Negligence in the Central West Presented by Kristi McCusker 27 August 2017 Gregs Case 50 year old teacher from Bowral who was visiting Machattie Park Greg had not been to the park since childhood ID: 767646
Download Presentation The PPT/PDF document "Negligence in the Central West" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Negligence in the Central West Presented by: Kristi McCusker 27 August 2017
Greg’s Case 50 year old teacher from Bowral who was visiting Machattie Park. Greg had not been to the park since childhood. Tripped and fell from the top step of the rotunda, breaking his left leg. Required surgery on his leg. Developed a staph infection. Cause of Greg’s fall was the narrowness of the top step of the rotunda which was not obvious.
The Rotunda
Who should win?
The Decision Justice Nicholson thought Greg should win his case. There should have been a warning sign on either pillar cautioning against the risk of the narrow stair. Greg was awarded $223,381.58 in compensation. The Council appealed.
The Appeal The Court of Appeal allowed the appeal in part. Greg’s damages were reduced by $10,000 because of the way that Justice Nicholson had calculated future economic loss. The District Court’s decision on liability and negligence was not disturbed.
Craig’s Case Craig lived in Lithgow. Craig had been drinking alcohol and was moderately intoxicated. He left home at about 3.30am on 18 July 2002 with his two dogs after having a fight with his girlfriend. Not far from Craig’s house was an area of parkland known as “Endeavour Park”.
Endeavour Park
Craig’s Case Shortly before 6.57am, Craig was found by bystanders lying badly injured in the drain. Craig couldn’t remember how he got hurt because of his injuries. Craig alleged that he fell by tripping from the small retaining wall at the top of the vertical face of the drain. Only evidence about the fall was an ambulance record that said “? Fall from 1.5m onto concrete.”
Who should win?
The Decision The District Court found that: The Council owed Craig a duty of care . The Council breached its duty of care because it failed to erect a fence above the vertical wall face. A sober person walking through the park at night wouldn’t have seen the wall and recognised it represented a drop on the other side. BUT Craig couldn’t establish how his accident occurred or prove causation so he lost. Craig appealed.
The Court of Appeal – Round 1 The Court of Appeal allowed the appeal but erroneously read the evidence about the ambulance record as stating “Fall from 1.5m onto concrete” instead of “? Fall from 1.5m onto concrete.” The Court of Appeal held that Craig should succeed in his claim for compensation. The Council appealed.
The High Court – Round 1 The High Court saw that the Court of Appeal had read the ambulance report incorrectly. The High Court sent the case back to the Court of Appeal. The Court of Appeal had to decide whether reading the ambulance record as “? Fall from 1.5m onto concrete” instead of “Fall from 1.5m onto concrete” would change its decision.
The Court of Appeal – Round 2 The Court of Appeal confirmed its first decision. Held that the ambulance record, even with the question mark inserted, established causation. The Court of Appeal decided that the ambulance record was a conclusion made by ambulance officers based on what they had observed. Awarded Craig $203,475 in compensation. The Council appealed … again.
The High Court – Round 2 The High Court allowed the appeal and decided Craig should lose. The ambulance record was inadmissible as evidence because it was hearsay. Negligence wasn’t established against the Council. Craig couldn’t establish how his accident occurred.
Emilie’s Case Emilie was a 12 year old champion swimmer. Attended Kinross Wolaroi School in Orange. Kinross swimming coach, Stephen Critoph , taught her how to “track start” dive. Trained at the pool at Kinross until 20 December 2007.
Emilie’s Case
Emilie’s Case Mr Critoph went on annual leave. Arranged for Emilie to train with Mr Brodie and his two children at Lithgow pool. Mr Critoph gave Mr Brodie a dry land and swimming program for Emilie. It was printed on Kinross letterhead and addressed to Mr Brodie. Emilie had trained at the Lithgow pool previously. Part of the program involved diving into the shallow end of the Lithgow pool. Mr Brodie wasn’t a qualified swimming coach.
The Accident On 7 January 2008, Emilie was training at the Lithgow pool with Mr Brodie and his two children. Emilie attempted to perform a track start dive into the shallow end of the pool. Her foot slipped and she fell forward with her head down into the water. Insufficient evidence to establish what caused her foot to slip. Emilie fractured her neck and was rendered a C5-C6 tetraplegic. Emilie sued the Council and the School.
Emilie’s Case v the Council Emilie sued the Council alleging: Breach of duty of care . It permitted her to perform a track start dive into the shallow end of the pool. It permitted her to dive into the shallow end of the pool without a qualified coach supervising her.
Emilie’s Case v the School Emilie sued the School alleging: It was liable for the acts, omissions and conduct of Mr Critoph and Mr Brodie because of its non-delegable duty of care . Breach of duty of care because it failed to show Emilie how to abort a track start dive. It ought to have been aware of the elevated risk of track start dives. Failure to carry out a risk assessment at Lithgow pool. Failure to warn Emilie of the risk of injury in performing track start dives.
Who should win?
The Decision The Supreme Court decided that: Emilie should win against the School. Emilie should lose against the Council.
The Decision v the Council There was no evidence that there was any fault with the pool that caused Emilie to slip. Nothing unreasonable in the Council permitting Emilie to perform track start dives at training. No basis for concluding that the Council should have precluded all dives into the shallow end or was negligent not to do so. Even if the Council had precluded her from diving, such a prohibition wouldn’t have prevented her accident.
The Decision v the School Unreasonable for Mr Critoph to encourage Emilie to dive into the shallow end of the pool. Mr Critoph should have taught Emilie how to abort a track start dive. The School actively encouraged Emilie to do what she was doing at the time of her injury.
Appeals everywhere! The only party who was happy with the decision was the Council. The School appealed against the decision made against it. Emilie appealed against the decision exonerating the Council.
The Appeal The Court of Appeal allowed the School’s appeal, finding: The School didn’t breach its duty of care to Emilie. There was no basis for finding that the School ought to have been aware of the increased risk of track start dives. No breach arising from any elevated risk presented by a track start dive into Lithgow pool. No failure by the School to carry out a risk assessment was causative of Emilie’s injury. Emilie’s appeal against the Council was dismissed.
Today’s Cases Greg’s case – Bathurst Regional Council as Trustee for the Bathurst City Council Reserve Trust v Thompson [2012] NSWCA 340. Craig’s case – Lithgow City Council v Jackson [2011] HCA 36. Emilie’s case – Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320.