Delaney v Federation Council

[2025] NSWDC 141

District Court

New South Wales

Medium Neutral Citation:

Delaney v Federation Council [2025] NSWDC 141

Hearing dates:

20-23 May 2024; 14-16 October 2024; 6-8 November 2024; 27-28 November 2024; 13 March 2025 (oral submissions)

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024; 6-8 November 2024; 27-28 November 2024); 16 December 2024 (plaintiff’s written submissions in chief); 17 January 2025 (defendant’s written submissions); 10 February 2025 (cross-defendant’s written submissions); 28 February 2025 (plaintiff’s reply submissions)

Decision:

1. Judgment for the plaintiff against the defendant.

2. Judgment for the defendant against the cross-defendant on the Cross-Claim.

3. The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.

4. The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.

5. The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.

6. The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.

7. Liberty to the parties to apply within seven days for different costs orders to those set out above.

Catchwords:

TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant

LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff

EMPLOYEE – whether person was an employee or independent contractor and consequences of status

LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Industrial Relations Act 1996 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Limitation Act 1969 (NSW)

Cases Cited:

A v B [2021] NSWDC 491

ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532

Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499

Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488

Best v Rosamond [2020] NSWCA 90

Bird v DP (a pseudonym) [2024] HCA 41

Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jackson v McDonald’s Australia Limited [2014] NSWCA 162

Khanna v Woolworths Group Limited [2022] NSWCA 94

Khanna v Woolworths Group Limited (No 2) [2021] NSWDC 567

Laresu Pty Ltd v Clark [2010] NSWCA 180

Lloyd v Thornbury [2019] NSWCA 154

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501

New South Wales v Moss [2000] NSWCA 133

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Penrith City Council v Parks [2004] NSWCA 201

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

Ramsey v Denton [2021] NSWCA 310

RIHSF Pty Ltd v Bhullar Steel Distribution Pty Ltd [2018] NSWDC 72

South Western Sydney Local Health District v Gould [2018] NSWCA 69

State of New South Wales v Gillett [2012] NSWCA 83

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182

Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161

Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101

Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213

Value Constructions Pty Ltd v Badra [2024] NSWCA 181

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Willis Australia Ltd v AMP Investors Ltd [2023] NSWCA 158

ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; [2022] HCA 1

Winnote Pty Ltd (in liq) v Page t/as Freehill Hollingdale & Page (2006) 68 NSWLR 531

Category:

Principal judgment

Parties:

Loren Delaney (Plaintiff)
Federation Council (Defendant)
Remlap Company Pty Ltd (Cross-Defendant)

Representation:

Counsel:
A Campbell (Plaintiff)
S McMahon (Defendant)
W Reynolds (Cross-Defendant)

Solicitors:
Don Cameron & Associates (Plaintiff)
Moray & Agnew (Defendant)
Meridian Lawyers (Cross-Defendant)

File Number(s):

2022/00075656

Publication restriction:

No

TABLE OF CONTENTS

The pleadings - paragraph 5

The evidence - paragraph 12

Documentary evidence

Documents produced under subpoena by the defendant - paragraph 15

The Lease - paragraph 16

Plaintiff’s liability expert report - paragraph 51

The medical evidence

Medical evidence obtained on behalf of the plaintiff

Dr J McMahon - paragraph 62

Mr M Ravagnani - paragraph 70

Joint report - paragraph 72

Medical evidence obtained on behalf of the defendant

Reports of Ms Hamidi - paragraph 74

Reports of Associate Professor Davies - paragraph 83

Oral evidence of Associate Professor Davies - paragraph 92

Concurrent oral evidence of Mr Ravagnani and Ms Hamidi - paragraph 105

Oral evidence of Dr McMahon - paragraph 117

Oral lay evidence on behalf of the plaintiff

The plaintiff’s oral evidence. - paragraph 134

Evidence of Ms Julia Delaney - paragraph 176

Evidence of Mrs Leanne Delaney - paragraph 202

Evidence of Mr Anthony Delaney - paragraph 285

Evidence of Mr Garron Farrell - paragraph 348

Oral evidence on behalf of the defendant

Oral evidence of Mr Bruno Sigmund - paragraph 397

Submissions

Submissions on behalf of the plaintiff in chief - paragraph 447

Submissions on behalf of the defendant - paragraph 448

Submissions on behalf of the cross-defendant - paragraph 449

The plaintiff’s reply submissions - paragraph 450

Findings

Findings of fact - paragraph 451

Medical findings - paragraph 486

Findings for the purposes of limitation issues - paragraph 511

Consideration

The witnesses - paragraph 526

The limitation defences and Lease construction issues - paragraph 527

Limitations issues: the pleadings - paragraph 528

The alleged breaches of the Lease by the cross-defendant

Paragraphs 18-19 of the Cross-Claim - paragraph 532

Paragraphs 14-17 of the Cross-Claim - paragraph 535

Clause 1(w)(i) of the Lease - paragraph 542

Limitation issues: the plaintiff - paragraph 553

Was Mr Sigmund a deemed employee of the defendant? - paragraph 574

The position of Remlap and Mr and Mrs Sigmund - paragraph 579

Duty and breach of duty of care - paragraph 597

Causation - paragraph 621

Contributory negligence - paragraph 635

Damages

Introduction - paragraph 636

Non-economic loss - paragraph 639

Past out-of-pocket expenses - paragraph 647

Continuing out-of-pocket expenses - paragraph 648

Past economic loss - paragraph 650

Future loss of earning capacity - paragraph 651

Conclusion - paragraph 658

Contribution by the cross-defendant - paragraph 659

Costs - paragraph 662

Determination - paragraph 664

JUDGMENT

1. In these proceedings, the plaintiff, Ms Loren Delaney, sues the defendant, the Federation Council (formerly Corowa Shire Council) (“the Council”), in negligence claiming damages for personal injuries said to have arisen from a fall by the plaintiff from a three metres high diving board platform onto surrounding concrete at the Corowa Swimming Pool in February 2012.

2. The plaintiff was born in November 2005. The accident occurred on 12 February 2012 when the plaintiff was a little over six years and two months old. The plaintiff had attended the Corowa Swimming Pool soon after it opened on 12 February 2012 with her mother and her then 10 years old sister, Julia. It is not disputed that the plaintiff fell from the three metres diving board onto the surrounding concrete on 12 February 2012. What is disputed is the precise mechanism of the fall. There was limited evidence as to this as the plaintiff herself had a very limited recollection and her mother was not observing the plaintiff on the board at the time. The only claimed eye-witness was the plaintiff’s 10 years old sister who gave oral evidence in the proceedings some 12 years after the accident. The only person working at the pool at the time, Mr Bruno Sigmund, claims that he heard conversation between the sisters and the “thud” noise of the fall but did not see the fall itself.

3. The proceedings were commenced by the plaintiff on 16 March 2022, slightly more than 10 years after the accident. The defendant has pleaded a limitation defence in relation to the plaintiff’s claim.

4. There is also a cross-claim brought by the defendant against Remlap Company Pty Ltd (“Remlap”) which was the lessee of the pool and an adjacent caravan park from the first defendant Council at the time of the accident. Remlap claims that it had contracted out the day to day running and management of the pool to Mr Sigmund and his late wife. Remlap claims that Mr Sigmund and his late wife were independent contractors with Mr Sigmund having qualifications in aquatic management, lifeguarding and first aid. It asserts any breach was that of Mr Sigmund and his wife, not itself, and it was not vicariously liable, relying inter alia on the High Court authority of Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161. A limitation defence is relied on in relation to issues concerning the lease with the Council.

The pleadings

5. As indicated above, the proceedings were commenced on 16 March 2022. An Amended Statement of Claim was filed with leave on 21 December 2023. At that time, the plaintiff having attained her majority, the proceedings did not continue by the plaintiff’s mother as tutor. The Amended Statement of Claim (“ASOC”) pleads that as at 12 February 2012, the Federation Council was the occupier of the Corowa Swim Centre in Corowa. Importantly, paragraph 8 of the ASOC provides as follows:

“On 12 February 2012 the plaintiff was on the Diving Board when she slipped and fell, including falling either under or, alternatively, over the railing onto the ground three metres below.”

6. It seems to be inferred in paragraph 10 of the ASOC that the plaintiff slipped and fell from the “wet surface of the Diving Board”. A duty of care owed to the plaintiff by the defendant is pleaded and a breach is also pleaded. The particulars of negligence set out in the ASOC in paragraph 16 are said to be a failure to take reasonable steps to prevent or eliminate the risk of harm to the plaintiff. They are particularised as follows:

“Particulars of Negligence

(a) Failing to apply anti slip surfaces on the surface of the Diving Board;

(b) Failing to install adequate railings on the Diving Board;

(c) Alternatively, failing to remove the Diving Board;

(d) Failing to erect or maintain warning signs to warn persons such as the plaintiff that the surface of the Diving Board was wet and/or slippery;

(e) Failing to devise, implement and maintain a system of wiping the surface of the Diving Board;

(f) Failing to supervise the plaintiff whilst she was within the Centre.

(g) Failing to devise, implement and maintain a system of supervision within the Centre.

(h) Failing to devise, implement and maintain a system of preventing minors from using the Diving Board.”

7. Part 15 Particulars were amended and filed on 3 November 2023. These particularised the plaintiff suffering injuries in the accident being a closed head injury, a mild traumatic brain injury, a mild neurocognitive disorder and a psychiatric injury. [Redacted].

8. In its Defence to the ASOC filed on 21 December 2023, the Council denies it was the occupier of the Corowa Swim Centre and pleads that the occupier of the Centre at all material times was Remlap with the occupancy being pursuant to a lease to that company by the Council for the period from 1 July 2008 to 30 June 2013. In essence, the pleadings in the ASOC are either denied or not admitted. Damages are put in issue. It was stated that the risk posed by the Diving Board, whilst not admitted, was an obvious risk within the Civil Liability Act 2002 (NSW) (“CLA”) and consequently the defendant owed no duty to warn the plaintiff of the risk. A limitation defence is pleaded in paragraph 25 with the Council saying that the proceedings were not maintainable as they had been commenced outside the three years discoverability period set out in s 50C of the Limitation Act 1969 (NSW).

9. On 14 December 2023, the Council filed a Cross-Claim against Remlap Company Pty Ltd. In that pleading, the Council pleads that Remlap was the occupier of the Corowa Swim Centre pursuant to the lease earlier mentioned. It is also pleaded that the Council was the owner of the Swim Centre in Corowa. After setting out the plaintiff’s pleaded cause of action in the ASOC, the Council pleads the lease dated 1 July 2008 (“the Lease”) between the Council and Remlap. Various terms of the Lease are set out. The Council pleads that Remlap has breached a number of provisions of the Lease. For the purposes of the Cross-Claim only, it is pleaded that Remlap failed to carry out, or failed to adequately carry out, daily maintenance of the pool, including the Diving Board, during the swimming season in breach of the Lease. Further, it is pleaded that Remlap breached its own duty of care owed to the plaintiff and a full indemnity is sought in relation to any damages payable by the defendant to the plaintiff under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

10. In its Defence to the Cross-Claim filed on 6 March 2024, Remlap denies liability, and, in particular, whilst not disputing the Lease, pleads that it was responsible for the daily maintenance of the pool and filtration equipment whereas the Council was responsible for the structural maintenance of the pool and related equipment which included the diving boards at the pool. Remlap denies that it was required to maintain the structure of the pools, the diving boards and the diving towers. Further, it claims that both the claim of the plaintiff and the claim of the Council are statute barred under the Limitation Act.

