TORTS – negligence – where appellant injured jumping off 10 metre diving platform – whether occupier of pool owed duty of care to supervise and instruct individuals using platform – whether primary judge erred in finding as to instruction given – whether warning of risk of injury in using platform was given in accordance with s 5M of the Civil Liability Act 2002 (NSW) – whether that risk warning contradicted by instructions given by lifeguard – whether appellant’s injuries were suffered as a result of materialisation of an obvious risk of dangerous recreational activity within s 5L of the Civil Liability Act 2002 (NSW)
- The appellant submits that the primary judge erred in three respects in concluding that s 5M(1) was satisfied. First, it is said that the sign did not warn of the general nature of the particular risk concerned (s 5M(5)). Secondly, it is said that the warning was not a “risk warning” because it was not “given in a manner that [was] reasonably likely to result in people being warned” (s 5M(3)). Thirdly, it is said that the oral instruction given to the appellant by Mr Milne contradicted the risk warning and disentitled the respondent from relying on it (s 5M(8)).
Warning as to the general nature of the particular risk
- A risk warning must warn of “the general nature of the particular risk”. In Action Paintball Games Pty Ltd (in liquidation) v Barker  NSWCA 128, Basten JA (Hoeben and Ward JJA agreeing) considered (at ) the specificity with which a risk must be identified:
A “risk warning” is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk: indeed, such instruction might be counterproductive. Further, an adequate warning can be given, at least in some circumstances, by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard which may be encountered: s 5M(5).
- The general risk involved in using the 10 metre platform was of injury from diving or jumping from the platform. In my view the sign warns of that risk. The risk to which the sign is directed is that involved in the activity of “using” the platforms and springboards. The use referred to is that of jumping and diving into the pool below. That describes the purpose for which the platforms and springboards were intended to be used. Thus, the sign warns that there is a risk of injury in undertaking the activity of diving or jumping into the pool below from the springboards and platforms, including the 10 metre platform.
35 Was the risk warning contradicted? The appellant does not repeat its submission, rejected by the primary judge, that the lifeguard’s mere presence on the platform suggested that jumping from the tower bore no risk of injury: Judgment at . She does however press her argument that an instruction to “just take a run and jump” “contradicted” the general warning of the risk of jumping or diving from the tower: s 5M(8). Although I have concluded that the primary judge did not err in finding that such an instruction was not given, it is necessary to consider the appellant’s argument at this point by reference to the findings that she would contend for in a new trial. On a retrial the appellant would also support a finding that what she was told included that she should enter the water vertically and feet first. Such advice as to how she should fall and enter the water implicitly acknowledged that there was a risk of injury in jumping from the platform, particularly if the appellant did not execute her jump in accordance with that instruction. The primary judge was correct to so conclude: Judgment at .