BARRY.NILSSON. Lawyers

Bennett v Manly Council & Sydney Water Corporation NSWSC 242

The Facts

Mr Bennett, a professional triathlete, was injured at Manly Beach on 8 October 2000 when he body surfed a wave to shore and tragically hit his head on a stormwater pipe which extended from the shore into the sea. Mr Bennett suffered incomplete quadriplegia. It was accepted that in most conditions, other than around low tide, the pipes were obscured to persons swimming or surfing beyond them. The two 24 inch stormwater pipes were constructed in 1974. At the time they were built the Manly Council and the Sydney Water Corporation agreed that they would be responsible for one pipe each. The 24 inch pipes had replaced slightly smaller pipes which had been in place since 1903.

The plaintiff had swum at Manly Beach on many previous occasions and had competed in ocean swims there. He knew of the existence of the pipes. On the day in question, he was swimming with three friends as part of a training session. During the course of the session, the plaintiff in fact warned his companions of the location of the pipes, and to be cautious of swimming too close to them.

The Litigation

The allegations of breach against the defendants were essentially that they failed to:-

1. Erect a marker or sign warning of the presence of the pipes.
2. Prohibit bathing in the vicinity of the pipes.
3. Carry out any assessment of the risk posed by the pipes to bathers.
4. Remove the pipes, or relocate them to a safer place eg. underground.

There was evidence given by a former lifeguard that he had struck the pipes on two occasions, and that he had observed other people involved in similar incidents. The plaintiff?s expert engineer gave evidence that a simple solution would be to signpost the location of the pipes so that they were visible to people in the surf to whom the pipes represented a hazard. No expert evidence was called by the defendants.

Each defendant made a claim for contribution against the other.

The Decision

The trial judge held the first and second defendants were negligent. In doing so, His Honour considered recent decisions in favour of defendants in similar cases where the Courts had placed greater emphasis on the personal responsibility of individuals for their own safety.

His Honour held that the risk of persons swimming or surfing in the vicinity of the pipes and colliding with them was not farfetched or fanciful, and that the risk of such an injury was reasonably foreseeable. He accepted that a sign such as that suggested by the plaintiff?s engineer would have alerted the plaintiff to the position of the pipes, and concluded that, on balance, the plaintiff would not have sought to come ashore in the vicinity of the pipes had such a sign been present. His Honour dismissed the other allegations of negligence.

His Honour held that the risk of injury posed by the pipes was an unusual risk to encounter on an Australian beach. Evidence was provided that there are only two other similar stormwater outlets on other Australian beaches. His Honour noted that the pipes were a hazard specifically created by the actions of the defendants.

With the defendant?s contribution claims, His Honour saw the liability of each defendant to be substantially the same, and he apportioned liability equally between them.

His Honour also found the plaintiff guilty of contributory negligence for the following reasons:-

1. He was swimming outside the designated safe swimming area.
2. He was aware of the existence of the pipes, and was aware that if he hit them, he could suffer injury.
3. He was reminded of the presence of the pipes when he observed them in the surf.
4. He was aware that there was a rip dragging him toward the pipes.
5. It would have been possible for him to orientate himself by looking for a marker on the beach.
6. When he was catching the wave, he should have checked his position by keeping his head up.

His Honour reduced damages by 50% to account for the plaintiff?s contributory negligence. Damages were agreed at $3.5M, and with the deduction for contributory negligence an award was made in favour of the plaintiff for $1.75M. Each defendant was ordered to pay $875,000.00.

Comment

In October last year, we reported on the decisions of the High Court in Vairy v Wyong Shire Council and Mulligan v Coffs Harbour City Council, where the plaintiffs in each case lost essentially because the risk which caused the injuries was held to be an obvious one. His Honour distinguished this case on the basis that the risk presented by the two stormwater pipes was not one involving a natural hazard, commonly occurring on Australian beaches. To the contrary, His Honour saw that the risk posed by the pipes was an unusual one to encounter on an Australian beach, and one which was only fully revealed at low tide. His ability to find for the plaintiff was no doubt made easier by the fact that there had been prior incidents of people colliding with the pipes, and the fact that there was minimal expense involved in erecting the sign or marker.

If one reflects upon how many people will attend Manly Beach over the course of this Easter, let alone in the 103 years since the stormwater pipes had been in place, then it is hard to criticise a decision which imposes some duty on the Council and Sydney Water Corporation to take an easy and cheap step to identify to swimmers the location of a man-made hazard in the surf.

If the plaintiff had been someone with less ability in the water and with little or no experience of Manly Beach, then the defendants may well have been liable for up to 100% of the claim.

For further information on this topic, please contact, Robert Samut.