11. A Reply was filed by the plaintiff with leave on 8 November 2024. In it the plaintiff pleaded that the plaintiff’s cause of action against the defendant was not discoverable until receipt of the report of Dr McMahon by the plaintiff’s solicitor on 15 May 2019 “at the earliest.”

The evidence

12. The plaintiff’s precise injuries and disabilities were heavily contested in the course of the proceedings by the defendant and Remlap. There was thus considerable expert medical evidence tendered in the proceedings which will be considered in due course.

13. Substantial documentary evidence was also tendered including reports in relation to the state of the Corowa Pool both before and after the accident. Additionally, pre-accident maintenance records relating to aspects of the pool were tendered. What was clear was that the diving boards were removed from the Corowa Pool soon after the accident. It will be necessary to review parts of the relevant documentation for the purposes of these reasons.

14. In addition, oral evidence was given by a number of witnesses in relation to both the plaintiff and the circumstances of the accident. The plaintiff herself gave detailed oral evidence. She is now 19 years of age. In addition, her sister, Julia, who, as stated above, was 10 years of age at the time of the accident, also gave oral evidence. There were other witnesses for the plaintiff and the defendant. The plaintiff called a former work, health and safety council employee, Mr Farrell. The defendant called Mr Sigmund, referred to above.

Documentary evidence

Documents produced under subpoena by the defendant

15. Substantial documentation was produced under subpoena by the defendant Council, including during the trial itself. An affidavit was relied on from a Council officer in relation to the detail of searches for further documents.

The Lease

16. In evidence was the Certificate of Title for the relevant land which included the pool. The Corowa Shire Council Crown Reserve Trust was indicated as the registered proprietor. No issue was taken about the difference in the Registered Proprietor compared to the Council itself as defendant.

17. The Lease between the Council and Remlap was for a period of five years from 1 July 2008 to 1 July 2013: Exhibit H tab 2. The Lease provided for an option to renew to be exercised by Remlap and this option was exercised such that the term was increased so as to expire on 30 June 2018. The Lease included not only the Corowa Pool Area but also a nearby caravan park. It is dated 1 July 2008. There is an annexure to the Lease document which provides the detail of the terms of the lease.

18. It may be stated at the outset that the Lease is not a carefully drafted document. On occasion, words seem to be missing (for example Clause 1(c) in the Annexure). The Annexure to the Lease included the following relevant provisions:

1. …

(c)  At all times during the continuance of this Lease to maintain the grounds and keep in good and substantial repair and at the expiration or sooner determination of the term peaceably yield up to the Lessor in good and substantial repair the premises together with all appurtenances fixtures and other things thereto belonging or which at any time during the said term shall have been erected or placed therein by the Lessor reasonable wear and tear and damage by fire lightning flood or tempest excepted;

d.  To permit the Lessor and any persons authorised by the Lessor to enter into the premises to examine and view the condition and state of repair and the Lessor may by notice in writing require the Lessee within a time fixed by the notice to repair or maintain the premises in accordance with the covenants or agreements contained in this Lease and the Lessee shall repair and cleanse the premises in accordance and within the time mentioned in such notice as far as the Lessee may be liable to do so under this Lease and in default of the Lessee so doing it shall be lawful for but not obligatory on the Lessor to execute the required repairs and cleansing at the expense of the Lessee;

e.  To permit the Lessor and any persons authorised by the Lessor at all reasonable times during the term and with all necessary materials and appliances to enter into the premises or any part of them for the purpose of cleansing the same and of carrying out any alterations or repairs to the premises including cleansing alterations or repairs to the premises for which the Lessee may not be liable under the Lease or being liable shall neglect to do or which the Lessor may think necessary or desirable to do or for the purpose of complying with the terms of any notice served by any authority whatsoever having, authority in respect of the building and also for the purpose of exercising the powers of the Lessor under this Lease provided that such cleansing alterations repairs and works shall be carried out without unnecessary interference with the occupation and use of the premises by the Lessee;

…

j.  To keep the inside and outside of the premises properly painted at all times where paint has at the date of this lease been applied;

…

o.  Not to make any alterations or additions to the premises without the previous written consent of the Lessor and the Minister which shall not be unreasonably withheld nor to cut maim or injure any of the walls or timbers thereof nor to permit any of the aforesaid things to be done;

…

r.  To indemnify the Lessor and the Minister its architects officers servants agents and workmen from and against all damages costs charges expenses actions claims and demands which may be sustained suffered recovered or made by any person for any injury which such person may sustain when using or entering or near any portion of the building in which the premises are situate (whether such injury be to person or to property) where such injury arises or has arisen as a result of the negligence of or as a result of the creation of some dangerous thing or state of affairs by the Lessee or by any clerk servant employee agent workman client customer invitee or visitor of the Lessee and whether the existence of such dangerous thing or dangerous state of affairs was or ought to have been known to the Lessor or not;

…

w.  (i)  The Lessee shall indemnify and keep indemnified the Lessor and the Minister against all actions, suits, claims, debts, obligations and other liabilities during the continuation of the Lease and further the Lessee shall take out a Public Risk Insurance Policy with a reputable insurance office approved by the Lessor in the. names of the Lessee, the Lessor and the Minister assuring them against such of the said matters as can be assured against in the sum of not less than ten million dollars ($10,000,000-00) and shall produce at any time when required by the Lessor or the Minister renewal receipt for payment of such premium thereof;

ii.  That the Lessee covenants and agrees to effect Workers Compensation insurance policies to cover its statutory liability under the legislation of New South Wales the Common Law limit of indemnity under both policies to be at least one million dollars ($1,000,000-00) and subject to annual review;

iii.  That the Lessee covenants and agrees to effect adequate motor vehicle insurance on all vehicles used by it in connection with the caravan park including self propelled mowers with a third party (non-ACT) limit of liability of at least one million dollars ($1,000,000-00) and subject to annual review;

iv.  That the Lessee covenants and agrees to arrange for its insurance brokers or insurance company to complete a questionnaire form to be delivered by the Lessor to the Lessee upon the execution of this Lease and produce the policy document at any time if so required to do;

v.  That the Lessee covenants and agrees to arrange for indemnity to be provided to the Lessor and the Minister under every policy arranged by it in respect of all activities at the reserve and swimming pool;

vi.  That the Lessee agrees to submit details of each contract for work undertaken on its behalf at the caravan park to the Lessor and to submit the details of relevant insurance arrangements for approval by the Lessor;

…

4.  The Lessor and the Lessee hereby further covenant and agree as follows:-

i.  In regard to the swimming pool:-

a.  Structural maintenance of the pool and associated buildings is to be carried out by the Lessor;

b.  Mechanical maintenance of filtration plant, diving boards and pool equipment is to be carried out by the Lessor;

c.  Maintenance of lawns and gardens is to be carried out on a regular basis by the Lessee; ‘

d.  Daily maintenance of pool and operation of filtration plant to be carried out by the Lessee during the swimming season;

…

(l)  The Lessee shall ensure that during all times during which the pool is open to the public bather supervision shall be in accordance with Section SU of the Royal Life Saving Society Australia “GUIDELINES FOR SAFE POOL OPERATIONS” there shall be a person in attendance suitably qualified in First Aid and Life Saving to the satisfaction of Council.

…

5.  IT is further agreed as follows:-

…

e  The Lessee has the right to carry out works of a capital nature provided that he first provides the Lessor with plans, specifications and costings for the proposed works and it shall not commence any work before receiving the written approval from the Lessor and the Minister. If the parties are unable to agree upon a cost figure for any works proposed the figure shall be determined by a qualified valuer appointed by the State Valuation Office;

…”

19. There was no definition of the various descriptions of “maintenance” in Clause 4 of the Lease in the Lease.

20. Page 24 of the Lease has a reference to a proposed Works Programme in 2009 which refers to a Corowa Swimming Pool “Audit from RLSSA to ensure full compliance of guidelines”. A note indicates that these items had not yet been approved by the Council: Exhibit H tab 2.

21. Significant issues arise in relation to the proper construction of the Lease, particularly as to the delimitation of the obligations of the defendant Council and Remlap.

22. I considered the proper approach to the construction of a commercial lease in RIHSF Pty Ltd v Bhullar Steel Distribution Pty Ltd [2018] NSWDC 72. In paragraph 318 I stated as follows:

“318.  It is also submitted (paragraph 17 of its primary submissions) that the issue of whether a report complying with Clause 11 was commissioned by the plaintiffs is a matter of contractual construction determined by what a reasonable businessperson would have understood it to mean by reference to the commercial purpose sought to be achieved relying on Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 at [16]- [17]. The plaintiffs accept the accuracy of this submission: submissions dated 22 December 2017 at paragraph 153. I agree generally with the first defendant’s submission on the principle applicable. In Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 the majority of the High Court stated as follows at [35]:

[35] Both Verve and the Sellers recognised that this court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties ... Intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.”

23. These principles have been applied in numerous later appellate cases. In Willis Australia Ltd v AMP Investors Ltd [2023] NSWCA 158 the Court of Appeal stated as follows at [48]-[50]:

“Some relevant principles of construction

48.  It is desirable first to identify some relevant legal principles concerning construction of the Lease (upon which there was substantial but not complete agreement). It is uncontroversial that, in construing the Lease, the Court should apply the settled principles relating to the construction of commercial contracts (see, for example, Saipan Holdings Pty Ltd v City Gym Sydney Pty Ltd [2023] NSWCA 55 at [128] per Ward P (Gleeson JA and Simpson AJA agreeing)).

49.  The principles are identified in cases such as Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]- [52] per French CJ, Nettle and Gordon JJ and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 644; [2017] HCA 12 at [16] per Kiefel, Bell and Gordon JJ. They may be summarised as follows:

(1)  The rights and liabilities of the parties are determined objectively by reference to the contract’s text, context (as a whole) and purpose.

(2)  It is necessary to ask what a reasonable businessperson would have understood the terms of a commercial contract to mean, which requires consideration of the language used by the parties, the circumstances addressed by the contract and the commercial purpose or objects to be secured by it.

(3)  Ordinarily, this process of construction is possible by reference to the contract alone and, if an expression in the contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to alter its plain meaning.

(4)  Recourse to such events, circumstances and external things may be necessary to identify the commercial purpose or objects of the contract or where there is a constructional choice.

(5)  Each of the events, circumstances and external things to which recourse may be had is objective but those events, circumstances and external things need to be known to the parties or assist in establishing the purpose or object of the transaction, including its history, background and context and the market in which the parties were operating.

(6)  Evidence of the parties’ statements and actions reflecting their actual intentions and expectations are inadmissible.

(7)  Unless a contrary intention is indicated in the contract, a Court is entitled to approach the task of construction on the assumption that the parties intended to produce a commercial result, in the sense that a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience” (citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]).

