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. The Evidence 8 The plaintiff, who is now a 35 year old man, was 27 years of age at the time of his injuries. He had at that time been in a relationship with Nicole Lye, the step-daughter and daughter, respectively, of the first and second defendants, the relationship having continued for one month. During that time, the plaintiff visited the subject premises almost every day, and was in the habit of driving and parking his car down the driveway in the vicinity of the pool. 9 The plaintiff's evidence was that he had been in employment since he left school, but had had a period of some six weeks in which he had been in a psychiatric hospital. He lived with his mother at Werrington. He first visited the subject premises about one month prior to his injury, but had not used the pool. The pool is built approximately one metre higher than the surrounds of the house, on a sloping site. There is a set of stairs from the driveway going up to the level of the pool, and a fence around the pool area. 10 The plaintiff had been invited to a New Years' Eve party by the second defendant about one week before the party. On the day of the party, the plaintiff took with him a carton of VB stubbies of beer and arrived about 3 pm, but did not commence drinking for a couple of hours. By about 8.30 pm he had had six stubbies. 11 The plaintiff said that he sustained his injuries at about 8.30 pm and that it was approximately two hours before the ambulance came. He said that those present at the party were the two defendants, the second defendant's son Dean Lye, and the plaintiff's girlfriend Nicole. Also present were Wayne, the son of the second defendant, Wayne's girlfriend Sandra, and Lara, who is Dean's girlfriend. 12 The plaintiff said that Dean, Wayne and Nicole were 'fooling around', doing 'bombs' into the pool, when he walked up to the pool area. He said Dean came over, picked him up by one leg and threw him into the deep end of the pool. The plaintiff swam across the deep end and pulled himself out of the pool at the deep end. The plaintiff said that Dean then chased him and that he dived into the pool, the shape of which comprised three overlapping circles in an arc, from a position quite close to the stairs leading down to the bottom of the shallow end, which is about 1 metre deep. He said that he dived towards the steps and that the top of his head felt sore, as if he had hit something with the top of his head. He then lost power over his legs and Nicole dived in and pulled him to the surface. He was then carried by his arms and legs on to the floor of the entertainment room, and the second defendant rang the ambulance. 13 The plaintiff's evidence was that there were underwater lights in the pool, but he said that they looked dim because the water was dirty, or they were not working. He said that he did not know that the steps were in the pool, and that he had done a shallow dive so that he would not hit the bottom of the pool, but he hit the steps. The plaintiff said that from his observations, Dean, Wayne and the first and second defendants were drunk, as he had seen them drinking from 5 pm onwards. The plaintiff's evidence was that Dean was behaving aggressively towards him, swinging a pool cue and throwing punches at him, but not connecting, and that Dean had thrown a pot plant at the plaintiff's car. 14 The plaintiff said that there was no sign on the pool saying how deep it was, and that neither of the first or second defendants had told him what was under the water in the pool. The plaintiff said that if he had known that the stairs were there, it would have made a difference in that he would have been able to use the steps, but when asked about his diving in, he said he would not have been able to use the steps because Dean had been chasing him. He said that he would not have dived in the direction of the steps if he had known they were there. 15 The plaintiff said that the first and second defendants could see what Dean was doing, and that he was 'fooling around' near the pool. 16 In cross-examination, the plaintiff said that the reason he did the shallow dive was so that he would not hit the bottom of the pool, because he knew that the water was shallow, but he did not know that it was as shallow as it was. When asked about the metal railing which adjoins the steps, the plaintiff said that he had seen the railing but he did not know what it was. The plaintiff agreed in cross-examination that he knew that it was an ordinary domestic pool, and that if one end was deep the other end was shallow, and that he knew which was the deep end because he had earlier been thrown into it. The plaintiff said that he would not have hit either the bottom or the side of the pool, and if it had not been for the steps, that he would not have been injured. 17 The plaintiff agreed that when the ambulance arrived he was still conscious and oriented, except in terms of what time it was, and that he told the ambulance officers that he had struck his head on the side of the pool, but that he had not known what he was talking about, as everything was blurry. When it was put to him that he had told officers at Westmead Hospital that he had hit his head on the side of the pool, he said that he did not say that because it was the middle of the pool where he had dived. He said that he did not remember seeing an Occupational Therapist at Royal North Shore Hospital, and telling that person that he had hit his head on the side of the pool, nor did he remember telling a physiotherapist at the Royal Rehabilitation Centre that he had hit his head on the bottom. He also denied telling a rehabilitation specialist, Dr Steven Buckley, in October 2000, that he had struck his head on the bottom of the pool. 18 The plaintiff then at T:39.56 said: "When the accident first happened I might have told certain people what I thought had happened, that didn't because my mind was just going 'haywire' at the time and everything." He later said that he could not remember if he had struck his head on the bottom of the pool. He agreed that he told Dr Buckley that he had struck his head on the bottom, but, in evidence, said that he could not remember telling him that he had struck his head on the bottom. 