Coffs Harbour City Council v Polglase [2020] NSWCA 265

Coffs Harbour City Council v Polglase [2020] NSWCA 265

The Council and Trust, exercising care, control, and management of the jetty, had a duty to take reasonable precautions against the known and realised risk of children falling from gaps in the railing. Their failure to implement practical safety measures (e.g. wire/mesh infill) after repeated incidents constituted a breach. The general risk warning was insufficient under s 5M of the Civil Liability Act 2002 (NSW) to exclude that duty as it did not give warning of the general nature of the specific risk that occurred. The State, having ceased actual control nine years prior to the incident and in view of intervening management and knowledge by Council/Trust, was not liable. The...

Jurisdiction
Australia
Judgment Date
23 October 2020
Procedural Posture
Civil Appeal / Appeal From Supreme Court of NSW to NSW Court of Appeal; Application for Leave to Cross Appeal
Outcome
Appeal dismissed; application for leave to cross-appeal dismissed; leave to appeal on costs granted if necessary.
Legal Topics
["occupiers' Liability" 'duty of Care' 'breach of Duty' 'liability of Public Authorities' 'risk Warnings' 'costs Orders']
['tort Law' 'negligence' 'public Authority Liability' 'civil Procedure'] ["occupiers' Liability" 'duty of Care' 'breach of Duty' 'liability of Public Authorities' 'risk Warnings' 'costs Orders']

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Procedural Posture

Civil Appeal / Appeal From Supreme Court of NSW to NSW Court of Appeal; Application for Leave to Cross Appeal

Legal Issues

  1. 1 ['Whether Council/Trust breached a duty of care by failing to install additional railings or a mesh infill to prevent falls from jetty.' "Whether a risk warning at the jetty's entrance negated a duty of care under s 5M Civil Liability Act 2002 (NSW)." 'Whether the State was liable as former occupier/designer of the jetty.' 'Whether grandparents were liable in negligence for failing to supervise the child appropriately.' "Whether the primary judge's costs orders should be set aside and replaced under principles such as Bullock or Sanderson orders."]

Ratio Decidendi

The Council and Trust, exercising care, control, and management of the jetty, had a duty to take reasonable precautions against the known and realised risk of children falling from gaps in the railing. Their failure to implement practical safety measures (e.g. wire/mesh infill) after repeated incidents constituted a breach. The general risk warning was insufficient under s 5M of the Civil Liability Act 2002 (NSW) to exclude that duty as it did not give warning of the general nature of the specific risk that occurred. The State, having ceased actual control nine years prior to the incident and in view of intervening management and knowledge by Council/Trust, was not liable. The...

Court Disposition

Appeal dismissed; application for leave to cross-appeal dismissed; leave to appeal on costs granted if necessary.

Orders

  • ['Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.' 'Appeal dismissed.' 'Application for leave to cross-appeal dismissed.' "The appellants (the Council and the Trust) to pay the respondents' costs of the appeal." "The cross-appellant (the...