50.  The relevance of these principles in construing a commercial lease was acknowledged by Barrett AJA (Beazley P and Ward JA agreeing) in Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 at [40]:

The words of s 14.2.1 [a commercial lease] must, of course, be construed in the whole of the context in which they are found. The lease embodies a commercial contract. It is well established that the terms of such a contract are to be understood objectively, according to what a reasonable businessperson would have understood them to mean; and that, in a practical sense, this requires that the reasonable businessperson be placed in the position of the parties, with the court considering, from that perspective, the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486 (at [16]); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 (at [35]).”

24. I will apply the above contractual principles in relation to the proper construction of the Lease. That issue is considered further below.

25. Within the Council’s records was an aquatic facility safety assessment safety improvement plan for the Corowa Swimming Pool produced by Mr Grant Davis of the Royal Life Saving Society of Australia (“RLSSA”)dated 8 March 2009. Presumably, this report was obtained as a result of the reference in the document attached to the Lease. The plan states that the Royal Life Saving Society of Australia produces the Guidelines for Safe Pool Operation which are recognised:

“As the minimum standard for safety related issues for the aquatic industry. It provides a comprehensive guide for anyone involved in either the design, construction, maintenance or management of an aquatic leisure venue. Its purpose is to provide a guide to venue management thus ensuring safety standards and guidelines are being met for the prevention of accidents in and around aquatic environments.”

26. A safety inspection was apparently undertaken by Mr Davis as Lead Assessor on 8 January 2009 (before the accident): Exhibit H tab 3. It is stated that the assessment was based “on the Assessor’s knowledge of the relevant statutory requirements, Australian Standards and the RLSSA Guidelines for Safe Pool Operation, and is limited to the observations and information available on the day of the assessment.”

27. It was recommended that an external independent inspection be undertaken at least annually to assess the current safety standards were maintained on an ongoing basis. It appears from the document that the diving pool was not considered for the purposes of the assessment. However, items are described as being what the RLSSA believes “must be compliant at all times” and are “fundamental to the safe operation of Corowa Swimming Pool”. Overall, the Corowa Swimming Pool did not perform well in the opinion of the author in the safety assessment. In particular, there was not a current copy held of the RLSSA Guidelines. It was noted at 4.28 that the nature of the concourse surface of the pool was intended to be slip resistant but that evidence of the standard of slip resistance may be supplied.

28. It was also noted that two qualified life-guards were not on duty at any one time. There was no signage that encouraged active parental supervision in appropriate areas. A Safety Improvement Plan was Annexure B to the plan. At 120 a system of internal maintenance inspections was recommended. Observations were made in relation to the diving board at the pool and because of the depth of the pool, in relation to the boards. It was stated that the diving platform did not comply with FINA recommendations for depths of diving pools and as a result RLSSA “recommends its closure and dismantling”.

29. Following the accident involving the plaintiff, a further report dated 5 March 2012 was obtained by the RLSSA prepared by a Mr Michael Dasey. It followed a safety inspection on 5 March 2012. It was in a similar format to the previous 2009 report. However, this report did examine the diving pool and equipment. Similar comments were made about the RLSSA producing the guidelines for safe pool operation and them being regarded as the minimum standard for safety related issues for the aquatic facility. A similar recommendation was made in the document that an external independent inspection be undertaken at least annually. As stated, in this report, the dive pool was examined and there was concluded to be a limited compliance in relation to safety issues. Again, the report indicated certain items that the RLSSA believes that the pool must be compliant with at all times. The author noted again that there was not a current copy of the guidelines at the Corowa pool.

30. At paragraph 6.1 it was noted that a risk assessment had not been completed for the use of the diving facilities. It was also concluded in paragraph 6.6 that there was no evidence that the diving towers, platforms and springboards were inspected and checked as suitable for use prior to being opened on each day of operation. Mr Sigmund gave oral evidence that he checked the diving boards on a regular basis, including following any complaints that the boards were slippery. I have no reason to doubt that evidence. A recommended implementation of inspection process was recorded in the report. At paragraph 6.16, the question was asked whether the dive pools were designed to GSPO recommendations. It was recommended that the boards over one metre have Perspex or similar transparent guard. It was noted that the handrail height was one metre and the distance between rails of no more than 0.33 metres was not complied with. It was also noted “unable to assess some components due to three metre board being fenced off. No access available to assessor.”

31. At 11.1 it was noted that there was no compliance with having at least two qualified pool life-guards on duty at any one time but the comment was made “predominantly low patronage pool but no quals evident”. At 11.15 it was noted that the rule that children under a certain age be supervised by guardians over a specified age was apparently not enforced.

32. At paragraph 6.1 it was recommended that a risk assessment be completed on the use of the diving facilities. See also the recommendation as to dive pools and structures at 6.16. At 11.15, it was recommended that a rule be instituted which specified the age under which entrants must be supervised by guardians and the minimum age of those guardians. It was recommended that the rule be strictly enforced with the relevant age recommended to be 10 years.

33. Observations were made of the Corowa Swimming Centre. The following was included:

“The Corowa Swimming centre consists of three concrete reinforced swimming pools opened for the public in 1956. All three pools are of a tiled finish and show varying levels of ageing, wear and remedial maintenance”.

34. Various detailed concerns were expressed in relation to the diving boards. This included in relation to the boards compared to the depth of the pools. Non-compliance with FINA specifications as in the early report was noted.

35. The following was stated:

“Other concerns centre around the diving structures that support the diving boards. There are requirements regarding spacing between horizontal rails not being met to prevent falls onto the concourse, the structural integrity of the steel frame due to ageing and corrosion. There is also a concern regarding the standard and finish of the actual diving platforms (boards) themselves due to their age and wear and tear.”

36. As the diving boards did not comply with FINA recommendations for depths of diving pools, together with the other matters of concern noted, the immediate closure of both diving facilities and dismantling of the existing framework was recommended: Exhibit H tab 13.

37. Included with the safety assessment at Figure 7 was a photograph of the diving platform. Figure 8 includes the following comment: “Diving boards require maintenance and recoating or surface. They present a slip hazard in current condition”.

38. The subpoenaed documents indicate that on 7 May 2012 there was a report by the Director of Environmental Services to the Policy and Resource Committee of the Council with a recommendation following the receipt of the RLSSA report that the one metre and three metre diving boards be removed from the swimming pool complex and a sum of $50,000 be included in the 2012/2013 operational plan to enable the improvement of the level of safety at the Corowa Swimming Pool. It included the following comment:

“In relation to the diving board themselves it is noted that the structures supporting the diving board do not meet minimum standards in relation to spacing between horizontal rails and thus is inadequate to prevent falls onto the concourse. The structural integrity of the structure’s steel frame is also questioned due to ageing and corrosion. Also concern was expressed of the standard and finish of the actual diving platforms. To replace the existing diving boards with those that would comply with FINA standards would incur costs of approximately $70,000 plus installation”.

39. It was recommended for a meeting on 15 May 2012 that based on the findings of the RLSSA report in relation to the Corowa Swimming Pool that both diving boards be removed and that $50,000 be allocated towards “feasible improvements” identified within the report.

40. Although the records do not disclose this being approved, it was not in issue that the two diving boards were closed and removed following the accident involving the plaintiff.

41. Included in the records was a letter from the proprietors of the caravan park and the directors of Remlap to the Council dated 14 October 2009 enclosing a copy of the Aquatic Facility Safety Assessment and Safety Improvement Plan for the Corowa Swimming Pool prepared by the RLSSA dated 14 October 2009. A stamp mark indicates this was received by the Council.

42. The letter includes the following:

“We are writing to inform you that we had a safety assessment carried out on the Corowa Swimming Pool. The safety assessment was conducted by Grant Davis from the Royal Life Saving NSW Branch.

Unfortunately, as you are probably well aware, the results were not very satisfactory. Please find enclosed your copy of the Aquatics Facility Safety Assessment and Safety Improvement Plan for the Corowa Swimming Pool.

There are sections of the Safety Improvement Plan that, as per our lease agreement with the Corowa Shire Council, are the responsibility of the Council. We feel these improvements require your urgent attention.

We are willing to work with the Council to ensure that these improvements are implemented as quickly as possible, for the safety of all parties involved especially the community. We will assist in organising these improvements with the co-operation from Council.”

43. At this time, the evidence establishes that Mr and Mrs Sigmund were running the pool on a day-to-day basis under a contractual arrangement with Remlap. The precise contractual terms of the arrangement were unclear on the evidence. This will be considered further below. Also in the subpoenaed records was a Council business plan for the Corowa Swimming Pool dated December 2009. This included in the background the following:

“Corowa’s existing Swimming Pool, built in the 1950s will soon close as it is at the end of its technical and operational life.

… Extensive studies have been completed on the existing Swimming Pool by industry leading consultants who have confirmed that it is not viable for the existing Swimming Pool to be repaired at a lessor [sic] cost than the establishment of a new facility.”

44. Included in the Shire Council records was an email from Kristy Kay of the Council to Ian Singleton of the Council dated 14 February 2012, including notes of a discussion with the plaintiff’s father after the accident:

“I asked Tony how he thought it had occurred and he said he wasn’t actually there but she may have been “a larrikin” and she uses the board all the time for fun. He thought she had fallen off the side (under the bars). Tony advised (while I did not prompt this) that they certainly would not be pursuing anything and did not believe that it was anyone’s fault. They did not want to see the diving board removed as everyone loved it. I advised him that it had been fenced off at this point. The only suggestion that he made was that perhaps we could enclose the side panels”.

45. A limiting order under section 136 of the Evidence Act 1995 (NSW) was made in relation to the first part quoted. It was admitted only as to what was said not the truth of its contents. Mr Delaney did not witness the accident: see Exhibit D6.

46. Mr Delaney gave evidence in relation to this conversation.

47. There were numerous documents tendered showing that the defendant Council was involved in the maintenance of the pool particularly structural issues relating to the three metres diving board. Mr Sigmund on a number of occasions reported maintenance issues relating to the diving board structure to the Council officers directly.

48. There is a letter from Mr Dasey of the RLSSA to the Council forwarding a copy of the 2012 Aquatics Facility Safety Assessment for the Corowa Swimming Pool. Included in records was a diary report apparently by the manager, Bruno Sigmund: see Exhibit L. It included the following:

“At approx. 11.30 Loren Delaney was swimming in the main pool. Leanne was sitting reading a paper. I was 20 metres from the diving board (3m) hooking up a hose when I heard screaming from what I thought was Loren at first but it was her sister and then L’s mother I ran to the incident scene and applied first aid. She was unconscious for at most a minute.”

49. This note appears to have been made at 12:15pm. In his oral evidence, Mr Sigmund disputed aspects of his note including his distance from the diving board at the time of the accident.

50. Mr Singleton of the Council recorded a note on 15 February 2012 of a discussion with Bruno Sigmund on 14 February 2012. It included the following:

“At the time of the incident there were six young people at the pool and Loren’s mother was sitting in the shade on the northern side of the 50 metre pool reading a book. I asked Bruno if a lifeguard was positioned at the boards when they were being used by swimmers and he replied that he normally tried to position a lifeguard between the two boards depending on the number of swimmers using the boards and the number of lifeguards on duty. Bruno also stated that the boards were only used for recreational and not competition and were very popular with the local community, as well as swimmers from towns in the area. I stated to Bruno that the three metre board, around which security panels were erected on the morning of the 13/2/2012, would not be in use indefinitely and that he, or his staff, need to ensure that the board is not to be used under any circumstances. I also suggested to Bruno that there should be closer supervision of the 1 metre board at all times.”