19 When it was put to him that a psychiatrist, Dr Philip Brown, had said in his report that he had dived into the middle of the pool, and this had proven shallower than expected, the plaintiff said that he could not remember what he told Dr Brown, and that Dr Brown must be mistaken or a liar. When asked whether all of the other facts that Dr Brown had noted relating to the incident were correct, the plaintiff agreed that all other matters were things that he had told Dr Brown, and were all correct. 20 The plaintiff then, in cross-examination, contradicted his earlier evidence in chief about the light in the pool being on. The plaintiff agreed, in cross-examination, that it is dangerous to dive in head first into shallow places. He said that he did not know why he did not jump. When it was put to the plaintiff that the position he marked on a photograph admitted into evidence shows him diving from a point from approximately 1.5 metres away from the nearest step, the plaintiff said that he had not seen the steps because he was being chased. 21 The plaintiff's evidence was that it was six months before giving evidence that he first remembered that he had dived into the steps, and he then said that it may have been twelve months earlier that he first remembered diving into the steps, this being some four years after the injury. 22 The plaintiff, in cross-examination, said that his hands hit the steps first, but agreed that he had no injuries to his hands. The plaintiff said that after he hit his head that he felt the steps with his hands and became aware of them for the first time, although he had not said that in evidence in chief. The plaintiff's explanation for saying to some of the various experts and treating doctors that he had hit the side wall of the pool and to others that he hit the bottom was because the experts were '"pumping him for information'". 23 At T.73.2, the following evidence was given by the plaintiff: Q: And what was it that caused you to suddenly remember that it was the steps that you had dived into? A: I don't know. Q: So did it just come into your mind suddenly, "Oh, I dived into the steps"? A: Yes, virtually, yeah. Q: So it's all fiction, isn't it, Mr Jeffrey? You have no memory of diving into the steps at all. A: I do. 24 And later, at T:73.39: Q: Well what is it do you say that came suddenly, four years after the accident, brought into your mind the fact that you had not dived into the bottom of the pool, or the wall of the pool, but that you've dived into the steps? What was it that brought it into your mind? A: Don't know. It was just – it just come to me all of a sudden. 25 The plaintiff then later said that he had remembered hitting the steps earlier and that it was the second defendant who said to him that it was the steps. The plaintiff then, having changed his evidence, changed it again and said that when he first said something about it, it was six months ago. Under cross-examination, the plaintiff then said that he had thought about his evidence overnight, and realized, subsequent to giving his evidence in chief and in being cross-examined the day before, that he had remembered it quite some time earlier, but it was only six or twelve months ago that he first mentioned it. 26 In further evidence, the plaintiff agreed that he had not said that he had been chased by the third defendant to either the ambulance officers, or to persons at Westmead Hospital, North Shore Hospital, or at North Ryde Rehabilitation, but the first time that he said that he had been chased was in May or June 1999 when he saw his solicitor. 27 It was agreed between the parties that the extracts from the various witness statements and reports that had been put to the plaintiff by Mr Toomey QC do in fact appear in those documents. 28 A report, of a Dr John Cook, consultant architect, was admitted in evidence, showing the general outline of the pool being a series of intersecting circles generally in an arc, with a hand rail aligned with one side of the pool, and steps descending at the shallow end towards the bottom of the pool. The Plaintiff's Case 29 It was alleged by the plaintiff that the occupiers owed him a duty of care which related to the physical state of the premises, and specifically the control over and knowledge of the state and condition of the swimming pool. The plaintiff relied on what was described by Dean J in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 663 that the "touchstone" of the existence of the duty of care owed to the plaintiff is the reasonable foreseeability of the real risk of injury to a visitor. The risk is one that is foreseeable, and not far-fetched; Wyong Shire Council v Shirt (1980) 146 CLR 40. The plaintiff further relied on Nagle v Rottnest Island Authority (1993) 177 CLR 423, where a risk of injury to a person diving into water was held to be reasonably foreseeable notwithstanding that it may be judged foolhardy or unlikely. It was submitted by the plaintiff that that was not the risk here. 30 The plaintiff also calls on the inference available in Jones v Dunkel (1959) 101 CLR 298 of the failure of the defendant to call evidence from those who were at the swimming pool at the time and who saw the condition of the swimming pool and the lighting. 