Recent Developments May 2006

Negligence

Bennett v Manly Council and Sydney Water Corporation [2006] NSWSC 242

Relevance: Chapter 5 - Negligence

The plaintiff was injured at Manly Beach in October 2000 when, as he bodysurfed a wave to the shore, he hit his head on stormwater pipes which extended into the sea. He was surfing outside the designated safe swimming area when he was injured.

The plaintiff sought damages from the defendants for his injury, based on the basis they were negligent in failing to indicate the position of the pipes to persons in the sea; in permitting the pipes to be present; in failing to conduct a risk assessment; and, in the case of the first defendant, in failing to prohibit swimming in the vicinity of the pipes.

The council conceded it owed the plaintiff a duty of care and Hislop J held that by failing to erect warning signs, the council was in breach of its duty of care. This represented a reasonably practical and inexpensive means of eliminating or reducing the risk of injury. It was not reasonable, and therefore not a breach of duty, to require the council to remove or modify the pipe and was considered a disproportionate and unreasonable requirement to impose. Nor was the council in breach of its duty by failing to prohibit swimming in the vicinity of the pipes even though the council had power to do so because it could not be shown that the plaintiff would have observed such a notice or that it would have prevented the injury he sustained.

The council failed to establish that the plaintiff had voluntarily assumed the risk as it had to show that the plaintiff knew of the danger, fully appreciated the risk and voluntarily agreed to accept it.

Hislop J found that the Water Corporation owed the plaintiff a duty of care by creating a danger in the first place in an area where it would have been aware that people swam along the whole length of Manly beach. It had breached its duty by failing to erect a warning sign, which like the council, it could have done easily and inexpensively. Removal of the pipes was considered a disproportionate and unreasonable requirement to impose and so there was no breach in that regard.

Hislop J accepted that there was contributory negligence on the part of the plaintiff as he was swimming outside the designated safe swimming area, was aware of the existence of the pipes, saw them when he was in the surf, was aware that there was a rip moving him towards them and that if he had exercised reasonable care he would have orientated himself by looking for a beach marker, and he failed to monitor his position regularly. Accordingly, Hislop J found him 50 per cent contributorily negligent.

Pearson Education Australia 2006