Plaintiff’s liability expert report

51. The plaintiff tendered a liability expert report from Mr David Dubos dated 8 November 2021: Exhibit C. Mr Dubos is a safety engineer who provides consulting services and reports in relation to industrial and public safety management. He has qualifications in safety science, ergonomics and management: report paragraph 2. Parts of the report were either not pressed or rejected following objection.

52. By a letter of instructions dated 14 September 2021, Mr Dubos was asked to prepare a report that provided his expert opinion about the circumstances in which Loren Delaney was injured and the liability of the defendant. Various specific matters were requested to be addressed.

53. It is noted that Mr Dubos was asked to assume that Loren Delaney was approximately 120cm tall at the time of the accident.

54. I am satisfied from the experience and qualifications of Mr Dubos set out in his report that he has sufficient expertise to provide the opinions which he has set out and which were admitted in evidence in relation to the matter. Objections were taken successfully to aspects of the report. Mr Dubos was not apparently required for cross-examination.

55. Mr Dubos notes in paragraph 10 of his report that his report is based on a conference conducted with the plaintiff and her parents by video conferencing on 5 October 2021. Mr Dubos indicates that he discussed with the plaintiff and her parents the circumstances surrounding her accident on 12 February 2012. As the diving board in question was removed soon after the accident, Mr Dubos makes clear in paragraph 11 that he has not been in a position to inspect the diving board associated with the plaintiff’s injury. That is clearly a limitation in his report. Mr Dubos sets out his instructions in paragraphs 14-19 of the report.

56. In particular in paragraph 14, Mr Dubos sets out his assumption that on 12 February 2012, the plaintiff, then six years old, “slipped from the left hand side of the 3m diving board at Corowa Swim Centre, underneath the railing, and fell striking the concrete surface below about 500mm from the raised step or apron at the perimeter of the pool”. Mr Dubos then quotes from internal Council documents following on from the RLSS report from 2012. The factual background set out by Mr Dubos is generally (but not entirely) consistent with the plaintiff’s evidence and Julia Delaney’s evidence.

57. In summary, Mr Dubos expressed the following opinions in his report:

1. The standard of equipment and the level of supervision provided to the plaintiff by the Council did not ensure the plaintiff’s safety or take reasonable steps to ensure the plaintiff’s safety;

2. It was clearly foreseeable that the surface of diving boards or spring boards would become wet with use. Where a diving board is used at a height such as with a three metre diving platform, the potential for an awkward slip and fall from the board is foreseeable. A significant fall created a heightened risk of injury;

3. As discussed in the RLSSA 2012 report, the railing on either side of the three metre diving board consisted of one horizontal rail which was approximately one metre in height. There was no mid-rail or rail spanning the gap which was one metre high. In addition, there was no closed in fencing, in-fill or screen. The plaintiff was slightly taller for her age at six years but still only 1200mm in height. A form of fencing with in-fill, with vertical railings or glass/perspex in-fill, would effectively prevent a slip and fall below a railing;

4. It was quite foreseeable that a six-year-old child could slip and fall under a single railing that was one metre in height;

5. There were a number of reasonable alternatives which could have been taken by the Council which would have prevented the accident. These included inspecting the three metre diving board and arranging for the application of a series of anti-slip strips to the surface of the board. In addition, dismantling side railing structures for the three metre diving board and replacing those structures with a structure with a top rail and a mid-rail with fencing with a vertical in-fill and/or glass/perspex in-fill would prevent any young person slipping under or through railings and these should have been installed. Alternatively, the diving board and its structure could have been dismantled and removed at a limited cost by the Council as occurred in 2012.

58. Mr Dubos’ detailed factual instructions are at paragraphs 34-40 of his report. It is unclear where he got these instructions from, but having regard to the conference he had, it must have been from the plaintiff and her parents. None of these persons could give clear evidence of the conference in question. Of course, Mr and Mrs Delaney gave evidence that they received a reasonably full account of what occurred in the accident from Julia Delaney who claimed to be an eyewitness. Paragraph 36 asserted that Loren “walked quickly along the 3 metre diving board”. The plaintiff did not have a recollection of this. Mrs Delaney was not a witness to the accident. Julia Delaney did not recall this. Mr Sigmund did not see it. The detailed instructions confirm that the plaintiff fell underneath the horizontal railing: see paragraphs 36-37.

59. There is an issue about supervision by the day-to-day operator of the centre Mr Sigmund. However, Mrs Delaney conceded in cross-examination that even if she had been standing near the diving board at the time of the accident, she could not have prevented the fall and she was satisfied that Loren was sufficiently familiar with the board to climb it and jump from it safely. As counsel for the cross-defendant submits in his written submissions, the plaintiff had used the board before, was regarded by Mr Sigmund as able and sensible and was a competent swimmer: written submissions paragraph 74-76. Mr Sigmund states that he was near the three-metre board at the time of the accident.

60. In paragraphs 74-78 of his report, Mr Dubos notes that he has not been in a position to inspect the diving board in question but on the evidence provided to him the diving board and its structure was quite “aged” at the time of the plaintiff’s injury. He sets out in his report that it is likely that any core surface of the diving board had been weathered and worn over years of use and therefore it was likely that the surface may have been slippery. He notes that there was no information that the Council had ensured that any anti-slip tape had been applied to the diving board.

61. It is difficult to conclude that the three metres diving board was unreasonably slippery at the time of the accident. Mr Dubos had not examined it for the purposes of his report. Julia Delaney referred to the board having a “sand papery” feel. Mr Sigmund stated that he regularly examined the boards and had them repainted with non-slip paint by the maintenance officer of the defendant Council when he thought it was required. I have no reason to doubt that evidence. Further, it is noted that the RLSSA report from 2009 did not include an assessment of the diving boards overall: Dubos report paragraph 87. Mr Dubos refers to the 2012 RLSSA report which indicates that the diving board required maintenance and recoating or surfacing with it being a “slip hazard” in its current condition. It does not appear that any formal slip resistance testing was completed by the RLSSA report writer at the time. Mr Dubos notes in paragraph 109 of his report that there is no Australian standard relating to diving, diving spring boards or diving facilities. There is no proper reason to infer, in my opinion, that the plaintiff slipped because of the inadequate surface of the three metres diving board at the time. I accept the cross-defendant’s submissions on this point. This does not exclude the possibility that the plaintiff may still have slipped immediately before the accident whilst standing on the board.

The medical evidence

Medical evidence obtained on behalf of the plaintiff

Dr J McMahon

62. The plaintiff served a number of expert medical reports in relation to her case. Included in the tendered materials was a letter of instructions from the plaintiff’s solicitors to Dr J McMahon, psychologist. The instructions indicated that the plaintiff continued to suffer symptoms as a result of the accident listed as follows: intermittent headaches, sleep disturbance, slowed cognitive processing, fatigue, difficulty with language comprehension, irritability, increased anxiety and difficulty with interpreting difficult, lengthy or open-ended instructions: Exhibit B page 1573.

63. Dr McMahon provided a report dated 30 April 2019. In that report, he makes reference to assessments undertaken by him on 7 August 2018 and 10 April 2019. The purpose of the assessments was for a neuropsychological assessment. The plaintiff denied to Dr McMahon any other trauma other than through the accident. The instructions of the event given by the plaintiff were generally consistent with her oral evidence. A history of the plaintiff having a circle of friends at school but being reserved prior to the accident was given. The plaintiff stated that she developed some anxiety on returning to school and became more reserved. She was reviewed by a number of doctors including a neuropsychologist in 2012. The plaintiff instructed Dr McMahon that after the accident, she had some difficulty learning to do new things around the home such as chores and she had fatigue and headaches at school. Significant anxiety symptoms were also reported as well as frustration. Difficulties in concentration and memory were also mentioned.

64. Dr McMahon undertook a number of tests in relation to the plaintiff. He noted the tests showed that Ms Delaney was of average intelligence. Many of the tests returned an average range marking. The pattern of responding to some tests indicated to Dr McMahon adequate effort and genuine responding. It was noted that Ms Delaney had below average marks for comprehension (consistent with poor ability to understand problems and apply appropriate practical information and draw on previous experiences), general memory, verbal memory (the result was unusual and occurred in only a very small percentage of the normative sample), story memory (consistent with poor acquisition of “rich verbal” information), verbal working memory, and verbal fluency.

65. Dr McMahon noted the plaintiff as being somewhat listless and mildly despondent or flat of effect.

66. Dr McMahon stated in summary that there were some cognitive deficits identified on examination including “significant difficulty with processing and retrieving meaning rich verbal information and some verbal perseveration in abstract word generation tasks. There was some mild emotional difficulties including anxiety which had improved somewhat …”. Dr McMahon was of the view that the plaintiff met the criteria for a mild neurocognitive disorder due to mild traumatic brain injury, particularly in the light of the fact that the plaintiff fell striking her head with a loss of consciousness for about three minutes. In his view, there was a modest impairment in cognitive performance on testing. In Dr McMahon’s view the injuries were consistent with the reported accident. Dr McMahon was of the view that the plaintiff had a mild range difficulty in constructing and retaining “narrative-based memories of events and information” which would impact to a mild extent on her capacity for learning in academic subjects that rely on that type of memory. The prognosis for the plaintiff was fair with Dr McMahon stating that it was possible that her cognitive difficulties would continue to reduce especially as she passed through future developmental stages. He expressed the opinion that the plaintiff’s condition was unlikely to deteriorate in the future and it was unlikely that the plaintiff would have a reduction of capacity for work upon completing her secondary or tertiary studies if her interests were in line with her cognitive capacities.

67. At the end of his first report, Dr McMahon recommends further neuropsychological examination in “late adolescence and early adulthood” to see if cognitive development “has been affected by the brain injury” he found. This was not done, as recommended, by Dr McMahon: see Exhibit B page 1572. It was, however, undertaken at the time recommended by the expert retained on behalf of the defendant, Dr Bachelor.

68. In a later report dated 9 April 2024, following reviewing reports obtained on behalf of the defendant, Dr McMahon agreed that the differences shown in neuropsychological tests provided evidence of anxiety. However, he was of the view that the plaintiff’s current state did not mean that she has not previously had cognitive impairments. In his opinion the impairments or difficulties have probably caused her to develop beliefs about herself “that are causing ongoing anxious symptoms”. He agreed with the view that the plaintiff would benefit from career coaching, psychological support and “medication based treatment”. If the plaintiff’s symptoms were intensifying, in his view the cause was most likely anxiety, likely being fuelled by “underlying self-doubts consequent to previous cognitive difficulties”: Exhibit B page 1598.

69. In a third report dated 20 May 2024, Dr McMahon considered various matters including the plaintiff’s car accident and her suitability for several occupations. Dr McMahon appears to accept the significance of the plaintiff’s anxiety and its connection to the 2012 accident.

