COFFS Harbour City Council’s court appeal against a decision by the Supreme Court of NSW over its liability over a five-year-old boy falling through the railing of Coffs Harbour Jetty has been dismissed.

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The appeal was first heard by the Supreme Court of NSW Court of Appeal on 17 September and was unanimously dismissed on Friday, 23 October.

Council and the Coffs Coast State Park Trust were deemed liable for personal injury suffered by five-year-old boy Tedmund Polglase who fell through the railing of the Coffs Harbour Jetty onto hard sand some four metres below on 30 September, 2011 suffering severe injuries, including a brain injury.

Council and the Trust were originally found to be negligent by the NSW Supreme Court on 19 December, 2019.

At the time of the accident, the boy had been walking with his grandparents, who were not holding his hand and who turned away from him immediately prior to his fall.

A sign placed at the entrance of the Jetty warned that ‘use of this facility may be hazardous please be careful’.

A Court of Appeal report on the appeal stated that Council was aware of a series of previous accidents involving children falling or nearly falling from the Jetty.

This included a seven-year-old girl who sustained injury after falling on the day of the Jetty’s reopening on 12 October, 1997 when she fell through the railing onto the hard sand below somewhere in the same vicinity as the boy.

A small child also nearly fell from the jetty in 1999, and a two-year-old boy fell three metres in 2007 and fractured his skull in two places.

The railing consisted of only a top rail, a middle rail and a kerb, with large gaps between them and no mesh infill or wiring.

The court report stated that the century-old Jetty had been restored by the State Government, with the Council’s involvement, in the 1990s, and during this period the design of the railings was raised during meetings attended by both State Government and Council representatives, involving discussions of heritage and aesthetic considerations, as well as safety.

The Jetty was reopened to the public as a walkway in 1997, but remained in the State Government’s management until it was handed over to Council in 2002.

At the time of the handover, the State Government had advised Council that the Jetty’s railing complied with Australian building standards which applied at the time the Jetty was restored.

“However, by the time of the accident in 2011, the Council had been aware of a series of accidents over many years involving children falling or nearly falling from the jetty onto the sand below, and had not altered the railing design,” the court report stated.

The boy, who is now aged around 14, sued the Council, the Trust and the State Government for negligence.

Council managed the affairs of the Trust, which had been established to care for, control and manage the Crown land on which the Jetty was situated.

The boy also sued his grandparents for negligence in leading him into a dangerous place and failing to look after him.

In the original court case, the primary judge held that the Council and the Trust were liable in negligence, but dismissed the boy’s claims against the State Government and the grandparents.

Council and the Trust appealed to the Court of Appeal contending that the Council and the Trust did not breach their duty of care, and that if the Council and Trust were liable, then the State was also liable to the plaintiff given its role in restoring the Jetty, that the Council and the Trust were not liable by reason of the sign placed at the Jetty’s entrance, and that the grandparents were negligent by not holding the boy’s hand and not looking after him properly.

The Court of Appeal held unanimously that the State could not be said to have had control or management of the Jetty at the time of the accident in 2011, and therefore was not liable to the boy, notwithstanding that it remained Crown land.

“The Council and the Trust exercised control and management of the Jetty from the time it was handed over to them in 2002, and the Council therefore had power to take precautions such as altering the railings by filling the gaps with mesh infill or by installing wiring,” the court report stated.

“It was negligent for the Council to have failed to take those precautions to guard against the risk of young children falling from the Jetty onto hard sand below, a risk which, to the Council’s knowledge, had materialised before.”

The Court of Appeal held that the warning sign at the Jetty’s entrance did not relieve the Council of its duty of care, as it did not warn of the general nature of the particular risk of children falling from the Jetty onto hard sand.

“Rather, the warning sign warned of the risk of diving from the Jetty into water of varying depths,” the report stated.

“Even assuming the grandparents owed their grandson a duty of care, it could not be said that they were negligent, as a reasonable person in their position would not necessarily have held the boy’s hand.”

Council and the Trust were ordered to pay the respondents’ costs of the appeal.

By Emma DARBIN