Waverley Council v Ferreira

Waverley Council appealed to the New South Wales Court of Appeal against a judgment awarded to Mr Ferreira in the Supreme Court of New South Wales. Mr Ferreira had sued the Council for damages for mental trauma suffered as a result of the death of his 12-year-old son, who drowned in a pond within a park managed by the Council.

The Court of Appeal was required to determine whether the Council owed a duty of care to Mr Ferreira, and if so, whether it had breached that duty. Specifically, the Court considered the application of sections 5B and 5R of the *Civil Liability Act 2002* (NSW) in assessing the Council's liability, including whether the Council had failed to take reasonable precautions to prevent the harm, and whether Mr Ferreira's son, being 12 years old, could have perceived the risk of drowning in the pond.

The Court found that the Council, as the occupier of the park, owed a duty of care to persons using the park, including the deceased child. It determined that the Council had breached this duty by failing to take reasonable steps to mitigate the risk of drowning, such as installing adequate fencing around the pond. The Court also considered the issue of contributory negligence, finding that while the child may have been aware of the water, he could not have fully appreciated the specific risk of drowning in the circumstances. The Court ultimately found the Council to be 75% liable for the death.

The appeal was partially allowed. The original verdict in favour of Mr Ferreira was set aside, and a substituted verdict of $115,900 was ordered. The Council was also ordered to pay 75% of Mr Ferreira's costs of the appeal.