Mr M Ravagnani

70. The plaintiff also relied on a report dated 14 August 2023 by Mr Mark Ravagnani, psychologist: Exhibit F. The purpose of the report, it appears, was to obtain a vocational impact assessment, including the impact of the plaintiff’s injury on her vocational capacity and labour market access. Mr Ravagnani noted the plaintiff’s work history and, in particular, that she could become overwhelmed at work in her part-time job at the pizza shop when things were busy. He also noted reports of the plaintiff missing a lot of school because of fatigue and having ongoing difficulties with her memory, concentration and the ability to focus on a task. He noted her school reports and her reports of anxiety and a history of struggling with anxiety and panic attacks. [Redacted]. At home, Mr Ravagnani noted that the plaintiff had difficulties with taking instruction and found it necessary to ask for clarification several times and needing to be reinstructed. The plaintiff was unable to provide Mr Ravagnani any firm options as to her future career.

71. After going through the various medical reports, Mr Ravagnani expressed the following opinions:

1. On the medical reports, the plaintiff appeared to be of average intelligence with significant ongoing anxiety. A number of psychological reports indicated a lack of evidence of cognitive impairment in the plaintiff that would adversely affect her employment opportunities or performance. Dr McMahon referred to a mild impact on her capacity to learn subjects and requiring more time;

2. The results of the assessments indicated that the plaintiff did not currently demonstrate any evidence of cognitive impairment. The plaintiff’s injury and average intellectual capacity did not affect her future ability to undertake tertiary education and employment;

3. The reported persisting problems with anxiety, memory, concentration and taking instructions can affect both education and employment;

4. Given her reported problems, the plaintiff would need some accommodation such as flexible work arrangements or remote working from home including having written rather than verbal instructions and to reduce distractions;

5. Complaints of anxiety as well as fatigue, concentration, short-term memory and comprehension problems may well impact her effectiveness and efficiency as a student, job applicant or worker in the future;

6. Such symptoms may also lead to difficulty during interviews where she would be expected to demonstrate that she possesses the required skills in a confident manner; and

7. [Redacted].

Joint report

72. A joint report was provided by Associate Professor Jennifer Batchelor dated 22 May 2023: page 1603. Dr Batchelor concluded that the available evidence provided to her was consistent with the conclusion that the plaintiff sustained a complicated mild traumatic brain injury as a result of the accident on 12 February 2012. However, Dr Batchelor was of the view that the neuropsychological assessment undertaken did not reveal evidence in the plaintiff of cognitive impairment explained by reference to the subject accident. On this issue, her report differed to the first report from Dr McMahon.

72. Certain declines in performance on testing since earlier neuropsychological assessments could not, in Dr Batchelor’s opinion, be explained by reference to a traumatic brain injury in 2012. This was because, on current testing, learning and retention of both verbal and non-verbal material were measured as significantly disordered and as reduced compared to the scores returned during previous examination. It was suggested that there was evidence of incomplete application on some of the tasks in the testing. In Dr Batchelor’s view, when considered in conjunction, the results of the neurological assessments did not support the diagnosis of a mild neurocognitive disorder. However, Dr Batchelor indicated that the plaintiff’s responses on the subjective questionnaires included in the assessment were suggestive of significant ongoing anxiety. She indicated that the relationship between any anxiety and the accident represented a matter for psychiatric opinion. In her view, further investigations were not indicated as these neuropsychological assessments did not reveal evidence of ongoing cognitive change as a result of the accident. The opinion was expressed that the assessments provided no evidence of cognitive impairment that would adversely affect Ms Delaney’s employment opportunities or performance.

Medical evidence obtained on behalf of the defendant

Reports of Ms Hamidi

74. The defendant relied on a vocational assessment report dated 17 November 2023 from Ms M Hamidi, psychologist: see Exhibit D2. Ms Hamidi was provided with various medical records and assessed the plaintiff’s relevant personal, educational and employment background and undertook psychometric evaluation. The plaintiff undertook the assessment alone without her mother. Ms Hamidi described the plaintiff as showing poor eye contact but was cooperative and engaged during the assessment. [Redacted].

75. The plaintiff gave Ms Hamidi her employment background including her employment at a local Thai restaurant and the local pizza shop and described her difficulties. When asked about her career aspirations and interests, the plaintiff stated that she wanted to work but did not know what she preferred to do or could do. The plaintiff seemed to have a poor opinion about her prospects. Reference was made to the plaintiff being distracted easily and having trouble with comprehending what she was reading and in television shows. There was reference to the plaintiff having anxiety at the time.

76. Ms Hamidi arranged for the plaintiff to take a number of psychological tests. [Redacted]. The tests indicated to Ms Hamidi that the plaintiff preferred service based roles followed by roles in caring, culture and clerical roles. There was some suggestion of an exaggerated presentation of symptoms of maladjustments. However, it was accepted that they may reflect what the plaintiff believed rather than deliberate malingering.

77. Ms Hamidi expressed the view that the plaintiff’s anxious and depressive symptoms could impact her motivation and performance in job applications and interviews. [Redacted].

78. It was recommended that the plaintiff start with part-time hours to ease into a new role and build her confidence. Various options were stated including sales assistant (cosmetics), receptionist, hair or beauty salon assistant, waiter or fast food cook. Other jobs with some training were mentioned. In her oral evidence, the plaintiff seemed to be generally open to various roles but appeared hesitant and lacked confidence.

79. Ms Hamidi provided a supplementary report dated 7 May 2024 which considered in more detail past reports and the supplementary report of Dr McMahon. Ms Hamidi referred to Dr McMahon’s view that the anxiety and depressive symptoms reduced the plaintiff’s capacity to cope with obtaining and sustaining employment. Ms Hamidi disagreed with this given the plaintiff’s completion of the HSC alongside part-time work which in her view clearly demonstrated both capacity for obtaining and maintaining employment and studying. Ms Hamidi did not appear to be aware of the plaintiff’s modest ATAR score. She agreed that the plaintiff would benefit from career coaching, psychological support, and medication based treatment.

80. In relation to the injuries in the accident, Ms Hamidi was of the view that the mild severity and young age at which the plaintiff sustained a traumatic brain injury are consistent with neuro plasticity and good long term outcomes. It was stated that most individuals with a mild traumatic brain injury have a complete recovery. However, some may report ongoing symptoms that are inconsistent with the severity and nature of the injury.

81. In relation to vocational prospects, Ms Hamidi retained the same view, particularly that the plaintiff should start with part-time hours to ease into a new role and build her confidence although full-time hours were realistic in the light of her school and part-time job. However, Ms Hamidi expressed the opinion that anxiety and preoccupation with perceived deficits caused by the fall have likely impacted Ms Delaney’s ability to use her capacities to the fullest rather than impairments, if any, caused by the fall. She was described as impressing Ms Hamidi as being socially immature and naïve.

82. From a vocational perspective, Ms Hamidi expressed the opinion that employment options for Ms Delaney would still likely be in the straightforward customer service roles as she has already been doing similar work. Other routine sales roles could be realistic future options and potentially of more interest to Ms Delaney.

Reports of Associate Professor Davies

83. The defendant also relied on a number of medical reports from Associate Professor Gordon Davies, psychiatrist: Exhibit D1.

84. In his first report dated 6 November 2023, following a consultation on 23 October 2023, the plaintiff is recorded as referring to her fatigue problems and developing anxiety and anger in the years after the accident. When asked questions, the plaintiff did not always seem able to provide answers and would constantly look to her mother for support.

85. Dr Davies gave a diagnosis of mild depression on an international classification with the equivalent of major depression on the DSM classification. He described her position as follows:

“Evaluations of cognitive function have not suggested any lasting effect of the injury, but the history and available documentation suggests ongoing issues with anxiety and some depression. In particular, on interview, Ms Delaney seemed unduly dependent on her mother both in her description of contemporary events and her behaviour on interview … My overall impression is that Ms Delaney’s and her parents’ anxiety following her injury has impaired her progress following the accident. … Ms Delaney’s complaints are a reasonable reflection of her ongoing problems but are not indicative of a specific cognitive impairment. … I am of the view that while Ms Delaney has not suffered from any specific cognitive impairment as a result of her accident, there are likely to have been some secondary behavioural effects resulting from anxiety in the family.”

86. Dr Davies was of the view that the plaintiff was likely to need some ongoing psychiatric support because of ongoing issues with anxiety and depression which he considered to be “an indirect result of the accident”. He saw no cognitive deficit resulting from the accident that would affect her employability.

87. His most appropriate current diagnosis is of mild depression and that no ongoing requirement for domestic assistance or future care was needed.

88. Dr Davies provided a supplementary report dated 13 May 2024. In it, he had been provided with further material including the supplementary report of Dr McMahon and the report of Ms Hamidi. In his view, the additional documentation did not affect his assessment of whether there have been ongoing organic effects resulting from the diving board accident although they clearly indicated more severe present and ongoing psychiatric disorder. [Redacted]. There was a need for ongoing family therapy as well as specific personal psychological intervention.

89. Dr Davies remained of the view that the plaintiff had no cognitive deficit which would affect her employment and she had demonstrated fitness for employment. He was also of the view there was no clear evidence to specifically relate the plaintiff’s current symptoms directly with the accident which occurred in 2012.

90. However, he was not of the view that the plaintiff’s present psychiatric state was stable or had reached maximum medical improvement. He stated the following:

“With regard to her childhood accident, there is no evidence of cognitive impairment and the relationship of her present psychiatric problems to the accident must be considered as indirect at most. … Ms Delaney is likely to need some ongoing psychiatric support because of ongoing mental health issues. I would consider these as being an indirect result of the accident and its impact on the family.”

91. [Redacted].

Oral evidence of Associate Professor Davies

92. The various reports of Associate Professor Davies were made Exhibit D1 in the proceedings. Dr Davies was required for cross-examination by the plaintiff.

93. Dr Davies gave evidence establishing he was highly experienced in providing medico-legal reports. He stated that although he had provided a supplementary report, he had only seen the plaintiff once: T483.19.

94. Counsel for the plaintiff asked Dr Davies questions in relation to paragraph 4 on page 6 of his report (Exhibit D1 page 1664) in which Dr Davies stated that, while the plaintiff had not suffered from any specific cognitive impairment as a result of the accident, there are likely to have been some secondary behavioural effects resulting from anxiety in the family. Dr Davies agreed with this conclusion based particularly on the reports which he had been provided. He said he had not undertaken a cognitive assessment himself but was relying on the documents he had been provided set out on page 2 of his report, which included a number of neuropsychological assessments: T485.6-.12. He was of the view that the reports he had read were generally consistent and did not establish any cognitive abnormalities. He then stated that the material did not provide any clear evidence of cognitive deficits in the plaintiff: T485.20.

95. Dr Davies was asked about Dr McMahon’s report which did refer to some cognitive defects. Dr Davies said that nothing of significance was reported in his view: T486.9. In other words, whilst the plaintiff suffered injury in the accident there was no real evidence indicating the plaintiff had any significant cognitive deficits arising from the accident: T486.19.

96. Dr Davies was then asked to make certain assumptions that evidence had been given from the plaintiff’s parents about her difficulties in comprehension and in processing information which caused problems at school. Dr Davies said he was aware of these matters and was of the view that there had been a concern and focus on the cognitive aspects rising from the accident “from the beginning”: T486.35. However, overall, he was of the view that there was no significant cognitive impairment shown on the materials provided to him: T486.38.

