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[2025] NSWDC 141
General information, not legal advice.
District Court of NSW
2025-04-11
Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024, 6-8 November 2024, 27-28 November 2024), 16 December 2024, (plaintiff’s
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Delaney v Federation Council [2025] NSWDC 141
Hearing dates: 20-23 May 2024; 14-16 October 2024; 6-8 November 2024; 27-28 November 2024; 13 March 2025 (oral submissions)
Date of orders: 11 April 2025
Decision date: 11 April 2025
Jurisdiction: Civil
Before: Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024; 6-8 November 2024; 27-28 November 2024); 16 December 2024 (plaintiff’s written submissions in chief); 17 January 2025 (defendant’s written submissions); 10 February 2025 (cross-defendant’s written submissions); 28 February 2025 (plaintiff’s reply submissions)
Decision: 1. Judgment for the plaintiff against the defendant.
2. Judgment for the defendant against the cross-defendant on the Cross-Claim.
3. The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.
4. The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.
5. The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.
6. The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.
7. Liberty to the parties to apply within seven days for different costs orders to those set out above.
Catchwords: TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant
LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff
EMPLOYEE – whether person was an employee or independent contractor and consequences of status
LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Industrial Relations Act 1996 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: A v B [2021] NSWDC 491
ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532
Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499
Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488
Best v Rosamond [2020] NSWCA 90
Bird v DP (a pseudonym) [2024] HCA 41
Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jackson v McDonald’s Australia Limited [2014] NSWCA 162
Khanna v Woolworths Group Limited [2022] NSWCA 94
Khanna v Woolworths Group Limited (No 2) [2021] NSWDC 567
Laresu Pty Ltd v Clark [2010] NSWCA 180
Lloyd v Thornbury [2019] NSWCA 154
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501
New South Wales v Moss [2000] NSWCA 133
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Penrith City Council v Parks [2004] NSWCA 201
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Ramsey v Denton [2021] NSWCA 310
RIHSF Pty Ltd v Bhullar Steel Distribution Pty Ltd [2018] NSWDC 72
South Western Sydney Local Health District v Gould [2018] NSWCA 69
State of New South Wales v Gillett [2012] NSWCA 83
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101
Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213
Value Constructions Pty Ltd v Badra [2024] NSWCA 181
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Willis Australia Ltd v AMP Investors Ltd [2023] NSWCA 158
ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; [2022] HCA 1
Winnote Pty Ltd (in liq) v Page t/as Freehill Hollingdale & Page (2006) 68 NSWLR 531
Category: Principal judgment
Parties: Loren Delaney (Plaintiff)
Federation Council (Defendant)
Remlap Company Pty Ltd (Cross-Defendant)
Representation: Counsel:
A Campbell (Plaintiff)
S McMahon (Defendant)
W Reynolds (Cross-Defendant)
Solicitors:
Don Cameron & Associates (Plaintiff)
Moray & Agnew (Defendant)
Meridian Lawyers (Cross-Defendant)
File Number(s): 2022/00075656
Publication restriction: No
The pleadings - paragraph 5
The evidence - paragraph 12
Documentary evidence
Documents produced under subpoena by the defendant - paragraph 15
The Lease - paragraph 16
Plaintiff’s liability expert report - paragraph 51
The medical evidence
Medical evidence obtained on behalf of the plaintiff
Dr J McMahon - paragraph 62
Mr M Ravagnani - paragraph 70
Joint report - paragraph 72
Medical evidence obtained on behalf of the defendant
Reports of Ms Hamidi - paragraph 74
Reports of Associate Professor Davies - paragraph 83
Oral evidence of Associate Professor Davies - paragraph 92
Concurrent oral evidence of Mr Ravagnani and Ms Hamidi - paragraph 105
Oral evidence of Dr McMahon - paragraph 117
Oral lay evidence on behalf of the plaintiff
The plaintiff’s oral evidence. - paragraph 134
Evidence of Ms Julia Delaney - paragraph 176
Evidence of Mrs Leanne Delaney - paragraph 202
Evidence of Mr Anthony Delaney - paragraph 285
Evidence of Mr Garron Farrell - paragraph 348
Oral evidence on behalf of the defendant
Oral evidence of Mr Bruno Sigmund - paragraph 397
Submissions
Submissions on behalf of the plaintiff in chief - paragraph 447
Submissions on behalf of the defendant - paragraph 448
Submissions on behalf of the cross-defendant - paragraph 449
The plaintiff’s reply submissions - paragraph 450
Findings
Findings of fact - paragraph 451
Medical findings - paragraph 486
Findings for the purposes of limitation issues - paragraph 511
Consideration
The witnesses - paragraph 526
The limitation defences and Lease construction issues - paragraph 527
Limitations issues: the pleadings - paragraph 528
The alleged breaches of the Lease by the cross-defendant
Paragraphs 18-19 of the Cross-Claim - paragraph 532
Paragraphs 14-17 of the Cross-Claim - paragraph 535
Clause 1(w)(i) of the Lease - paragraph 542
Limitation issues: the plaintiff - paragraph 553
Was Mr Sigmund a deemed employee of the defendant? - paragraph 574
The position of Remlap and Mr and Mrs Sigmund - paragraph 579
Duty and breach of duty of care - paragraph 597
Causation - paragraph 621
Contributory negligence - paragraph 635
Damages
Introduction - paragraph 636
Non-economic loss - paragraph 639
Past out-of-pocket expenses - paragraph 647
Continuing out-of-pocket expenses - paragraph 648
Past economic loss - paragraph 650
Future loss of earning capacity - paragraph 651
Conclusion - paragraph 658
Contribution by the cross-defendant - paragraph 659
Costs - paragraph 662
Determination - paragraph 664
In these proceedings, the plaintiff, Ms Loren Delaney, sues the defendant, the Federation Council (formerly Corowa Shire Council) (“the Council”), in negligence claiming damages for personal injuries said to have arisen from a fall by the plaintiff from a three metres high diving board platform onto surrounding concrete at the Corowa Swimming Pool in February 2012.
The plaintiff was born in November 2005. The accident occurred on 12 February 2012 when the plaintiff was a little over six years and two months old. The plaintiff had attended the Corowa Swimming Pool soon after it opened on 12 February 2012 with her mother and her then 10 years old sister, Julia. It is not disputed that the plaintiff fell from the three metres diving board onto the surrounding concrete on 12 February 2012. What is disputed is the precise mechanism of the fall. There was limited evidence as to this as the plaintiff herself had a very limited recollection and her mother was not observing the plaintiff on the board at the time. The only claimed eye-witness was the plaintiff’s 10 years old sister who gave oral evidence in the proceedings some 12 years after the accident. The only person working at the pool at the time, Mr Bruno Sigmund, claims that he heard conversation between the sisters and the “thud” noise of the fall but did not see the fall itself.
The proceedings were commenced by the plaintiff on 16 March 2022, slightly more than 10 years after the accident. The defendant has pleaded a limitation defence in relation to the plaintiff’s claim.
There is also a cross-claim brought by the defendant against Remlap Company Pty Ltd (“Remlap”) which was the lessee of the pool and an adjacent caravan park from the first defendant Council at the time of the accident. Remlap claims that it had contracted out the day to day running and management of the pool to Mr Sigmund and his late wife. Remlap claims that Mr Sigmund and his late wife were independent contractors with Mr Sigmund having qualifications in aquatic management, lifeguarding and first aid. It asserts any breach was that of Mr Sigmund and his wife, not itself, and it was not vicariously liable, relying inter alia on the High Court authority of Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161. A limitation defence is relied on in relation to issues concerning the lease with the Council.
“On 12 February 2012 the plaintiff was on the Diving Board when she slipped and fell, including falling either under or, alternatively, over the railing onto the ground three metres below.”
“Particulars of Negligence
(a) Failing to apply anti slip surfaces on the surface of the Diving Board;
(b) Failing to install adequate railings on the Diving Board;
(c) Alternatively, failing to remove the Diving Board;
(d) Failing to erect or maintain warning signs to warn persons such as the plaintiff that the surface of the Diving Board was wet and/or slippery;
(e) Failing to devise, implement and maintain a system of wiping the surface of the Diving Board;
(f) Failing to supervise the plaintiff whilst she was within the Centre.
(g) Failing to devise, implement and maintain a system of supervision within the Centre.
(h) Failing to devise, implement and maintain a system of preventing minors from using the Diving Board.”
Part 15 Particulars were amended and filed on 3 November 2023. These particularised the plaintiff suffering injuries in the accident being a closed head injury, a mild traumatic brain injury, a mild neurocognitive disorder and a psychiatric injury. [Redacted].
In its Defence to the ASOC filed on 21 December 2023, the Council denies it was the occupier of the Corowa Swim Centre and pleads that the occupier of the Centre at all material times was Remlap with the occupancy being pursuant to a lease to that company by the Council for the period from 1 July 2008 to 30 June 2013. In essence, the pleadings in the ASOC are either denied or not admitted. Damages are put in issue. It was stated that the risk posed by the Diving Board, whilst not admitted, was an obvious risk within the Civil Liability Act 2002 (NSW) (“CLA”) and consequently the defendant owed no duty to warn the plaintiff of the risk. A limitation defence is pleaded in paragraph 25 with the Council saying that the proceedings were not maintainable as they had been commenced outside the three years discoverability period set out in s 50C of the Limitation Act 1969 (NSW).
On 14 December 2023, the Council filed a Cross-Claim against Remlap Company Pty Ltd. In that pleading, the Council pleads that Remlap was the occupier of the Corowa Swim Centre pursuant to the lease earlier mentioned. It is also pleaded that the Council was the owner of the Swim Centre in Corowa. After setting out the plaintiff’s pleaded cause of action in the ASOC, the Council pleads the lease dated 1 July 2008 (“the Lease”) between the Council and Remlap. Various terms of the Lease are set out. The Council pleads that Remlap has breached a number of provisions of the Lease. For the purposes of the Cross-Claim only, it is pleaded that Remlap failed to carry out, or failed to adequately carry out, daily maintenance of the pool, including the Diving Board, during the swimming season in breach of the Lease. Further, it is pleaded that Remlap breached its own duty of care owed to the plaintiff and a full indemnity is sought in relation to any damages payable by the defendant to the plaintiff under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
In its Defence to the Cross-Claim filed on 6 March 2024, Remlap denies liability, and, in particular, whilst not disputing the Lease, pleads that it was responsible for the daily maintenance of the pool and filtration equipment whereas the Council was responsible for the structural maintenance of the pool and related equipment which included the diving boards at the pool. Remlap denies that it was required to maintain the structure of the pools, the diving boards and the diving towers. Further, it claims that both the claim of the plaintiff and the claim of the Council are statute barred under the Limitation Act.
The plaintiff’s precise injuries and disabilities were heavily contested in the course of the proceedings by the defendant and Remlap. There was thus considerable expert medical evidence tendered in the proceedings which will be considered in due course.
Substantial documentary evidence was also tendered including reports in relation to the state of the Corowa Pool both before and after the accident. Additionally, pre-accident maintenance records relating to aspects of the pool were tendered. What was clear was that the diving boards were removed from the Corowa Pool soon after the accident. It will be necessary to review parts of the relevant documentation for the purposes of these reasons.
In addition, oral evidence was given by a number of witnesses in relation to both the plaintiff and the circumstances of the accident. The plaintiff herself gave detailed oral evidence. She is now 19 years of age. In addition, her sister, Julia, who, as stated above, was 10 years of age at the time of the accident, also gave oral evidence. There were other witnesses for the plaintiff and the defendant. The plaintiff called a former work, health and safety council employee, Mr Farrell. The defendant called Mr Sigmund, referred to above.
In evidence was the Certificate of Title for the relevant land which included the pool. The Corowa Shire Council Crown Reserve Trust was indicated as the registered proprietor. No issue was taken about the difference in the Registered Proprietor compared to the Council itself as defendant.
The Lease between the Council and Remlap was for a period of five years from 1 July 2008 to 1 July 2013: Exhibit H tab 2. The Lease provided for an option to renew to be exercised by Remlap and this option was exercised such that the term was increased so as to expire on 30 June 2018. The Lease included not only the Corowa Pool Area but also a nearby caravan park. It is dated 1 July 2008. There is an annexure to the Lease document which provides the detail of the terms of the lease.
It may be stated at the outset that the Lease is not a carefully drafted document. On occasion, words seem to be missing (for example Clause 1(c) in the Annexure). The Annexure to the Lease included the following relevant provisions:
1. …
(c) At all times during the continuance of this Lease to maintain the grounds and keep in good and substantial repair and at the expiration or sooner determination of the term peaceably yield up to the Lessor in good and substantial repair the premises together with all appurtenances fixtures and other things thereto belonging or which at any time during the said term shall have been erected or placed therein by the Lessor reasonable wear and tear and damage by fire lightning flood or tempest excepted;
d. To permit the Lessor and any persons authorised by the Lessor to enter into the premises to examine and view the condition and state of repair and the Lessor may by notice in writing require the Lessee within a time fixed by the notice to repair or maintain the premises in accordance with the covenants or agreements contained in this Lease and the Lessee shall repair and cleanse the premises in accordance and within the time mentioned in such notice as far as the Lessee may be liable to do so under this Lease and in default of the Lessee so doing it shall be lawful for but not obligatory on the Lessor to execute the required repairs and cleansing at the expense of the Lessee;
e. To permit the Lessor and any persons authorised by the Lessor at all reasonable times during the term and with all necessary materials and appliances to enter into the premises or any part of them for the purpose of cleansing the same and of carrying out any alterations or repairs to the premises including cleansing alterations or repairs to the premises for which the Lessee may not be liable under the Lease or being liable shall neglect to do or which the Lessor may think necessary or desirable to do or for the purpose of complying with the terms of any notice served by any authority whatsoever having, authority in respect of the building and also for the purpose of exercising the powers of the Lessor under this Lease provided that such cleansing alterations repairs and works shall be carried out without unnecessary interference with the occupation and use of the premises by the Lessee;
…
j. To keep the inside and outside of the premises properly painted at all times where paint has at the date of this lease been applied;
…
o. Not to make any alterations or additions to the premises without the previous written consent of the Lessor and the Minister which shall not be unreasonably withheld nor to cut maim or injure any of the walls or timbers thereof nor to permit any of the aforesaid things to be done;
…
r. To indemnify the Lessor and the Minister its architects officers servants agents and workmen from and against all damages costs charges expenses actions claims and demands which may be sustained suffered recovered or made by any person for any injury which such person may sustain when using or entering or near any portion of the building in which the premises are situate (whether such injury be to person or to property) where such injury arises or has arisen as a result of the negligence of or as a result of the creation of some dangerous thing or state of affairs by the Lessee or by any clerk servant employee agent workman client customer invitee or visitor of the Lessee and whether the existence of such dangerous thing or dangerous state of affairs was or ought to have been known to the Lessor or not;
…
w. (i) The Lessee shall indemnify and keep indemnified the Lessor and the Minister against all actions, suits, claims, debts, obligations and other liabilities during the continuation of the Lease and further the Lessee shall take out a Public Risk Insurance Policy with a reputable insurance office approved by the Lessor in the. names of the Lessee, the Lessor and the Minister assuring them against such of the said matters as can be assured against in the sum of not less than ten million dollars ($10,000,000-00) and shall produce at any time when required by the Lessor or the Minister renewal receipt for payment of such premium thereof;
ii. That the Lessee covenants and agrees to effect Workers Compensation insurance policies to cover its statutory liability under the legislation of New South Wales the Common Law limit of indemnity under both policies to be at least one million dollars ($1,000,000-00) and subject to annual review;
iii. That the Lessee covenants and agrees to effect adequate motor vehicle insurance on all vehicles used by it in connection with the caravan park including self propelled mowers with a third party (non-ACT) limit of liability of at least one million dollars ($1,000,000-00) and subject to annual review;
iv. That the Lessee covenants and agrees to arrange for its insurance brokers or insurance company to complete a questionnaire form to be delivered by the Lessor to the Lessee upon the execution of this Lease and produce the policy document at any time if so required to do;
v. That the Lessee covenants and agrees to arrange for indemnity to be provided to the Lessor and the Minister under every policy arranged by it in respect of all activities at the reserve and swimming pool;
vi. That the Lessee agrees to submit details of each contract for work undertaken on its behalf at the caravan park to the Lessor and to submit the details of relevant insurance arrangements for approval by the Lessor;
…
- The Lessor and the Lessee hereby further covenant and agree as follows:-
i. In regard to the swimming pool:-
a. Structural maintenance of the pool and associated buildings is to be carried out by the Lessor;
b. Mechanical maintenance of filtration plant, diving boards and pool equipment is to be carried out by the Lessor;
c. Maintenance of lawns and gardens is to be carried out on a regular basis by the Lessee; ‘
d. Daily maintenance of pool and operation of filtration plant to be carried out by the Lessee during the swimming season;
…
(l) The Lessee shall ensure that during all times during which the pool is open to the public bather supervision shall be in accordance with Section SU of the Royal Life Saving Society Australia “GUIDELINES FOR SAFE POOL OPERATIONS” there shall be a person in attendance suitably qualified in First Aid and Life Saving to the satisfaction of Council.
…
- IT is further agreed as follows:-
…
e The Lessee has the right to carry out works of a capital nature provided that he first provides the Lessor with plans, specifications and costings for the proposed works and it shall not commence any work before receiving the written approval from the Lessor and the Minister. If the parties are unable to agree upon a cost figure for any works proposed the figure shall be determined by a qualified valuer appointed by the State Valuation Office;
…”
There was no definition of the various descriptions of “maintenance” in Clause 4 of the Lease in the Lease.
Page 24 of the Lease has a reference to a proposed Works Programme in 2009 which refers to a Corowa Swimming Pool “Audit from RLSSA to ensure full compliance of guidelines”. A note indicates that these items had not yet been approved by the Council: Exhibit H tab 2.
Significant issues arise in relation to the proper construction of the Lease, particularly as to the delimitation of the obligations of the defendant Council and Remlap.
I considered the proper approach to the construction of a commercial lease in RIHSF Pty Ltd v Bhullar Steel Distribution Pty Ltd [2018] NSWDC 72. In paragraph 318 I stated as follows:
“318. It is also submitted (paragraph 17 of its primary submissions) that the issue of whether a report complying with Clause 11 was commissioned by the plaintiffs is a matter of contractual construction determined by what a reasonable businessperson would have understood it to mean by reference to the commercial purpose sought to be achieved relying on Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 at [16]- [17]. The plaintiffs accept the accuracy of this submission: submissions dated 22 December 2017 at paragraph 153. I agree generally with the first defendant’s submission on the principle applicable. In Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 the majority of the High Court stated as follows at [35]:
[35] Both Verve and the Sellers recognised that this court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties ... Intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.”
“Some relevant principles of construction
- It is desirable first to identify some relevant legal principles concerning construction of the Lease (upon which there was substantial but not complete agreement). It is uncontroversial that, in construing the Lease, the Court should apply the settled principles relating to the construction of commercial contracts (see, for example, Saipan Holdings Pty Ltd v City Gym Sydney Pty Ltd [2023] NSWCA 55 at [128] per Ward P (Gleeson JA and Simpson AJA agreeing)).
- The principles are identified in cases such as Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]- [52] per French CJ, Nettle and Gordon JJ and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 644; [2017] HCA 12 at [16] per Kiefel, Bell and Gordon JJ. They may be summarised as follows:
(1) The rights and liabilities of the parties are determined objectively by reference to the contract’s text, context (as a whole) and purpose.
(2) It is necessary to ask what a reasonable businessperson would have understood the terms of a commercial contract to mean, which requires consideration of the language used by the parties, the circumstances addressed by the contract and the commercial purpose or objects to be secured by it.
(3) Ordinarily, this process of construction is possible by reference to the contract alone and, if an expression in the contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to alter its plain meaning.
(4) Recourse to such events, circumstances and external things may be necessary to identify the commercial purpose or objects of the contract or where there is a constructional choice.
(5) Each of the events, circumstances and external things to which recourse may be had is objective but those events, circumstances and external things need to be known to the parties or assist in establishing the purpose or object of the transaction, including its history, background and context and the market in which the parties were operating.
(6) Evidence of the parties’ statements and actions reflecting their actual intentions and expectations are inadmissible.
(7) Unless a contrary intention is indicated in the contract, a Court is entitled to approach the task of construction on the assumption that the parties intended to produce a commercial result, in the sense that a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience” (citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]).
- The relevance of these principles in construing a commercial lease was acknowledged by Barrett AJA (Beazley P and Ward JA agreeing) in Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 at [40]:
The words of s 14.2.1 [a commercial lease] must, of course, be construed in the whole of the context in which they are found. The lease embodies a commercial contract. It is well established that the terms of such a contract are to be understood objectively, according to what a reasonable businessperson would have understood them to mean; and that, in a practical sense, this requires that the reasonable businessperson be placed in the position of the parties, with the court considering, from that perspective, the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486 (at [16]); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 (at [35]).”
I will apply the above contractual principles in relation to the proper construction of the Lease. That issue is considered further below.
Within the Council’s records was an aquatic facility safety assessment safety improvement plan for the Corowa Swimming Pool produced by Mr Grant Davis of the Royal Life Saving Society of Australia (“RLSSA”)dated 8 March 2009. Presumably, this report was obtained as a result of the reference in the document attached to the Lease. The plan states that the Royal Life Saving Society of Australia produces the Guidelines for Safe Pool Operation which are recognised:
“As the minimum standard for safety related issues for the aquatic industry. It provides a comprehensive guide for anyone involved in either the design, construction, maintenance or management of an aquatic leisure venue. Its purpose is to provide a guide to venue management thus ensuring safety standards and guidelines are being met for the prevention of accidents in and around aquatic environments.”
