Wilkins v Council of the City of Broken Hill

Wilkins (the plaintiff) brought proceedings against the Council of the City of Broken Hill (the defendant) following a diving accident at a public swimming pool that resulted in quadriplegia. The plaintiff alleged negligence on the part of the Council, specifically concerning the adequacy of warning signs and the enforcement of rules prohibiting diving in certain areas. The matter proceeded to appeal after an initial finding of liability.

The central legal issues before the Court of Appeal were whether the Council's breach of duty of care had materially contributed to the plaintiff's injury, and whether the trial judge had erred in finding causation. This involved considering whether the plaintiff's failure to appreciate the risk, coupled with the Council's pattern of non-enforcement of the diving prohibition, meant that stricter enforcement would have prevented the injury. The Court also had to determine the permissibility of inferring causation from the breach and the respective evidentiary and persuasive onuses in establishing causation.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of causation. Their Honours reasoned that the Council's failure to enforce the prohibition on diving constituted a breach of duty that materially contributed to the plaintiff's injury. The Court found that the plaintiff's lack of appreciation of the risk was a relevant factor, and that it was open to infer that had the prohibition been enforced, the plaintiff would have heeded it. The Court distinguished the situation from medical negligence cases concerning failure to warn, and found that the expert evidence presented was permissible. The appeal was dismissed with costs.