97. When the facts of the skull fracture with some bleeding at the time and Dr McMahon’s 2019 diagnosis was referred to, Dr Davies said that the diagnosis of significant cognitive problems did not fit in his view with the whole picture. In his view, the testing which had occurred had focused on the plaintiff’s cognitive position rather than the secondary impacts on her life of the accident: T487.8. He stated that significant anxiety and depression can affect a person’s cognitive function. He noted that he had not been referred to any screening for complaints like ADHD. Dr Davies confirmed that the plaintiff had suffered a serious fall and a skull fracture and that all persons involved had been anxious in relation to the possibility of a brain injury. However, in his view none of the reports established significant cognitive impairment: T487.26. He rejected the possibility that the plaintiff’s neuro development had been affected by the fall.

98. Dr Davies was then asked some questions in relation to his second report dated 13 May 2024 (Exhibit D1 page 1696) concerning his opinion as to the relationship between the accident and the plaintiff’s current symptoms. In particular, he was directed to his comment on page 3 of his second report that the plaintiff’s long history of anxiety and self-harm had been “reinforced by her parents’ fears and attempts to provide support and attention”. Dr Davies said that the plaintiff had suffered a serious head injury. It was natural that her parents would be very concerned and anxious in relation to this and place substantial focus on the plaintiff as a result. This considerable anxiety in the parents had “brushed off”, in his view, on the family and had changed how she had been brought up through being protected and with issues being blamed on the head injury: T488.19. These concerns and worries had also “brushed off” on the plaintiff, creating anxiety. Concerns as to the plaintiff’s cognitive development were relevant to this and the plaintiff’s parents had treated her differently which can have a negative effect on a person. In his view, this had happened in the present case with the plaintiff: T488.43. Such matters affected the child’s independence and the risks which she was permitted to take by her parents.

99. Dr Davies agreed that the plaintiff’s anxiety after the accident had been perpetuated by her treatment by others. He agreed that the plaintiff’s anxiety had played a part in her struggles at school in studying. This also reinforced her own anxiety. This in his view provided a pathway connected to the accident: T489.25-T490.7.

100. Dr Davies’ attention was drawn to paragraph 7 of his first report in which he states that Ms Delaney has no specific cognitive deficit resulting from the accident that would affect her employability. However, he agreed that anxiety would have an effect on the plaintiff’s employability: T490.26.

101. Dr Davies was then asked about the reliability of Dr Batchelor’s report because of the suggestion of sub-optimal results from the plaintiff. In his view, the possibility of the report being unreliable and therefore some cognitive defects being missed, was less likely. However, he accepted that the plaintiff’s anxiety could have affected the results of Dr Batchelor’s testing. He confirmed that it was possible that the sub-optimal results could be due to anxiety in the testing process.

102. In re-examination, counsel for the defendant put to Dr Davies the plaintiff’s mother’s evidence that the plaintiff, prior to the accident, had been short-tempered, quiet in the classroom, concerned about doing the right thing, being concerned with going outside her comfort zone, was seeking security and had some anxiety related behaviours. Dr Davies said that overall those matters could all occur with a young child and there was nothing there to lead to a particular psychological analysis. The factors referred to were in his view fairly normal for a child of that age.

103. Importantly, Dr Davies said that on the assumption of those matters existing, it did not change his views in relation to the link between the plaintiff’s anxiety and the accident: T493.44. In his view, these matters did not provide a sufficient explanation to negate the anxiety being suffered by the plaintiff as being an overall consequence of the accident. He noted that the plaintiff had climbed a three metre diving board which he was of the view showed an adventurous child and not one displaying anxious tendencies: T493.97-T494.3.

104. In answer to questions from counsel for the cross-defendant, Dr Davies agreed that he had not undertaken any testing of the personality of the plaintiff. When asked whether a person’s personality could add to a cognitive deficit Dr Davies said that this would need to be examined. On the material issues relating to the current anxiety of the plaintiff, her personality had not been explored. He agreed that anxiety could be related to a person’s personality and not the head injury involved. Dr Davies also agreed that he had taken into account in expressing his opinions that personality testing had not been completed. He said this was commented on by him (see last paragraph on page 2 of his second report at 1607).

Concurrent oral evidence of Mr Ravagnani and Ms Hamidi

105. Concurrent oral evidence was given by Mr Ravagnani and Ms Hamidi who were both psychologists specialising in vocational assessments and vocational matters.

106. Counsel for the defendant asked Mr Ravagnani questions in relation to the jobs which the plaintiff had. He agreed that the plaintiff’s work experience was consistent with many people of a similar age to the plaintiff entering the workforce. He also agreed that initially young people had not developed skills which they picked up along the way in the course of their work. Mr Ravagnani accepted that young people in certain circumstances often had difficulties with customer service roles and it was not uncommon on entering the workforce. He could not comment that this was more common in more recent times because of young people spending significant time looking at screens but was of the view that that was logical.

107. Mr Ravagnani agreed that the plaintiff had on her cognitive abilities the capacity to undertake tertiary studies: T523.4. He agreed that the plaintiff would benefit from being granted accommodation such as extra time in exams, as she had been given at school, in her future studies, but it largely depended on her. He did not see any undue difficulties in the plaintiff completing tertiary studies but stated that having regard to the plaintiff’s problems with anxiety, she may need further support in that area. In his view, the plaintiff would not have much difficulty in maintaining work on the basis of appropriate support. He agreed that if the plaintiff was given assistance in finding an appropriate career and employment and developing her skill set there would not be any undue restriction on the plaintiff’s capacity for work in the future, apart from if the plaintiff’s anxiety restricted her employment. He said that the plaintiff’s mental state may potentially impact her capacity for work: T524.40.

108. Mr Ravagnani, in re-examination, agreed that the plaintiff could establish a “correct level of employment” but there may be restrictions on the type of employment that she could do: T525.16. He agreed that the plaintiff’s anxiety and problems with memory recall and concentration would make some studies unsuitable such as highly demanding studies: T525.50. Reference was made to the last paragraph on page 12 of his report (Exhibit D1 page1587), that the plaintiff’s persisting problems with anxiety, memory, concentration and taking instructions can affect both education and employment. He agreed that this could create difficulties with some types of tertiary studies depending on the level of complexity involved and the plaintiff’s interest. He stated that complex studies were unsuitable: T526.2.

109. In answer to the question whether the plaintiff’s anxiety issues could potentially cause problems in work for her in the future, Mr Ravagnani said they could potentially cause problems in work and recruitment for work, for example in interviews and where there were competitive assessments with other applicants: T526.30.

110. Mr Ravagnani agreed that the types of jobs referred to in Ms Hamidi’s report were suitable but accepted that they were lower roles which were less demanding. When asked by the Court whether the plaintiff’s anxiety and reported depression would affect her studies and potential jobs, Mr Ravagnani said that it depended on the levels of anxiety and depression. Anxiety could cause considerable pressure at university in completing assignments and giving presentations which may cause problems. This was similar with work where there was pressure in a job or high levels of responsibility which could create difficulties in performing the work. He agreed that anxiety and poor performance in school could later affect opportunities in life such as tertiary studies and occupational opportunities: T527.22.

Duty and breach of duty of care

597. In the ASOC it is pleaded by the plaintiff that the defendant Council was the occupier of the Corowa Swim Centre on 12 February 2012. In paragraph 9, it is pleaded that at all material times the defendant Council owed the plaintiff a duty of care to take reasonable care to prevent or eliminate risks of harm which were reasonably required to protect a person in the position of the plaintiff who was taking reasonable care for her own safety and who was a lawful entrant at the Centre.

598. In paragraph 4 of the Defence to the ASOC, the Council denies it was the occupier of the Corowa Swim Centre and pleads that at all material times the occupier of the Centre was Remlap pursuant to the Lease. The defendant Council denied that it owed a duty of care to the plaintiff as it was not the occupier of the Centre. The cross-defendant in its Defence to Cross-claim admitted that it was the occupier of the Centre pursuant to the Lease: see paragraph 2.

599. There is no question on the evidence that the plaintiff was a lawful entrant to the Swim Centre on the day of the accident.

600. The plaintiff submits in its written submissions that the defendant was an occupier as well as the cross-defendant under common law principles. The cross-defendant makes a similar submission: written submissions paragraphs 16-27.

601. In my view, both the defendant and the cross-defendant were occupiers of the Centre as at the date of the accident. I accept the plaintiff’s and cross-defendant’s submissions as to the defendant and the cross-defendant admits it was the occupier. More than one party can be an occupier and owe relevant duties of care: see Laresu Pty Ltd v Clark [2010] NSWCA 180 at [82]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [82]-[83]. The defendant was an occupier due to its extensive obligations and rights in relation to the pool as set out in clauses 1 and 4 of the Lease. The defendant conducted repairs when requested by Mr Sigmund, undertook inspections infrequently and had an entitlement to take extensive steps under the Lease: clause 1(d) and (e). It owned the pool centre. See defendant’s written submissions dated 17 January 2025 at paragraphs 11-12 and 48. Through Mr Farrell, it was aware of the state of the three metre diving board platform as at 2004-5. It had the right to access to undertake repairs.

602. If I am wrong on this issue then Remlap was clearly the occupier as at the date of the accident. It admitted as such in its Defence to Cross-claim and contracted with Mr and Mrs Sigmund in relation to the day to day running of the pool.

603. The terms of the Lease appear to make a distinction between the obligations of the Council and Remlap. Clause 1(c) of the Lease appears to place an obligation on Remlap during the continuance of the Lease to maintain the grounds and keep in good and substantial repair the premises together with all appurtenances, fixtures and other things on the leased premises which have been erected or placed there by the lessor Council. Remlap was obliged to give the lessor Council access to the premises upon receiving notice in writing to repair and maintain the premises consistent with the Lease. Remlap was prevented by the Lease from making alterations or additions to the premises without the written consent of the lessor Council which would not be unreasonably withheld.

604. As set out above, clause 4 of the Lease makes a distinction between maintenance of lawns and gardens at the pool and daily maintenance of the pool and the operation of the filtration plant during the swimming season on the one hand and works such as the structural maintenance of the pool and the associated buildings on the other hand which were to be carried out by the lessor Council.

605. In relation to the three metre diving board platform, the evidence suggests that it had been in place at the pool for many years prior to 12 February 2012. Criticism has been made by the plaintiff’s expert Mr Dubos in relation to the sides of the diving board and particularly, that there should have been other railings or the board pathway should have been enclosed with clear Perspex or similar mesh sides. In my view, the Lease placed the obligation in relation to works of that nature on the Council and not on Remlap as the lessee occupier: see clause 4(i) and my analysis above. In my view, such works cannot be seen as daily maintenance works to be undertaken by Remlap.

606. For those reasons, in my opinion the Council owed a duty of care to entrants to the pool in relation to the structural maintenance, integrity, suitability and safety of the pool and associated buildings including the three metre diving board platform structure. In my view, it should have been clear to the Council that any failure by it to take reasonable steps to properly review and update the diving board platform through structural maintenance and to make it reasonably safe for users of it, including children, posed a serious potential risk of injury to such users. Mr Farrell on his inspection of the pool in 2004-5 with Mr Singleton identified the three metre platform as posing a risk to users because of at least the absence of a mid rail. He was the Council’s work, health and safety officer at the time and was an employee of the Council. As an employee, the Council was vicariously liable for his acts and omissions. His views and knowledge are relevant to the imposition of a duty of care as at the date of the accident.