A safety inspection was apparently undertaken by Mr Davis as Lead Assessor on 8 January 2009 (before the accident): Exhibit H tab 3. It is stated that the assessment was based “on the Assessor’s knowledge of the relevant statutory requirements, Australian Standards and the RLSSA Guidelines for Safe Pool Operation, and is limited to the observations and information available on the day of the assessment.”
It was recommended that an external independent inspection be undertaken at least annually to assess the current safety standards were maintained on an ongoing basis. It appears from the document that the diving pool was not considered for the purposes of the assessment. However, items are described as being what the RLSSA believes “must be compliant at all times” and are “fundamental to the safe operation of Corowa Swimming Pool”. Overall, the Corowa Swimming Pool did not perform well in the opinion of the author in the safety assessment. In particular, there was not a current copy held of the RLSSA Guidelines. It was noted at 4.28 that the nature of the concourse surface of the pool was intended to be slip resistant but that evidence of the standard of slip resistance may be supplied.
It was also noted that two qualified life-guards were not on duty at any one time. There was no signage that encouraged active parental supervision in appropriate areas. A Safety Improvement Plan was Annexure B to the plan. At 120 a system of internal maintenance inspections was recommended. Observations were made in relation to the diving board at the pool and because of the depth of the pool, in relation to the boards. It was stated that the diving platform did not comply with FINA recommendations for depths of diving pools and as a result RLSSA “recommends its closure and dismantling”.
Following the accident involving the plaintiff, a further report dated 5 March 2012 was obtained by the RLSSA prepared by a Mr Michael Dasey. It followed a safety inspection on 5 March 2012. It was in a similar format to the previous 2009 report. However, this report did examine the diving pool and equipment. Similar comments were made about the RLSSA producing the guidelines for safe pool operation and them being regarded as the minimum standard for safety related issues for the aquatic facility. A similar recommendation was made in the document that an external independent inspection be undertaken at least annually. As stated, in this report, the dive pool was examined and there was concluded to be a limited compliance in relation to safety issues. Again, the report indicated certain items that the RLSSA believes that the pool must be compliant with at all times. The author noted again that there was not a current copy of the guidelines at the Corowa pool.
At paragraph 6.1 it was noted that a risk assessment had not been completed for the use of the diving facilities. It was also concluded in paragraph 6.6 that there was no evidence that the diving towers, platforms and springboards were inspected and checked as suitable for use prior to being opened on each day of operation. Mr Sigmund gave oral evidence that he checked the diving boards on a regular basis, including following any complaints that the boards were slippery. I have no reason to doubt that evidence. A recommended implementation of inspection process was recorded in the report. At paragraph 6.16, the question was asked whether the dive pools were designed to GSPO recommendations. It was recommended that the boards over one metre have Perspex or similar transparent guard. It was noted that the handrail height was one metre and the distance between rails of no more than 0.33 metres was not complied with. It was also noted “unable to assess some components due to three metre board being fenced off. No access available to assessor.”
“The Corowa Swimming centre consists of three concrete reinforced swimming pools opened for the public in 1956. All three pools are of a tiled finish and show varying levels of ageing, wear and remedial maintenance”.
Various detailed concerns were expressed in relation to the diving boards. This included in relation to the boards compared to the depth of the pools. Non-compliance with FINA specifications as in the early report was noted.
The following was stated:
“Other concerns centre around the diving structures that support the diving boards. There are requirements regarding spacing between horizontal rails not being met to prevent falls onto the concourse, the structural integrity of the steel frame due to ageing and corrosion. There is also a concern regarding the standard and finish of the actual diving platforms (boards) themselves due to their age and wear and tear.”
As the diving boards did not comply with FINA recommendations for depths of diving pools, together with the other matters of concern noted, the immediate closure of both diving facilities and dismantling of the existing framework was recommended: Exhibit H tab 13.
Included with the safety assessment at Figure 7 was a photograph of the diving platform. Figure 8 includes the following comment: “Diving boards require maintenance and recoating or surface. They present a slip hazard in current condition”.
The subpoenaed documents indicate that on 7 May 2012 there was a report by the Director of Environmental Services to the Policy and Resource Committee of the Council with a recommendation following the receipt of the RLSSA report that the one metre and three metre diving boards be removed from the swimming pool complex and a sum of $50,000 be included in the 2012/2013 operational plan to enable the improvement of the level of safety at the Corowa Swimming Pool. It included the following comment:
“In relation to the diving board themselves it is noted that the structures supporting the diving board do not meet minimum standards in relation to spacing between horizontal rails and thus is inadequate to prevent falls onto the concourse. The structural integrity of the structure’s steel frame is also questioned due to ageing and corrosion. Also concern was expressed of the standard and finish of the actual diving platforms. To replace the existing diving boards with those that would comply with FINA standards would incur costs of approximately $70,000 plus installation”.
It was recommended for a meeting on 15 May 2012 that based on the findings of the RLSSA report in relation to the Corowa Swimming Pool that both diving boards be removed and that $50,000 be allocated towards “feasible improvements” identified within the report.
Although the records do not disclose this being approved, it was not in issue that the two diving boards were closed and removed following the accident involving the plaintiff.
Included in the records was a letter from the proprietors of the caravan park and the directors of Remlap to the Council dated 14 October 2009 enclosing a copy of the Aquatic Facility Safety Assessment and Safety Improvement Plan for the Corowa Swimming Pool prepared by the RLSSA dated 14 October 2009. A stamp mark indicates this was received by the Council.
The letter includes the following:
“We are writing to inform you that we had a safety assessment carried out on the Corowa Swimming Pool. The safety assessment was conducted by Grant Davis from the Royal Life Saving NSW Branch.
Unfortunately, as you are probably well aware, the results were not very satisfactory. Please find enclosed your copy of the Aquatics Facility Safety Assessment and Safety Improvement Plan for the Corowa Swimming Pool.
There are sections of the Safety Improvement Plan that, as per our lease agreement with the Corowa Shire Council, are the responsibility of the Council. We feel these improvements require your urgent attention.
We are willing to work with the Council to ensure that these improvements are implemented as quickly as possible, for the safety of all parties involved especially the community. We will assist in organising these improvements with the co-operation from Council.”
“Corowa’s existing Swimming Pool, built in the 1950s will soon close as it is at the end of its technical and operational life.
… Extensive studies have been completed on the existing Swimming Pool by industry leading consultants who have confirmed that it is not viable for the existing Swimming Pool to be repaired at a lessor [sic] cost than the establishment of a new facility.”
“I asked Tony how he thought it had occurred and he said he wasn’t actually there but she may have been “a larrikin” and she uses the board all the time for fun. He thought she had fallen off the side (under the bars). Tony advised (while I did not prompt this) that they certainly would not be pursuing anything and did not believe that it was anyone’s fault. They did not want to see the diving board removed as everyone loved it. I advised him that it had been fenced off at this point. The only suggestion that he made was that perhaps we could enclose the side panels”.
A limiting order under section 136 of the Evidence Act 1995 (NSW) was made in relation to the first part quoted. It was admitted only as to what was said not the truth of its contents. Mr Delaney did not witness the accident: see Exhibit D6.
Mr Delaney gave evidence in relation to this conversation.
There were numerous documents tendered showing that the defendant Council was involved in the maintenance of the pool particularly structural issues relating to the three metres diving board. Mr Sigmund on a number of occasions reported maintenance issues relating to the diving board structure to the Council officers directly.
There is a letter from Mr Dasey of the RLSSA to the Council forwarding a copy of the 2012 Aquatics Facility Safety Assessment for the Corowa Swimming Pool. Included in records was a diary report apparently by the manager, Bruno Sigmund: see Exhibit L. It included the following:
“At approx. 11.30 Loren Delaney was swimming in the main pool. Leanne was sitting reading a paper. I was 20 metres from the diving board (3m) hooking up a hose when I heard screaming from what I thought was Loren at first but it was her sister and then L’s mother I ran to the incident scene and applied first aid. She was unconscious for at most a minute.”
This note appears to have been made at 12:15pm. In his oral evidence, Mr Sigmund disputed aspects of his note including his distance from the diving board at the time of the accident.
Mr Singleton of the Council recorded a note on 15 February 2012 of a discussion with Bruno Sigmund on 14 February 2012. It included the following:
“At the time of the incident there were six young people at the pool and Loren’s mother was sitting in the shade on the northern side of the 50 metre pool reading a book. I asked Bruno if a lifeguard was positioned at the boards when they were being used by swimmers and he replied that he normally tried to position a lifeguard between the two boards depending on the number of swimmers using the boards and the number of lifeguards on duty. Bruno also stated that the boards were only used for recreational and not competition and were very popular with the local community, as well as swimmers from towns in the area. I stated to Bruno that the three metre board, around which security panels were erected on the morning of the 13/2/2012, would not be in use indefinitely and that he, or his staff, need to ensure that the board is not to be used under any circumstances. I also suggested to Bruno that there should be closer supervision of the 1 metre board at all times.”
The plaintiff tendered a liability expert report from Mr David Dubos dated 8 November 2021: Exhibit C. Mr Dubos is a safety engineer who provides consulting services and reports in relation to industrial and public safety management. He has qualifications in safety science, ergonomics and management: report paragraph 2. Parts of the report were either not pressed or rejected following objection.
By a letter of instructions dated 14 September 2021, Mr Dubos was asked to prepare a report that provided his expert opinion about the circumstances in which Loren Delaney was injured and the liability of the defendant. Various specific matters were requested to be addressed.
It is noted that Mr Dubos was asked to assume that Loren Delaney was approximately 120cm tall at the time of the accident.
I am satisfied from the experience and qualifications of Mr Dubos set out in his report that he has sufficient expertise to provide the opinions which he has set out and which were admitted in evidence in relation to the matter. Objections were taken successfully to aspects of the report. Mr Dubos was not apparently required for cross-examination.
Mr Dubos notes in paragraph 10 of his report that his report is based on a conference conducted with the plaintiff and her parents by video conferencing on 5 October 2021. Mr Dubos indicates that he discussed with the plaintiff and her parents the circumstances surrounding her accident on 12 February 2012. As the diving board in question was removed soon after the accident, Mr Dubos makes clear in paragraph 11 that he has not been in a position to inspect the diving board associated with the plaintiff’s injury. That is clearly a limitation in his report. Mr Dubos sets out his instructions in paragraphs 14-19 of the report.
In particular in paragraph 14, Mr Dubos sets out his assumption that on 12 February 2012, the plaintiff, then six years old, “slipped from the left hand side of the 3m diving board at Corowa Swim Centre, underneath the railing, and fell striking the concrete surface below about 500mm from the raised step or apron at the perimeter of the pool”. Mr Dubos then quotes from internal Council documents following on from the RLSS report from 2012. The factual background set out by Mr Dubos is generally (but not entirely) consistent with the plaintiff’s evidence and Julia Delaney’s evidence.
In summary, Mr Dubos expressed the following opinions in his report:
(a) The standard of equipment and the level of supervision provided to the plaintiff by the Council did not ensure the plaintiff’s safety or take reasonable steps to ensure the plaintiff’s safety; (b) It was clearly foreseeable that the surface of diving boards or spring boards would become wet with use. Where a diving board is used at a height such as with a three metre diving platform, the potential for an awkward slip and fall from the board is foreseeable. A significant fall created a heightened risk of injury; (c) As discussed in the RLSSA 2012 report, the railing on either side of the three metre diving board consisted of one horizontal rail which was approximately one metre in height. There was no mid-rail or rail spanning the gap which was one metre high. In addition, there was no closed in fencing, in-fill or screen. The plaintiff was slightly taller for her age at six years but still only 1200mm in height. A form of fencing with in-fill, with vertical railings or glass/perspex in-fill, would effectively prevent a slip and fall below a railing; (d) It was quite foreseeable that a six-year-old child could slip and fall under a single railing that was one metre in height; (e) There were a number of reasonable alternatives which could have been taken by the Council which would have prevented the accident. These included inspecting the three metre diving board and arranging for the application of a series of anti-slip strips to the surface of the board. In addition, dismantling side railing structures for the three metre diving board and replacing those structures with a structure with a top rail and a mid-rail with fencing with a vertical in-fill and/or glass/perspex in-fill would prevent any young person slipping under or through railings and these should have been installed. Alternatively, the diving board and its structure could have been dismantled and removed at a limited cost by the Council as occurred in 2012.
Mr Dubos’ detailed factual instructions are at paragraphs 34-40 of his report. It is unclear where he got these instructions from, but having regard to the conference he had, it must have been from the plaintiff and her parents. None of these persons could give clear evidence of the conference in question. Of course, Mr and Mrs Delaney gave evidence that they received a reasonably full account of what occurred in the accident from Julia Delaney who claimed to be an eyewitness. Paragraph 36 asserted that Loren “walked quickly along the 3 metre diving board”. The plaintiff did not have a recollection of this. Mrs Delaney was not a witness to the accident. Julia Delaney did not recall this. Mr Sigmund did not see it. The detailed instructions confirm that the plaintiff fell underneath the horizontal railing: see paragraphs 36-37.
There is an issue about supervision by the day-to-day operator of the centre Mr Sigmund. However, Mrs Delaney conceded in cross-examination that even if she had been standing near the diving board at the time of the accident, she could not have prevented the fall and she was satisfied that Loren was sufficiently familiar with the board to climb it and jump from it safely. As counsel for the cross-defendant submits in his written submissions, the plaintiff had used the board before, was regarded by Mr Sigmund as able and sensible and was a competent swimmer: written submissions paragraph 74-76. Mr Sigmund states that he was near the three-metre board at the time of the accident.
In paragraphs 74-78 of his report, Mr Dubos notes that he has not been in a position to inspect the diving board in question but on the evidence provided to him the diving board and its structure was quite “aged” at the time of the plaintiff’s injury. He sets out in his report that it is likely that any core surface of the diving board had been weathered and worn over years of use and therefore it was likely that the surface may have been slippery. He notes that there was no information that the Council had ensured that any anti-slip tape had been applied to the diving board.
It is difficult to conclude that the three metres diving board was unreasonably slippery at the time of the accident. Mr Dubos had not examined it for the purposes of his report. Julia Delaney referred to the board having a “sand papery” feel. Mr Sigmund stated that he regularly examined the boards and had them repainted with non-slip paint by the maintenance officer of the defendant Council when he thought it was required. I have no reason to doubt that evidence. Further, it is noted that the RLSSA report from 2009 did not include an assessment of the diving boards overall: Dubos report paragraph 87. Mr Dubos refers to the 2012 RLSSA report which indicates that the diving board required maintenance and recoating or surfacing with it being a “slip hazard” in its current condition. It does not appear that any formal slip resistance testing was completed by the RLSSA report writer at the time. Mr Dubos notes in paragraph 109 of his report that there is no Australian standard relating to diving, diving spring boards or diving facilities. There is no proper reason to infer, in my opinion, that the plaintiff slipped because of the inadequate surface of the three metres diving board at the time. I accept the cross-defendant’s submissions on this point. This does not exclude the possibility that the plaintiff may still have slipped immediately before the accident whilst standing on the board.
The plaintiff served a number of expert medical reports in relation to her case. Included in the tendered materials was a letter of instructions from the plaintiff’s solicitors to Dr J McMahon, psychologist. The instructions indicated that the plaintiff continued to suffer symptoms as a result of the accident listed as follows: intermittent headaches, sleep disturbance, slowed cognitive processing, fatigue, difficulty with language comprehension, irritability, increased anxiety and difficulty with interpreting difficult, lengthy or open-ended instructions: Exhibit B page 1573.
Dr McMahon provided a report dated 30 April 2019. In that report, he makes reference to assessments undertaken by him on 7 August 2018 and 10 April 2019. The purpose of the assessments was for a neuropsychological assessment. The plaintiff denied to Dr McMahon any other trauma other than through the accident. The instructions of the event given by the plaintiff were generally consistent with her oral evidence. A history of the plaintiff having a circle of friends at school but being reserved prior to the accident was given. The plaintiff stated that she developed some anxiety on returning to school and became more reserved. She was reviewed by a number of doctors including a neuropsychologist in 2012. The plaintiff instructed Dr McMahon that after the accident, she had some difficulty learning to do new things around the home such as chores and she had fatigue and headaches at school. Significant anxiety symptoms were also reported as well as frustration. Difficulties in concentration and memory were also mentioned.
Dr McMahon undertook a number of tests in relation to the plaintiff. He noted the tests showed that Ms Delaney was of average intelligence. Many of the tests returned an average range marking. The pattern of responding to some tests indicated to Dr McMahon adequate effort and genuine responding. It was noted that Ms Delaney had below average marks for comprehension (consistent with poor ability to understand problems and apply appropriate practical information and draw on previous experiences), general memory, verbal memory (the result was unusual and occurred in only a very small percentage of the normative sample), story memory (consistent with poor acquisition of “rich verbal” information), verbal working memory, and verbal fluency.
Dr McMahon noted the plaintiff as being somewhat listless and mildly despondent or flat of effect.
Dr McMahon stated in summary that there were some cognitive deficits identified on examination including “significant difficulty with processing and retrieving meaning rich verbal information and some verbal perseveration in abstract word generation tasks. There was some mild emotional difficulties including anxiety which had improved somewhat …”. Dr McMahon was of the view that the plaintiff met the criteria for a mild neurocognitive disorder due to mild traumatic brain injury, particularly in the light of the fact that the plaintiff fell striking her head with a loss of consciousness for about three minutes. In his view, there was a modest impairment in cognitive performance on testing. In Dr McMahon’s view the injuries were consistent with the reported accident. Dr McMahon was of the view that the plaintiff had a mild range difficulty in constructing and retaining “narrative-based memories of events and information” which would impact to a mild extent on her capacity for learning in academic subjects that rely on that type of memory. The prognosis for the plaintiff was fair with Dr McMahon stating that it was possible that her cognitive difficulties would continue to reduce especially as she passed through future developmental stages. He expressed the opinion that the plaintiff’s condition was unlikely to deteriorate in the future and it was unlikely that the plaintiff would have a reduction of capacity for work upon completing her secondary or tertiary studies if her interests were in line with her cognitive capacities.
The plaintiff also relied on a report dated 14 August 2023 by Mr Mark Ravagnani, psychologist: Exhibit F. The purpose of the report, it appears, was to obtain a vocational impact assessment, including the impact of the plaintiff’s injury on her vocational capacity and labour market access. Mr Ravagnani noted the plaintiff’s work history and, in particular, that she could become overwhelmed at work in her part-time job at the pizza shop when things were busy. He also noted reports of the plaintiff missing a lot of school because of fatigue and having ongoing difficulties with her memory, concentration and the ability to focus on a task. He noted her school reports and her reports of anxiety and a history of struggling with anxiety and panic attacks. [Redacted]. At home, Mr Ravagnani noted that the plaintiff had difficulties with taking instruction and found it necessary to ask for clarification several times and needing to be reinstructed. The plaintiff was unable to provide Mr Ravagnani any firm options as to her future career.
After going through the various medical reports, Mr Ravagnani expressed the following opinions:
(a) On the medical reports, the plaintiff appeared to be of average intelligence with significant ongoing anxiety. A number of psychological reports indicated a lack of evidence of cognitive impairment in the plaintiff that would adversely affect her employment opportunities or performance. Dr McMahon referred to a mild impact on her capacity to learn subjects and requiring more time; (b) The results of the assessments indicated that the plaintiff did not currently demonstrate any evidence of cognitive impairment. The plaintiff’s injury and average intellectual capacity did not affect her future ability to undertake tertiary education and employment; (c) The reported persisting problems with anxiety, memory, concentration and taking instructions can affect both education and employment; (d) Given her reported problems, the plaintiff would need some accommodation such as flexible work arrangements or remote working from home including having written rather than verbal instructions and to reduce distractions; (e) Complaints of anxiety as well as fatigue, concentration, short-term memory and comprehension problems may well impact her effectiveness and efficiency as a student, job applicant or worker in the future; (f) Such symptoms may also lead to difficulty during interviews where she would be expected to demonstrate that she possesses the required skills in a confident manner; and (g) [Redacted].
A joint report was provided by Associate Professor Jennifer Batchelor dated 22 May 2023: page 1603. Dr Batchelor concluded that the available evidence provided to her was consistent with the conclusion that the plaintiff sustained a complicated mild traumatic brain injury as a result of the accident on 12 February 2012. However, Dr Batchelor was of the view that the neuropsychological assessment undertaken did not reveal evidence in the plaintiff of cognitive impairment explained by reference to the subject accident. On this issue, her report differed to the first report from Dr McMahon.
Certain declines in performance on testing since earlier neuropsychological assessments could not, in Dr Batchelor’s opinion, be explained by reference to a traumatic brain injury in 2012. This was because, on current testing, learning and retention of both verbal and non-verbal material were measured as significantly disordered and as reduced compared to the scores returned during previous examination. It was suggested that there was evidence of incomplete application on some of the tasks in the testing. In Dr Batchelor’s view, when considered in conjunction, the results of the neurological assessments did not support the diagnosis of a mild neurocognitive disorder. However, Dr Batchelor indicated that the plaintiff’s responses on the subjective questionnaires included in the assessment were suggestive of significant ongoing anxiety. She indicated that the relationship between any anxiety and the accident represented a matter for psychiatric opinion. In her view, further investigations were not indicated as these neuropsychological assessments did not reveal evidence of ongoing cognitive change as a result of the accident. The opinion was expressed that the assessments provided no evidence of cognitive impairment that would adversely affect Ms Delaney’s employment opportunities or performance.
The defendant relied on a vocational assessment report dated 17 November 2023 from Ms M Hamidi, psychologist: see Exhibit D2. Ms Hamidi was provided with various medical records and assessed the plaintiff’s relevant personal, educational and employment background and undertook psychometric evaluation. The plaintiff undertook the assessment alone without her mother. Ms Hamidi described the plaintiff as showing poor eye contact but was cooperative and engaged during the assessment. [Redacted].
