MANLY MUNICIPAL COUNCIL AND ANOR v BOYLAN [1995] NSWCA 269

MANLY MUNICIPAL COUNCIL AND ANOR v BOYLAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESONCJ, KIRBY P and MEAGHER JA 26 April 1995, 15 June 1995

[1995] NSWCA 269

NEGLIGENCE — duty of care — breach standard of care — local authority municipal dam and beach reserve — bather dives and strikes head on submerged rock suffers quadriplegia — successfully recovers verdict — appeal — held: Appeal dismissed. Nagle v Rottnest Island Authority (1993) 177 CLR 423 appld. LOCAL GOVERNMENT — local authorities — liability of- bathing reserve extent of liability — extent of duty — whether breach — held: There was. NEGLIGENCE — contributory negligence bather strikes submerged rocks — whether contributory negligence — held: Not.

NEGLIGENCE — local authorities — provision of bathing facility at municipal dam reserve — bather who stays near reserve overnight consuming alcohol enters water before dawn — on reaching thigh-deep water bather executes dive found by primary judge (Loveday AJ) to be a shallow dive — hits submerged rocks and suffers spinal injuries resulting in quadriplegia — sues local authorities claiming negligence — Loveday AJ upholds claim and dismisses defence of contributory negligence — on appeal to the Court of Appeal — held: (1) The liability of the local authorities was to be determined by reference to the authority of the High Court of Australia in Nagle v Rottnest Island Authority (1993) 177 CLR 423 and not Aiken v Kingborough Corporation (1939) 62 CLR 179; (2) Upon that basis, the liability of the appellants was to be determined by reference to the general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors using the facility which they managed and controlled; (3) There was evidence of breach in the failure properly to warn a bather such as the respondent; to move the line of markers dividing the swimming section; and (per Meagher JA) in failing to remove rocks, upon one of which the respondent was injured; (4) Upon the finding of the mode of execution of a shallow dive, the determination by the primary judge that the appellants had failed to establish contributory negligence was not shown to be wrong. McHale v Watson and Ors (1966) 115 CLR 199 applied; (5) Appeal dismissed with costs.