Higgins v City of Albany
[2006] WADC 167
•18 OCTOBER 2006
HIGGINS -v- CITY OF ALBANY [2006] WADC 167
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 167 | |
| Case No: | CIV:2268/2004 | 19-21 SEPTEMBER 2006 | |
| Coram: | FENBURY DCJ | 18/10/06 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | KELLY MAY HIGGINS CITY OF ALBANY |
Catchwords: | Negligence Liability Neck injury Diving off jetty into shallow water Liability Warning sign removed by persons unknown Lack of evidence of adequate system of inspection Turns on own facts |
Legislation: | Nil |
Case References: | Town of Mosman Park v Tait [2005] WASCA 124 Chappel v Hart (1998) 195 CLR 232 British Railways Board v Herrington [1972] AC 877 Mulligan v Coffs Harbour City Council [2005] HCA 63 Prast v Town of Cottesloe [2000] WASCA 274 Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360 Swain v Waverley Municipal Council [2005] HCA 4 Tomlinson v Congleton Borough Council [2004] 1 AC 46 Uzabeaga v Town of Cottesloe [2004] WASCA 57 Vairy v Wyong Shire Council [2005] HCA 62 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF ALBANY
Defendant
Catchwords:
Negligence - Liability - Neck injury - Diving off jetty into shallow water - Liability - Warning sign removed by persons unknown - Lack of evidence of adequate system of inspection - Turns on own facts
Legislation:
Nil
Result:
Judgment for the plaintiff
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr J Eller
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Town of Mosman Park v Tait [2005] WASCA 124
Case(s) also cited:
Chappel v Hart (1998) 195 CLR 232
British Railways Board v Herrington [1972] AC 877
Mulligan v Coffs Harbour City Council [2005] HCA 63
Prast v Town of Cottesloe [2000] WASCA 274
Reeves v The Commissioner of Police of the Metropolis [2001] 1 AC 360
Swain v Waverley Municipal Council [2005] HCA 4
Tomlinson v Congleton Borough Council [2004] 1 AC 46
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Vairy v Wyong Shire Council [2005] HCA 62
(Page 3)
1 FENBURY DCJ: This is an action for damages for personal injuries suffered by the plaintiff when she dived from a jetty in Ellen Cove, Middleton Beach, within the area governed by the defendant local authority.
2 Quantum has been agreed upon the basis that should the defendant be found negligent then the plaintiff is guilty of contributory negligence to the extent of 40 per cent. Thus the plaintiff would be entitled to damages in the sum of $130,000.
3 The case therefore only requires a determination of the question of whether the defendant is guilty of negligence.
The facts
4 The plaintiff was born on 24 April 1980. Prior to her accident the plaintiff had lived in the Albany area "on and off" for about 10 years.
5 The plaintiff was familiar with the wooden jetty and pontoon at Ellen Cove. She had swum there on many occasions previously, but not for the two years immediately prior to the accident.
6 The plaintiff had jumped off the jetty on many occasions (she estimated at least 20) and swum out to and climbed on and jumped off the pontoon. Her feet had never touched the bottom when she jumped off the jetty. There was often seaweed which she did not like. She kept her knees up to avoid touching the bottom.
7 The plaintiff did not know how deep the water was off the end of the jetty. She had never dived off the end of the jetty before the accident day.
8 The timber jetty at Ellen Cove leads from the shore out into Ellen Cove in the direction of a pontoon moored some short distance further out. The jetty and pontoon are depicted in computerised photographs tendered in evidence. The jetty ends in a "T" shape. The boardwalk out to the end of the jetty has railings down both sides all the way out. However at the end of the jetty, where the jetty ends in a "T", there are no railings. The jetty is constructed such that it leads or points in the direction of the pontoon.
9 There is normally a sign fixed to a pole attached to and standing near the end of the jetty at the "T". This sign prohibits diving off the jetty.
(Page 4)
10 It is common ground that the "No Diving" sign was not on the jetty on the day the plaintiff was injured but it was there about two months earlier.
11 It is not known when the sign ceased to be on the jetty within that two month period. It could have disappeared just under two months previously, on any day or night, up until the evening prior to the accident.
12 On 10 October 2003 the plaintiff had been socialising with friends in the general area. A barbecue was contemplated at some stage but publicly available facilities were all occupied. It was a sunny day in Albany, the first after a patch of typical October weather. It was mid Spring. The plaintiff had been running around with her friends playing football. She got very hot and decided to go for a swim.
13 The plaintiff headed for the jetty. There was quite a strong breeze blowing on shore. No-one else was on the jetty. The plaintiff was with several of her group including some children. The water was choppy. The plaintiff can remember the water splashing up and wetting her as she stood on the end it presumably having hit the jetty pylons.
14 The plaintiff looked down into the water. It was murky. She could not see the bottom.
15 There was no sign prohibiting diving. As to this the plaintiff added that in all her days in Albany prior to this she had never seen a "no diving" sign on the jetty.
16 The plaintiff dived off the jetty. She said the dive was more like a belly flop. Given what occurred, it is unlikely that the dive was as she described.
17 The plaintiff had her arms straight out above her head in the dive. On entering the water her hands hit the sand followed by her head which was forced to the side fracturing a cervical vertebrae.
