Sharp v Parramatta City Council

(2015) 209 LGERA 220; [2015] NSWCA 260

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Occupier's liability
4. › Public swimming pool
5. › Duty of care to supervise and instruct users of diving platform
6. › Whether occupier breached duty by permitting patron to jump from 10 metre platform without adequate instruction
7. › Civil Liability Act 2002 (NSW), ss 5B, 5F, 5K, 5L, 5M
1. Torts
2. › Negligence
3. › Dangerous recreational activity
4. › Obvious risk
5. › Jumping from 10 metre diving platform
6. › Whether risk of injury from impact with water surface from height was obvious risk of dangerous recreational activity
7. › Whether activity involved significant risk of physical harm
8. › Civil Liability Act 2002 (NSW), ss 5F, 5K, 5L
1. Torts
2. › Negligence
3. › Risk warning
4. › Warning sign at recreational facility
5. › Whether sign warning that persons use platforms at own risk constituted risk warning under s 5M
6. › Whether warning need identify specific risk or only general nature of risk
7. › Whether oral instruction contradicted written risk warning
8. › Civil Liability Act 2002 (NSW), s 5M
1. Appeal
2. › Fact finding
3. › Appellate review of trial judge's findings of fact
4. › Credibility findings
5. › Whether primary judge erred in rejecting appellant's evidence as unreliable
6. › Whether finding was inconsistent with other evidence

Quick Take

A general warning sign stating that persons use platforms and springboards 'at their own risk' is sufficient to constitute a risk warning under s 5M of the Civil Liability Act 2002 (NSW), as it warns of the general nature of the risk of injury from the activity. Instructions given by a lifeguard as to how to execute a jump (e.g., to fall vertically, feet first) do not contradict such a warning under s 5M(8) because they implicitly acknowledge the risk of injury. Jumping from a 10 metre diving platform into a pool is a dangerous recreational activity under s 5K, and the risk of injury from impact with the water surface from such a height is an obvious risk under s 5F.