CAMPBELLTOWN CITY COUNCIL v FREW [2003] NSWCA 154

New South Wales Court of Appeal

CITATION : CAMPBELLTOWN CITY COUNCIL v FREW [2003] NSWCA 154 HEARING DATE(S) : 2 June 2003 JUDGMENT DATE : 19 June 2002

JUDGMENT OF : Mason P at 1; Santow JA at 41; Tobias JA at 42 DECISION : Appeal allowed.

CATCHWORDS : Negligence - respondent slipped while stepping up tiered seating area at swimming pool - where intermediate steps available but not used by respondent - where Council aware tiers sometimes used as steps - Duty of care - foreseeability of risk - where risk obvious - likelihood that persons would take care for own safety - low probability of risk occurring - - Reasonable care - expert evidence - adequacy of 'nosing' on tiers - whether Council unreasonable in not doing more. Appeal allowed (D) PARTIES : CAMPBELLTOWN CITY COUNCIL v Emma-Lea FREW by her Tutor Susan FREW FILE NUMBER(S) : CA 40613/02 COUNSEL : Appellant: R Sheldon Respondent: R Colquhoun SOLICITORS : Appellant: Phillips Fox Respondent: Robert Johns & Co

LOWER COURT District Court JURISDICTION : LOWER COURT DC 5469/00 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40613/02

MASON P SANTOW JA TOBIAS JA

Thursday 19 June 2003

CAMPBELLTOWN CITY COUNCIL v Emma-Lea FREW by her Tutor Susan FREW

FACTS

The respondent had been swimming at the pool at the appellant's Eagle Vale Leisure Centre. She came out of the water, and was climbing the tiered seating area to where she had left her belongings when she slipped, breaking her nose, tearing ligaments in her right knee and sustaining other injuries. She was 13½ at the time of the incident. It was found that she had walked straight up the tiers, managing each tier in a single step without running, leaping or moving quickly and that she placed each foot on the metal and rubber nosing strip adhered to the edge of each tier. Although the tiered area had two locations where intermediate steps had been placed between the tiers, the respondent did not use them. A verdict and judgment was entered in the District Court in favour of the respondent for $121,820.