607. In those circumstances, in my view the defendant Council owed a duty of care to the plaintiff as a lawful entrant to the pool and as a user of the three metre diving board platform to take reasonable care in relation to the structural maintenance, integrity, suitability and safety of the diving board platform so as to avoid reasonably foreseeable risks of harm to users of the platform and to avoid a reasonably foreseeable risk of injury to the plaintiff arising from the physical nature of the platform on the assumption that she used reasonable care for her own safety. I am also of the view that Remlap as the occupier of the site owed a duty of care to the plaintiff as a lawful entrant to the site. That duty was to take reasonable care to avoid a foreseeable risk of injury to the plaintiff arising from the physical state of the land of which it was an occupier on the assumption that the plaintiff as a user would exercise reasonable care for her own safety in the circumstances. In my view, that duty of care is clearly established on the authorities: Jackson v McDonald’s Australia Limited [2014] NSWCA 162 at [7]-[8] and at [82]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [53].

608. The cause of action pleaded against the Council by the plaintiff and by the Council against Remlap (seeking contribution or indemnity) includes a cause of action in negligence. In my view, the risk of a child slipping or losing their footing, falling and injuring themselves while using the three metre diving board platform having regard to the lack of appropriate horizontal railings, enclosed sides and the height of the rail was both reasonably foreseeable and not insignificant. There was thus a relevant risk of potentially serious harm. The Court must then consider what a reasonable person in the position of the defendant and cross-defendant would have done in response to the risk: see Patrick Stevedores, above, at [49]-[51]. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 that what precautions against the relevant risk of harm were reasonable in the circumstances is to be determined by taking into account s 5B of the CLA which applies to the action by the plaintiff against the defendant in the present case. Thus it is necessary to identify correctly the risk of harm because it is only when one identifies the relevant risk of harm that one can assess what a reasonable response to that risk would be. The authorities are clear that it is ordinarily unnecessary and undesirable to define the relevant risk of harm with too much particularity: see Lloyd v Thornbury at [47]-[48]; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [106].

609. In my view, the relevant risk of harm in the present case was the risk that a user of the three metre diving board platform, including a child, and including whilst it was wet, would slip or otherwise lose their footing whilst on the board and fall under the horizontal rail on the board platform to the concrete below. This would particularly be the case where a small child such as the plaintiff at the relevant time was using the board.

610. In the Patrick Stevedores case which I have referred to above, Leeming JA stated that the measure of the discharge of a defendant’s duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. See also the analysis by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. The authorities make it clear that the actions that should reasonably have been taken must be considered prospectively. In addition, it is always assumed that users of the platform will exercise reasonable care for their own safety.

611. Section 5 of the CLA defines “negligence” as a failure to exercise reasonable care. The Court in considering the case must consider ss 5B and 5C of the CLA which provide as follows:

“Division 2 Duty of care

5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless—

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence—

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

612. In the present case, users of the three metre diving board platform, like the plaintiff, would often have previously been in the pool and thus be wet. Prior users, if wet, would likely leave water on the diving board itself. There were no apparent restrictions on the evidence (and certainly none enforced), in relation to the age of persons using the diving board. The plaintiff was only six years of age at the time and was not substantially higher than the one metre high horizontal bar on the three metre high platform. There was a considerable opening between the horizontal bar at about one metre high and the bar towards the ground level. Considering the matters in ss 5B and 5C, in my view the position is as follows:

1. As indicated above, the risk of someone, particularly a child, falling in the gap between the one metre bar and the bar at the bottom of the platform was reasonably foreseeable, being a risk of which the defendant and Remlap ought to have known;

2. In my view, the risk was not insignificant having regard to the area of the opening and the fact that the diving board would likely be wet;

3. In my view, there was a real possibility that harm would occur if care were not taken in relation to the platform;

4. A fall for a person, whether a child or adult, from the platform may likely involve very serious injury;

5. The report of Mr Dubos analyses the burden of taking precautions to avoid the risk of harm. In my view, the burden of applying anti-slip surfaces on the surface of the diving board, installing other horizontal railings on the diving board and/or placing enclosed Perspex or like covers on the sides of the diving board was not significant;

6. Whilst there is significant social utility in persons using swimming pools, particularly in the country where such facilities are less available, that utility is not of such a great nature as to outweigh the need to take proper and reasonable preventative steps and precautions in relation to the risks which I have identified above.

613. The plaintiff in the particulars of negligence in the ASOC refers to a number of precautions which she alleges should reasonably have been taken and a number of omissions. The first is a failure to apply anti-slip surfaces on the surface of the diving board. In the present case, the diving board itself was not formally tested by any expert as to whether it was slippery. The photograph in evidence appears to indicate that the surface was covered in dimples to assist grip. Julia Delaney said that the diving board had a “sand papery” feel. Mr Sigmund said he checked the surfaces of the diving boards regularly. In those circumstances, I am not satisfied that placement of additional anti-slip surfaces on the surface of the diving board was a reasonable precaution in the absence of any evidence as to the inherent slipperiness of the board.

614. However, in my view installing additional railings and/or perspex or mesh enclosed sides to the diving board where the plaintiff fell were precautions that should reasonably have been taken by the defendant, consistent with the expert report of Mr Dubos. The burden of taking these precautions was slight and in my view they were reasonable precautions to take. The risk of serious injury was apparent and not insignificant. I reject the defendant’s written submissions to the contrary. If I am wrong about the Perspex enclosed sides, I still am of the view that at least a mid rail should reasonably have been added to the three metre diving board structure well before the accident. This was essentially the view of Mr Farrell and I agree with it.

615. The defendant pleads that the risk posed by the diving board was an obvious risk and, as a consequence, the defendant owed no duty to warn the plaintiff of the risk: ss 5F, 5G and 5H of the CLA. In my view, the risk was reasonably obvious and there was no duty to warn the plaintiff child of the risk.

616. In addition, in my view the allegation of a particular of negligence of devising, implementing and maintaining a system of wiping the surface of the diving board was impractical in the circumstances due to the frequency that this would have been required during use by wet patrons.

617. A particular of negligence is a failure to devise, implement and maintain a system of preventing minors from using the diving board. In my view, having regard to the condition of the diving board at the time of the accident, minors of a young age or of a short stature should not have been permitted to use the diving board because of the dangers inherent through the failure to have additional adequate horizontal railings and/or perspex enclosed sides.

618. In my view therefore, there was a breach of duty of care by the Council in failing to have adequate horizontal railings in place and enclosed perspex or other sides to the three metre diving board platform. This in my view was also the responsibility of the Council under the Lease: see clause 4(i). In the First Cross-Claim, the defendant Council repeats some of the particulars of negligence against Remlap. Having regard to the respective duties under the Lease, in my view the only alleged breach of duty of care owed by Remlap to the plaintiff that may be relevant was failing to devise, implement and maintain a system of preventing minors from using the diving board. This could arguably have been readily imposed and supervised by the cross-defendant as occupier.

619. However, Remlap had contracted with Mr and Mrs Sigmund to manage the day-to-day operations of the swimming pool. Although the terms of the relevant contract were not in evidence and were not clear, it was Mr Sigmund who undertook the management and supervision of the pool and who controlled day-to-day matters at the pool, not Remlap. Mr Sigmund imposed his own rules. He was an independent contractor with expertise in pools through his aquatic facility qualifications. It was thus Mr and Mrs Sigmund not Remlap who controlled access to the three metre diving board. In my view, Remlap had satisfied the duty of care owed by them to the plaintiff by contracting the management of the pool to Mr and Mrs Sigmund. Mr Sigmund opened and shut the pool and limited access to the diving board. He also brought maintenance matters to the attention of the Council. A further mid rail horizontal bar was in my view clearly a relevant structural maintenance matter.

620. Accordingly, in my view there was a breach of duty of care owed by the Council to the plaintiff but not a breach of a duty of care owed by Remlap to the plaintiff. This conclusion is reached after taking into account the various submissions made including by the defendant and cross-defendant.

Causation

621. Sections 5D and 5E of the CLA provide as follows:

“Division 3 Causation

5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements—

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

622. Accordingly, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court in Strong the determination of factual causation under s 5D of the CLA involves the application of the “but for” test of causation. This requires a determination that, in accordance with the section, negligence was a necessary condition of the occurrence of harm. That is, that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong, above, at [18].

622. In Value Constructions Pty Ltd v Badra [2024] NSWCA 181, Kirk JA (with whom Leeming JA and Griffiths AJA agreed) stated that the test of “proximate cause of the harm” was not the appropriate test under s 5D of the CLA. His Honour stated that the relevant legal test for causation in negligence under s 5D was relevantly whether the negligence was a necessary condition of the occurrence of the harm. His Honour noted that that legal notion has been taken to include where the tortfeasor’s negligence materially contributed to the harm even if there were other conjunctive causes: at [6].

623. Clearly, if the plaintiff as a minor and of limited height was prevented by the Sigmunds or the defendant from using the three metre diving board platform, the injury alleged in the present case would not have occurred. Also, if there were other railings and/or an enclosed diving board platform (in the sense of a Perspex type infill), in my view the accident would similarly not have occurred. While the precise mechanism of the fall is not certain, it seems that the plaintiff lost her footing possibly after slipping on the wet platform. She was also a young child without the weight and poise of an adult. My view would be the same if the plaintiff merely lost her footing as opposed to slipping on the wet board.

624. In my opinion, Perspex enclosed sides would clearly have prevented a fall. However, I am also comfortably satisfied that a mid rail (between the top rail and the platform) would also likely have prevented the fall. It would have likely prevented the plaintiff’s body from falling between the gap created by the space between the top rail at the plaintiff’s shoulder/neck level and the board itself. It is difficult to imagine a fall which would still have likely occurred.

625. Therefore, the breach of duty I have found in the defendant was a necessary condition of the occurrence of the harm in the present case, particularly taking into account that it materially contributed to the harm even if the breach by any other party was a conjunctive cause.

626. I have found that the plaintiff’s current anxiety and depression was partly caused by the accident. Although she appears to have primarily recovered from any mild neurological disorder arising from the accident according to Dr Batchelor, I have also found that the plaintiff had a minor neurological disorder when tested by Dr McMahon in 2018-9 using tests appropriate for a child. In a detailed submission, the defendant claims that the acts of the parents amounted to a nous actus interveniens and the damage was too remote. See 17 January 2025 written submissions paragraphs 38-41.

627. I reject those submissions. First, the case seems to be substantially indistinguishable in principle from the decision of the majority of the Court of Appeal in Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501. See at pages 504-506 and 530-538.

628. Secondly, as stated above, I do not accept that the plaintiff was an unduly anxious child before the accident.

629. Thirdly, the plaintiff’s parents did provide her with extensive help with her homework outside of school hours. It appears they did everything they reasonably could as parents and teachers to assist her with her studies. On the evidence, the plaintiff was clearly very anxious about her difficulties in understanding her school work after the accident.

630. Fourthly, the New South Court of Appeal recently considered the principles relating to a break in the chain of causation in Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [117]-[118] per Leeming JA. It was made clear that the chain is not necessarily broken by another act being a more immediate cause of the damage than the defendant’s breach: at [118]. I do not consider that the parents’ acts broke the chain of causation when they reasonably assisted the plaintiff in the light of the earlier neuropsychological assessments.

