Sharp v Parramatta City Council

[2015] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Sharp v Parramatta City Council [2015] NSWCA 260
Hearing dates:	17 March 2015
Decision date:	02 September 2015
Before:	Meagher JA at [1]; Ward JA at [46]; Gleeson JA at [47]
Decision:	1.   Appeal dismissed. 2.   Appellant pay the respondent’s costs of the appeal.
Catchwords:	TORTS – negligence – where appellant injured jumping off 10 metre diving platform – whether occupier of pool owed duty of care to supervise and instruct individuals using platform – whether primary judge erred in finding as to instruction given – whether warning of risk of injury in using platform was given in accordance with s 5M of the Civil Liability Act 2002 (NSW) – whether that risk warning contradicted by instructions given by lifeguard – whether appellant’s injuries were suffered as a result of materialisation of an obvious risk of dangerous recreational activity within s 5L of the Civil Liability Act 2002 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5H, 5I, 5K, 5L, 5M, 5R Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)
Cases Cited:	Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Fox v Percy [2003] HCA 22; 214 CLR 118 Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Streller v Albury City Council [2013] NSWCA 348 Tory v Megna [2007] NSWCA 13 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Category:	Principal judgment
Parties:	Erin Sharp (Appellant) Parramatta City Council (Respondent)
Representation:	Counsel: R Sheldon SC with E Welsh (Appellant) J E Sexton SC (Respondent)   Solicitors: Brydens Law Office (Appellant) McCulloch & Buggy Lawyers (Respondent)
File Number(s):	CA2014/142863
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 17 April 2014 Before: Curtis DCJ File Number(s): DC2011/357852

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant suffered injuries in January 2009 when she landed awkwardly after jumping from the 10 metre diving platform at Parramatta War Memorial Swimming Centre. In the District Court, the appellant claimed that Parramatta City Council was negligent in breaching its duty, as the occupier of the pool, to take reasonable care to avoid foreseeable risks of injury to those persons using the pool and diving tower.

The primary judge dismissed the appellant’s claim on the basis that there was a warning sign at the base of the stairs to the diving tower, which provided a defence to the appellant’s claim under s 5M of the Civil Liability Act 2002 (NSW). The primary judge also found that the lifeguard at the top of the tower had instructed the appellant to “fall vertically, feet first into the pool below” and that this would have satisfied a…