Lennon v Gympie Motel (BN 3451616) [2016] QSC 315

Flanagan J

Pursuant to rule 483 of the Uniform Civil Procedure Rules (Qld) liability was determined separately to damages.

The plaintiff was rendered a tetraplegic when as a child aged 12 years and 9 months of age, she dived into a pool at a motel in 1998. Relevantly, the plaintiff was 1.73 metres at the time of the incident and the pool was 1.74 metres at its deepest point, with no signage indicting a prohibition on diving around the pool, although there was a sign which read:

“Pool Rules All children must be under adult supervision at all times, in pool area. Keys in office. Hours 6AM – 10PM”

The plaintiff contended that if the defendant had erected appropriate signage warning against diving, the plaintiff would not have dived into the pool, preventing the accident.

The defendant argued that there was insufficient evidence to conclude on the plaintiff’s mechanism of injury, that no breach of duty occurred because the signage required adult supervision, the risk was obvious, that the signage contended for would have been useless and that the plaintiff contributed to her own injuries.

Issues

The issues for determination were:

  1. The mechanism of the injuries;
  2. Whether there was a breach of duty;
  3. Causation; and
  4. Contributory negligence

Mechanism of injuries

As to the mechanics of the plaintiff’s injuries, Flanagan J stated:

[114] The plaintiff bears the onus of proving, on the balance of probabilities, that the injuries sustained by her were as a consequence of diving into the pool and striking her head.  The plaintiff has no recollection of the incident and there were no witnesses to the incident.  The only other person in the pool vicinity at the time was Letitia, who did not witness any dive as she had her back to the plaintiff, facing the motel units.

[115] Where there is no direct evidence of the incident the plaintiff accepts that the facts proved must form a reasonable basis for the conclusion to be drawn that the plaintiff sustained her injuries as a consequence of diving into the pool and striking her head

His Honour, at [134] – [139] accepted that a dive into the pool was the more probable mechanism of injury because of, inter alia, the plaintiff’s position in the pool after the incident; the waves felt by another in the pool; the doctors assessment and examination.

Duty of care

Finding a breach of duty owed by occupier to the plaintiff, His Honour stated:

[155] The duty is that identified by the High Court in Australian Safety Stores, namely a duty to take reasonable care to avoid a foreseeable risk of injury.  Such a duty in the context of a motel providing a swimming pool for guests encompasses the duty identified by Mahoney JA in Inverell, namely a duty to take care for the safety of those using the pool.

[165] After the accident the defendant placed a “no diving” sign in the pool area, together with one depth marker identifying the shallow end of the pool.  The installation of these signs after the incident does not constitute an admission of a breach of duty nor evidence of negligence.  The installation of the signs however, does demonstrate that it was reasonably practicable for the defendant to have taken these steps prior to the plaintiff’s injury.

[173] In these circumstances reasonableness required a warning, namely depth markers and/or a “no diving” sign.250  As to the defendant’s second submission that the risk of injury was so obvious such that depth markers or a “no diving” sign were not required, I am not satisfied that a 12 year old child would have been aware of this “obvious” risk so as to alleviate any necessity for the suggested precautions.

Causation

The defendant contended that relevant signage would not have prevented the plaintiff from diving into the pool. His Honour said in this regard:

[193] … The evidence taken as a whole shows that the plaintiff was a mature and responsible child who would ordinarily follow directions… Ms Phillips’ evidence-in-chief was that the plaintiff and her younger sister were very well behaved. They were very quiet and just walking around. Similarly, Mr Mulcahy’s evidence was to the effect that the girls were not doing anything untoward.

[194] I find that the plaintiff would not have dived into the pool and therefore not have hit her head on the bottom of the pool if a “no diving” sign had been in place… My finding as to causation does not however extend to depth markers… Prior to executing the dive that caused her injuries the plaintiff had used the pool for an extended period of approximately 30 to 40 minutes.  I accept the defendant’s submission that in that period she would have gained an appreciation of the pool’s depths. The plaintiff would not therefore have gained any additional depth information from depth markers if present … [A]s a matter of causation, the plaintiff’s injuries arose from a dive from the deep end of the pool. In such circumstances it cannot be said that the absence of depth markers had any causative effect in respect of the plaintiff’s injuries.

Contributory negligence

Finding that the plaintiff was 15% contributory negligent, Flanagan J reasoned:

[199] The plaintiff, whilst only 12 years old, was a mature and responsible child.  She had a general awareness of the dangers associated with diving. She knew not to dive into shallow water or pools in which she could not judge the depth… She had however been diving safely into the pool without incident for approximately 10 to 15 minutes prior to executing the relevant dive. She had been playing in the pool for a longer period of approximately 30 to 40 minute and appreciated the varying depths of the pool.

[202] … Given that the plaintiff knew of the dangers of diving it may be accepted that she failed to take reasonable care for her own safety

 David Cormack – Brisbane Barrister & Mediator

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