Etemovic v. Gold Coast City Council

In Etemovic v. Gold Coast City Council, the plaintiff sought to hold the defendant council responsible for injuries sustained when the plaintiff was struck by a jet ski operated by a lifeguard. The incident occurred when the jet ski, which was stationary and not under power, was propelled by a wave and collided with the plaintiff. The court had to determine whether the lifeguard owed a duty of care to the plaintiff and if a breach of that duty led to the incident. The plaintiff argued that the lifeguard should have anticipated the risk posed by the proximity of the jet ski to swimmers in an area not designated as a bathing reserve or flagged for safety. The court considered whether the lifeguard's actions, or lack thereof, were negligent and if the plaintiff could have avoided the collision through evasive action.

The primary legal issue was whether the lifeguard, as an agent of the council, breached a duty of care owed to the plaintiff. The court examined the established principles of negligence, including the foreseeability of harm, the proximity between the parties, and the council's control over the lifeguard's actions. It was also necessary to assess whether the lifeguard's failure to prevent the jet ski from being moved by the wave constituted a breach of duty. The court explored whether the lifeguard should have anticipated the potential for the wave to move the jet ski and taken steps to mitigate the risk. Furthermore, the court analysed whether the plaintiff could have reasonably taken evasive action to avoid the collision.

In delivering its judgment, the court held that the lifeguard did not owe a duty of care to the plaintiff under the circumstances presented. The court found that the risk posed by the jet ski was not sufficiently foreseeable, given the area was not designated as a bathing reserve and the jet ski was not under power at the time of the incident. Additionally, the court determined that the plaintiff could not have reasonably anticipated the wave's impact or taken effective evasive action to avoid the collision. Consequently, the court concluded that no breach of duty of care occurred, and the proceeding was dismissed.