The plaintiff gave Ms Hamidi her employment background including her employment at a local Thai restaurant and the local pizza shop and described her difficulties. When asked about her career aspirations and interests, the plaintiff stated that she wanted to work but did not know what she preferred to do or could do. The plaintiff seemed to have a poor opinion about her prospects. Reference was made to the plaintiff being distracted easily and having trouble with comprehending what she was reading and in television shows. There was reference to the plaintiff having anxiety at the time.
Ms Hamidi arranged for the plaintiff to take a number of psychological tests. [Redacted]. The tests indicated to Ms Hamidi that the plaintiff preferred service based roles followed by roles in caring, culture and clerical roles. There was some suggestion of an exaggerated presentation of symptoms of maladjustments. However, it was accepted that they may reflect what the plaintiff believed rather than deliberate malingering.
Ms Hamidi expressed the view that the plaintiff’s anxious and depressive symptoms could impact her motivation and performance in job applications and interviews. [Redacted].
It was recommended that the plaintiff start with part-time hours to ease into a new role and build her confidence. Various options were stated including sales assistant (cosmetics), receptionist, hair or beauty salon assistant, waiter or fast food cook. Other jobs with some training were mentioned. In her oral evidence, the plaintiff seemed to be generally open to various roles but appeared hesitant and lacked confidence.
Ms Hamidi provided a supplementary report dated 7 May 2024 which considered in more detail past reports and the supplementary report of Dr McMahon. Ms Hamidi referred to Dr McMahon’s view that the anxiety and depressive symptoms reduced the plaintiff’s capacity to cope with obtaining and sustaining employment. Ms Hamidi disagreed with this given the plaintiff’s completion of the HSC alongside part-time work which in her view clearly demonstrated both capacity for obtaining and maintaining employment and studying. Ms Hamidi did not appear to be aware of the plaintiff’s modest ATAR score. She agreed that the plaintiff would benefit from career coaching, psychological support, and medication based treatment.
In relation to the injuries in the accident, Ms Hamidi was of the view that the mild severity and young age at which the plaintiff sustained a traumatic brain injury are consistent with neuro plasticity and good long term outcomes. It was stated that most individuals with a mild traumatic brain injury have a complete recovery. However, some may report ongoing symptoms that are inconsistent with the severity and nature of the injury.
The defendant also relied on a number of medical reports from Associate Professor Gordon Davies, psychiatrist: Exhibit D1.
In his first report dated 6 November 2023, following a consultation on 23 October 2023, the plaintiff is recorded as referring to her fatigue problems and developing anxiety and anger in the years after the accident. When asked questions, the plaintiff did not always seem able to provide answers and would constantly look to her mother for support.
Dr Davies gave a diagnosis of mild depression on an international classification with the equivalent of major depression on the DSM classification. He described her position as follows:
“Evaluations of cognitive function have not suggested any lasting effect of the injury, but the history and available documentation suggests ongoing issues with anxiety and some depression. In particular, on interview, Ms Delaney seemed unduly dependent on her mother both in her description of contemporary events and her behaviour on interview … My overall impression is that Ms Delaney’s and her parents’ anxiety following her injury has impaired her progress following the accident. … Ms Delaney’s complaints are a reasonable reflection of her ongoing problems but are not indicative of a specific cognitive impairment. … I am of the view that while Ms Delaney has not suffered from any specific cognitive impairment as a result of her accident, there are likely to have been some secondary behavioural effects resulting from anxiety in the family.”
Dr Davies was of the view that the plaintiff was likely to need some ongoing psychiatric support because of ongoing issues with anxiety and depression which he considered to be “an indirect result of the accident”. He saw no cognitive deficit resulting from the accident that would affect her employability.
His most appropriate current diagnosis is of mild depression and that no ongoing requirement for domestic assistance or future care was needed.
Dr Davies provided a supplementary report dated 13 May 2024. In it, he had been provided with further material including the supplementary report of Dr McMahon and the report of Ms Hamidi. In his view, the additional documentation did not affect his assessment of whether there have been ongoing organic effects resulting from the diving board accident although they clearly indicated more severe present and ongoing psychiatric disorder. [Redacted]. There was a need for ongoing family therapy as well as specific personal psychological intervention.
Dr Davies remained of the view that the plaintiff had no cognitive deficit which would affect her employment and she had demonstrated fitness for employment. He was also of the view there was no clear evidence to specifically relate the plaintiff’s current symptoms directly with the accident which occurred in 2012.
However, he was not of the view that the plaintiff’s present psychiatric state was stable or had reached maximum medical improvement. He stated the following:
“With regard to her childhood accident, there is no evidence of cognitive impairment and the relationship of her present psychiatric problems to the accident must be considered as indirect at most. … Ms Delaney is likely to need some ongoing psychiatric support because of ongoing mental health issues. I would consider these as being an indirect result of the accident and its impact on the family.”
The various reports of Associate Professor Davies were made Exhibit D1 in the proceedings. Dr Davies was required for cross-examination by the plaintiff.
Dr Davies gave evidence establishing he was highly experienced in providing medico-legal reports. He stated that although he had provided a supplementary report, he had only seen the plaintiff once: T483.19.
Counsel for the plaintiff asked Dr Davies questions in relation to paragraph 4 on page 6 of his report (Exhibit D1 page 1664) in which Dr Davies stated that, while the plaintiff had not suffered from any specific cognitive impairment as a result of the accident, there are likely to have been some secondary behavioural effects resulting from anxiety in the family. Dr Davies agreed with this conclusion based particularly on the reports which he had been provided. He said he had not undertaken a cognitive assessment himself but was relying on the documents he had been provided set out on page 2 of his report, which included a number of neuropsychological assessments: T485.6-.12. He was of the view that the reports he had read were generally consistent and did not establish any cognitive abnormalities. He then stated that the material did not provide any clear evidence of cognitive deficits in the plaintiff: T485.20.
Dr Davies was asked about Dr McMahon’s report which did refer to some cognitive defects. Dr Davies said that nothing of significance was reported in his view: T486.9. In other words, whilst the plaintiff suffered injury in the accident there was no real evidence indicating the plaintiff had any significant cognitive deficits arising from the accident: T486.19.
Dr Davies was then asked to make certain assumptions that evidence had been given from the plaintiff’s parents about her difficulties in comprehension and in processing information which caused problems at school. Dr Davies said he was aware of these matters and was of the view that there had been a concern and focus on the cognitive aspects rising from the accident “from the beginning”: T486.35. However, overall, he was of the view that there was no significant cognitive impairment shown on the materials provided to him: T486.38.
When the facts of the skull fracture with some bleeding at the time and Dr McMahon’s 2019 diagnosis was referred to, Dr Davies said that the diagnosis of significant cognitive problems did not fit in his view with the whole picture. In his view, the testing which had occurred had focused on the plaintiff’s cognitive position rather than the secondary impacts on her life of the accident: T487.8. He stated that significant anxiety and depression can affect a person’s cognitive function. He noted that he had not been referred to any screening for complaints like ADHD. Dr Davies confirmed that the plaintiff had suffered a serious fall and a skull fracture and that all persons involved had been anxious in relation to the possibility of a brain injury. However, in his view none of the reports established significant cognitive impairment: T487.26. He rejected the possibility that the plaintiff’s neuro development had been affected by the fall.
Concurrent oral evidence was given by Mr Ravagnani and Ms Hamidi who were both psychologists specialising in vocational assessments and vocational matters.
Counsel for the defendant asked Mr Ravagnani questions in relation to the jobs which the plaintiff had. He agreed that the plaintiff’s work experience was consistent with many people of a similar age to the plaintiff entering the workforce. He also agreed that initially young people had not developed skills which they picked up along the way in the course of their work. Mr Ravagnani accepted that young people in certain circumstances often had difficulties with customer service roles and it was not uncommon on entering the workforce. He could not comment that this was more common in more recent times because of young people spending significant time looking at screens but was of the view that that was logical.
Mr Ravagnani agreed that the plaintiff had on her cognitive abilities the capacity to undertake tertiary studies: T523.4. He agreed that the plaintiff would benefit from being granted accommodation such as extra time in exams, as she had been given at school, in her future studies, but it largely depended on her. He did not see any undue difficulties in the plaintiff completing tertiary studies but stated that having regard to the plaintiff’s problems with anxiety, she may need further support in that area. In his view, the plaintiff would not have much difficulty in maintaining work on the basis of appropriate support. He agreed that if the plaintiff was given assistance in finding an appropriate career and employment and developing her skill set there would not be any undue restriction on the plaintiff’s capacity for work in the future, apart from if the plaintiff’s anxiety restricted her employment. He said that the plaintiff’s mental state may potentially impact her capacity for work: T524.40.
Mr Ravagnani, in re-examination, agreed that the plaintiff could establish a “correct level of employment” but there may be restrictions on the type of employment that she could do: T525.16. He agreed that the plaintiff’s anxiety and problems with memory recall and concentration would make some studies unsuitable such as highly demanding studies: T525.50. Reference was made to the last paragraph on page 12 of his report (Exhibit D1 page1587), that the plaintiff’s persisting problems with anxiety, memory, concentration and taking instructions can affect both education and employment. He agreed that this could create difficulties with some types of tertiary studies depending on the level of complexity involved and the plaintiff’s interest. He stated that complex studies were unsuitable: T526.2.
In answer to the question whether the plaintiff’s anxiety issues could potentially cause problems in work for her in the future, Mr Ravagnani said they could potentially cause problems in work and recruitment for work, for example in interviews and where there were competitive assessments with other applicants: T526.30.
Dr McMahon, the neuropsychologist retained on behalf of the plaintiff, was required for cross-examination by the defendant. There was no issue about Dr McMahon’s qualifications as an expert which were impressive.
As stated above, the reports of Dr McMahon and the letters of instruction became Exhibit B in the proceedings.
In answer to questions from the Court, Dr McMahon confirmed that he had undertaken two assessments of the plaintiff which are recorded in his first report dated 30 April 2019 as occurring on 7 August 2018 and 10 April 2019. Although Dr McMahon later agreed that the first assessment of the plaintiff was undertaken when the plaintiff was 11 and the second assessment was when she was 12, it appears from the plaintiff’s date of birth that the first assessment was undertaken by Dr McMahon when the plaintiff was 12 whilst the second assessment was undertaken when the plaintiff was 13. Dr McMahon stated that the two assessments occurred whilst he was undertaking remote clinics in the country. The reason for two tests occurring was that they were lengthy and the best results were achieved with children with a break when they were not affected by fatigue: T463.3.
Dr McMahon was cross-examined by counsel for the defendant and confirmed the two assessments of the plaintiff. He also confirmed that he had not assessed the plaintiff since 10 April 2019. Dr McMahon agreed that in his first report he recommended further neuropsychological examination of the plaintiff in late adolescence and early adulthood to see if cognitive development had been affected by the brain injury suffered (paragraph 17 page 15 of his report, Exhibit B page 1572). He said the reason for this recommendation was that the brain could readjust and evolve after an injury and could compensate for an impairment of cognitive function: T463.33. He agreed that since the testing he had undertaken the plaintiff has been in a period of transition in her life: T463.42. Dr McMahon also agreed with the proposition that it was beneficial to obtain the most up-to-date and accurate assessments and particularly to see neuropsychological assessments within a year or two, particularly if someone was transitioning within periods in their life: T463.47.
Dr McMahon noted that he had read the report of Dr Batchelor dated 22 May 2023 (1603) which involved testing and an examination of the plaintiff on 3 May 2023. He agreed that Dr Batchelor had undertaken a number of tests of the plaintiff which were different to his. He also agreed that some of the tests he had undertaken were appropriate for children whereas if he was undertaking the test now, he would want to use a test appropriate for an adult: T464.44.
In relation to the adult testing used by Dr Batchelor, Dr McMahon noted that his tests were appropriate as used but that Dr Batchelor had used adult tests as the plaintiff had transitioned to being an adult and the adult tests were a more valid measure of injury. When he had undertaken his tests the plaintiff had not transitioned into adulthood. Dr McMahon agreed that the tests undertaken by Dr Batchelor were appropriate measures of the plaintiff for neuropsychological purposes at present as she had entered early adulthood: T465.17.
“It is concluded that assessment of response validity provided evidence of sub-optimal performance on one measure but not across all tests. The declines that have occurred on tests of memory and processing speed relative to previous assessments also provided evidence of incomplete application on some tasks.”
Dr McMahon stated that ambiguity across the testing period could have affected the value of Dr Batchelor’s tests and impacted upon “reduced veracity” of the test results: T468.1. When asked whether this would involve the rejection of the results of the tests as invalid, Dr McMahon said that one would need to consider the results subtest by subtest. He said that someone of Dr Batchelor’s standing would likely have gone through a careful process of subtest consideration, but he could not confirm that by Dr Batchelor’s reasoning in her report: T468.15.
Dr McMahon agreed that he and Dr Batchelor had administered overall different tests, although some tests were the same and some were changed to take into account the plaintiff’s transition in life to adolescence. He agreed that in assessing impairment it was appropriate to use the tests for the developmental period in question. When it was suggested that the more recent tests by Dr Batchelor were the optimal tests he agreed and said that was why he had earlier recommended retesting of the plaintiff in his report: T469.11-.29.
Dr McMahon was asked about the comparative validity of his tests and Dr Bachelor’s tests. He agreed that there was different testing as there were different stages of development and he had recommended further testing. Dr McMahon was of the view that his testing was appropriate at the time and involved consistent effort from the plaintiff and resulted in an assessment of a neurocognitive disorder with a pattern of anxiety and self-belief in the plaintiff as to her changed condition. The more recent testing by Dr Batchelor involved some doubts as to the plaintiff’s commitment and therefore there was some ambiguity in the scores. Importantly, Dr McMahon recognised that his diagnosis of a mild neurocognitive disorder may have resolved in the plaintiff at “maturation” (to adulthood). He accepted the Dr Batchelor’s tests had recency and involved testing when the plaintiff had transitioned but had some sub-optimal results: T469.34-T470.34.
When it was suggested to him by counsel for the defendant that the court would be “well served” to rely on Dr Batchelor’s opinion as the assessment of the plaintiff now, Dr McMahon stated that Dr Batchelor was very experienced, and the testing undertaken was appropriate testing for the plaintiff at this stage of her life. He said however that there was variable effort reported but to some degree it would be a better measure of the plaintiff’s position currently: T471.11.
In answer to questions by counsel for the cross-defendant, Dr McMahon said that the concept of sub-optimal performance in some tests indicated that a person being examined was not trying deliberately. He described the test of memory malingering as the “gold standard”: T471.36.
Dr McMahon agreed that if he was undertaking the testing now for the plaintiff it would be tailored to be testing for an adult: T472.15.
Extensive oral evidence was given by the plaintiff. As stated above, the plaintiff was born in November 2005 and was thus 18 years of age at the time of the commencement of the final hearing.
The plaintiff could give very limited evidence in relation to her situation prior to the accident in February 2012. She described herself as an active child who was a “tom boy” and spent much of her time outside playing: T37.12. She said she did not remember much about how she was prior to the accident but remembers having no issues understanding the stories when her mother read them to her: T42.29.
The plaintiff only had vague memories of the day of the accident: T37.37. She said she had a vague memory of going to the Corowa Swimming Pool with her sister Julia and her mother. She did not recall being in the pool or having already dived off the three metres board in question: T38.11. She said she understood that another family was at the pool because she recalled another woman apart from her mother being present when she woke up. The plaintiff said she recalled waking up on the concrete near the diving board and looking up at the sky. Initially she had no pain and then a wave of pain was felt by her in her head, and she began screaming.
The plaintiff gave evidence in chief of her recollections leading up to the accident. She had limited recollections of what had occurred. In summary, the plaintiff had a vague recollection of climbing up the ladder at the three metres diving board at the Corowa Pool. She stated she had a very vague recollection of standing on the diving board and that the diving board was wet at the time. She also had a recollection of holding on to a rail. The plaintiff said that she did not recall whether she went over or under the rail: T38.45-39. These recollections were confirmed in cross-examination by counsel for the cross-defendant. The plaintiff conceded in cross-examination that she could not distinguish between her recollections of the circumstances of the accident and thoughts which may have been placed in her mind in discussions with other persons. I found the plaintiff’s evidence to be believable and frank in relation to these matters.
The plaintiff gave evidence that she recalls a man called Bruno working at the pool prior to the accident. She gave evidence that she recalled him working at the pool on the day of the accident prior to the accident. She said she was familiar with Bruno before the accident. She said that Bruno worked at the kiosk but was unsure what else he did, although she recalled him working at the back of the pool in a white shed: T39.
The plaintiff gave further evidence in relation to the circumstances immediately after the accident with her lying on the ground and her mother and sister crying. She described herself as being “very hysterical” and that a head brace was placed on her head by ambulance officers: T40.1. She said she was taken to Albury Hospital and then flown to the Melbourne Children’s Hospital. She could not recall the period during which she stayed there which appears not to be in dispute as being three days.
(a) Being a pet groomer by washing a dog and walking it; (b) Driving to and from work; (c) Engage in customer service and interact with customers; (d) Talk to people in relation to products if she was taught in relation to them, although she was uncertain on this; (e) Operate a point of sale machine; (f) Be a salesperson; (g) Assist in a hair or beauty salon; (h) Work as a waiter, although the plaintiff qualified that answer by saying that she had a problem remembering things and forgot faces easily; (i) Be a makeup artist; (j) If she was able to do a course, be a beauty therapist; (k) After undertaking a course, giving pedicures and manicures.
The plaintiff said she had considered being a flight attendant but did not know whether she could cope with an emergency situation.
The plaintiff confirmed that she had told doctors the truth and made her best efforts in the course of testing.
The plaintiff was also cross-examined on various points by counsel for the cross-defendant.
The plaintiff confirmed that she had attended primary school fulltime except in the period after the accident but missed a lot of school by staying home sick. The plaintiff also confirmed that she missed a lot of school between Years 7 and 12. The plaintiff said that she did not think that missing school affected her performance as she made sure that she caught up. She said her main problem at school was not understanding what she was taught and having to catch up outside school. This was not the case with music and art where she appeared to have no real issues. The plaintiff confirmed she had had problems with headaches, fatigue and anxiety and remembering instructions for long as she could remember since the accident.
The plaintiff confirmed that she had discussed what had happened in the accident many times with her mother and her sister Julia: T103.34. She said she understood that her sister Julia had a recollection. She said she did not know whether the recollection which she (the plaintiff) had was due to what she was told by Julia but said that she had never said that she did not know anything about what had happened to her. She said she had some recollections of the accident including holding on to the railing: T104.43. She did not recall saying that she had no recall of the incident herself.
Counsel for the cross-defendant Remlap put to the plaintiff three different scenarios, including what was set out in the police report on the day of the accident of the plaintiff leaning over the edge of the three metre diving board railing talking to her sister, what was put in the instructions to Mr Dubos that she did not recall the incident herself, the factual background set out in Mr Dubos’ report and counsel for the plaintiff’s opening that she was standing on the board holding the railing and her feet slipped and she went under the railing. The plaintiff was asked which of those scenarios was correct and the plaintiff said she could not say: see T114.7. She confirmed to counsel for the cross-defendant the recollections she had prior to the accident which have been set out above.
The plaintiff was asked whether she had used the three metres diving board before the accident. She said that she did not recall but believed it was highly probable that she had used the board before the accident: T116.20.
In re-examination the plaintiff confirmed that her interpersonal difficulties had occurred by Year 6 but were mainly with her sister.
The plaintiff appeared overall to be a fairly poor historian with little recollection of discussions that she had had with her mother, Mr Dubos and the various medical practitioners. She had a limited recollection of aspects of the accident. It is unclear what precise recollections the plaintiff had of the accident and some caution should be exercised in accepting the recollections given where there is no other support for them.
Oral evidence was given in the proceedings by Julia Delaney, the sister of the plaintiff, Loren Delaney. Julia Delaney was born in June 2001 and was attending university in Melbourne at the time of the final hearing.
Ms Delaney said that in February 2012 she was 10 years of age. She gave evidence that she attended the Corowa Pool on a number of occasions before the accident. On the day in question, on 12 February 2012, Ms Delaney said that she remembered going to the pool with her sister Loren and her mother. When they arrived, she said the pool was open and there were very few other people at the pool. Ms Delaney stated that both she and Loren had been in the pool prior to the accident. Ms Delaney also confirmed that the plaintiff Loren had used the three metres diving board on the day of the accident prior to the accident. She stated that at the time of the accident her mother was sitting on a camp chair on a grassed area near the pool house towards the deep end of the pool.
Ms Delaney was shown a photograph of the diving board structure and confirmed that the pool started at the shallow end and proceeded to the deep end near the diving board with the pool depth at the one metre diving board being shallower than at the three metres diving board. Ms Delaney was shown a photograph which later became Exhibit A and confirmed that this was the same diving board that her sister had used on the day of the accident.
Julia Delaney gave evidence that she recalled the accident and was able to give evidence about what she had seen. At the time of the accident, she stated that she was on the one metre diving board facing towards Loren who was on the three metre diving board. She said that they had noticed that they were on the diving boards at the same time and had a short conversation about jumping into the pool together. Ms Delaney marked with an X shown on Exhibit A where Loren was standing when they were having the conversation. This showed Loren standing just to the right of the middle vertical staunchion on the diving board structure. Ms Delaney said that the conversation was a short one and only a few words were exchanged before Loren fell. Ms Delaney said that as she was on the one metre diving board she was looking up towards Loren, who she described as calmly standing on the three metre diving board. Ms Delaney said that Loren was holding the bar with both hands at what appeared to be Loren’s neck height and Loren was facing towards her. Ms Delaney said that she then saw Loren lose her footing and then her grip and fall facedown to the concrete. Julia Delaney indicated the fall with a physical double clap. She said she heard the noise when Loren’s skull hit the concrete pavement: T122.36-T126.8.
