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Occupiers' liability: clear warnings required to alleviate risks associated with guest use of recreational facilities - 7 March 2017

A recent decision of the Queensland Supreme Court highlights the importance of occupiers installing clear warnings to patrons utilising recreational facilities at their premises. Partner Robert Tidbury discusses the decision of Lennon v Gympie Motel [2016] QSC 315 where liability was found in favour of the Plaintiff, but with a reduction of damages for contributory negligence.

Facts

The Plaintiff, Karla Lennon, was 12 years old when she dived into the pool within the grounds of the Gympie Motel. The motel had installed a sign in the pool area which required children to be supervised by an adult at all times. There were no other signs in the area. When the Plaintiff’s mother allowed her and her younger sister (aged 7) to enter the pool area, there were other adults and children utilising the facility. The pool was described as 10 metres long and having a variable depth between 1.74m and 0.9m.

While the Plaintiff and her sister were using the pool, she dived into the water and struck her head, suffering a cervical spine injury and hypoxic brain injury rendering her tetraplegic as a result.

The Plaintiff argued that the motel was negligent for failing to install a warning sign with respect to diving in the pool, or installing appropriate depth markers indicating that there was a shallow end.

Expert evidence was led that there was in fact no safe area for a person to dive safely, having regard to the depth of the pool.

Arguments were made by the defendant that the failure to install the markers or signs were not causative of the injury as it could not be determined how the Plaintiff came to suffer her injury, ie. whether she slipped and struck her head on the edge of the pool or intentionally dived into the pool, performing a dangerous dive.

Decision

The Gympie Motel was found to have breached its duty of care to the Plaintiff. With respect to the duty in relation to pools in particular, Justice Flanagan made reference to the case of Inverell Municipal Council v Pennington & Anor (1993) 82 LGERA 268 which identified the relevant duty as follows:

“Those in control of the pool had, in general, a duty to take care for the safety of those using it. This is reasonably plain. The risk of injury from diving in shallow water is well recognised. They were, in the relevant sense, in sufficient proximity to users of the pool to require that they take proper precautions.”

The Court also had regard to the Australian standards “Guide to Swimming Pool Safety” which notes:

  • “Clause 8 Unless specifically designed for diving, private pools should not be used for that purpose ... Serious injury can result from diving into a pool that is not of sufficient size”; and
  • “Clause 17(s) Don’t dive into the pool unless it is specifically designed for diving.”

Having regard to the well-known risk of diving into a pool, the potential catastrophic consequences and the variable depth of the pool, reasonableness required the Gympie Motel to take precautions such as the provision of a warning to its patrons regarding that risk, particularly where it is contemplated that children would be using the facility (albeit directed to have adult supervision).

Those precautions included a warning against diving and identification regarding the depth of the water.

Contributory negligence

Evidence was led regarding the Plaintiff’s demeanour prior to the incident, and it was accepted that the Plaintiff was a responsible young woman despite her age, often charged with the care of younger siblings and family friends when in and about the water, particularly on Stradbroke Island. 

The Court considered whether the plaintiff had failed to exercise a degree of care for her own safety which might reasonably be expected of an ordinary child of the same age.

It was found that the Plaintiff had a general awareness of the dangers associated with diving and knew not to dive into shallow water or pools in which she could not judge the depth. Given her knowledge of the potential danger, it was accepted that she failed to take reasonable care for her own safety by diving into the water. The Court reduced the damages by 15%.

Practical tips

  • Consideration should be given to installing depth markers around all pools.
  • Signs warning against diving should be installed if the pool is not specifically designed for diving.
  • Occupiers should refer to the Australian Standards with respect to the facilities provided and what warnings may be relevant to those facilities.

For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance and Risk team.


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