31 The breach of duty of care relied on by the plaintiff was that the first and second defendants were obliged to take into account that people do not always pay attention or always take care of themselves, that they may be affected by alcohol, and that the test is that of a reasonable person. It was asserted on behalf of the plaintiff that obviousness of risk is not determinative. 32 It was put on behalf of the plaintiff that if he had known where the steps were, it is inconceivable that he would have dived into them. The plaintiff relied on the fact that the ambient lighting was good, as borne out by the architect's report, and there is no reason why the defendants could not observe that a boisterous lot of aggressive young men, or at least two of them, had moved to the area of the pool. It was submitted for the plaintiff that his evidence is not challenged as to the adequacy of the warning about the steps, but that he had no option but to dive as he did. The Defendants' Case 33 The defendants say that from the architect's report, the pool lights are just under the surface of the water under the pool and that it is not feasible that such lights could fail to throw any light into the pool, even if the water were very dirty. It is submitted by the defendants that if the pool was as filthy as the plaintiff alleged, no-one would have wanted to swim in it. It was further submitted by the defendants that the injury obtained by the plaintiff was not from being thrown into the pool or being forced into the pool, but that it was the action of the plaintiff diving into the end, which he knew was shallow, which caused the injury. 34 On behalf of the defendants it was put that the plaintiff was then a 27 year old adult not put in danger by the activity which took place within the view of the first and second defendants. There was no requirement for them to do anything. I note that at the time, the plaintiff was wearing a shirt and shorts, with socks, and there is no evidence at all that the party was to be a pool party. At the relevant time, the first and second defendants were inside the house. 35 It is further put by the defendants that even if the action of Dean had taken place some distance from where the first and second defendants were, there is no evidence that they, or anyone else, were aware of the intention of anyone to swim on that night. 36 The defendants submitted that the plaintiff has not made out that he was forced to dive in the pool. He could have jumped into it, rather than diving into the shallow end, or he could have run away. The plaintiff conceded in his evidence that it was dangerous diving into the shallow end of the pool. 37 In relation to the plaintiff's contention that the defendants had a duty to warn the plaintiff about the pool, the defendants submit that the plaintiff was a regular visitor to the home, and the chrome railing near the steps was clearly visible. It was not unreasonable to assume that the plaintiff would know that the railing was a railing for steps. In his evidence, the plaintiff conceded that he knew that the railing was there. The plaintiff's contention was that it never occurred to him that the railing could be a step railing, even though he was aware that most domestic pools have stairs. It was submitted on behalf of the defendants that the evidence of the plaintiff, in relation to the steps, should be rejected as only becoming public when the plaintiff entered the witness box. 38 It was further submitted by the defendants that the plaintiff agreed in evidence that if he said that the problem with the swimming pool that caused his injuries was that he dived into steps that he did not know were there. The Credibility of the Plaintiff 39 During the course of the evidence, the plaintiff demonstrated a well-developed capacity to avoid difficult questions. The plaintiff, it was conceded by his counsel was not a good witness in cross-examination. The plaintiff made it very difficult, by asserting for the first time at the hearing, that it was the steps with which he collided, having not mentioned this to any of the health professionals with whom he had had to deal in the intervening years. He initially said that the realization came to him some six months ago, and perhaps some twelve months ago, and then on further reflection after cross-examination, he said that he had thought about several years ago but had not actually mentioned it to anybody. 