Julia Delaney described herself as becoming hysterical and saw that Loren was unconscious. She said she began screaming. She said that no one else was immediately around and she entered a full panic with the experience being very traumatic. She said she remembered Loren regaining consciousness but did not recall the paramedics arriving as she was “still in hysterics”. She said that she travelled in the ambulance with Loren and her mother to hospital. She said she did not recall talking to the ambulance officers in the course of the trip.
Oral evidence was given in the proceedings by Mrs Leanne Delaney, the mother of Loren and Julia Delaney.
Mrs Delaney was asked in chief in relation to her observations of the plaintiff Loren prior to the accident. She described Loren as an outgoing and chatty child who enjoyed playing outside and engaging in sports and with friends and enjoyed school. She described Loren achieving her milestones as a child normally and at the same time as her other two children: T160.10.
Mrs Delaney said that she was born in Canada and undertook her teaching course in Australia. As well as Loren, Mrs Delaney said that she had two other children being Jack who was born in 1998 and Julia who was born in 2001. She said she moved to Corowa with her family in 2009. Mrs Delaney gave evidence that she had been a teacher at Corowa High School since 2010, having previously lived in Kiama.
Mrs Delaney gave evidence that she went to Corowa swimming pool with her family regularly as they did not have a pool at home. She said that her children swam from an early age, and they had a family membership at the pool which was only opened seasonally.
Mrs Delaney gave evidence that the staff at the pool consisted of a man called Bruno and his wife Jan. Other evidence showed this to be Mr and Mrs Sigmund. Bruno appeared to Mrs Delaney to do everything around the pool including working in the kiosk, undertaking work in the pump house and maintaining the pool. She believed he had a uniform and recalled that he had a whistle but seldom needed it as he had a loud voice. His wife Jan ran the kiosk if he was doing work outside around the pool.
Mrs Delaney described her children prior to the accident as being competent swimmers, including Loren who could “save herself”: T162.24. Mrs Delaney said that Loren had used the diving boards prior to the accident and enjoyed using them. She said she had been jumping from the three metre diving board for a few months prior to the accident having initially only used the board with the assistance of her husband and her son. From her observation, prior to the accident Loren had become proficient on the three metre board: T163.8.
Mrs Delaney gave evidence that she and her two daughters arrived at the pool on the day of the accident just after 11am. Mrs Delaney said that she proceeded to the far end of the pool where the diving boards were and set up her chair and was undertaking a crossword. She said her daughters jumped into the shallow end of the pool almost immediately they arrived.
Mrs Delaney gave evidence that she became aware of the accident when Julia came over to her screaming in an hysterical state, saying the words “she fell”, “Mummy she fell”. Mrs Delaney said that she did not understand what Julia meant and she went to look in the pool and then Julia said words to the effect “she fell off the board”: T164.27. She went and found Loren who was on the ground between the one metre and the three metre boards.
“Sustained biparietal skull fracture (non-displaced transverse) and associated scalp haematoma. CT abdo/pelvis NAD. Transferred to care of neurosurgical unit at RCH. Admitted for observation. Required nil operative management. Neurological examination NAD. .… Secondary and tertiary surveys unremarkable. Good progress on the ward. Pain controlled with regular simple analgesia and PRN oxycodone.”
Mrs Delaney confirmed that she dealt with a Ms Jane Murtagh at the SWBIRS paediatric team who was the case manager after Loren left hospital. The initial assessment details document described the reason for the referral as “support & monitor post head injury. Assist [with] return to school”: see Exhibit D. Mrs Delaney confirmed that she had initial contact with Ms Murtagh and her understanding was that Loren had not suffered any brain injury in the accident. The detail in the initial assessment form included the following: “Slipped under railing of 3m diving board & fell onto concrete. Regained consciousness 3 mins. Oriented in ambulance.” Where the detail came from that Loren slipped under the railing is unclear.
The “presenting problem” of Loren to Ms Murtagh was described in the form as “fatigue”: Exhibit D page 1837. There was a reference to there being irritability and the plaintiff having difficulty with the meaning of words and asking questions and being disorganised with her sentences. Mrs Delaney accepted as sounding correct that she had contact with the SWBIRS case manager from the discharge from the hospital until 30 June 2016.
Mrs Delaney was asked what she noticed about Loren after the accident. She said that Loren had the rest of the term off school. She was in Grade 1 at the time. She then tried to get Loren to go back to school initially for one or two hours during a week. She found Loren to be withdrawn and quiet and very tired and was no longer active or outgoing. She also said that Loren did not appear to engage with learning and did not appear to understand what she was reading and comprehending as to the storyline in a book. She said she noticed that Loren started to get very angry and required timeout in her room for periods of up to one to two hours.
Mrs Delaney said that Loren appeared to become anxious in relation to her learning as she was not understanding the work at school. She said that Loren did not, as far as she was aware, ask for help from her teachers at school but asked her friends for guidance and asked her parents for help when she got home. She said Loren appeared to have difficulty remembering things and she described her as “a different kid”.
Mrs Delaney confirmed that there was interaction between her and Ms Murtagh and Ms Kate Taylor, Loren’s Year One teacher. The materials in evidence included a 12 March 2012 email from Ms Taylor to Ms Murtagh (Exhibit D page 1912) which included the following:
“Loren’s first day went well, however some things were noticed such as she seemed to be very hesitant and she seemed to be confused as to what she needed to do during spelling groups even though Leesa (teacher aide) worked with her and showed her what to do. Another teacher noted that she seemed quite dazed and confused about library borrowing procedure something she had previously become very confident and familiar with. I too noticed this with regard to Loren’s ability to choose a correct word from a group of words for a task in English. Loren was quite tired and needed quiet time after each task. … Loren looked and said she was tired upon arrival to class the next morning. I monitored her during morning session and gave her frequent breaks and rest periods. During tasks she again seemed hesitant and unsure about how to complete her guided reading tasks (something which she enjoyed and was familiar with doing previously). She sought teacher assistance more so than usual, and when I explained what she needed to do she still seemed uncertain so I organised for another student to help her with the worksheet. Loren accidentally cut her workbook and became upset and cried. … Changes I have noticed in Loren are:
• She seems more forgetful about things that we had done, and was familiar with prior to the accident.
• More anxious and fearful about not doing things correctly and becomes teary and easily upset.
• She does tire very quickly and has sensitivity to classroom noise.”
“However, Loren’s ability to control her emotions was below expectations and appears to be a weakness for Loren, which is reportedly exacerbated post-injury. Loren’s teacher, Kate, also completed the BRIEF, and her responses indicated some concern regarding Loren’s working memory (i.e. hold information in her mind while she processes it) an ability to self-monitor or check her own work. Kate identified that these were new difficulties post injury.”
Mrs Delaney described Loren in mid-2012 as enjoying playing outside at school but appearing quiet and tired at school. She elicited this information from Loren.
Mrs Delaney was asked about an email from her to Ms Dickson dated 26 July 2012 which included that Loren had “increasingly displayed angry outbursts over very small issues at home and apparently at school during recess/lunch”. Mrs Delaney described Loren getting overly frustrated and angered over small jobs that she could not complete immediately or well. On that particular day, she had become hysterical about an inability to complete her homework and she could not stop crying. Mrs Delaney stated that there were not angry outbursts from Loren prior to the accident. Mrs Delaney was also taken to an email sent by her to Ms Murtagh on 3 September 2013 describing Loren as continuing to have tantrums and “rages” when she became frustrated with any pursuit she was trying to perfect. Loren is recorded as telling Mrs Delaney that she became anxious in school and felt sick in her stomach: Exhibit D page 1925. [Redacted]. Mrs Delaney, in answer to a question from the Court, indicated that the anger appeared to be frustration at both the quantity and difficulty of tasks as well as understanding how to do tasks.
Mrs Delaney described the position in 2013/14 as being that she wanted Loren to be like a child without “rages” and to be able to do day-to-day activities at “an appropriate level”.
At about this time, Mrs Delaney said that she was recommended to take Loren to a psychologist in Rutherglen in Victoria which did not appear to assist Loren. At about this time Loren moved from Corowa South Public School to Corowa Public School as some of her friends were also moving. Loren appeared to struggle to move into a new friendship group. Mrs Delaney was asked about an email from Ms Murtagh dated 15 October 2015 which states as follows:
“Leanne continues to be concerned that Loren says she is unable to remember day-to-day events and gets quite uptight about it. It is not consistent. She also noted that she is prone to angry outbursts and questions whether this is injury related. Loren is prone to anxiety but I think it is worth going ahead with an assessment to try to provide some clarity and advice.”
In 2016, when Loren undertook testing with a Dr Frees, Mrs Delaney described Loren as being highly anxious with issues relating to limitations in her memory.
Mrs Delaney was asked questions about a neuropsychological assessment report of Dr Caroline Frees dated 14 April 2016: Exhibit D page 1885. Mrs Delaney stated that she recalled reading parts of the report before. The report refers to Loren having tantrums over small issues and, after calming down, subsequently remaining angry and sullen for hours but with the events appearing to have subsided over the past few months. The report also recorded Mrs Delaney having significant concerns with Loren’s level of anxiety. Dr Frees stated:
“Based on both parent and teacher reports, Loren is likely to be experiencing significant anxiety-related issues, including worries about making mistakes, perfectionistic tendencies, being highly critical of her own performance, and becoming easily upset/emotional particularly when faced with challenges. … As anxiety is known to have the potential to negatively impact our ability to think and learn effectively … Loren’s anxiety is likely contributing to her reduced performances on current assessment (eg verbal associate learning, complex speed of processing, and numeracy) as well as her subjective memory concerns. Left untreated, ongoing anxiety may limit Loren’s success within the classroom environment, particularly as the demands of the curriculum/school workload increase. It is strongly recommended that Loren is referred to a Clinical Psychologist who can provide support in regards to anxiety management.”
Mrs Delaney was then asked about a 30 June 2016 letter from Dr Frees where it is recorded that Mrs Delaney described Loren as having been “progressing well”. The letter records Loren continuing to experience anxiety, the extent of which has varied over time. Mrs Delaney said that at home Loren continued to have problems with reading, particularly understanding what she was reading.
Mrs Delaney gave evidence that she approached a solicitor in relation to Loren in 2017. She said this was caused by Loren’s continuing outbursts and rages at home and, in particular, her anger, upset, rage and crying during a hike on holidays: T179.24. This raised the question for Mrs Delaney and her husband whether Loren’s behaviour was related to the fall in 2012.
Mrs Delaney gave evidence that she went to see Mr Don Cameron at Slater & Gordon solicitors in order for there to be an investigation and advice in relation to Loren’s position. As a result of this advice, the Delaneys decided that further testing should be undertaken with a neuropsychologist to test Loren’s cognitive abilities and also assess the level of any injuries arising from the accident. Mrs Delaney agreed that she wanted to investigate the matter before any proceedings were commenced: T181.3. As a result, Loren saw Dr John McMahon who undertook a variety of tests in relation to Loren’s brain functioning. Mrs Delaney gave evidence that Dr McMahon’s report was emailed to her in June 2019.
Mrs Delaney indicated that after receiving the report, she and her husband wished to proceed to see if there was a connection between Loren’s injuries in the accident and her learning difficulties. After reviewing Dr McMahon’s report, she was of the view that there might be a connection between the two and decided to take the matter further: T181.34-.44.
Mrs Delaney stated that she left day-to-day control of the matter to the solicitor, but she was appointed tutor for Loren until Loren turned 18 and took over the running of her own case.
Mrs Delaney gave evidence that after her initial conversation with Mr Cameron, she attended a conference with Mr Cameron and a barrister and one of Mr Cameron’s assistants. Later evidence showed that the barrister was Mr Brian Dooley SC. The conference occurred on 7 August 2017. Mr Delaney also was present. Julia Delaney was not present.
Mrs Delaney accepted at the time that Loren had progressed somewhat since the outburst incident while on the hike. She said Loren was still having regular “meltdowns” at home but was quiet at school. She had started Year 7, and the work was becoming more demanding. She described Loren as becoming very angry and raging when she did not understand or remember her homework. She described Loren also as being “very forgetful”. She assessed Loren’s comprehension in relation to the tasks she had to perform as being at a poor level. Loren’s high school teachers were aware of the accident and her comprehension issues. Mrs Delaney said that Loren had a personalised learning plan in place throughout her high school years. Mrs Delaney said that she helped Loren with revision and with her schoolwork all the time.
“Better relationship [with] Jack than Julia
Tenacious, short tempered
Outgoing [with] peer group
Quiet in classroom, concerned about doing the right thing”.
Mrs Delaney said it was possible that she had said that Loren had a better relationship with Jack than Julia and described Loren as “tenacious” but she did not recall Loren being short tempered prior to the accident. She accepted that if it was in the document (page 1843) that she must have told Mrs Murtagh that. Mrs Delaney said that Loren was a child who wanted to please. She was not anxious prior to the accident despite the reference to “short tempered”. She said this did not occur often and to the extent it did, she regarded it as normal for a 4/5 years old. She said that Loren did not have rages. In relation to a description of Loren being tentative with things “outside comfort zone” and “wants security” (1844), Mrs Delaney said that Loren was not tentative with swimming or at home but with things such as piano lessons. She agreed that Loren sought out security prior to the accident. She agreed that Loren being quiet in the classroom existed prior to the accident in 2012.
Mrs Delaney confirmed the neuropsychological assessment by Ms Dickson of May 2012 was the first neuropsychological assessment which had been taken post the accident concerning Loren. It was put to Mrs Delaney that Loren had had difficulty controlling her emotions before the accident, although this had been exacerbated after the accident. Mrs Delaney said that she was only referring to short temperedness: T198.48. Mrs Delaney confirmed that when she completed an assessment in relation to Loren, she did her best to be accurate and correct: T199.29.
Mrs Delaney accepted that it was fair to say that around about May 2016 at the absolute latest, she held significant concerns as to Loren’s difficulties with anxiety and short-term memory as well as low self-esteem and decreased frustration tolerance. She agreed that there was no doubt in her mind that there was a connection between those complaints and the accident of 12 February 2012: T202.10-.25 (“I was fairly … positive in saying that there was a connection to that”). Mrs Delaney also accepted that by May 2016 she had seen the report of Dr Caroline Frees dated 14 April 2016 and believed she would have read the report. Mrs Delaney was taken to that part of the report at page 5 (1889) where it states:
“Based on both parent and teacher reports, Loren is likely to be experiencing significant anxiety-related issues, including worries about making mistakes, perfectionistic tendencies, being highly critical of her own performance, and becoming easily upset/emotional particularly when faced with challenges. Difficulties regarding emotional control were also evident on her previous neuropsychological assessment in 2012.”
Mrs Delaney accepted that difficulties regarding emotional control had continued between 2012 and 2016 relating to Loren. Mrs Delaney was taken to the report where Dr Frees “strongly recommended” that Loren be referred to a clinical psychologist for support in relation to anxiety management. See also the 30 June 2016 letter from Dr Frees to Mr and Mrs Delaney (1919).
Mrs Delaney said that as a result of this recommendation, they sought out counselling through a service within Corowa providing counselling. Loren had several sessions with a counsellor: T206.24.
Mrs Delaney agreed that she then consulted with Slater and Gordon, lawyers, and Mr Don Cameron in June 2017: T206.42. Mrs Delaney accepted that she also had a conference with Mr Dooley SC at which Mr Cameron and an assistant solicitor Loren Rowland attended: T207.4-.17. Mrs Delaney agreed that the two conferences were held within the same year: T207.20.
Mrs Delaney was asked questions in relation to the conferences. She appeared not to be able to recall the detail of the conferences. However, she stated that she would have answered the questions asked and believed she would have told the lawyers the circumstances of the injury incurred by Loren on 12 February 2012. She accepted that she would have given as much information as she could at that time: T208.30. As to the delay between the accident and seeing the lawyers Mrs Delaney said:
“There was a question about that, and as I answered to you earlier, we were first apprehensive, I mean, to the point that we didn’t pursue anything when we noticed a change in Loren’s behaviour, learning, increased anxiety, raging, memory, all of that. We did discuss it, my husband and I initially, and we were of the opinion that, again we lived in a small town, we have to live with people that know us and our children and interact, and we left sleeping dogs lie, for lack of a better word”: T207.44.
Mrs Delaney confirmed that she decided not to pursue the action at some time earlier on and this was a decision made between her and Mr Delaney jointly: T208.5. It was a decision made without any ongoing conversation in relation to it: T208.12. Mrs Delaney agreed that initially a decision was made not to pursue the action straight after the accident in 2012 despite Loren having behaviours that she was not having prior to the accident. It was only when the behaviours became “worse and worse” that action was taken: T208.7-.23.
Mrs Delaney conceded that she knew that an accident had occurred on 12 February 2012 as she was there, knew that the Council was partly responsible for the pool, knew that if she was going to sue someone the Council may be one of the people to sue as it oversaw the pool and had reservations as to Loren’s condition and the effects arising from the accident from 12 February 2012 up to April 2016: T108.25-.46. Mrs Delaney also accepted that Loren’s problems were increasing over time and by April 2016 she had significant concerns as to Loren’s ability to properly study and complete her school work, as well as her ability to work in the future: T209.1-.14. She agreed that she believed by the absolute latest in April 2016, that there was a connection between the complaints and issues relating to Loren and the accident on 12 February 2012: T210.7-.13.
It was suggested to Mrs Delaney that on the basis of that evidence, there was no reason for her to wait until March 2022 to file a Statement of Claim commencing the proceedings. She stated that she sought legal advice in 2017 and the report from Dr McMahon and it was only when the report was obtained from Dr McMahon with his analysis of Loren that she and her husband decided to continue with pursuing a claim relating to the accident: T210.15-.21. In substance, Mrs Delaney said that the report from Dr McMahon was the “crystallising aspect” that gave rise to her decision to bring a claim on behalf of her daughter: T210.27. Mrs Delaney accepted that she was fairly certain that there was a connection between Loren’s complaint and the accident by April 2016, but she could not say that this was without a doubt in her mind. She said her husband was also part of the decision. Mrs Delaney agreed that during the conference between her and her husband and Mr Cameron and Mr Dooley SC she was told there was a possibility of a claim, but she said that she and her husband wanted to ensure that there was proper testing to confirm this first. By that, she meant neuropsychological testing of the type that Dr McMahon completed: T210.43-.50.
It was put to Mrs Delaney that having regard to the earlier neuropsychological testing and her beliefs, that she did not need an opinion from Dr McMahon to crystallise the link between Loren’s problems and the 12 February 2012 accident. Mrs Delaney rejected this and indicated that she wanted “some more concrete evidence”. She also indicated that the testing undertaken by Dr McMahon was in her view different to what had been conducted previously. Having read Dr McMahon’s report, she was of the view that his analysis seemed to be in more detail than what she had read upon previous testing completed in relation to Loren: T211.26-.34. Mrs Delaney described herself as wanting “some more clarification” as it was a big undertaking [Redacted]. Mrs Delaney described the consultation with Dr McMahon as follows: “We were looking for an opinion and testing from him to better connect what her issues were to the injuries sustained” in 2012, even though she always thought they were connected: T212.43-.50. Mrs Delaney said that she wanted to “strengthen” the causal connection between Loren’s problems and the accident through obtaining another opinion: T213.4-.12.
“Q. But can I ask you this? That in some point in time, you formed - you and your husband formed a view that you wanted to get some legal advice.
A. Yes.
Q. And so you made a phone call to Slater and Gordon with--
A. Yes.
Q. --with a view to getting that advice.
A. Yes.
Q. And is it the case - is your memory this? That you made a phone call to make an appointment.
A. I believe so.
…” (T304.18-.30).
“Q. And it says that they spoke to both you and your husband. And the record is that “pool appears to be managed on behalf of the council by Ball Park Caravan Park, Andrew Palmer”.
A. That was our understanding.
Q. That was your understanding at that time.
A. Yes.
Q. And that would be information that you had given to the solicitor.
A. Yes.
Q. The pool was actually managed - and the only staff present were Bruno from Bruno’s ski shop in Wodonga.
A. That’s how we knew him.
Q. That’s how you knew him.
A. Mm-hmm.
Q. And that would have been information that you gave to the solicitor.
A. Yes.
Q. And it says, “Mum” - obviously, you - “was sitting reading at the time”. That would be - that’s - firstly, that’s correct, and secondly, that’s information you gave.
A. Yes.
Q. “And the daughter went up the ladder to jump off the high board, and her sister was on the low board at the same time.”
A. Yes.
Q. That’s information you must have given.
A. Yes.
Q. “Next thing, older sister comes running up to Mum as Loren had fallen under the rail when talking to her and landed head‑first.” That’s something you must have told in that kind of conversation.
A. Yes, I suppose I did.
Q. “Six‑year‑old had access to high board many times safely before this.”
… (T306.7-.46)
Q. Right. And then apparently beneath the banister needs to be filled in, so you can’t fall under it. That’s a view you must’ve--
A. That’s a view, I was – I was taking.
Q. A view that you had.
A. That’s a view I was taking, that – to make it safer.
Q. To make it safer. And that’s a view you must’ve had from 2012 or thereabouts.
A. I suppose in thinking about it, since she had fallen, that’s the view I would’ve taken from then.
Q. Yeah. And then it goes on because this is an accident the board – because of this accident, the board was removed.
A. We were told, yes, that the board’s got removed after that.
Q. So that’s something again you must’ve been told that and knew it from the solicitor.
A. Yes, the boards got removed and we were told that.
Q. So you formed – you either had direct knowledge of these matters that I’ve been just talking to you about or you formed a view about these things, so you could tell the solicitor what I’ve just been reading to you.
