FITZGIBBON v THE WATERWAYS AUTHORITY & 2 ORS [2002] NSWSC 1230

New South Wales Supreme Court

CITATION : FITZGIBBON v THE WATERWAYS AUTHORITY & 2 ORS [2002] NSWSC 1230 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20293/99 HEARING DATE(S) : 5-6, 9-10, 12-13, 16, 19 September 17 October & 15 November 2002 JUDGMENT DATE : 20 December 2002

Plaintiff: Daniel Fitzgibbon PARTIES : 1st Defendant: The Waterways Authority 2nd Defendant: The Middle Harbour Yacht Club 3rd Defendant: Mosman Municipal Council JUDGMENT OF : Newman AJ at 1

Plaintiff: D.A Wheelahan QC / I.D. Cullen COUNSEL : 1st Defendant: A.C. Bridge SC / M. Fordham 2nd Defendant: R. McIlwaine SC / R. Cavanagh 3rd Defendant: P. Taylor SC / S. Glascott Plaintiff: Paul A. Curtis & Co SOLICITORS : 1st Defendant: McCabe Terrill 2nd Defendant: Riley Gray-Spencer 3rd Defendant: Phillips Fox CATCHWORDS : Negligence - onus of proof - independent witness - statement against interest. DECISION : see paragraph 42

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

Friday, 20 December 2002

20293/99 FITZGIBBON v THE WATERWAYS AUTHORITY & 2 ORS

JUDGMENT 1 HIS HONOUR: This is a claim for damages for personal injuries suffered by the plaintiff on 29 March 1997. His injuries occurred when he entered shallow water from a jetty that formed part of the premises occupied by the second defendant, the Middle Harbour Yacht Club. After entering the water the plaintiff's head struck the sandy bottom of Middle Harbour causing him severe injuries resulting in him becoming quadriplegic. 2 There are three defendants in the action. First, there is the Waterways Authority of NSW to which I shall refer as D1. The second defendant is the Middle Harbour Yacht Club to whom I shall refer as D2. The third defendant is the Mosman Municipal Council to which I shall refer as D3. 3 The plaintiff's case as set out in the DCM documents filed in court and adhered to in the course of the trial by the plaintiff is as follows:- "The plaintiff, who at the time of sustaining injury was aged 20 years of age, was present at a large social function conducted at the licensed premises of D2, the Middle Harbour Yacht Club, on the night of 29 March 1997. The aforesaid premises, including a boardwalk/jetty area where the social function was being conducted, were upon land owned by the D1. The plaintiff was in a group of people adjacent to the edge of a boardwalk/jetty which led to a marina where boats were moored. Below the jetty where the plaintiff stood was an area of shallow water and sandy bottom. The plaintiff fell from the jetty area and struck his head on the sandy bottom, causing serious injury, principally quadriplegia. There was absent any handrailing on the water edge of the aforesaid boardwalk/jetty area to prevent the plaintiff's fall from the boardwalk/jetty, there was no warning sign as to the shallowness of the water below the boardwalk/jetty and the state of lighting was such as to deceive persons as to the depth of available water. The owner and the occupier, and the responsible local government authority, failed to ensure that appropriate safety features were incorporated into the built premises to prevent the plaintiff's entry into the shallow water." 4 Not only was D1 sued as the owner of the land involved but also in its capacity as an authorising authority for structures which persons wish to erect on waterside land. 5 The plaintiff's case as to how it was that he fell from the jetty was either:- a. that he fell from the jetty having been jostled by other persons upon it, or b. that, while on the jetty, he was pushed by some person or persons who were also upon it causing him to fall.