Jaber v Rockdale City Council

The plaintiff, Jaber, brought proceedings against Rockdale City Council in negligence after sustaining serious injuries from diving into water from a wharf under the Council's care, control, and management. The matter proceeded to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Council owed a duty of care to the plaintiff, and if so, whether that duty had been breached. Specifically, the court considered whether the risk of injury from diving into the water was an "obvious risk" to a reasonable person in the plaintiff's position, and whether the dive constituted a "dangerous recreational activity" as defined by the *Civil Liability Act 2002* (NSW). The court also addressed whether the risk of harm was significant. A further issue arose regarding the Council's failure to specifically plead the provisions of the *Civil Liability Act* upon which it relied.

The Court of Appeal, with Tobias JA and Campbell JA forming the majority, found that the risk of diving into the water was an obvious risk and that the activity was a dangerous recreational activity. Consequently, the Council was not liable under the *Civil Liability Act*. Handley AJA agreed with this conclusion under the Act and further found that the claim failed under general law principles as well. The court determined that there was no procedural unfairness to the plaintiff despite the Council not specifically pleading the statutory provisions.

The appeal was dismissed with costs.