A. Yes.
Q. Then it goes on to say some other things about the South West Brain Injury service being – monitoring Loren. And then it says, “Both parents are concerned she has suffered a brain injury”. So that’s something you must’ve told this person about.
A. We were concerned about that.
Q. So you must’ve had – and that’s – the brain injury must come from the 2012-2016 neuropsychological testing which identified there was a traumatic brain injury.
A. Yes, we would’ve formed our – our opinions based around that.
Q. Much around those, yes. So my point about that though, is that in 2017, you didn’t have Dr McMahon’s report.
A. No, we did not.
Q. So you’d already formed a view that she had a traumatic brain injury.
A. That was my view. (T308.1-.42)
…
A. Yes.
Q. And then it goes on to say, “It was a non-displaced fracture of the skull and no other bodily injuries”.
A. Yes, and I got that from the hospital records when she fell.
Q. And then it says, “Takes no medication, she suffers intermittent headaches since the accident up to date.” Again, that’s a history you must’ve provided to the solicitors.
A. Yeah. (T309.1-.10)
(T306-T309).
Mrs Delaney did not recall whether there was a general discussion with lawyers in April 2017 where she and her husband were advised that the case was technically out of time but accepted that they may have been: T309.22. Mrs Delaney gave evidence that she had knowledge that Loren had fallen under the railing as she was told by Julia that she had. She later amended this evidence slightly to say that she could not say for certain that that was part of Julia’s story or she had made that assumption in her head: T310.20-.31. She also agreed that by the end of 2012 that the Royal Life Saving Society had completed an inspection and had criticised the diving facility: T310.35. Mrs Delaney confirmed her earlier evidence that after 2012 she and her husband formed the view that they would not take any legal proceedings because they lived in a small town, and they formed the view that they did not want to have any backlash in the community: T312.37-.49. Mrs Delaney accepted that they decided that they would not go and seek any legal advice at that time because of potential backlash within the community. She confirmed that she thought that the legal action would be against the Council because it was the Council’s pool and diving board and therefore the Council’s responsibility: T311.24.
Questions were then asked about the history of the neuropsychological testing of Loren. Mrs Delaney accepted that this testing occurred in 2012 and in 2016 at the SWBIRS. She accepted that she would have received the 2016 testing report and that she knew in 2012 as confirmed in 2016 that Loren had had a traumatic brain injury: T314.23-.35. At that time Mrs Delaney accepted that Loren was displaying significant features that were of concern to her and that those significant features were getting worse: T314.43.
Mrs Delaney was then asked questions about the use of the diving boards prior to the accident. She gave evidence that she had taken the two girls to the pool well before the accident. She dated when they had taught Loren to jump off the three metre diving board to 2010 or late 2011: T316.19. Mrs Delaney said she was confident by February 2012 with the girls using the three metre diving board, particularly as Loren had been taught to go on it safely: T317.8. Mrs Delaney accepted that if she had been supervising Loren by standing underneath the diving board and for some reason Loren had slipped on the diving board, there was nothing in her supervision from below that could have prevented the fall: T317.46. The item identified by Mrs Delaney and her husband when she saw the solicitor was “the lack of enclosure” of the board: T318.1.
Mrs Delaney gave evidence that she did not recall talking to the police: T318.17. She also gave evidence of the last time she saw Bruno he was up near the kiosk for the pool. However, Bruno was present shortly after the fall to assist: T318.10.
In re-examination, Mrs Delaney gave evidence that she was apprehensive about commencing proceedings as she lived in a small town and did not consult the solicitor until 2017: T320.8-.17. Mrs Delaney gave evidence that the other reasons they did not see a solicitor at the time soon after the accident were that Loren was not exhibiting behaviours that warranted them becoming extremely worried about her future and ongoing education and being concerned as to how she would be able to cope with school as she got older. The “big trigger” or “big sort of flag” was the behaviour of anger and upset that Loren had displayed whilst on holiday in Queensland in 2017 and this was significant enough to see a solicitor: T321.23.
Oral evidence was given in the proceedings by the father of the plaintiff, Mr Anthony Delaney. Mr Delaney gave evidence that he was a headteacher at Corowa High School and taught the subjects of economics, legal studies, commerce, business studies and geography.
Mr Delaney was asked a number of questions about the family’s use of the Corowa Pool starting in 2009. He confirmed he was a swimmer and that the family had a season ticket. He agreed the family was a regular user of the pool, including up to the time of the accident. Mr Delaney gave evidence that persons called Bruno and Jan operated the kiosk at the pool, with Bruno undertaking cleaning and most of the lifeguard activities. During busy times, Bruno also obtained additional assistance from other lifeguards. Mr Delaney said that when the use of the diving boards was busy, Bruno stood at the base of the high board monitoring the children near the ladder so that one child would finish their jump before the next child would be allowed on. This included the three metre board. Mr Delaney said in answer to a question from the Court, that he did not remember ever seeing Bruno prevent small children from using the three metre high board: T331.49. Mr Delaney confirmed that the monitoring by Bruno occurred from the base of the ladder.
Mr Delaney gave evidence that he was fishing with his son when he was telephoned by Mrs Delaney and told of the accident. He said he immediately packed up and attended Albury Base Hospital. By that time, the plaintiff had been flown to Melbourne. He said that he did not see either the plaintiff or Mrs Delaney at that time. He could not recall whether Julia Delaney was with Mrs Delaney at the hospital, but he later confirmed that Julia Delaney remained with him while Mrs Delaney and Loren were at the hospital in Melbourne.
Mr Delaney was asked numerous questions in the course of his cross-examination by counsel for the defendant as to when he became aware of what occurred in the accident. He said that he had a few conversations with his wife in relation to the accident but that he asked Julia what had occurred in the accident a day or so after the accident. After further cross-examination, Mr Delaney gave evidence that the conversation with his daughter Julia about what occurred in the accident occurred after and on the evening of the day in which he had a conversation with Ms Kristy Kay of the defendant Council in the presence of the Principal of his school.
Mr Delaney gave evidence that Julia told him that she was on the one metre small diving board at the time the plaintiff was on the three metre diving board. She told him that the plaintiff turned to her left and waved at Julia and she subsequently saw the plaintiff fall and hit the concrete. Mr Delaney’s initial evidence was that these were the things that Julia told him in the conversation: T332.34; T377.
Mr Delaney was asked numerous questions about the reasons he and Mrs Delaney had for contacting Slater and Gordon, Solicitors. He said they were the first solicitors which he and Mrs Delaney had contacted. He said they had formed the view that they needed to do something in relation to the concerns which they had relating to Loren, including her ability to process information and the effect which it had on her well-being at school. They were of the view that they needed to seek some advice: T333.2.
Oral evidence was given in the proceedings by Mr Garron Farrell. Mr Farrell had previously worked for the defendant Council from 2000 until September 2015. He currently works as a chaplain for the Department of Education. Whilst working at the Council, Mr Farrell was initially the Council Safety Co-ordinator. This role was later changed in name to the Work Health and Safety Co-ordinator following change in government legislation. He confirmed that he was an employee of the defendant Council: T550.28. Mr Farrell confirmed that the defendant, the Federation Council, was the successor of Corowa Shire Council: T551.14.
Mr Farrell gave evidence that as part of his role as the Work Health and Safety Coordinator he managed Council facilities relating to construction including road and infrastructure construction and maintenance. This role included buildings, water treatment plants, sewage treatment plants, sports grounds and aquatic facilities: T551.20. The aquatic facilities included the Corowa pool: T551.27. As the Work Health and Safety Officer, Mr Farrell’s role included compliance with legislation and Australian Standards, conducting inspections including hazard inspections and providing risk assessments and recommendations to the Council for action following the findings of the inspections: T551.31. Mr Farrell confirmed that hazard inspections undertaken by him in relation to facilities that the Council managed included the Corowa pool. He said the inspections were conducted annually or upon an incident occurring: T552.6. However, his later evidence was that the inspections were significantly less frequent than annually.
Mr Farrell was taken to an email sent as an employee of the Council on 4 February 2013 (Exhibit H tab 16: 2935-2942). This email was to initiate a hazard inspection on the Corowa pool facility which Mr Farrell described as being “overdue". He did not recall whether it was initiated by the accident involving the plaintiff: T552.24. One of the recipients of the email was Mr Ian Singleton who was a building compliance inspector at the time. Mr Farrell confirmed that he worked very closely with Mr Singleton: T552.24-.34. Mr Farrell gave evidence that Mr Singleton as Compliance Inspector was primarily engaged in looking at buildings and infrastructure throughout the Council that it owned and operated and inspecting them for compliance with safety standards. This included items such as playgrounds and play spaces: T553.6. The Council play spaces included the Corowa swimming pool: T553.9. The email dated 4 February 2013 was also sent to a Mr David Warner who was also a Compliance Officer for the Council dealing primarily with buildings including electrical infrastructure and risk assessments: T553.12. Following the completion of the inspection, the completed report was to be sent to the Water and Sewer Manager for the Council who was a Council employee: T553.36-.41. Mr Farrell said he was not required to be involved in this inspection. The blank document attached to the email was provided to Mr Farrell by the Council’s insurance provider which was Statewide Mutual: T554.7. Mr Farrell said the document template was not in use prior to 2013 but was a more comprehensive document that Statewide Mutual had recommended for use in conducting hazard inspections: T554.16.
“Q. You indicated that you had a discussion with Mr Singleton about the diving board. What was said?
A. I said to Mr Singleton that the - the ladder’s construction didn’t meet the requirements of the current safety standards due to its design, the placement of the rungs, and the steepness of the ladder was excessive for a lateral stairs that should have been more easier to access. It wasn’t built to meet those standards that were in place at the time of the inspection. Sorry?
Q. I interrupted, sorry.
A. I also said to Mr Singleton that the guard railing on the top of the landing board was also not compliant in that it wasn’t designed to stop a small person or a child from falling through the guard railing that was in place.
Q. When you had that conversation, was it documented in any way, those concerns?
A. Yes, I recall that Mr Singleton documented it on a hazard inspection that we used at the time. Not the current format, but an earlier version of that hazard inspection.
HIS HONOUR
Q. This conversation you say that you had with Mr Singleton, I think you were asked questions in relation to the first two inspections. Firstly, was it on the first inspection or the second inspection? And secondly, can you be more specific as to when.
A. So the diving board was inspected on the second occasion, on the second inspection. Look, I’m really - it’s vague when it was. I don’t recall specifically when that second inspection was carried out.
Q. Can you give a year or how many years after you started, approximately?
A. I would say, approximately - yes, four years after I’d started, so 2005. 2004.
Q. 2004 to 2005.
A. Yeah.” (T556.37-T557.21).
Mr Farrell said that he observed Mr Singleton recording on the inspection document during the inspection the hazards that he had found but he did not recall him writing down the specifics of what he had said about the diving board, ladder, platform and the handrail guarding. Mr Farrell said he did not believe he checked the document after it was completed by Mr Singleton: T557.39-.48. However, later he said that he believed he signed it and he would have reviewed it. Mr Farrell then gave evidence about a third inspection after the accident on 12 February 2012. Mr Farrell gave evidence that he dealt with Bruno who he understood was responsible for running the pool facility during the swimming season and he had remained in that role to his knowledge from 2001 to February 2012: T559.26-.35; T560.10.
Mr Farrell later expanded on his evidence in relation to his conversation with Mr Singleton and gave evidence to the following effect:
“HIS HONOUR
Q. Can I ask a question? Mr Farrell, you’ve given evidence of a conversation you had with Mr Singleton at one of the two inspections prior to the incident where you made comments in relation to the ladders and the railings, that’s correct?
A. Correct.
Q. And you said, when asked questions about did you observe Mr Singleton doing anything on a document, you said that you noted he had recorded on the inspection document hazards we had found, but you don’t recall him recording issues relating to the steepness of the ladder or the handrail guarding you had mentioned. Is that fair enough?
A. That’s correct, yes.
Q. At the time, did you regard those matters as important or significant or not?
A. Yes, I did regard them as important and significant.
Q. Did you say anything to him about his failure to record them on the document or not?
A. I can’t recall what I said to him about his failure to do that. No, I cannot recall what was said about that failure.
Q. But do you recall anything being said?
A. I - yeah, I recall saying to Mr Singleton that - that because of the significance of that risk, that the - that the diving board should not be used.
Q. Do you recall that being recorded, from your observation, on any document at--
A. No, I don’t.
Q. --the time?
A. No, your Honour, I don’t recall recording it on any document.
Q. If you regard it as a matter of significance, weren’t you concerned it wasn’t recorded on the document?
A. I was - I was concerned.
Q. Yes--
A. And I don’t--
Q. Sorry, did you want to say anything else?
A. I was concerned, but I don’t recall what - what other action was taken other than to - other than discussing it with Mr Singleton. No recording was - was documented though.” (T560.34-T561.28).
Although Mr Farrell did not know when the pool was constructed, he described the pool facilities as being “old” prior to 12 February 2012, including the diving board structure: T562.2-.19. Mr Farrell stated that the diving board structure did not meet then current Australian Standards for ladders, walkways and guarding at that time: T562.16.
When asked by the Court how strong his recollection was of the conversation with Mr Singleton on inspection in 2004-5 concerning the diving board structure, ladder and board railings, Mr Farrell answered: “I would say exactly, moderately strong”: T562.26.
Mr Farrell was then asked a number of questions by counsel for the defendant before the defendant asked for an adjournment of the proceedings in order to obtain instructions concerning Mr Farrell’s evidence, particularly concerning his conversations with Mr Singleton and other officers.
In cross-examination, Mr Farrell was asked a number of questions in relation to his awareness of structural issues concerning the diving board as at the email of 4 February 2013: T563.32. In the course of those questions, Mr Farrell indicated that his observations in 2004-5 were that the handrails on the diving board did not appear to be corroded: T564.11-.19. He also indicated that during the inspection in 2004-5 he had no concerns about the condition of the base of the diving board itself: T564.44; T565.11.
Concerning the handrails on the three metre diving board structure along the board, Mr Farrell gave the following evidence:
“Q. Now, with regards to the balance of the structure as a whole, did you identify any other problem?
A. Yes. The - the other problem identified was that the handrails, that ran along the length of the diving board support structure, were inadequate. They didn’t have - they were inadequate in that they only had - there was a single horizontal rail attached to two vertical supports and they didn’t - there was no mid-rail present at the - on that diving board.
Q. Single horizontal rail attached to the supports--
A. A single horizontal rail. I can’t recall the height of that rail, but it may have been around one metre in height, from recollection. And the - a standard Australian Safety Standards for those sorts of facilities required a mid-rail to prevent or to, you know, at least provide some additional protection for small people who were using the diving board, so they couldn’t fall out that side.” (T565.16-.29).
“Q. Mr Farrell, in relation to the handrail that runs along the part of the diving board from back to front if you’re standing on it, your complaint was that there was no rail between the handrail at the top and the base where it was secured. Is that fair to say?
A. It’s fair to say.
Q. And in your view, there should have been a horizontal rail. Is that right?
A. In my view, it should have been a minimum of a horizontal rail. I would also have the opinion that it probably should have been enclosed in some sort of metal mesh to prevent a small child from falling through that space between the top rail and the diving board surface.” (T567.33-.43).
Mr Farrell later clarified this evidence to say that “we” formed the opinion that the mid-rail should have been there on the diving board structure along the diving board itself but he did not believe he would have articulated that it should also have had mesh on the openings of the diving board platform: T568.4-.13. Mr Farrell stated that to the best of his recollection he articulated to Mr Singleton at the time that the platform should have had a mid-rail installed along the diving board platform itself. He later clarified that he did not recall using the words “middle rail” (T568.40). He agreed that he said to Mr Singleton words to the effect “we need a middle rail” or “there should be a middle rail”: T569.15. Mr Farrell said he used words to the effect that there should be “a middle rail on … that platform structure”: T569.21. When asked whether he told Mr Singleton why there should be middle rail on the diving board platform, Mr Farrell said that he was not sure what he “would have said to Mr Singleton other than that all walkway platforms are meant to meet the current standard, and that includes a mid-rail between the top rail and the platform itself”: T569.27. Mr Farrell confirmed that he referred to a standard but did not recall which standard that was. Mr Farrell said he did not recall what Mr Singleton had said in response to his comment concerning “the mid-rail”: T569.50. When asked further questions about any response of Mr Singleton to the “mid-rail” comment, Mr Farrell said that nothing prompted his memory as to what Mr Singleton said in response to that observation at the 2004-5 inspection: T570.46-T571.5.
Mr Farrell did not recall any inspection conducted by him of the pool facility between 2004-2005 and the date of the incident on 12 February 2012. He also indicated that he did not inspect the pool facility after 12 February 2012: T571.12.
Mr Farrell was then asked some further questions about the email sent by him to Mr Singleton and Mr Warner on 4 February 2013 (Exhibit H tab 16: 2935). He agreed that this was the first email after the inspection in 2004-5 relating to a further inspection of the swimming pool. He also agreed that certain aspects of the form about who was to inspect the pool had been completed by him. Mr Farrell agreed that as at February 2013, the issues relating to the diving board were significant: T572.48. Mr Farrell did not recall any recorded conversations other than face-to-face conversations about completing the 2013 work hazard inspection. Mr Farrell confirmed that he was concerned that the plaintiff had an accident and had been injured in the light of the fact that as far as he was aware the condition of the diving board had not been rectified. That was particularly in the light of what he had conveyed to Mr Singleton in 2004-2005: T573.18-.30.
Mr Farrell said that he did not recall having a conversation with Mr Singleton relating to the incident involving the plaintiff and the condition of the diving board as observed in 2004-5: T573.40-T574.13. Similarly, Mr Farrell said that he had not had a conversation with anyone else employed by the defendant Council in relation to his inspection in 2004-2005 with Mr Singleton from the date of the accident to the present: T574.20. However, then Mr Farrell gave evidence that he may have had a conversation about that issue with Mr Warner who had taken on responsibility for the role of hazard inspections on Council infrastructure, but he did not recall what was said to Mr Warner: T574.24; T575.13.
“a fair bit of time to consider some of the conversations … - I had at the time. … It’s something that’s played a - it’s played on my mind a lot since - since I last appeared to give evidence, and I’ve - I’ve tried to recall more clearly what that conversation was about, and I believe that that conversation was about the - the findings of that inspection that we conducted in 2004, 5, and how there hadn’t been no rectification done on that pool - on that diving board since then.”: T628.9; see also T630.3.
Mr Farrell stated that having had time to think about the conversations that he had had at the time with Mr Singleton he “definitely would have had a conversation with him about that particular concern that we raised in 2004-05”: T631.3. Mr Farrell agreed that he did not recall every single word he said to Mr Singleton on the issue: T632.1.
It was put to Mr Farrell that he could not recall the inspection of the Corowa swimming pool facility with Mr Singleton in 2004-5 “very clearly”. Mr Farrell agreed that that was correct that he could not recall it “very clearly”: T638.50. Mr Farrell rejected the proposition that he did not raise with Mr Singleton any issues in relation to the three metre diving board during the 2004-5 inspection. He stated that he did not recall specifically what he raised about the diving board in 2004-5 but did recall that he and Mr Singleton discussed the condition of the diving board in 2004-5. He agreed that he did not have a clear recollection in relation to completing a document or seeing Mr Singleton complete a document at the time: T639.23. Mr Farrell rejected the proposition that it was possible that the conversation during the 2004-5 inspection with Mr Singleton about the problems with the three metre diving board did not happen: T640.31. Mr Farrell then, somewhat inconsistently, said that he recalled the document being completed by Mr Singleton but he had no knowledge of what happened to that document after the inspection was completed including where the document was sent: T640.35. Mr Farrell also rejected the proposition that the 2004-5 report prepared by Mr Singleton did not exist: T641.10. Mr Farrell expressly gave evidence that he recalled seeing the inspection document on the day of the inspection: T646.11. He said the last person he had seen with the document was Mr Singleton in 2004-5.
Mr Farrell was then asked a number of questions by counsel for the cross-defendant, Remlap. He agreed that in 2004-5 he was the Work Health and Safety Officer at the Council and was asked by someone to assist Mr Singleton in carrying out an inspection of the pool. From his point of view, it was a work health and safety inspection: T647.9-.22. He also agreed that irrespective of whether Mr Singleton completed a form or not or whether he spoke to Mr Singleton during the course of the inspection, there was no doubt in his mind that he carried out an inspection of the pool in 2004-5, including with Mr Singleton: T647.24-.37. He agreed that he carried out the inspection as part of his duties with the Council as a Work Health and Safety Officer and that he identified the three metre diving board as presenting a risk: T647.44. The risk that he identified was that there needed to be a rail between the top rail and the platform of the diving tower to prevent people slipping under the railing: T647.46-T648.1. He also agreed that there was no doubt that he had identified that risk during the inspection: T648.9.
Mr Farrell confirmed that he was upset and “devastated” because the Council had not rectified the situation: T648.11-.22. He also agreed that persons would report to the Council issues in relation to Council assets for the purpose of allowing the Council to respond to whatever the issue was that was raised: T648.35.
“203 In determining its factual findings in a particular matter, a court is not bound to accept any of the evidence which a particular witness attests to and similarly may accept part only of a particular witness’s evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]- [123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Accordingly, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]- [156]; Croucher v Cachia [2016] NSWCA 132 at [129].”
The defendant called Mr Bruno Sigmund in its case. Mr Sigmund was the only manager and lifeguard at the pool at the time of the plaintiff’s accident.
Mr Sigmund gave evidence that until 2018 he had operated a business selling and hiring ski products in Wodonga. This business had been operated during the winter months from 1977 until about 2018.
