Fairfield City Council v Petro

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Fairfield City Council t/as Prairiewood Leisure Centre v Cheryl Petro [2003]  NSWCA 150

FILE NUMBER(S):
40470/02

HEARING DATE(S):               3 June 2003

JUDGMENT DATE: 19/06/2003

PARTIES:
Fairfield City Council t/as Prairiewood Leisure Centre
Cheryl Petro

JUDGMENT OF:       Mason P Santow JA Tobias JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          618/96

LOWER COURT JUDICIAL OFFICER:     Cooper DCJ

COUNSEL:
A: Mr J Harrison SC with Mr G Grogin
R: Mr B Donovan QC with Mr W Ward

SOLICITORS:
A: Phillips Fox
R: Gajic & Co

CATCHWORDS:
Negligence
Breach of duty of care
Public swimming pool
D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40470/02
DC 618/96

MASON P
SANTOW JA
TOBIAS JA

19 June 2003

FAIRFIELD CITY COUNCIL t/as PRAIRIEWOOD LEISURE CENTRE
v
CHERYL PETRO

Judgment

1. MASON P: I agree with Tobias JA.

2. SANTOW JA: I agree with Tobias JA.

3. TOBIAS JA:  This is an appeal from a decision of Cooper DCJ made on 14 May 2002 by which his Honour found the appellant negligent and entered judgment for the respondent in the sum of $106,403.45.  The appeal is limited to the issue of liability. 

4. The essential facts are as follows.  On 30 March 1998 the respondent attended the Prairiewood Leisure Centre (the Centre) which was a swimming pool complex owned and operated by the appellant.  The purpose of her visit was to enter her 16 month old son in a “learn-to-swim” class which was due to start at 11.15 am on that day. 

5. The respondent had attended the Centre on four previous occasions for her son’s swimming lessons.  On each of those occasions she had negotiated the relevant parts of Centre to which I shall refer hereafter without difficulty.

6. The Centre, for relevant purposes, comprised a carpeted area located close to the entry which adjoined a concrete concourse (the upper concourse) which led to a set of three steps (the subject steps) down to a lower concrete concourse (the lower concourse) which was level with the main pool in which the swimming lesson was to be conducted.  Thus, in order to gain access to the end of the pool where the lesson was to take place, the respondent was required to negotiate the three steps to which I have referred.

7. Interspersed at regular intervals within both the upper and lower concourses were single tile-width strips of what are referred to in the evidence as ‘profiled tiles’.  These tiles had a raised textured pattern over the majority of the tile’s surface.  The subject steps which the respondent was required to negotiate and which led from the upper concourse to the lower concourse had tiled treads and risers.  The top tread tile comprised a narrow strip of the raised textured pattern tile and then a row of non-textured tiles of dimensions 200mm square which had no pattern but which had at its leading edge three grooves located, successively, 12mm, 32mm…