You may recall the case of a swimmer who successfully sued the NSW Waverley Council for damages after he was rendered a quadriplegic when he struck a sandbar after diving into the waves at Bondi Beach (as reported in the Winter 2002 edition of the Client Newsletter). In a recent New South Wales Court of Appeal decision, the court has upheld an appeal by the Council and set aside the verdict originally won by the swimmer (Waverley Municipal Council v Swain 3 April 2003, [2003] NSWCA 61).

Guy Swain was injured while swimming at Bondi Beach. He dived into the small surf at the beach in an area that was marked out by safety flags as being suitable for swimming, unaware that the water was too shallow because of the presence of a sandbar. At trial, the court found that the Council was responsible for the care, conduct and management of the beach and was liable in negligence because it failed to warn swimmers of the presence of the sandbar. The court also found that the plaintiff had contributed to his own injuries and reduced the award by 25%.

On appeal by the Council, the Council argued that the finding at trial was not supported by the weight of evidence and should be reversed. The Court of Appeal agreed, stating that, on the evidence presented, the trial Court was not justified in finding that the Council had breached its duty of care. The Court of Appeal concluded that diving into the beach without knowing what sand formation lay underneath posed an obvious risk to a swimmer, a risk that he assumed himself. In addition, there was no evidence to suggest that the presence of signs would have been an effective or practical warning device.

The majority of the Court of Appeal went even further, noting that the presence and location of flags on the beach did not constitute negligence by the Council. The flags did not indicate the condition of the ocean bed, but merely indicated that the designated area was safe for swimming. The flags did not indicate safe conditions for diving.

The successful appeal in this case confirms the difficulty people face when seeking to claim negligence for injuries sustained while engaged in activities that assume a degree of risk by the participant. Australian courts are reluctant to apportion blame on local Councils, sporting bodies and the like when it can be argued that the risk of injury is inherent or obvious in the activity undertaken.