Rattray QC and Mr J. Constable	Victoria Government Solicitor

HIS HONOUR:

The Claim

On 29 December 1996 the plaintiff, then aged 16, went to a public reserve[1], known as Collie Park, in the town of Barooga. He was accompanied by a friend Imbie Sorenson and her boyfriend. They took with them their lunch bought at the local fish and chip shop. After they had finished their lunch, the plaintiff decided to go swimming in the adjacent Bullanginya Lagoon, an anabranch of the Murray River. He went down to the bank of the anabranch, out on to a log (“the log”) which extended from the bank over the water, and dived into the lagoon. The water under and surrounding the log had been used for many years as the local swimming hole, referred to by counsel for the plaintiff and the first defendant as the “Barooga Swimming Hole”. In the past the water in it had been deep. On this occasion, however, as a result of a prolonged recent flooding, the water was shallow. The plaintiff struck the bed of the anabranch and suffered severe spinal injuries rendering him a quadriplegic.
[1]Being the land between Golf Course Road, Barooga, and the edge of the Bullanginya lagoon.

He seeks damages from the defendants as persons who occupied, maintained or controlled the area comprising the swimming hole and the reserve. The defendants deny any liability and have alleged contributory negligence on the part of the plaintiff. The defendants also have filed contribution proceedings against each other.

The parties are agreed that the quantum of damages should be assessed at $8,000,000.

The areas, their occupation and control

In 1964 an area of land, being the park known locally as Collie Park, was reserved for public recreation by Government Gazette No 15 of 7 February 1964. It was given the reference number 84,738. The diagram published in the Gazette showed the reserve as bounded towards the south by the bank of the Bullanginya Lagoon and towards the north by a street. A few months later, the Council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 321
Decision Date: 1 September 2004

CaseChat Overview and Summary

Ballerini v Berrigan Shire Council involves a dispute between the plaintiff, Ballerini, and the Berrigan Shire Council, along with the Forest Commission. The plaintiff, a 16-year-old at the time, suffered injuries while diving into a lagoon from a log. The case was heard by the Supreme Court of New South Wales. The central issue before the court was whether the Berrigan Shire Council and the Forest Commission owed a duty of care to the plaintiff and if so, whether this duty was breached. The court also had to consider whether the plaintiff's own actions contributed to the injury and, if so, to what extent.

The court examined the circumstances surrounding the incident and the actions of the Council and the Forest Commission. It found that both the Council and the Forest Commission had a duty of care towards the plaintiff, as the log from which the plaintiff dived was located in an area under their control. The court concluded that the Council and the Commission breached this duty by failing to properly maintain and supervise the area. Additionally, the court found that the plaintiff's contributory negligence in diving from the log contributed to his injuries. The court apportioned the liability between the Council, the Commission, and the plaintiff, taking into account the degree of fault on each party's part.

The Supreme Court held that the Berrigan Shire Council and the Forest Commission were both liable for the injuries sustained by the plaintiff. The court awarded damages to the plaintiff, with the liability apportioned according to the degree of fault. The Council and the Commission were held liable for a combined total of 60% of the damages, while the plaintiff was held liable for the remaining 40%. The court's decision underscores the importance of duty of care and proper maintenance of public areas, as well as the impact of contributory negligence on the apportionment of liability.

Orders