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Pool tragedy caused by failure to warn of diving danger

Pool tragedy caused by failure to warn of diving danger

Case note: Lennon v Gympie Motel [2016] QSC 315

The Supreme Court of Queensland found the Gympie Motel 85% liable for injuries suffered by a girl who was rendered tetraplegic after diving into the Motel’s pool. The decision (delivered on 22 December 2016) is a timely reminder that businesses with pools and swimming facilities must take appropriate care for the safety of users. The judgment may also be used as a guide for businesses when considering the types of signage to display to adequately warn entrants of a risk of injury from diving.

The accident happened in 1998, when the girl was aged 12.

The Facts

On 21 February 1998, Karla Lennon, her mother and siblings stayed at the Motel. The family had not stayed there before.

The Motel had an in-ground pool. The pool was 10 metres by 5.2 metres, with an internal width of 4.5 metres. Its depth went from 0.9 metres to 1.74 metres. The pool was fenced.

There was a sign on the gate to the pool area which read:

‘Pool Rules

All children must be under adult supervision at all times, in pool area.’

On arriving at the Motel, Karla’s younger sister Letitia asked their mother if she could go swimming. The mother agreed and told Letitia that Karla would be in charge.

Letitia recalled that she and Karla were jumping in from different areas around the pool and gliding, to see how far they could each glide along. Letitia recalled other people present in the jacuzzi area of the pool and had a conversation with one of the people.

At one point a man said to Letitia, ‘…your sister is over there and she’s floating…’. Letitia told the man that Karla had done this before and that she was just playing a joke. The man left the pool area. Letitia realised that Karla was not responding. Emergency services attended. Karla suffered a ‘hypoxic brain injury secondary to immersion due to a cervical spine injury’.

Letitia (who was 7 years of age at the time) gave evidence about the circumstances leading up to the incident at the trial. There was no direct evidence at trial about the incident. Karla had no recollection of the event.

The Plaintiff’s Case

It was Karla’s case that:

(1) she knew not to dive into shallow water or pools in which she could not judge the depth;

(2) she intentionally dived into the pool, striking her head, and did not appreciate the depth of the pool;

(3) the Motel failed to warn her about the depth of the pool by having a ‘no diving’ sign or depth markers, or both;

(4) if the Motel had erected signage, warning users of the pool as to either its depth or that diving was prohibited, Karla would not have dived into the pool.

The Defendant’s Case

It was the Motel’s case that:

(1) there was insufficient evidence for the Court to conclude how Karla’s injuries occurred;

(2) the absence of depth markers or a no diving sign did not constitute a breach of duty because of the obviousness of the risk of diving into the pool;

(3) Karla was outgoing, oppositional and, even if a no diving sign or depth marker were present, she would have done exactly what she did;

(4) the foreseeability of any risks of injury were adequately addressed by the sign requiring adult supervision;

(5) Karla contributed to her own injuries.

The Judgment

Both parties led evidence about Karla’s character. The Court ultimately accepted submissions made on Karla’s behalf, that she was a responsible and mature child. In arriving at this conclusion, the Court took into account that:

(1) Karla had previously travelled by train, bus and water taxi to Stradbroke Island for 2 years prior to the incident, every weekend, during the school term and, without adult supervision;

(2) Karla worked in her mother’s second-hand store, serving customers, for up to three to four hours;

(3) Karla would travel with her father, who owned a trucking and logistics business, and she would take messages and write cheques; and

(4) Karla’s friend’s mother allowed Karla and her daughter to swim, unsupervised, at the beach.

The Court was satisfied, on the balance of probabilities, that Karla’s injuries were in fact caused by her diving into the pool and striking her head on the bottom of the pool. In arriving at this conclusion, the Court relied heavily upon the opinion of Dr Tuffley, who considered it was ‘highly probable, and certainly more probable than not’, that this was the cause of Karla’s injury.

The Court accepted that if the Motel had displayed a no diving sign, that Karla would have obeyed that warning. This was despite the fact that it was Karla’s evidence that she would have obeyed an instruction from her mother not to dive into the pool. Having regard to her character, the Court did not consider it was unreasonable for Karla not to be supervised by her mother in the pool.

The Court found that the duty of care owed by the Motel to Karla extended to take care for the safety of the persons using the pool and that the Motel breached its duty of care by failing to take the precautions (of displaying a no diving sign or a depth marker, or both) to warn guests who may misjudge the depth of the pool. Displaying the adult supervision sign did not discharge the Motel’s duty to the Plaintiff in this instance. The Court had regard to Australian Standards which state that, ‘[u]nless specifically designed for diving, private pools should not be used for that purpose’ and accepted the Plaintiff’s submission that there was no safe place to dive in the pool.

A deduction of 15% was allowed for the Plaintiff’s own negligence, having regard to the fact that while she was found to have dived in the deeper area of the pool and had been diving safely into the pool without incident for 10-15 minutes beforehand, she had a general awareness of the dangers associated with diving.

Considerations

This judgment will be of interest to pool owners and businesses with swimming facilities. The decision may be used as authority for the kinds of precautions that may be reasonably required of a commercial facility to address the risk of people diving into shallow water. However, it should not be taken as authority for the proposition that an absence of parental supervision will be superseded by an owner’s failure to warn of risks. The disposition of the Plaintiff was a key feature of the judgment in this case. There have been changes in the law since this incident occurred and similar circumstances, with a Plaintiff of a different maturity level, could produce a different result.

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Kate Denning

Kate is the Founder & Principal of Denning Insurance Law. Kate opened her own practice out of a desire to deliver high value, specialised legal services. With top tier and in-house experience, her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Kate DenningPool tragedy caused by failure to warn of diving danger

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