In the summer months, Mr Sigmund gave evidence that he “looked after" the Corowa swimming pool. He said he had looked after the swimming pool in 1977 and then came back to look after the pool from 1998 until about a year after the accident, being 2013: T697.43. Mr Sigmund gave evidence that he operated his business looking after the pool as a partnership with his wife and he contracted with persons with qualifications as lifeguards when needed: T698.5. Mr Sigmund gave evidence that the pool was usually open during the summer months from November to March in the more recent period before he ceased his connection with the pool.
Mr Sigmund gave rather confusing evidence in relation to the status of his connection with the Corowa pool. He stated that from 1998 he and his wife were engaged for a period by Mr Andrew Miles and worked for Mr Miles with a retainer. Mr Sigmund said that he and his wife had a contract and were paid a wage or retainer: T699.14. Takings from the kiosk at the pool were kept by Mr Sigmund and his wife: T699.25.
Mr Sigmund gave evidence that this relationship with Mr Miles continued for some six years. Mr Miles’ relatives then took over the pool for a period before a Mr Andrew Palmer took over the business, which included the caravan park. Mr Sigmund was unaware whether the entity under which Mr Palmer operated was a company. Mr Sigmund gave evidence that in 2004 he and his wife entered into a different contract with Mr Andrew Palmer but said that his wife looked after documentary and bookkeeping issues: T700.2. Mr Sigmund’s wife had passed away some 15 months before he had given his evidence. Mr Sigmund gave somewhat unclear evidence in relation to the entities which had run the nearby Ball Park caravan park near the pool. In the end, he gave evidence that from 2004 to 2008 Mr Andrew Palmer had either by himself or through another entity operated the Ball Park caravan park after Mr Andrew Miles: T702.11.
Mr Sigmund appeared also to be rather unclear whether there was a formal contractual arrangement in place which he and his wife had entered into in relation to the operation of the pool between 2008 and 2013. In the end, he stated that when Remlap took over, he and his wife had a contract with Remlap for the first year or two but after that they did not sign the contract anymore and the relationship with Remlap existed from year to year because he and his wife were not happy with some of its terms: T703.15; T704.50-T705.30.
Mr Sigmund gave the following evidence in relation to his status while working at the pool:
“Q. When you were referring to a contract in the first few years, Mr Sigmund, when was the start of that contract that you are referring to?
A. When Remlap took over, it was for the first year or two. I’m pretty sure it was - could have been two years, and then after that we didn’t sign it anymore. It was only year-to-year contracts, I think. It might have been two years, the contract. I’m not sure now.
Q. And were you engaged by Remlap until 2013 when you stopped the operation of the Corowa swimming pool?
A. That’s right.
Q. And how long had you been somehow engaged by Remlap? And I’m not suggesting it’s a written contract or anything like that. Just how long did Remlap and yourself and Jan have some sort of relationship where you operated the swimming pool?
A. Five--
Q. Five years?
A. Five years.
Q. So did it start in about 2008 or not?
A. Well, it would have to be, yes.
HIS HONOUR
Q. When you say that, what do you mean by that? “It would have to be”.
A. Well, five years. Since they’ve had it, from the first year they took it on to when we left.
Q. So what you’re doing is starting with what you recall, leaving in 2013, and taking five years from that, so it would start in 2008. That’s the logic you use to come to the five years?
A. Yeah.
MCMAHON
Q. And I take it, Mr Sigmund, that you said a moment ago that there was a written contract between yourself, your wife and Remlap for the first couple of years; is that correct?
A. That’s correct.
Q. So two years; is that correct?
A. Yeah, I think it was for two years and then that was finished.
Q. Have you seen that written contract at all recently?
A. No, I haven’t.” (T704.48-T705.43)
…
“Q. From 2009 through until 2013, was there a written contract between yourself and Jan and Remlap concerning the operation of the Corowa swimming pool facility or not?
A. Like I said, for the first two years that they had it.
Q. So after those first two years, is it fair to say there was no written contract or not?
A. Exactly.
Q. The period throughout the year, was it November through until March that the Corowa swimming pool facility was operated by you pursuant to that relationship?
A. Yes. Yes.” (T706.9-T706.21); see T716.10-.28.
No contract was put before the Court between the cross-defendant and Mr and Mrs Sigmund. See also the references in the cross-defendant’s written submissions dated 10 February 2025 in paragraph 51.
Mr Sigmund said that his duties at the pool on a daily basis were to make sure that the water levels and chemicals were right, that the filtration was working, that the pool was clean, and to attend to other necessary tasks. He stated that the pool opened at different times depending on the weather and would close in the early evening or even later if many people were present. He said the kiosk operated by him and his wife was the gate to the pool. He said there was a daily entrance fee and season passes. Mr Sigmund stated that he cleaned the areas including the grounds before persons were allowed into the pool.
Mr Sigmund gave evidence that lifeguard services were provided by him and other persons assisted with lifeguard services depending on the number of people at the pool. Mr Sigmund stated that between 1998 and 2013 he had a number of qualifications including a university aquatic facility licence, an annually renewed lifeguard licence and a first aid qualification: T709.21. The lifeguard license was issued by the RLSS.
Mr Sigmund gave evidence that when the pool was open, he would keep an eye on the people in the pool including the people using the diving boards. He accepted that this involved monitoring people using the pool facility. He stated that if he saw pool users doing “the wrong thing” he would tell them not to do it. He said he had rules such as only one person at a time using the diving board with the next person not being able to climb up until the person had entered the pool. He also had rules against running and diving in the shallow end. One example given were persons engaging in double bouncing on the diving board, although this did not occur much. He said he would often be stationed near the diving boards, depending on the number of people using them. Other lifeguards also undertook these duties depending on the number of users such as increased usage during school holidays. He said additional lifeguards were used throughout the 1998 to 2013 period during busy times: T711.44. When the pool was busy there could be three lifeguards on duty. Mr Sigmund confirmed that in the 2011-2012 summer swimming season he worked as a lifeguard at the pool when the pool was busy. He said one lifeguard was stationed near the deep end of the pool close to the diving boards and one at the shallow end near the children’s pool. One would be roaming around looking at patrons and the positions would be rotated in the course of the day: T715.44. Overall, consistent with the cross-defendant’s written submissions, Mr Sigmund appeared in all the circumstances to exercise reasonable supervision of patrons at the pool including on the day of the accident: written submissions paragraphs 59-67.
Mr Sigmund confirmed that he was familiar with the diving boards of the Corowa pool complex as at 2011-12. He said there were two diving boards present being a one metre board and a three metres diving board. Mr Sigmund gave evidence that prior to February 2012 whilst he was at the pool complex he was not aware of any incident where a person suffered injury whilst using the diving boards at the pool. He was aware prior to the time he was running the facility at the pool of someone being injured undertaking a double bounce at the pool where the teenager involved had broken their leg. However, this was prior to his time managing the facilities at the pool.
“Q. And I gather from what you say, in your view there was nothing wrong with a person like Loren getting up on the diving board - the three-metre diving board - and standing there for a moment, perhaps holding onto a rail, perhaps not, but talking to her sister for a very short period of time before she then jumps off the end of the diving board. There’s nothing wrong with that, is there?
A. No.
Q. As long as they’re behaving whilst they’re on the diving board, there’s nothing wrong with what I’ve just put to you?
A. Yep.” (T747.27-.37).
Counsel for Remlap asked Mr Sigmund further questions about his contract to manage the pool and what he did on a day-to-day basis. Mr Sigmund confirmed that he had a written contract to manage the pool for about two years from 2008 and he was “pretty sure of that” but not a hundred percent certain “anymore”. He said his wife Jan handled all aspects relating to contracts such as written or verbal agreements: T751.19-.38. He accepted that whether or not the agreement in relation to managing the pool was written or verbal, it provided for him to manage the pool on a day-to-day basis and provide supervision at the pool on a day-to-day basis as well as managing the kiosk on such a basis: T751.43 and following. Mr Sigmund agreed that this also involved him inspecting the pool on a frequent basis and if he noticed things that needed to be attended to, he reported it to his contact person at the defendant Council: T752.12. Mr Sigmund agreed that if he was personally of the view in the period from 2010 to 2013 that something needed to be attended to, then the person that it should be reported to was the defendant Council: T752.46. Importantly, Mr Sigmund agreed that as part of his management duties, he checked the diving boards, if not on a daily basis, then certainly on a frequent basis: T752.8. If he needed anyone to perform his duties at the pool, he would engage someone to assist him in performing the duties: T752.14.
In relation to the qualifications he had at the time, Mr Sigmund stated that he had an aquatic facility licence which entitled him to run aquatic facilities including the management of pools. Mr Sigmund was “pretty sure” that there was a requirement for him to be licensed in order to run an aquatic centre although the licence did not have to be renewed annually, although he thought it probably would have to be renewed periodically: T753.22-.35. Such an aquatic facility licence was in force in relation to Mr Sigmund as at January-February 2012: T753.38. Concerning his qualification as a lifeguard, that had to be renewed every year and it entitled him to perform lifeguard duties at an aquatic centre. He said that was in force also in January-February 2012. Although he could not remember exactly, he believed that his first aid certificate would also have been in force in January-February 2012. Relevantly, Mr Sigmund stated that he was the only person working at the pool on the day of the accident from when the pool opened up until the time the plaintiff had her accident: T754.36.
Mr Sigmund did not recall knowing Mr Farrell, but he did know Mr Singleton who he said was an employee of the local Council. Mr Sigmund could not recall whether Mr Singleton and another person attended the pool in 2004-5: T755.18. Mr Sigmund said he did not think that anyone from the Council raised with him in 2004-5 an issue concerning the railing on the platform of the three metre diving board, but then said that he could not remember if they did or not: T756.5.
Mr Sigmund confirmed that he had observed the plaintiff using the three metre diving board on previous occasions and had no concerns in relation to her behaviour. He also agreed there would be no reason why he would have had to prevent the plaintiff from using the three metre diving board: T756.43. This evidence was particularly relied on by counsel for the cross-defendant.
(a) Although the defendant in its Defence denied that it was the occupier of the Corowa Swimming Centre at the relevant time and asserted that the cross-defendant Remlap occupied the Centre pursuant to the Lease, that assertion should be rejected. The defendant had a sufficient degree of control over the Centre to place it under a duty of care towards those who came lawfully into the Centre. The Council need not have exclusive occupation to owe a duty of care provided it has some degree of control. The defendant Council exercised control in relation to the Swimming Centre pursuant to its right of entry and obligation to carry out structural maintenance at the Centre under the Lease and pursuant to an obligation to perform life saving activities at the Centre (paragraphs 3-7); (b) The Lease makes clear that the lessor Council and any persons authorised by it could enter the Centre to examine and view the condition and state of repair of the Centre and to carry out any alterations or repairs required (paragraph 9); (c) Of relevance was the 1991 Royal Surf Life Saving Guideline for Safe Pool Operations which stated that the vertical gap between horizontal handrails should be no greater than 0.33 metres; (d) The expert evidence of Mr Dubos, in circumstances where the defendant served no expert liability evidence, should be accepted. There were clear risks of a fall from the three metre diving board having regard to the railing in place (paragraphs 13-15); (e) Similarly, Mr Farrell’s evidence should be accepted as the then Work Health and Safety Officer for the Council that the three metre diving board in his view presented a real risk in that the distance between the top rail and the platform of the diving tower was insufficient to prevent people slipping under it (paragraphs 16-17); (f) Although the evidence suggests that there may well have been a contract in place for a year or two between Mr Sigmund and the Palmers on behalf of Remlap, the evidence indicates that there was no contract in place at the time the plaintiff had the accident (paragraphs 22 and 25); (g) It is clear from the evidence that the Council was the body responsible for safety assessments at the pool, not the cross-defendant, Remlap. The decision to remove the diving boards in 2012 was made by the Council following the accident and the Council did not dispute the letter from Mr and Mrs Palmer in the light of the 9 January 2009 Royal Life Saving Society report that aspects of the safety improvement plan were the responsibility of the Council (paragraphs 23-27); (h) Under Schedule 1 of the Industrial Relations Act 1996 (NSW), the defendant Council is deemed to be the employer of Mr Sigmund. The defendant Council was at all relevant times vicariously liable for Council employees including Mr Farrell, Mr Singleton and Mr Sigmund (paragraphs 29-30); (i) The only two people who could give a direct account of the accident were the plaintiff and her sister Julia. The plaintiff was a reliable witness as far as her evidence went. The evidence of Julia Delaney as to the accident should be accepted. On the evidence, the Court would find that the plaintiff accidentally slipped on the three meter board after moving to jump into the pool following the verbal conversation with her sister, and fell under the railing to the concrete. The plaintiff was not doing anything in the circumstances that was careless such as to contribute to the accident (paragraphs 31 and 35); (j) The opinion of Mr Dubos that a form of fencing with infill with vertical railings or glass/Perspex infill would have effectively prevented a slip and fall below the railing should be accepted. It was reasonably foreseeable that a six year old child could slip and fall under a single railing that was one metre in height. Having regard to Julia Delaney’s evidence, it should be accepted that either infill with vertical railings or even a middle rail would have, on the balance of probabilities, prevented the plaintiff from falling to the ground thus satisfying section 5D of the (NSW)(“CLA"). The defendant Council knew or ought to have known about the deficiencies in the diving platform well before the plaintiff’s accident having regard to the inspection by Mr Farrell and Mr Singleton. As Mr Farrell and Mr Singleton were employees, the Council is vicariously liable for the fact that the Council was not made aware by them of the dangers of the diving board prior to the plaintiff’s injury (paragraph 39); (k) The defendant also had the opportunity to provide better supervision at the pool through Mr Sigmund. The absence of proper supervision of the plaintiff by Mr Sigmund in the circumstances of the missing middle rail on the three metre platform was unreasonable (paragraph 41); (l) Whilst it may be found that the plaintiff escaped significant cognitive injuries in the accident, there was no doubt that she has struggled with anxiety and experienced panic attacks throughout her youth and into her teenage years, although there may not have been a significant cognitive impairment according to Dr Batchelor and Dr Davies. Dr Davies still found the plaintiff’s anxiety to be connected to the accident (paragraph 45). On the expert evidence, the plaintiff’s anxieties affect her vocational opportunities later in life and her work options (paragraph 46). The plaintiff’s psychological reaction to the incident and the reaction of her family and those around her have hindered her, causing self-doubts and a perception of cognitive dysfunction which has led to significant concern and anxiety. The injuries have led to a loss of earning capacity (paragraph 48); (m) On the limitations issue, the plaintiff’s parents should be accepted that the plaintiff’s conduct on a holiday in early 2017 was the trigger to obtain legal advice. It was that conduct that led the plaintiff’s parents to form the view that her behaviour was serious enough to see a solicitor and following that, to obtain a report from Dr McMahon to confirm the seriousness of the injury before pursuing a claim. It was appropriate for neuro psychometric testing to be performed and thereafter appropriate for the solicitors to obtain an expert report before commencing proceedings (paragraphs 51-52).
(a) There is no evidence of any previous incident or accident which was relevant at the pool; (b) The Royal Life Saving Society January 2009 report did not refer critically to the absence of a mid-rail on the 3 metre platform as a concern; (c) The only evidence as to the absence of a mid-rail being known to the defendant at the time of the accident was the evidence of Mr Farrell (it is difficult to accept this submission as the Council owned the pool). His evidence was unsatisfactory for various reasons set out in the submissions. There was no report document reporting any absence of a mid-rail on the three metre diving board platform despite Mr Farrell’s evidence to the contrary; (d) The defendant had limited involvement in the maintenance and inspections of the pool; (e) The plaintiff had used the three metre diving board prior to 12 February 2012 on numerous occasions; (f) Julia Delaney’s evidence was unusual and should not be relied upon. She should not be regarded as a witness to the accident. The assertion that she was an eyewitness is inconsistent with the interaction with the lawyers in 2017. The plaintiff’s evidence was also unsatisfactory and could not be relied upon; (g) Detailed submissions were made in relation to the plaintiff’s injuries arising from the accident (submissions paragraphs 26 and following). Whilst the plaintiff suffered a biparietal skull fracture and a mild traumatic brain injury in the accident the effects are mild and do not impact on the plaintiff significantly. The evidence of Dr Davies should not be accepted as to the causal connection which might underpin the path of reasoning from the accident to the plaintiff’s current anxiety and depressive symptoms (paragraphs 38-41). There were numerous other causes for the plaintiff’s anxiety and depression and she was an anxious child prior to the accident. The actions of the parents constituted a novus actus thus severing the chain of causation. The cause of the loss was also too remote and thus not foreseeable; (h) There was a paucity of probative evidence as to how the plaintiff fell and in particular the mechanism of the fall. The plaintiff cannot establish whether she slipped on the diving board following which she fell to the ground: paragraph 42; (i) Mr Dubos’ expert evidence should be rejected. The plaintiff cannot establish negligence on the defendant’s part for various reasons set out in paragraphs 45 and following of the submissions; (j) Even if the defendant was found to be an occupier of the pool, the plaintiff must establish that the defendant knew, or should have known, of the risk of harm to the plaintiff. Mr Farrell’s evidence as to his inspection should be rejected. A reasonable person in the position of the defendant could not be expected to have known of the risk of harm for various reasons; (k) The defendant did not exercise control over the pool such as to be an occupier. It merely rectified issues identified by Mr Sigmund pursuant to the Lease: paragraphs 52-57; (l) The defendant is not vicariously liable for the actions of Mr Sigmund. The statutory cause of action relied on by the plaintiff is not pleaded and should be rejected; (m) The cause of action of the plaintiff was always discoverable including within the three year time limit: paragraphs 64-85; (n) Submissions were made in relation to quantum issues and a Schedule of Damages was provided; (o) In relation to the Cross-Claim, there were breaches by the cross-defendant of the Lease entitling the defendant to indemnity under the Lease. There was also a breach of the Lease by the cross-defendant in its failure to effect insurance to indemnify the defendant against liability; (p) The Lease did not impose an obligation on the defendant to install further railings or vertical infill. Clause 4 of the Lease could not be interpreted to impose that obligation on the defendant; (q) There was a breach by the cross-defendant of its obligation to provide supervision pursuant to the Lease; (r) The cross-defendant was also liable for a breach of duty of care to the plaintiff and therefore the defendant was entitled to contribution or indemnity from the cross-defendant under section 5 of the (NSW); (s) The plaintiff’s claim under s 62D of the should be rejected: first, it should have been pleaded in the plaintiff’s Reply; secondly, the only evidence as to irrationality was given by Mr Delaney not by the tutor Mrs Delaney; thirdly, the evidence of Mr Delaney in re-examination was oblique and it was unclear at the time what it went to; fourthly, the case would have been run differently: the issue would have been dealt with in cross-examination or leave would have been sought for further cross-examination; (t) as to clause 1(w)(i) of the Lease, this was an obligation which continued after performance of the Lease. That is clear by the words “shall indemnify and keep indemnified”. This showed the obligation remained on the cross-defendant after the term of the Lease expired. Secondly, the obligations in clause 1(w)(i) were separate: one to indemnify and keep indemnified and two to insure. This is shown by the words “and further” on the fourth line of clause 1(w)(i) of the Lease. The potential liability to the plaintiff crystallised upon suit and the cross-defendant was obliged to indemnify the defendant then. Clause 1(w)(i) of the Lease covered a different liability to that in clause 1(r) of the Lease.
(a) The diving boards at the pool had been in place from a date in the 1950s and had not been materially changed between installation and the date of the accident: paragraph 3; (b) It was to be noted that the defendant, in its Defence, denied that it was an occupier of the Swim Centre; (c) On all the evidence, and having regard to the terms of the Lease, the defendant had a sufficient degree of control over the swimming pool premises for it to be regarded as an occupier at law of the premises. There may be more than one occupier of premises even though their legal interests may differ: paragraphs 16-27; (d) The plaintiff had very limited recollection of the accident; however, Julia Delaney’s recollection was much better, although she was unable to say why the plaintiff lost her footing and, in particular, whether the plaintiff slipped on the board. The mechanism of how the plaintiff fell as recorded in Mr Dubos’ report was not supported by the evidence in the case and the weight to be given to Mr Dubos’ opinion was very limited: paragraphs 28-45; (e) The plaintiff was a proficient swimmer at the time of the accident and Mr Sigmund was comfortable with the Delaney sisters using the diving board without particular supervision. Mr Sigmund had the qualifications referred to in the evidence. Importantly, it was submitted that Mr Sigmund was an appropriately qualified independent contractor engaged by the cross-defendant to manage, maintain and operate the Swim Centre and to supervise swimmers: paragraphs 49-55; (f) Having regard to the evidence, the mechanism of fall was unclear. Both the plaintiff and Julian Delaney were unable to explain why the plaintiff lost her footing on the diving board. It is most unlikely she slipped due to the surface of the board and the most likely (and most logical) inference to be drawn from the evidence is that the plaintiff simply misplaced her foot/feet at the time and lost her footing. It cannot be established by the plaintiff and defendant that the diving board was slippery at the time of the accident and, in particular, that the plaintiff slipped off the diving board because the surface of the diving board was wet and slippery. The particulars of negligence as to these aspects were therefore not established: paragraphs 56-58; (g) The plaintiff was adequately supervised on the day of the accident by a person being Mr Sigmund who was appropriately trained, qualified and experienced. There was nothing about the conduct of the plaintiff or Julia Delaney that warranted intervention and the fall was not caused by any lack of supervision: paragraphs 59-67; (h) Having regard to the history of use of the board by the plaintiff and the absence of any other relevant incidents there is no evidence to support the pleading that the defendant ought to have devised, implemented and maintained a system of preventing minors from using the diving board: paragraphs 68-76; (i) The sole cause why the plaintiff fell from the three metre diving board was the absence of any mid-rail in the hand rail surrounding the diving board. Mr Farrell should be accepted in his evidence that following his inspection in 2004 or 2005 he informed both Mr Warner and Mr Singleton of his concerns concerning the railing on the diving board: paragraphs 77-83; (j) The plaintiff’s claim was statute barred as it was “discoverable” from soon after the accident following the receipt by Mrs Delaney of medical reports. Mrs Delaney’s knowledge as a capable parent was in law the knowledge of the plaintiff: paragraphs 84-103. Accordingly, the plaintiff’s claim is statute barred; (k) The defendant as cross-claimant called no evidence in support of its Cross-Claim other than tendering the Lease: paragraph 104. For the reasons set out in detail in the written submissions, there were no breaches by the cross-claimant of the Lease and the Cross-Claim accordingly fails: paragraphs 104-117; (l) The relief sought under section 5 of the must fail because the defendant/cross-claimant had not established the cross-defendant was negligent or, that any negligence by the cross-defendant was causally related to the plaintiff’s fall; (m) The lease breaches alleged by the defendant were statute barred as the cause of action in contract accrued at the time of or at the expiry of the Lease when the breaches alleged must have occurred: s 14(1)(a) of the *.* Any cause of action for breach of the Lease was not maintainable as it was brought after the expiration of a limitation period of six years running from the date when the cause of action for breach accrued to the defendant; (n) In the alternative, clause 4(w)(i) was a combined obligation, to indemnify and insure, and it was improper to divide the two obligations even if the clause could be read as applying to the liability of the cross-defendant to indemnify for any liabilities of the defendant Council. Very clear words would be needed, which were absent, for the clause to provide an indemnity years later and separate to the insuring obligation. All obligations under the clause were statute barred. The Lease had to be read as a whole and clauses should not be read in isolation; (o) The plaintiff’s claim under s 62D of the should be rejected. First, it was not pleaded, and it should have been pleaded in the plaintiff’s Reply. Secondly, although the section was mentioned in a letter providing particulars, no further particulars were provided. Thirdly, any evidence as to alleged irrationality came from Mr Delany not Mrs Delaney and she was the tutor whose opinion was crucial as the person with legal capacity acting as tutor for the plaintiff. Fourthly, the cross-defendant was taken by surprise by the issue raised in reply submissions and would have run its case differently if the matter had been formally pleaded; (p) Accordingly the plaintiff’s claim and the Cross-Claim should be dismissed.
