| 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: | ||
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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 1st Defendant | Mr P. Scanlon QC and Mr C. Blanden | Phillips Fox |
| For the 2nd 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…
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- Case
- [2004] VSC 321
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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