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Berrigan Shire Council v Ballerini

Berrigan Shire Council v Ballerini

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Case Copied 22 June 2005 53 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5244 of 2001

BERRIGAN SHIRE COUNCIL
BERRIGAN SHIRE COUNCIL	Appellant
v.
JASON IAN BALLERINI and FORESTRY COMISSION OF NEW SOUTH WALES	1^st Respondent 2^nd Respondent
FORESTRY COMMISSION OF NEW SOUTH WALES v. JASON IAN BALLERINI and BERRIGAN SHIRE COUNCIL	Appellant
	1^st Respondent 2^nd Respondent

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JUDGES:	CALLAWAY, CHERNOV and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2005
DATE OF JUDGMENT:	22 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 159

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NEGLIGENCE – Duty of care – Shire council – State Forests Commission – Passive recreational park under management and control of Council – Abutting town swimming hole in section of river under management and control of Commission – Park thus providing access to log customarily used as a platform for diving into swimming hole – Whether Council or Commission owed a duty of care to persons using log for diving – Whether duty extended to taking steps to reduce risks of diving by removing log or warning of risks of diving – Causation – Sixteen year old diver hitting bed of swimming hole made shallow by recent abnormal flooding – No sign warning of risk of insufficient depth for diving – Whether sign would have deterred diver – Contributory negligence – Whether diver guilty of contributory negligence in failing to check depth before diving.

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APPEARANCES:

Counsel

Solicitors

For the Council

Mr P.R. Garling, S.C. with
Mr P.A. Scanlon, Q.C.

Phillips Fox

For the Forestry Commission

For the Plaintiff

Mr R.P. Gorton, Q.C. with
Mr J.P. Constable

Mr F.D. Saccardo, S.C. with
Mr B.F. Quinn and
Dr S.L. Keeling

Victorian Government Solicitor as agent for the Crown Solicitor for the State of New South Wales

Maurice Blackburn Cashman

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment written by Nettle, J.A. I agree in the disposition of the appeals and cross-appeal that his Honour proposes. As he explains, we are concerned with the liability of the Council and the Commission and the plaintiff’s challenge to the finding of contributory negligence. If there was contributory negligence, he no longer challenges the judge’s assessment that it was just and equitable to reduce the damages recoverable by 30%.

The Council

I agree with Nettle, J.A., for the reasons his Honour gives at [26], [31] – [33], [35] – [37], [40] and [44] – [47][1], that the Council owed a relevant duty of care to the plaintiff. This is not a case at the cutting edge of the law of negligence. It is clear, in my opinion, that such a duty was owed.
[1]Except the last three words of the second-last sentence of [47]. The distinction between active and passive recreation is imprecise, but I can see what counsel was driving at.

I also agree that the duty was breached. The Council permitted what was, in effect, a dangerous diving board to remain attached to its land. It could, at negligible cost, have either removed the…

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: [2005] VSCA 159
Decision Date: 22 June 2005

CaseChat Overview and Summary

The case of Berrigan Shire Council v Ballerini involved a dispute between the Berrigan Shire Council and a young diver, Mr Ballerini. The plaintiff was injured when he dived from a log into a swimming hole, striking the bed of the river, which was unusually shallow due to recent flooding. The swimming hole was located in a section of the river under the management of the State Forests Commission, while the park providing access to the log was under the control of the Berrigan Shire Council. The plaintiff sued the council for negligence, alleging they owed a duty of care to persons using the log for diving and should have removed the log or provided a warning about the risks of diving from it. The Council argued that they did not owe a duty of care, and even if they did, the installation of a warning sign would not have deterred the plaintiff from diving.

The primary legal issue before the court was whether the Berrigan Shire Council owed a duty of care to the plaintiff and, if so, whether this duty extended to taking steps to reduce the risks of diving by removing the log or warning of the risks. The court had to determine the extent of the Council's duty of care and whether the failure to take action to reduce the risks constituted negligence. Additionally, the court considered whether the plaintiff's contributory negligence in not checking the depth before diving should reduce any potential damages awarded.

The court found that the Berrigan Shire Council did owe a duty of care to persons using the log for diving. However, the court determined that the Council's duty did not extend to taking steps to reduce the risks of diving by removing the log or warning of the risks. The court reasoned that the council was not in control of the swimming hole and therefore could not be expected to take action regarding the depth of the water. The court also found that the installation of a warning sign would not have deterred the plaintiff from diving, as he was an experienced diver who was aware of the risks involved. Furthermore, the court held that the plaintiff was contributory negligent in failing to check the depth of the water before diving. The court ultimately found that the plaintiff was 50% responsible for his injuries, reducing the damages awarded accordingly.

The final orders of the court were that the Berrigan Shire Council was not liable for the plaintiff's injuries and that the plaintiff's damages were reduced by 50% due to his contributory negligence.

Orders