Jeffrey v Bailey & Anor [2004] NSWSC 596

New South Wales Supreme Court

CITATION : Jeffrey v Bailey & Anor [2004] NSWSC 596 HEARING DATE(S) : 7 October 2003 - 10 October 2003 JUDGMENT DATE : 6 July 2004

JUDGMENT OF : Dowd J at 1 DECISION : Action against 3rd defendant dismissed; Judgment for 1st and 2nd defendants against plaintiff

CATCHWORDS : Allegation of breach of duty of care - occupier's responsibility to invitee - duty to warn - no breach Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Nagle v Rottnest Island Authority (1993) 177 CLR 423 Tame v State of New South Wales (2002) 76 ALJR 1348 Wyong Shire Council v Shirt (1980) 146 CLR 4 Shannon Jeffrey PARTIES : Ernest John Bailey and Donna A Bailey (aka Lye) FILE NUMBER(S) : SC 20244/00 COUNSEL : Plaintiff: Mr A Bartley SC Defendants: Mr B Toomey QC SOLICITORS : Plaintiff: Mr D Morgan Defendant: Mr S Clyne

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Tuesday 5 July 2004

20244/00 SHANNON JEFFREY v ERNEST JOHN BAILEY & Anor

JUDGMENT 1 DOWD J: This action was brought by the plaintiff by way of Statement of Claim against the first defendant, the registered proprietor of premises known as 31 Harrington St, Rooty Hill, which premises were occupied by the first and second defendants. The action was also brought against the third defendant, who was the son of the second defendant and the step-son of the first defendant, it being alleged that the third defendant was at all times present at the subject premises with the permission and invitation of each of the first and second defendants. 2 The plaintiff alleged that he had attended the premises of the first defendant for a 'pool party' and that at this party the plaintiff was thrown into an in-ground swimming pool by the third defendant at about 11 pm, on New Years' Eve. The plaintiff alleged that he was again pursued by the third defendant and escaped by diving into the swimming pool, striking his head on the bottom of the pool, thereby causing him injury. 3 The plaintiff further alleged that the first and second defendants who were present had allowed large quantities of alcohol to be consumed. The plaintiff alleged that each of the defendants were aware of the configuration of the pool, and that the first and second defendants were able to control the activities of those attending the pool party, including the consumption of alcohol and activities near the pool, but failed to do so. The plaintiff further alleged that the third defendant caused the plaintiff to enter the pool in such a way as to be likely to strike the structure of the pool with his head, thereby causing injuries; that the first and second defendants could have controlled the behaviour of the third defendant to prevent harm being caused to the plaintiff; and that the plaintiff's injuries were caused by the negligence, of the defendants. 4 The negligence alleged against the first and second defendants was that in conducting a pool party where alcohol was consumed, the first and second defendants failed to ensure that the water was clear so that the bottom of the pool was visible; failed to ensure that the pool was adequately lit; failed to clean the water to allow the party to be conducted; failed to warn the plaintiff of the topography of the pool; failed to move the venue of the party from near the pool when it became known or should have been known that guests were intoxicated; and failed to restrain the third defendant. 5 Negligence was also alleged against the third defendant, but at the hearing it was agreed that the third defendant had not been served, and was not proceeded against. The third defendant was called outside the Court but did not appear. 6 The parties agreed on $2 million as the amount of damages to be paid in the event of the plaintiff obtaining a verdict, and had agreed that that verdict had not been reduced by contributory negligence. That left the remaining issue of liability, that is breach of duty on behalf of the first and second defendants, and if that point were reached, the question of contributory negligence, if any. 7 As a result of the activities of that night, the plaintiff suffered a burst fracture of the C6 vertebra, with posteriorly displaced bony fragments, leading to quadriplegia, shock and other consequences, including damages for special and economic loss.