40 I am not saying that the plaintiff does not believe what he now says, but his evidence bears all the hallmarks of someone who has convinced himself of the story he now asserts. As to the plaintiff's description of the lighting of the pool, counsel for the defendants submits that it is so unsatisfactory as to make it almost impossible to accept what the plaintiff has said. It is illustrative to observe the plaintiff's evidence at T:16.43: Q: Do you remember whether there were any underwater lights in the pool? A: Um, yes there were underwater lights Q: Did they work very well? A: No they didn't. (T:16.43-51) Q: What can you tell his Honour about the lights? A: Well they looked dim because the water was dirty or they weren't working. (T:17.1-4) Q: And that underwater light was on on the night you were injured? A: I couldn't tell. Q: You've agreed with your own counsel that it was on? A: The water was green so you couldn't tell. Q: You mean you couldn't even see whether there was a light on? A: No. Q: Didn't you tell your counsel in chief that in fact you could see them but they were dim? A: Yeah. Q: Are you now saying… A: No. No. I said I didn't know if they were on or not. If they were on they either looked dim or they wasn't working. (T:43.28-46) Q: What did you know? A: Because the water was green they either looked dim - yeah, or they weren't working. Yeah. Q: But if they looked dim they were on and if they weren't working they weren't on. Which one are you saying they were? A: You couldn't tell. Q: You couldn't tell whether they were on looking dim or they weren't on at all. Is this what you're saying? A: Maybe… (T:44.27-38) 41 It is very difficult to believe that a person of the plaintiff's weight could propel himself, even from a distance of 2.5 metres, at steps which are just below the surface of the water and not inflict on himself on his arms and the rest of his body some additional catastrophic injury. The plaintiff's evidence that he hit only the top of his head is very difficult to accept when the way in which he threw himself from the area which bulges concavely in the centre of the pool along the line of the steps, would cause him to hit the top of his head. 42 The way in which the plaintiff changed his evidence about whether the pool was lit or not is clearly less than satisfactory. The number of variations in the plaintiff's story very seriously affects on his credibility, and the fact that he disagreed with almost all of the notes of the health professionals makes him difficult to accept as a witness. 43 Further evidence of the plaintiff's lack of credibility is his assertion that he had seen the railing, but did not know what it was. I refer to his evidence at T:64.47-55: Q: I mean, you couldn't look at the pool without seeing that chrome railing? A: Yeah, I seen the railing, but I didn't know what it was. Q: Did you ever ask anyone? A: No, I didn't. Q: Did you ever think about it? A: It was on the tip of my tongue actually, but I didn't ask. This is not credible. Findings 44 The Court has to make findings on the evidence. This is not made easier by the way in which the plaintiff answered questions about the different versions that he had given to the various experts, as set out above. 45 I can place little credence on the evidence of the plaintiff, either as to the circumstances of the lighting in the pool, or as to the plaintiff's actions. I think that it is likely that what the plaintiff told the ambulance officers and other health professionals is more likely to be correct, and that his later version of hitting the steps is unlikely to be so. I reject the evidence of the plaintiff where he disagrees with the agreed evidence of the health professionals. 46 I first consider that the plaintiff, in diving into the pool, hit the top of his head on the bottom or the side of the pool. I do not find that it was as a result of him being chased into the pool, since he did not mention that to those to whom he spoke shortly after the injury that he sustained, and not then for some eighteen months. I consider that the pool was probably dirty, but that there was some lighting in the pool, and it is likely that there was some illumination to let him know where the bottom was, and that he was clearly aware that he was diving into the shallow end of what was a relatively small pool area. 47 The defendant relies on Tame v State of New South Wales (2002) 76 ALJR 1348 at 1368, where McHugh J said in a matter involving psychological injury, but of general application, that "… the touchstone of the common law doctrine of negligence [is] reasonable conduct. To repudiate it also ignores the right of citizens in a free society not to have their freedom of action and communication unreasonably burdened". In that same case, Gleeson CJ said: A necessary, although not sufficient, condition of the existence of the legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB said that a person "is not… expected to anticipate and guard against that which no reasonable man would expect to occur". Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage. … [I]t is important that 'reasonable foreseeability' should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. 48 I agree with the submission that the first and second defendants were not present when the immediate act complained of occurred, and were not capable of influencing it. Whether they were in the kitchen, or in a bathroom, or whatever, they were just not there, able to stop the events occurring. This was a New Years' Eve party, not a pool party, but even if it were, the plaintiff was an adult, in an area of the premises with which the defendants knew he was familiar. 49 The law does not require the constant supervision of adults in and around a standard or non standard domestic pool. I do not find that the pool was so dirty as to prevent observation of the shallow end of the pool or the steps. 50 I find that the plaintiff has failed to establish any breach of duty towards him on the part of either defendant. I find the plaintiff has failed to establish negligence as pleaded and I therefore find a verdict for the defendants. 51 The orders I therefore make are: i. Action against the third defendant dismissed; ii. Judgment for first and second defendants against the plaintiff. ********** Last Modified: 07/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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