In the light of the evidence before the Court, and taking into account the detailed written and oral submissions that have been made by the parties, the Court makes the following findings of fact.
Prior to the accident, the plaintiff had attended the pool in question in Corowa with members of her family on numerous occasions.
Prior to the accident, despite her young age of six years at the time of the accident, the plaintiff had used the one metre and three metre diving boards at the Corowa swimming pool on a number of occasions. She had been taught how to dive from the three metre board by someone, probably her father. I prefer Mrs Delaney’s evidence on that issue to Mr Delaney’s evidence. The plaintiff had dived from the three metre board over several months before the accident. However, I consider and find that it is very unlikely that she had used the three metre diving board “hundreds of times” as asserted by Mr Sigmund. This is inconsistent with the evidence of both Mr and Mrs Delaney which I prefer on this issue. I nevertheless find that the plaintiff had used the three metre diving board on many occasions prior to the accident.
On the day of the accident, the pool opened at 11:00am. Mrs Delaney attended with Loren and Julia Delaney soon after it opened. Loren was then six as stated and Julia was 10. The only other persons present at the pool at the time of the accident were members of the Brown family and Bruno Sigmund, the pool manager. Bruno Sigmund was undertaking duties at the pool when the Delaneys arrived. He was the only lifeguard present also. He was attending to a hose at least several metres from the diving boards with his back to the diving boards immediately before the fall occurred. He did not see the fall. He was aware, however, that the Delaney sisters were using the pool facilities and diving board. He regarded them as well behaved, responsible, and competent swimmers. There was no satisfactory evidence to the contrary
On the day of the accident, but prior to the accident, both Loren and Julia had been in the pool and Loren had dived from the three metre diving board once or twice. She was thus wet and the surface of the diving board was thus wet to some degree from use by at least her.
The three metre board was next to the one metre diving board. To access the three metre board a user had to climb a ladder and climb onto the board. There was a horizontal railing about one metre in height extending along most of the three metre diving board on both sides of the diving board. There was also a railing at about the level of the board itself. The area on each side of the board between the one metre railing and the board level railing was not covered or enclosed or protected by other horizontal railings or a clear or opaque sheeting or mesh and it was thus open on both sides below the top horizontal railing. See Exhibit A.
There was no close supervision in place by pool staff to prevent small children of limited height using the diving boards. No other accident had occurred whilst Mr Sigmund was managing the pool. He did not regard the three metre platform as dangerous at the time and was content with a child of the plaintiff’s age, height and swimming ability using it. In particular, he was comfortable with the plaintiff using the board as she had used it numerous times before safely.
(a) He was not supplied with a uniform by Remlap but supplied his own clothing which he determined; (b) He was not paid a regular wage or salary by Remlap; (c) He and his wife took the takings from the pool and the kiosk as their remuneration. That was their sole source of remuneration for their services at the pool: T744.10; (d) Remlap did not pay superannuation to Mr Sigmund; (e) Remlap did not provide directions to Mr and Mrs Sigmund as to their manner of work. Mr Sigmund controlled his own work and how he did that work. The agreement entailed Mr Sigmund managing the day-to-day operation of the pool: T751.43; (f) The Sigmunds paid for additional lifeguards, not Remlap; (g) Mr Sigmund had specialist qualifications to run an aquatic facility, to perform lifeguard duties and in first aid at all relevant times: T744.20. There is no evidence Remlap or its officers had these qualifications or licences as at 12 February 2012; (h) Mr Sigmund paid for his own licences and training, not Remlap; (i) Mr Sigmund imposed his own rules at the pool: T745.16; (j) Mr Sigmund personally reported maintenance issues to the Council; (k) Mr Sigmund rarely discussed maintenance issues with Mr Palmer of Remlap; (l) Mr Sigmund conducted his own regular inspections of the pool.
There was no evidence of any extensive involvement of Remlap in the management or running of the pool or in maintenance issues (other than its obligations under the Lease).
I repeat and adopt the findings set out above in relation to Mr Farrell and his inspection with Mr Singleton of the Corowa pool centre and the three metre diving board structure in about 2004-5: see paragraphs 393-6.
I now turn to findings relating to the period after the plaintiff left hospital.
After her departure from hospital, the plaintiff remained at home for about a term then returned part-time to school in Year 1. She completed primary school and proceeded to high school. In 2017, the plaintiff’s parents sought legal advice due to the plaintiff’s extreme emotional conduct on a holiday: T179. In the period soon after the accident, the parents had decided not to pursue steps to obtain legal advice due to what was described as “small town talk” (T208.21), the fact they “lived in a small town” (T310.40) and the parents wanted to avoid hearing “any backlash in the community” (T310.45). However, I accept Mr Delaney’s evidence that they also wanted to see whether Loren’s difficulties improved as she grew older in the period 2012-2017. As it was, she had continued difficulties at home and at school with her schoolwork in late primary school and early high school. This included extreme upset, frustration with her comprehension skills and the need for extra effort and revision in her schoolwork. The parents hoped her condition would improve as she grew older and they assisted her.
I will describe the 2017 legal advice obtained further below.
In the later years of high school Loren’s anxiety had increased markedly. [Redacted].
During her later teenage years, Loren had worked in a Thai restaurant but had difficulties in taking orders and recollecting the relevant orders and customers. She left and obtained work at a local pizza restaurant part-time where she attended to various tasks but was absent on occasions due to anxiety and continued to have some memory difficulties.
Loren resigned from the Italian restaurant in Year 12. She is currently working as a casual cleaner: (T46.3; T47.8) but hopes to travel to Canada to visit family and then travel to Europe.
Loren is very unsure as to future work, studies or career (T46.8; T48.28) but accepted she could work in various retail industries and could potentially undertake various courses associated with beauty treatment and pet maintenance: T92; T94-T96.
I find that Loren is currently very unsure of herself and is uncertain what work or studies she wants to do. She is a pleasant but reserved young woman. Her psychological issues indicate to me that she would have problems at present undertaking any demanding course but could undertake in due course fulltime work if she paced herself and had a supportive work and family environment and professional assistance. I accept the expert evidence of Ms Hamidi and Mr Ravagnani on this issue. She may have to undertake several jobs before she found a job suitable to her current position and medical conditions. She needs further psychological support and help with deciding on a course and/or with locating suitable employment.
There was considerable expert medical evidence before the Court, both in reports and in oral evidence. In addition, the documentary evidence and the oral evidence of the witnesses called on behalf of the plaintiff and of the plaintiff herself, must be taken into account.
The Court’s medical findings are as follows. In making these I take into account the detailed submissions made on the issue.
Prior to the accident, on 12 February 2012, the plaintiff was a reserved child showing some signs of anxiety and discomfort in new situations but no different in substance to her siblings. I accept her mother’s evidence on these matters as she is the person best placed to comment on them. The plaintiff was an active child, confident in water sports and at the local pool and a reasonably good student for her age. Whilst she may on occasions have had temper tantrums in the presence of her mother, the evidence did not establish that these were out of place in a child of that age.
The discharge summary from the Royal Children’s Hospital in Melbourne (after three days) indicated that the plaintiff had a biparietal fractured skull as a result of the accident. It refers to a three minutes’ loss of consciousness which is generally consistent with the plaintiff’s mother’s evidence and other documents. No surgery was required, there were no other fractured bones and neurological examination revealed no abnormality. The plaintiff is reported as having headaches. The plaintiff was referred to a brain injury clinic. These findings are not challenged in substance, and I accept them.
Thereafter, over several years, the plaintiff was assessed and monitored by the South-West Brain Injury Rehabilitation Service paediatric team (“SWBIRS”) with the first contact being about a week after discharge from hospital. The plaintiff was reported as suffering initially from fatigue. In addition, difficulties were noted soon after the accident by Mrs Delaney with the plaintiff’s comprehension and language skills with irritability present. I accept this evidence.
Some anxiety and uncertainty were noted in the plaintiff in her staged return to school. Fatigue was also noted. The next year (2013) Mrs Delaney reported “major tantrums” and some repetitive questions. Worries in the plaintiff about her schoolwork were noted. Anxiety symptoms were also noted continuing in 2014 and 2015. Some ongoing problems with memory were noted.
A neuropsychology assessment in May 2012 by Ms Clare Dickson refers to the plaintiff suffering a traumatic brain injury in the accident. The tests conducted were generally favourable, but test weakness was noted with verbal reasoning and with control of emotions. Cognitive fatigue on testing was recorded as were concerns with working memory abilities in class.
A further neuropsychological assessment report in April 2016 from Dr C Frees was arranged following concerns in respect of forgetfulness by the plaintiff. A history of anxiety, tantrums and frustration were noted. On testing, weaknesses in learning new verbal information, in sustaining attention and speed of work and with emotions and anxiety were recorded.
(a) The conclusions in the report of Ms Dickson of May 2012; (b) The conclusions in the report of Dr Frees of April 2016; (c) The difficulties the plaintiff had in childhood with completing schoolwork and homework due to verbal comprehension difficulties. These difficulties appeared to have emerged only after the accident. They are partly supported by the SWBIRS consultation notes; (d) The difficulties the plaintiff had with memory and comprehension in her part-time school time jobs; (e) The plaintiff’s own oral evidence on these issues which I accept; (f) The evidence of Mrs Delaney on these issues which I accept; (g) The observations of the plaintiff by Julia Delaney; (h) The evidence of Mr Delaney on these issues.
However, the recent report of Dr Batchelor is the most recent neuropsychological testing undertaken, is detailed and thorough and followed age suitable testing. Dr McMahon accepted that there may potentially have been improvement in the plaintiff’s condition having gone through adolescence: T473.2. He recommended later testing himself.
I find that the plaintiff was and is of average intelligence.
I also find that the plaintiff has clear well-developed anxiety problems and depression. Associate Professor Batchelor found inconsistency in the plaintiff’s testing performance. The plaintiff struck me as an honest but naïve person very unlikely to engage in deliberate test manipulation or intentionally designed self-limitation of performance. I accept that the TOM test administered by Dr Batchelor indicated the contrary.
In my view, and I find, the plaintiff’s anxiety and depression are multi-factorial in their causation. [Redacted]. I note the report of Dr Cowen: Exhibit D4 pages 45-6. [Redacted]. However, in my opinion and I find, the plaintiff’s anxiety and anger/tantrums in her student years were in part caused by the cognitive difficulties she experienced following the subject accident and her real worries relating to the effects of the accident. The plaintiff’s mother did describe the plaintiff as a somewhat anxious child but not markedly so compared to her siblings. The plaintiff’s anxiety leading to anger and tantrums seemed to be linked to difficulties in her schoolwork and homework following verbal comprehension and memory problems at the time inconsistent with her previous childhood characteristics and abilities and her average intelligence. The fall is the logical event which preceded these problems and was a cause of them. This gains strong support from Dr Davies evidence.
For these reasons, I accept and prefer the opinion of Dr McMahon that the plaintiff’s anxiety is partly due to her underlying self-doubts and concerns consequent to previously held cognitive impairments as a result of the accident. I have accepted the validity of Dr McMahon’s first report at the time it was given. The plaintiff’s cognitive impairments seem to have substantially resolved on the medical evidence over her late adolescence. Similarly, I accept Dr Davies’ opinion that the plaintiff’s ongoing mental health issues as to anxiety and depression are an indirect result of the accident and its impact on the family. The plaintiff’s comprehension and memory difficulties following the accident led to difficulties in schoolwork and home school work which themselves in my view led to severe anxiety and anger due to troubles with coping. These matters impacted on the plaintiff and her family and, in part, have contributed to the plaintiff’s depression and ongoing anxiety. I accept Dr Davies opinion on these issues: see T489.4-T490.7 and T493.25-T494.6.
If I am found to be wrong in accepting Dr McMahon’s opinion that the accident caused initial neurocognitive impairments in the plaintiff as shown in the testing referred to in his first report, I am still of the view that the reasonable constant testing and psychological review of the plaintiff from 2012 to 2023 as a result of the accident, have been in part the causes of the plaintiff’s anxiety and depression. The plaintiff has not illogically blamed her perceived difficulties and limitations on the accident itself. I accept Dr Davies’ opinion on the depression and anxiety being an “indirect” result of the accident and its impact on the plaintiff’s family.
In paragraph 25 of its Defence to the ASOC dated 21 December 2023, the defendant pleads that the proceedings are not maintainable as they have been commenced outside the three-year discoverability period set forth in s 50C of the Limitation Act 1969 (NSW). In order to determine this defence, it is necessary for the Court to make findings of fact for the purposes of the limitation defence. The Court makes the following findings of fact on this issue.
The accident involving the plaintiff occurred on 12 February 2012. On 14 February 2012, Ms Kristy Kay, Director of Corporate and Community Services at Corowa Shire Council had a telephone conversation with the plaintiff’s father, Anthony Delaney, who was in the presence of Mr Chris Johnson, the principal of the school where the plaintiff’s parents worked. It is recorded that Mr Delaney stated that he was not present at the time of the accident but speculated that the plaintiff may have been “a larrikin” and he thought the plaintiff had fallen “off the side (under the bars)”. I am satisfied that, contrary to Mr Delaney’s speculation at the time, there is no compelling evidence that the plaintiff was acting inappropriately whilst on the diving board shortly before the accident.
Mr Delaney is recorded as advising that he and his wife “certainly would not be pursuing anything and did not believe it was anyone’s fault. They did not want to see the diving board removed as everyone loved it”. This comment was made before Mr Delaney spoke to Julia Delaney.
The view of Mr Delaney recorded here (which I accept was probably conveyed as it is a detailed contemporaneous note and Mr Delaney had a poor recollection of the conversation), was generally consistent with oral evidence given by the plaintiff’s parents.
Initially, Mr and Mrs Delaney decided not to pursue any action as they lived in a small town and the plaintiff’s alteration in her behaviour was not unduly concerning to them: T208.1-.23; T311.3. However, both parents knew about the accident and Mrs Delaney knew that the Council was partly responsible for the pool and if there was to be an action, the Council was one party that may be sued: T208.25-.41.
As stated above, Mrs Delaney saw the 2012 and 2016 neuropsychological reports of Ms Dickson and Dr Frees. She was thus aware of their views, including that the plaintiff had suffered a traumatic brain injury.
Mr and Mrs Delaney were concerned about the plaintiff’s condition and progress from 2013-2016 at various times and to various degrees including her emotional outbursts, tantrums and difficulties retaining and understanding information taught at school. They assisted her with her studies as perceived necessary. They hoped for improvement as she proceeded through her school and teenage years.
The Delaneys became much more concerned about Loren’s emotional behaviour following a holiday where there had been an extreme emotional outburst by the plaintiff, and decided to consult solicitors for advice in mid-2017: T179.25-.34. Mr Delaney decided that he wanted to investigate whether Loren’s behaviour was related to the fall: T179.33. Loren’s behaviour on the holiday was described by Mr Delaney as “the tipping point.” Mrs Delaney gave somewhat similar evidence .I accept that evidence.
In its First Cross-Claim filed on 14 December 2023, the Council brings a claim against Remlap both in contract for alleged breach of the Lease between the Council and Remlap and for contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
In its Defence to the First Cross-Claim filed on 6 March 2024, Remlap pleads that the plaintiff’s cause of action against the Council is not maintainable pursuant to s 50C of the Limitation Act as the plaintiff’s cause of action was discoverable prior to 16 March 2019. It therefore claims that the cause of action in the Cross-Claim by the Council against it is similarly not maintainable under s 26 of the Limitation Act. In relation to the claim of a breach of the Lease by it, it is pleaded in paragraph 16(c) of the Defence to Cross-Claim that the Council’s cause of action against Remlap for breach of contract is not maintainable because of s 14(1)(a) of the Limitation Act. Section 14(1)(a) of the Limitation Act provides that an action on a cause of action founded on contract is not maintainable if brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.
The statutory period for limitation purposes in contract begins to run from the moment that the cause of action accrues to a party which is when the breach of the contract occurs.
The contract limitation issue was not dealt with in the initial written submissions filed by counsel for the defendant and by counsel for the cross-defendant. Oral submissions were made on the issue in final submissions. These were of assistance to the Court in narrowing the issues in dispute. The cross-defendant submitted orally that all of the breaches of lease alleged against it were statute barred under s 14(1)(a) of the Limitation Act 1969.
In relation to the breaches of the Lease pleaded by the defendant in paragraphs 18 and 19 of the Cross-Claim, those breaches occurred, to the extent that they are established, relevantly in 2012, and, accordingly, those causes of action in contract would have accrued at that time upon breach and are thus now statute barred: Defence to Cross-Claim paragraph 16(c) relying on s 14(1)(a) of the Limitation Act 1969 (having been brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff (here cross-claimant) – six years after, at the latest, February 2012).
However, I am not satisfied there were any breaches of the relevant provisions of the Lease relied on as alleged. As to paragraph 18 of the Cross-Claim, referring to clause 4(i)(d) of the Lease, I am not satisfied that the cross-defendant or its contracted independent contractors, Mr and Mrs Sigmund, failed to carry out, or failed adequately to carry out, daily maintenance of the pool including the three metre diving board. Mr Sigmund checked the diving board regularly and also when any issue was reported to him. If there was a breach as alleged, I am not satisfied it caused any loss to the Council.
As to paragraph 19 of the Cross-Claim, I am also not satisfied there was any breach of clause 4(i)(l) of the Lease by the cross-defendant. I accept paragraphs 116-117 of the cross-defendant’s written submissions. Mr Sigmund was present to supervise the bathers and had appropriate qualifications at the relevant time. I accept his evidence on these issues.
In relation to the breaches of contract, being alleged breaches of the Lease, by the cross-defendant which are pleaded in paragraphs 14-17 of the Cross-Claim, there was little evidence before the Court other than the Lease itself. See paragraph 104 of the cross-defendant’s written submissions. There is a denial in paragraph 9 of the Defence to Cross-Claim of an entitlement of the Council to be indemnified as alleged. Presumably indemnity was only claimed by the defendant against the cross-defendant following the Statement of Claim being filed against it by the plaintiff in 2022: see the particulars to paragraph 14 of the Cross-claim. There was no suggestion to the contrary by any party. In paragraph 5(c) of the Defence to Cross-claim, the cross-defendant denies that it was obliged to take out a policy of insurance in terms of the alleged indemnity. No actual basis is given for this denial in the pleading.
Detailed submissions were made on these issues: see the defendant’s written submissions dated 17 January 2025 paragraphs 114-121; cross-defendant’s written submissions dated 10 February 2025 paragraphs 104-115. Further oral submissions were also made by those parties. I have reviewed the Lease and the obligations imposed on the cross-defendant in the Lease in the light of these submissions. It is, of course, important to read the Lease as a whole and not read clauses in isolation.
In relation to the alleged breach of clause 1(r) of the Lease by the cross-defendant (Cross-Claim paragraph 15), I reject the allegation made by the defendant and its submissions on the point. I have found that the fault in the three metre diving board platform was not the result of anything done or not done by Remlap as lessee but was the structural or mechanical maintenance obligation under the Lease of the defendant. It was, in my view, not an aspect of daily maintenance but work of a nature constituting structural or mechanical maintenance: see clause 4(i) of the Lease.
The defendant asserts that the obligation on the defendant to carry out “structural maintenance of the pool and associated buildings” in clause 4(i)(a) and to carry out “mechanical maintenance of…diving boards” in clause 4(i)(b) of the Lease did not oblige the defendant to instal additional railings on the three metre diving platform as this did not amount to “maintenance” but “alterations”. It is submitted that “maintenance” refers to the repair or upkeep of something not additions to it: written submissions dated 17 January 2025 paragraphs 122-126.
