The NSW Court of Appeal has dismissed an appeal by Council and Trust in the decision of Coffs Harbour City Council v Polglase NSWCA 265.
In late 2011, a 5 year old was walking along a jetty in Coffs Harbour with his Grandparents, when they moved towards the side railing to look at the swimmers in the water below. His Grandparents turned and gestured to continue walking when the child fell through a gap in the railing, falling some 4 metres onto hard sand and sustained serious injuries as a result. The child and tutor then pursued claims against the Coffs Harbour Council, The State, and his Grandparents.
The council took over management of the jetty in 1997, from the State. Critically, the council was aware of the dangers surrounding this particular railing, with a child falling upon its reopening in 1997, a near fall from a child in 1999, and another child fracturing their skull from a fall in 2007.
The court found the injuries were sustained due to the negligence of the council, however, found that this negligence did not extend to The State, nor his Grandparents. The council were unsuccessful in their appeal on the decision to exclude the State from liability.
The decision provides good commentary on whether the State should have been liable as a tortfeasor. The decision considers the relationship between State, Council and Trust with consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach.
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