18 The plaintiff was able to stand up in the water immediately after the accident. She remembered that the water level came up to her mid chest. The plaintiff said she was about 164 centimetres tall at the time. Upon that basis it was common ground that the water level was about 130 centimetres deep off the end of the jetty.
(Page 5)
19 There is no evidence about the state of the tide at the time. Nor whether or not there had been any seasonal or "littoral" shift or alteration in the water depth, perhaps caused by shifting sands and the like.
20 It is to be observed therefore that although this is a "diving case", it occurred at a place where the defendant knew it was dangerous for diving to take place. It was not in a "natural" place such as a rock ledge or rock pool or similar. The diving that was dangerous would take place from a man made structure in a popular recreational area managed by the defendant. Knowing it was dangerous for persons to dive off the jetty, the defendant had installed a sign warning of the dangers of diving and prohibiting that activity. On the day in question, apparently unbeknown to the defendant, the sign was not there.
21 The plaintiff dived off the jetty and suffered precisely the sort of injury the warning was intended to prevent.
22 I pause there to note, as was pointed out by counsel for the plaintiff, that this was a popular public area for residents in the locality. There were extensive grassed areas. There were barbecue facilities. There was the jetty and pontoon and a beach. There is a restaurant and takeaway food place nearby. There are toilet and ablution blocks of some kind or other nearby.
23 It is an area operated by the defendant in respect of which it would be expected that employees of the defendant would regularly, probably daily, frequent as they went about their duties.
24 The jetty is clearly visible to any person walking in and around the area it being a very open area, and from the photographs provided the presence or absence of the sign would seem to me to be easily discernible on distant observation. It would not be difficult nor burdensome for the defendant to have had a regime of regular, even daily, perhaps casual, inspection by employees in the area on other tasks.
25 There is a paucity of evidence concerning what steps the defendant took to ensure that its sign was erected on the jetty where it knew diving was dangerous. The only evidence that touches upon the issue comes from two quarters.
26 Approximately two months before the accident the defendant caused an independent sub-contractor to carry out an inspection in Albany of some 320 sites for maintenance purposes, inter alia. One of those sites was the jetty in question. The jetty was inspected on 12 or 13 August
(Page 6)
- 2003. A report was prepared relating to various defects in the jetty including the weathering of boards, minor defects in the pylons, signs of corrosion and matters of that kind. The jetty was found to be in reasonably good condition.
27 On the day of that inspection there is no doubt, and it is agreed, that the sign was in place. From the evidence it appears that the warning sign about diving, when in place, contained a warning on both sides. It was also the only sign at the end of the jetty. Further, the sign was erected at a place and height on the jetty which I think it would be difficult for any jetty user to miss.
28 The plaintiff said that she would not have dived if she had seen a "no diving sign". I accept that evidence and I think, furthermore, that having regard to the sign, it is likely to have had the effect it was intended to have upon users of the jetty.
29 The only other evidence offered on behalf of the defendant relates to a report prepared in June 2000, more than three years pre-accident, when, again, the sign was apparently seen to be in place.
30 There is no other evidence about whatever system the defendant had in place to ensure that signs like that in question were maintained and replaced.
31 The only witness called by the defendant was Ms Jennifer Crowe who is a senior records officer with the defendant. She has done her best to make enquiry of records seeking details of any complaints made, or "work requests" that might be relevant. She was unable to find anything of relevance. She observed that perhaps the works department, which is a separate entity, may have some information but she was unable to assist the Court. Nobody from that department was called.
32 Apart from the matters to which I have referred there was no evidence on the issue of systems the defendant had for the maintenance and installation of signs warning of dangers in the locality about which it was familiar.
33 It is unarguable that the defendant was aware that the jetty posed a risk to persons who might seek to dive from it because the water was too shallow. Clearly, the defendant had a duty to install a warning sign advising persons who utilised the facility of the danger of that diving. Diving off the jetty posed a significant risk of injury.
(Page 7)
34 The defendant had recognised and fulfilled its duty by installing such a sign.
35 The duty to install a warning sign carries with it a duty to maintain that sign and repair or replace it when required. The defendant cannot be expected to guarantee the sign is there at all times but given the nature of the area and the public use of that area the defendant is reasonably required to put in place a system of regular inspection to check on the presence and condition of the sign.
36 The defendant in this case has the evidential burden of establishing an inspection regime of this recreational area. It has failed to do so. In my view inspection three years and, respectively, two months, pre-accident, could not justify the description of a regime of inspection at all (refer to reason of Full Court in Town of Mosman Park v Tait [2005] WASCA 124).
37 The inference that there was no reasonable inspection regime must be drawn. There is therefore breach of its duty to take reasonable precautions to protect members of the public from the risk of injury of diving off the jetty, and there is injury sustained in precisely the relevant event and therefore negligence has been established. I would only add that this is not really a "diving case" like those to which counsel referred that relate to unfortunate young people who dive into the surf at the beach or into the ocean off rocks and the like. It is a case of a local authority breaching its duty of care to have in place an inspection regime of warning signs at dangerous areas within its recreational grounds.
38 In the circumstances causation has been established. Because the defendant did not have in place that regime of inspection, the absence of the sign was never picked up, and the plaintiff dived into the dangerously shallow waters unwarned and suffered injury.
39 In my view the defendant was negligent. The plaintiff should have judgment in the agreed amount of $130,000 and costs to be taxed if not agreed.
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