Coffs Harbour City Council v Polglase

The case of *Coffs Harbour City Council v Polglase* concerned an appeal to the Court of Appeal of New South Wales following a trial judgment that found the Coffs Harbour City Council and the Coffs Harbour Jetty Trust liable for injuries sustained by a young child who fell through a gap in a jetty's railing. The plaintiff, a young child, had fallen through the railing of a jetty, suffering serious injuries. The Council and the Trust had care, control, and management of the jetty, and there was a history of similar incidents involving young children falling through the railing, which was known to the Council. The plaintiff also brought proceedings against the State of New South Wales and the child's grandparents, but was unsuccessful against these parties.

The primary legal issues before the Court of Appeal were whether the Council and the Trust had breached their duty of care to the plaintiff by failing to install additional railings or a mesh infill to prevent such falls, and whether a risk warning sign at the jetty entrance negated any such duty of care. The court also considered the State's potential liability as a joint tortfeasor, given the jetty was built on Crown land and initially designed and constructed by the State, and the relationship between the State, Council, and Trust regarding ownership, occupation, and control of the land. Furthermore, the appeal addressed whether the trial judge erred in declining to make a *Bullock* or *Sanderson* order in favour of the State and the grandparents, and whether a partial indemnity costs order was appropriate.

The Court of Appeal reasoned that the Council and the Trust owed a duty of care to the plaintiff, and that this duty was breached by their failure to take reasonable steps to prevent foreseeable harm, despite the existence of a risk warning. The court found that the history of similar incidents put the Council and the Trust on notice of the specific danger posed by the gaps in the railing to young children. The court also considered the respective roles and responsibilities of the State, Council, and Trust, ultimately concluding that the State was not liable. The court upheld the trial judge's decision regarding the non-liability of the State and the grandparents, and the costs orders made at trial.

The Court of Appeal dismissed the appeal by the Council and the Trust, and also dismissed the plaintiff's application for leave to cross-appeal. The appellants, the Council and the Trust, were ordered to pay the respondents' costs of the appeal, and the cross-appellant, the plaintiff, was ordered to pay the cross-respondents' costs of the cross-appeal.