631. Fifthly, I do not regard the loss as being too remote. The plaintiff had a brain injury with diagnosed mild neurological deficits by three neuropsychologists including Dr McMahon. The plaintiff struggled at school. It was perfectly reasonable and to be expected that the plaintiff would be assisted by her teacher parents. In my view, it was clearly reasonably foreseeable that the plaintiff would suffer anxiety as a result of her physical injuries and the circumstances of the accident, particularly as it occurred at a young age. It was the type or kind of injury which was reasonably to be foreseen: Nader, above, at 536.

632. I therefore reject the defendant’s submissions on this issue.

633. Accordingly, in my view causation is established in the present case against the defendant.

Contributory negligence

635. Contributory negligence is not pleaded against the plaintiff in the present case.

Damages

Introduction

636. I have found a breach of a duty of care owed to the plaintiff by the defendant. The assessment of damages in the present case is particularly difficult because of the medical evidence. I refer to my medical findings above.

637. The following submissions as to damages were made by the parties.

Head of Damage	Plaintiff	Defendant
Non-economic loss	$198,000 (31%)	$26,500 (20%)
Past out of pocket expenses	$5,058.95	$5,058.95
Future out of pocket expenses	$20,000	$7,000
Domestic assistance or attendant care – not claimed	-
Past economic loss – not claimed	-
Loss of future earning capacity (with superannuation)	$473,128	$25,000
Total	$696,186.95	$65,558.95

638. I will proceed to consider the competing submissions in relation to the heads of damages.

Non-economic loss

639. As has been indicated above, the plaintiff’s claim is governed by the CLA. Section 16(1) of the CLA provides that no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. “Non-economic loss” is defined in s 3 of the CLA as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.

640. There was no evidence before the Court that the plaintiff suffered any disfigurement or scarring as a result of the accident. Similarly, there was no evidence before the Court that the plaintiff has had a reduction in her life expectancy as a result of the accident. Therefore, the only bases to assess non-economic loss are pain and suffering and loss of amenities of life.

641. In the Statement of Particulars filed on 3 November 2023, it is particularised that the plaintiff has suffered a closed head injury, mild traumatic brain injury, mild neurocognitive disorder and psychiatric injury as a result of the accident.

642. The evidence before me establishes that the plaintiff had a closed head injury as a result of the accident being a biparietal fractured skull. The various neuropsychological reports establish to my satisfaction that the plaintiff had a mild traumatic brain injury in the accident: see the reports of Ms Dickson and Dr Frees. See also the report of Associate Professor Dr Batchelor which confirms that the plaintiff suffered a complicated mild traumatic brain injury as a result of the accident.

643. As set out above, the real issue is whether the plaintiff suffers a mild neurocognitive disorder as a result of the accident. As stated above, for the reasons given, I prefer the opinion of Dr Batchelor that she currently does not. Accordingly, for the reasons given, I do not accept that the plaintiff currently has a mild neurocognitive disorder as particularised.

644. It is further particularised that the plaintiff suffers from a psychiatric injury. As stated above, my medical findings are that the plaintiff has anxiety and depression which are multifactorial in their causation. There are stressors unrelated to the accident which have contributed to these conditions. However, I have concluded on the evidence that the plaintiff’s anxiety and anger/tantrums in her student years as well as her depression, are in part caused by the cognitive difficulties she experienced following the subject accident. I also have concluded and prefer the opinion of Dr McMahon that the plaintiff’s anxiety is partly due to her underlying self-doubts and concerns consequent to previous cognitive impairments or difficulties as a result of the accident. Dr Davies was also of the opinion that the plaintiff’s ongoing mental health issues were an “indirect result” of the accident and its impact on the family. As stated in Value Constructions Pty Ltd v Badra, above, the legal test for causation in negligence is taken by appellate courts to include whether tortfeasors’ negligence materially contributed to the harm even if there were other conjunctive causes. In my view, the 2012 accident materially contributed to the plaintiff’s anxiety and depression even if there were other stressors in her life which contributed to the condition.

645. In assessing non-economic loss, I have taken into account not only the expert medical evidence but also the evidence of the plaintiff, her sister and her mother of the severe anxiety which she had during her schooling and in her part-time work and its effect on her. I accept the evidence in the various neuropsychological tests that the plaintiff is of average intelligence. I discount the amount to be awarded because of unrelated factors being other matters including those at school causing anxiety. Taking into account all of the evidence including the expert medical evidence and the factors I have referred to above, I assess the plaintiff’s severity of non-economic loss as a proportion of a most extreme case as being 26%. This equates to 8% as a proportion of the maximum amount which totals $61,000. As stated, in arriving at this figure I have taken into account the non-accident related stressors in the plaintiff’s life and reduced the amount allowed accordingly.

646. I therefore allow $61,000 under this head for non-economic loss damages. In doing this I take into account the various difficulties which the plaintiff and Mrs Delaney have described in their evidence.

Past out-of-pocket expenses

647. These have been agreed as $5,058.95.

Continuing out-of-pocket expenses

648. From the expert medical evidence it does not seem that the plaintiff requires further neuropsychological assessment because of her mild neurocognitive issues. I therefore allow no sum for such future assessment.

649. A claim is made by the plaintiff for future out-of-pocket expenses in the nature of psychology sessions and career coaching. In my view, the plaintiff would benefit from continued psychology sessions in relation to her anxiety and depression resulting from the accident. I also consider that significant career coaching and assistance would be beneficial to guide the plaintiff in relation to potential work areas or courses that would assist her in obtaining more secure gainful employment. Some vocational guidance as suggested by Mr Ravagnani would be appropriate. In my opinion, the best way to compensate the plaintiff for the needs indicated is to award a lump sum. I award the plaintiff $14,000 under this head of damages.

Past economic loss

650. This is not claimed.

Future loss of earning capacity

651. The plaintiff’s primary submission is to make a claim for reduced capacity to earn an income and remain employed in the future calculated as $500 per week until the age of retirement. In the alternative, the plaintiff makes a claim for reduced capacity to earn an income as a buffer. The defendant submits that due to uncertainties only a modest buffer should be awarded.

652. Dr McMahon agreed with Mr Ravagnani that the plaintiff’s anxiety and depressive symptoms, regardless of the cause, reduced her capacity to cope with attaining and sustaining employment. Mr Ravagnani also concluded that the plaintiff had average intellectual capacity and her future ability to undertake tertiary education and employment were unlikely to be affected. He noted that the plaintiff’s symptoms of anxiety may lead to difficulty during interviews. Ms Hamidi notes that the plaintiff’s anxiety and preoccupation with perceived deficits caused by the fall have likely impacted upon her ability to use her capacities to the fullest rather than impairments, if any, caused by the fall. She regarded short-term employment options for the plaintiff to be likely to be in straightforward customer service roles or routine sales roles. Dr Davies was of the view that the plaintiff had no cognitive deficit which would affect her employment and that she had demonstrated fitness for employment in her part-time work while still at school. He emphasised however the nature of the plaintiff’s anxiety in his oral evidence.

653. Taking into account all of the expert opinion, with support, the plaintiff would be able to undertake a number of courses or positions as recommended by Mr Ravagnani and Ms Hamidi. With support and supervision, she could undertake appropriate simple service or sale based positions.

654. The task of assessing damages for future loss of earning capacity is necessarily impressionistic: Ramsey v Denton [2021] NSWCA 310 at [51] referring to Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 at [49].

655. I take into account s 13 of the CLA and the requirements in that section. The plaintiff’s most likely future circumstances but for the injury would have been to undertake a certificate or diploma type level course and work in a sales or service based position similar to the type of position I believe that she would likely undertake now but probably at a higher level due to less anxiety. In my view, the plaintiff will likely have real difficulties in settling in and maintaining her employment with her anxiety even with some coaching and psychological assistance. I take into account the comments of Heydon JA in New South Wales v Moss [2000] NSWCA 133 at [70]-[71]. As Macfarlan JA stated in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [66]-[67], it has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the CLA for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In my view, a buffer is appropriate in the present case to take into account the difficulties which the plaintiff is likely to have in securing income and also maintaining secure employment with her various psychological medical conditions as a result of the accident. There is also the possibility that the plaintiff’s anxiety issues could create difficulties in maintaining secure employment.

656. Doing the best I can on all of the evidence and also taking into account that the plaintiff had other stressors in her life that created anxiety in her (and discounting for that), I award $90,000 for loss of future earning capacity allowing about $12,000-$20,000 per year for several years.

657. The amounts I have allowed include an allowance for any loss of future superannuation benefits.

Conclusion

658. Accordingly, I would allow the following amounts:

Head of Damages
Non-economic loss	$61,000
Past out of pocket expenses	$5,058.95
Future out of pocket expenses	$14,000
Past and future gratuitous assistance	Not claimed
Loss of future earning capacity	$90,000
Total	$165,000

Contribution by the cross-defendant

659. I have found that the cross-defendant is in breach of the Lease through the failure to indemnify the defendant in relation to the plaintiff’s claim against the defendant. This appears to be a continuing breach which has existed since proceedings were commenced by the plaintiff against the defendant. I have also found that the cross-defendant did not breach a duty of care owed by it to the plaintiff. In the First Cross-Claim, the defendant seeks contribution from the cross-defendant pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). I assess contribution in the event I am in error that there was no breach by Remlap of a duty of care owed to the plaintiff.

660. The claim for contribution is in respect of the alleged same damage to the plaintiff and the cross-defendant is said to be a tortfeasor who would have been liable if sued by the plaintiff: see Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509. The making of an apportionment of parties’ respective shares in the responsibility for damage involves a comparison both of culpability, that is the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident should be subject to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494.

661. The plaintiff was permitted by Mr Sigmund, despite her age and height, to use the three metre diving board with the railing gap. For this analysis I assume that Remlap is somehow liable for this. In my view, the far more significant breach was the failure by the Council to place additional horizontal bars and/or enclosing Perspex type panels at the sides of the diving board. This is particularly in the context of Mr Farrell’s 2004-5 inspection. The Lease in my view squarely puts the obligations relating to structural safety concerning the diving platform on the Council. In my view, the degree of departure from the standard of the reasonable person and the greater relative importance in causing the damage to the plaintiff was the breach by the Council who had control over the structural maintenance of the diving platform structure. In all the circumstances, if I found a breach of a duty of care owed to the plaintiff by the defendant and the cross-defendant, I would determine that the appropriate apportionment of liability would be:

1. The Council 85%;

2. Remlap 15%.

Costs

662. As I have formed the view that the plaintiff should succeed in her claim against the defendant, the preliminary view I have is that the plaintiff should be awarded her costs against the defendant as agreed or assessed. The defendant should it seems have its costs of the Cross-claim on which it has succeeded.

663. However, these are preliminary views and I will give the parties an opportunity to apply for different costs order if so advised.

Determination

664. Accordingly, for the above reasons, I make the following orders:

1. Judgment for the plaintiff against the defendant.

2. Judgment for the defendant against the cross-defendant on the Cross-Claim.

3. The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.

4. The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.

5. The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.

6. The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.

7. Liberty to the parties to apply within seven days for different costs orders to those set out above.

**********

Decision last updated: 24 April 2025