Child falls through railing in a jetty
The old jetty at Coffs Harbour was restored and handed over to the Council to manage. As part of the restoration the heritage railings were refurbished and certified as complying with the Australian building standards. In addition a warning sign was placed at the start of the jetty warning of the risk of injury by diving off the jetty. Nevertheless, nearly 10 years later, a 5 year old boy, walking down the jetty with his grandparents slipped through the railings and hit the hard sand below and thereby suffered serious injuries. The parents sued the Council – which controlled the jetty, the State – which had done the restoration work, and his Grandparents – for not watching over him. He failed against the State and his grandparents, but the Court found the Council negligent and awarded the boy damages. The problem for the Council was that:
- There had been a series of incidents and near misses involving young children falling and so the Council knew about the problem;
- The Court found that it was no answer to say that the railings complied with the Australian standards. The Council was aware of problems and should have, and could have, done something to make the railings safer;
- The warning at the start of the jetty was not enough – that warned of the danger of diving into water, not of falling onto hard sand;
- The fact that the State had done the work and not the Council did not help the Council – they had control over the jetty.
The first lesson is that while it is often very difficult to establish a case against a local authority because of the defences available under the Civil Liability Act, if you can prove that the local authority had knowledge of problems and risks, then your case becomes a lot more arguable.
The second lesson is that while the structure may comply with Australian Standards, and there may even be heritage considerations involved, if the structure is dangerous then the Court may still find that the occupier should have, and could have, done something about that risk.
Coffs Harbour City Council v Polglase [2020] NSWCA 265
