What happened

The jetty reopened to the public in 1997 and, from 2002, the Council managed the trust’s affairs and the jetty’s care, control and administration. Before the 2011 accident, the Council knew of a child fall in 1997, a near-fall in 1999 and a serious fall in 2007 involving skull fractures. The railing still contained gaps of 395 mm and 480 mm through which a young child could pass.

The issues

The central questions were whether the Council and trust breached their duty by failing to add wire strands or mesh, and whether the general entrance warning displaced that duty under s 5M of the Civil Liability Act 2002 (NSW). The appeal also examined whether the State, as designer and former controller, or the accompanying grandparents were liable.

The court's decision

The appeal was dismissed. Given the known accident history and the modest burden of infill precautions, a reasonable controller would have closed the gaps no later than after the 2007 incident; the sign warned about diving into variable-depth water, not a child falling through the railing. The findings in favour of the State and grandparents remained, and the plaintiff’s application for leave to cross-appeal on costs was dismissed.

What this case shows

The decision shows that apparent compliance with a technical standard and a broad warning may not answer a specific risk revealed by a site’s accident history. It also illustrates that, for public land, practical control and the power to take precautions can matter more to the duty analysis than formal ownership labels.

Why another case may differ

This appeal concerned liability and costs, not the assessment of damages. Its result depended on the Council’s actual knowledge of repeated child incidents, the railing geometry, the statutory management arrangements and the availability of practical infill measures, so a site with different history or control may be decided differently.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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