In my view, this submission should be rejected as being inconsistent with the terms of the Lease and an uncommercial interpretation to adopt. The Lease seems to divide obligations according to daily or regular maintenance which were placed on the lessee and structural and mechanical maintenance which were placed on the lessor. If the interpretation submitted by the defendant was adopted, then items which were dangerous or clearly involved a real risk to patrons would contractually as between the lessor and lessee, not fall on either party. Structural and mechanical maintenance in my view are wide enough terms to cover the need to instal further railings or infill to the pool diving board platforms. Mr Farrell from the defendant saw a real risk. To maintain equipment safely, may well require additions or alterations to it, for example providing protective caging to a piece of industrial equipment. The pool was accessible by the public; the defendant was a public authority; safety of its property to the public was significant to it thereby resulting in inspections by its officers. To interpret the Lease as narrowly as proposed would ignore the nature of the property in question and the defendant’s ownership of it. The introductory words to clause 4(i) also state “in regard to the swimming pool” indicating that the items which follow all relate to the swimming pool centre itself – see clause 4(i)(c) for example which cannot relate to the pool itself. The diving platforms were an integral part of the pool and use of it by patrons at the time. This was the context in which the Lease was entered into by the parties.
The defendant also asserts in the Cross-Claim a breach by the cross-defendant of clause 1(w)(i) of the Lease which obliges the cross-defendant to indemnify and keep indemnified the defendant in certain circumstances and to obtain a contract of insurance for the benefit of the defendant. See written submissions of the defendant at paragraphs 116-121. The proper construction of this clause was a central issue in dispute between the defendant and the cross-defendant.
It seems that on its proper construction and when the Lease is read as a whole, the Lease makes a distinction between a claim due to the negligence or acts of the cross-defendant (clause 1(r)) and other claims, such as due to the fault of other persons or potentially the defendant itself. In my view, there is substance in the defendant’s submissions on this issue: see paragraphs 116-117 of the defendant’s written submissions. I prefer those submissions to those of the cross-defendant in paragraphs 107-110 of its submissions.
In my view, the Lease indicates that the intention of the parties objectively was to oblige the cross-defendant to provide an indemnity in a wider range of circumstances to that covered by clause 1(r). I do not view them as limited in the way submitted by the cross-defendant. This would not give the indemnity in clause 1(w)(i) any further work to do to the obligation in clause 1(r). Thus, the context of the clause supports the defendant’s construction. The context is the comparative work which clause 1(r) and clause 1(w)(i) objectively perform.
In my view, there is force in the defendant’s oral submissions that the construction put forward by the defendant is also supported by the terms of clause 1(w)(i) of the Lease: first, the words “indemnify and keep indemnified” strongly suggest an operation into the future; secondly, the words “and further” in the fourth line of clause1(w)(i) strongly indicate a second obligation to obtain an insurance policy which is separate and distinct from the obligation to indemnify and keep indemnified referred to in the earlier part of the clause. I do not accept the cross-defendant’s submissions that these two obligations should be seen as one indivisible obligation in the sub-clause.
In addition, clause 1(w)(i) refers to the “Lessor and the Minister” indicating that these persons were to be indemnified from inter alia “actions [and] liabilities”. The word “liabilities” indicates a liability due to some breach by the Lessor or Minister.
The right of indemnity in the defendant would survive the termination of the Lease through some reason such as through effluxion of time: see the reasoning in McDonald v Denny**s Lascelles Ltd (1933) 48 CLR 457 at 476-7 per Dixon J.
Further, the obligation to indemnify, being a continuing obligation in the cross-defendant, would not be statute barred: see for example Winnote *) v Page t/as Freehill* (2006) 68 NSWLR 531.
In relation to the limitation defence in tort in negligence, different provisions apply. The position of the plaintiff and of the Council in relation to Remlap (as to which see paragraph 16 to the Defence to Cross-Claim), is determined in substance by whether the plaintiff’s cause of action is statute barred under section 50C as it was “discoverable”.
The Statement of Claim in these proceedings was filed on 16 March 2022. The accident in question happened on 12 February 2012. It is claimed that the plaintiff was injured on the day of the accident. Three years after the date of the accident is 12 February 2015. The Statement of Claim being filed after this date raises a limitation issue. Is the plaintiff’s claim barred?
Part 2 Division 6 of the Limitation Act 1969 relates to personal injury actions. Section 50A of the Limitation Act applies Part 2 Division 6 to a cause of action for damages that relates to the personal injury to a person regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.
Having regard to the date of the accident and the plaintiff’s claim being for personal injuries, the cause of action alleged by the plaintiff in the present case is covered by Part 2 Division 6: see s 50A(2) of the Limitation Act. There is no evidence that the plaintiff’s tutor was an “incapacitated person” within s 50F of the Limitation Act. Sections 50C and 50D of the Limitation Act provide as follows:
“50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note—
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times—
(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b) the appointment of the plaintiff as the deceased’s personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased’s personal representative.
(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.”
(a) The fact that the injury or death concerned has occurred – the evidence satisfies me that the plaintiff’s parents, including her mother who was the tutor, knew or believed that the plaintiff was injured on the date of the accident; (b) The fact that the injury or death was caused by the fault of the defendant; and (c) The fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
I have set out my relevant factual findings on the limitation issue above.
I considered the relevant authorities in Khanna v Woolworths Group Limited (No 2) [2021] NSWDC 567 at [187]-[188]. Here, of course, the plaintiff was a minor and lacked capacity until she turned 18. Accordingly, proceedings may not be commenced except by a tutor. Similarly, the tutor may not commence proceedings except by a solicitor. It is therefore the tutor who must be considered for the purposes of the section as was made clear by the Court of Appeal in Best v Rosamond [2020] NSWCA 90 at [14]-[18]. That person was Mrs Delaney.
The Court of Appeal in Best appeared to accept that to the extent s 50D(1)(c) required an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, it requires that the person who is relevant, the plaintiff’s mother here, must have available to him or her relevant legal and medical information to allow an informed professional judgment to be made.
It is submitted in the present case by the defendant and the cross-defendant that the plaintiff’s mother was aware (as well as the father) at all times of the relevant matters referred to in s 50D of the Limitation Act. Further, in 2017 the plaintiff’s parents were sufficiently concerned about her to seek legal advice and were told by Mr Cameron that in his view the matter was “a goer”. It appears from the analysis by the Court of Appeal in Best v Rosamond that for the purposes of s 50D(2), the Court has to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This requires an analysis of the steps actually taken on behalf of the plaintiff (or on her behalf), if any, and whether they were reasonable.
An appeal was made from my finding relating to the limitation issue in Khanna, above. This was dismissed by the Court of Appeal in Khanna v Woolworths Group Limited [2022] NSWCA 94 at [24]-[25].
In Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213, the Court of Appeal considered in some detail the questions of discoverability under ss 50C and 50D of the Limitation Act. See the analysis by Simpson AJA (with whom Meagher and Kirk JJA agreed) at paragraphs 64 and following. In paragraph 69, Simpson AJA noted that to “know” that an injury is caused by the fault of the defendant is to know “the key factors necessary to establish liability”. At paragraph 70 her Honour held that whether the anterior facts known to the putative plaintiff are such as to constitute knowledge that the injury was caused by the fault of the putative defendant depended upon “a legal evaluative judgment”. In a case of negligence under the , the putative plaintiff needed an appreciation of the principles applicable to a claim for damages based on negligence under that Act.
In his written submissions dated 20 December 2024, counsel for the plaintiff relied on an unpleaded claim that Mr Sigmund was the deemed employee of the defendant because of provisions in Schedule 1 of the Industrial Relations Act 1996 (NSW): paragraphs 28-30. This had been flagged by counsel for the plaintiff in the course of the hearing where it was indicated by counsel for the defendant that the matter should be pleaded: T405-410 especially at T408.23.
Counsel for the defendant took this point up in his submissions whilst also dealing with the claim that the defendant was vicariously liable for Mr Sigmund under the Act as a matter of law: defendant’s written submissions at paragraphs 60-63.
I accept the submission of the defendant that in the absence of leave being granted to amend the Amended Statement of Claim to include this allegation, the plaintiff is bound by the way she ran her case, and the allegation cannot be relied upon: defendant’s written submissions paragraph 60. The relevant facts and matters relied on would need to be pleaded.
Quite apart from this, in my view there are other reasons why the legislation is inapplicable. First, I agree with paragraph 61(a) of the defendant’s submissions that Schedule 1 has a limited application. Section 5(3) of the Act states that persons “described in Schedule 1 are taken to be employees for the purposes of this Act” (emphasis added). The Act deals with industrial relations matters not the attachment of vicarious liability for the purposes of civil claims: see section 3 of the Act. Secondly, the pool was in a practical sense not under the “care and control” of the defendant on a day to day basis: see Schedule 1, clause 1(j). Thirdly, the Lease was between the defendant and cross-defendant not between the defendant and Mr Sigmund: see Schedule 1 clause 1(j), “pursuant to a contract with the local council”. Lastly, Mr Sigmund appears to be an “excluded person” under Schedule 1, clause 2(1A). In substance, I accept the defendant’s submissions on these issues.
The plaintiff’s claim that the defendant is vicariously liable under Schedule 1 clause 1(j) of the Industrial Relations Act 1996 (NSW) as Mr Sigmund is a deemed employee of the defendant is therefore rejected.
In paragraph 55 of his written submissions, counsel for the cross-defendant submitted as follows: “Mr Sigmund was an appropriately qualified independent contractor engaged by the cross-defendant to manage, maintain and operate the swim centre and to supervise swimmers.”
It appears to me that Remlap could be liable in three further potential ways to the defendant in circumstances where Remlap was not joined as a second defendant to the proceedings by the plaintiff. The first way could be that Remlap breached a duty of care which it owed directly to the plaintiff, thus giving rise to an obligation to contribute to or indemnify the defendant. The second way is that Remlap could be vicariously liable for any negligence by Mr and/or Mrs Sigmund. The third way could be that Mr and/or Mrs Sigmund acted as an agent of Remlap in running the swimming pool and Remlap is liable for their acts and omissions.
In Bird v DP (a pseudonym) [2024] HCA 41, the majority of the High Court held that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but are instead independent contractors or in a relationship described as being “akin to employment”: see at [5], [65], and [71]. Thus, in the absence of an employment relationship, it is not open to hold a party vicariously liable for the tortious acts of another.
Further, agency as a basis for liability required a true agency in the legal sense of that term. The acts of the purported agent must have been done with the defendant’s “seal of approval”, amounting to acceptance of the acts as the defendant’s own: at [31]–[35].
In relation to the possibility of Mr and/or Mrs Sigmund being an agent in the legal sense of Remlap, that is not established in my view on the evidence. There is no compelling evidence before me that Remlap was aware of how Mr Sigmund ran the swimming pool on a day-to-day basis. There was no evidence that Mr and/or Mrs Sigmund had the legal authority as agent of Remlap. There is no evidence that the way the pool was conducted on a day-to-day basis at the time of the accident was done with Remlap’s “seal of approval” amounting to acceptance of the acts of Mr and/or Mrs Sigmund as Remlap’s own. Accordingly, in my view, Remlap is not responsible for the acts or omissions of Mr and/or Mrs Sigmund as their agent.
I also find on the evidence that there was no employment relationship between Remlap and Mr and/or Mrs Sigmund such as to give rise to any vicarious liability in Remlap for the acts or omissions of Mr and/or Mrs Sigmund concerning the plaintiff for the following reasons.
The Court has to determine the proper characterisation of the legal relationship between Remlap and Mr and/or Mrs Sigmund. In my view, the relationship could potentially be one of employment or one of principal and independent contractor. The authorities have established that in order to properly characterise the relationship, the “totality of the relationship” between the parties must be considered by the court: see (1986) 160 CLR 16 at [29]; (2001) 207 CLR 21 at [24]; (2022) 275 CLR 165; [2022] HCA 1 at [34], [63]-[64], [103], [143] .
In the ASOC it is pleaded by the plaintiff that the defendant Council was the occupier of the Corowa Swim Centre on 12 February 2012. In paragraph 9, it is pleaded that at all material times the defendant Council owed the plaintiff a duty of care to take reasonable care to prevent or eliminate risks of harm which were reasonably required to protect a person in the position of the plaintiff who was taking reasonable care for her own safety and who was a lawful entrant at the Centre.
In paragraph 4 of the Defence to the ASOC, the Council denies it was the occupier of the Corowa Swim Centre and pleads that at all material times the occupier of the Centre was Remlap pursuant to the Lease. The defendant Council denied that it owed a duty of care to the plaintiff as it was not the occupier of the Centre. The cross-defendant in its Defence to Cross-claim admitted that it was the occupier of the Centre pursuant to the Lease: see paragraph 2.
There is no question on the evidence that the plaintiff was a lawful entrant to the Swim Centre on the day of the accident.
The plaintiff submits in its written submissions that the defendant was an occupier as well as the cross-defendant under common law principles. The cross-defendant makes a similar submission: written submissions paragraphs 16-27.
In my view, both the defendant and the cross-defendant were occupiers of the Centre as at the date of the accident. I accept the plaintiff’s and cross-defendant’s submissions as to the defendant and the cross-defendant admits it was the occupier. More than one party can be an occupier and owe relevant duties of care: see Laresu Pty Ltd v Clark [2010] NSWCA 180 at [82]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [82]-[83]. The defendant was an occupier due to its extensive obligations and rights in relation to the pool as set out in clauses 1 and 4 of the Lease. The defendant conducted repairs when requested by Mr Sigmund, undertook inspections infrequently and had an entitlement to take extensive steps under the Lease: clause 1(d) and (e). It owned the pool centre. See defendant’s written submissions dated 17 January 2025 at paragraphs 11-12 and 48. Through Mr Farrell, it was aware of the state of the three metre diving board platform as at 2004-5. It had the right to access to undertake repairs.
If I am wrong on this issue then Remlap was clearly the occupier as at the date of the accident. It admitted as such in its Defence to Cross-claim and contracted with Mr and Mrs Sigmund in relation to the day to day running of the pool.
The terms of the Lease appear to make a distinction between the obligations of the Council and Remlap. Clause 1(c) of the Lease appears to place an obligation on Remlap during the continuance of the Lease to maintain the grounds and keep in good and substantial repair the premises together with all appurtenances, fixtures and other things on the leased premises which have been erected or placed there by the lessor Council. Remlap was obliged to give the lessor Council access to the premises upon receiving notice in writing to repair and maintain the premises consistent with the Lease. Remlap was prevented by the Lease from making alterations or additions to the premises without the written consent of the lessor Council which would not be unreasonably withheld.
“Division 2 Duty of care
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
(a) As indicated above, the risk of someone, particularly a child, falling in the gap between the one metre bar and the bar at the bottom of the platform was reasonably foreseeable, being a risk of which the defendant and Remlap ought to have known; (b) In my view, the risk was not insignificant having regard to the area of the opening and the fact that the diving board would likely be wet; (c) In my view, there was a real possibility that harm would occur if care were not taken in relation to the platform; (d) A fall for a person, whether a child or adult, from the platform may likely involve very serious injury; (e) The report of Mr Dubos analyses the burden of taking precautions to avoid the risk of harm. In my view, the burden of applying anti-slip surfaces on the surface of the diving board, installing other horizontal railings on the diving board and/or placing enclosed Perspex or like covers on the sides of the diving board was not significant; (f) Whilst there is significant social utility in persons using swimming pools, particularly in the country where such facilities are less available, that utility is not of such a great nature as to outweigh the need to take proper and reasonable preventative steps and precautions in relation to the risks which I have identified above.
The plaintiff in the particulars of negligence in the ASOC refers to a number of precautions which she alleges should reasonably have been taken and a number of omissions. The first is a failure to apply anti-slip surfaces on the surface of the diving board. In the present case, the diving board itself was not formally tested by any expert as to whether it was slippery. The photograph in evidence appears to indicate that the surface was covered in dimples to assist grip. Julia Delaney said that the diving board had a “sand papery” feel. Mr Sigmund said he checked the surfaces of the diving boards regularly. In those circumstances, I am not satisfied that placement of additional anti-slip surfaces on the surface of the diving board was a reasonable precaution in the absence of any evidence as to the inherent slipperiness of the board.
However, in my view installing additional railings and/or perspex or mesh enclosed sides to the diving board where the plaintiff fell were precautions that should reasonably have been taken by the defendant, consistent with the expert report of Mr Dubos. The burden of taking these precautions was slight and in my view they were reasonable precautions to take. The risk of serious injury was apparent and not insignificant. I reject the defendant’s written submissions to the contrary. If I am wrong about the Perspex enclosed sides, I still am of the view that at least a mid rail should reasonably have been added to the three metre diving board structure well before the accident. This was essentially the view of Mr Farrell and I agree with it.
The defendant pleads that the risk posed by the diving board was an obvious risk and, as a consequence, the defendant owed no duty to warn the plaintiff of the risk: ss 5F, 5G and 5H of the CLA. In my view, the risk was reasonably obvious and there was no duty to warn the plaintiff child of the risk.
In addition, in my view the allegation of a particular of negligence of devising, implementing and maintaining a system of wiping the surface of the diving board was impractical in the circumstances due to the frequency that this would have been required during use by wet patrons.
A particular of negligence is a failure to devise, implement and maintain a system of preventing minors from using the diving board. In my view, having regard to the condition of the diving board at the time of the accident, minors of a young age or of a short stature should not have been permitted to use the diving board because of the dangers inherent through the failure to have additional adequate horizontal railings and/or perspex enclosed sides.
In my view therefore, there was a breach of duty of care by the Council in failing to have adequate horizontal railings in place and enclosed perspex or other sides to the three metre diving board platform. This in my view was also the responsibility of the Council under the Lease: see clause 4(i). In the First Cross-Claim, the defendant Council repeats some of the particulars of negligence against Remlap. Having regard to the respective duties under the Lease, in my view the only alleged breach of duty of care owed by Remlap to the plaintiff that may be relevant was failing to devise, implement and maintain a system of preventing minors from using the diving board. This could arguably have been readily imposed and supervised by the cross-defendant as occupier.
“Division 3 Causation
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
Accordingly, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court in Strong the determination of factual causation under s 5D of the CLA involves the application of the “but for” test of causation. This requires a determination that, in accordance with the section, negligence was a necessary condition of the occurrence of harm. That is, that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: S**trong, above, at [18].
In Value Constructions Pty Ltd v Badra [2024] NSWCA 181, Kirk JA (with whom Leeming JA and Griffiths AJA agreed) stated that the test of “proximate cause of the harm” was not the appropriate test under s 5D of the CLA. His Honour stated that the relevant legal test for causation in negligence under s 5D was relevantly whether the negligence was a necessary condition of the occurrence of the harm. His Honour noted that that legal notion has been taken to include where the tortfeasor’s negligence materially contributed to the harm even if there were other conjunctive causes: at [6].
Clearly, if the plaintiff as a minor and of limited height was prevented by the Sigmunds or the defendant from using the three metre diving board platform, the injury alleged in the present case would not have occurred. Also, if there were other railings and/or an enclosed diving board platform (in the sense of a Perspex type infill), in my view the accident would similarly not have occurred. While the precise mechanism of the fall is not certain, it seems that the plaintiff lost her footing possibly after slipping on the wet platform. She was also a young child without the weight and poise of an adult. My view would be the same if the plaintiff merely lost her footing as opposed to slipping on the wet board.
In my opinion, Perspex enclosed sides would clearly have prevented a fall. However, I am also comfortably satisfied that a mid rail (between the top rail and the platform) would also likely have prevented the fall. It would have likely prevented the plaintiff’s body from falling between the gap created by the space between the top rail at the plaintiff’s shoulder/neck level and the board itself. It is difficult to imagine a fall which would still have likely occurred.
Therefore, the breach of duty I have found in the defendant was a necessary condition of the occurrence of the harm in the present case, particularly taking into account that it materially contributed to the harm even if the breach by any other party was a conjunctive cause.
I have found that the plaintiff’s current anxiety and depression was partly caused by the accident. Although she appears to have primarily recovered from any mild neurological disorder arising from the accident according to Dr Batchelor, I have also found that the plaintiff had a minor neurological disorder when tested by Dr McMahon in 2018-9 using tests appropriate for a child. In a detailed submission, the defendant claims that the acts of the parents amounted to a and the damage was too remote. See 17 January 2025 written submissions paragraphs 38-41.
I have found a breach of a duty of care owed to the plaintiff by the defendant. The assessment of damages in the present case is particularly difficult because of the medical evidence. I refer to my medical findings above.
The following submissions as to damages were made by the parties.
| Head of Damage | Plaintiff | Defendant | | Non-economic loss | $198,000 (31%) | $26,500 (20%) | | Past out of pocket expenses | $5,058.95 | $5,058.95 | | Future out of pocket expenses | $20,000 | $7,000 | | Domestic assistance or attendant care – not claimed | - | | | Past economic loss – not claimed | - | | | Loss of future earning capacity (with superannuation) | $473,128 | $25,000 | | Total | $696,186.95 | $65,558.95 |
As has been indicated above, the plaintiff’s claim is governed by the CLA. Section 16(1) of the CLA provides that no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. “Non-economic loss” is defined in s 3 of the CLA as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There was no evidence before the Court that the plaintiff suffered any disfigurement or scarring as a result of the accident. Similarly, there was no evidence before the Court that the plaintiff has had a reduction in her life expectancy as a result of the accident. Therefore, the only bases to assess non-economic loss are pain and suffering and loss of amenities of life.
In the Statement of Particulars filed on 3 November 2023, it is particularised that the plaintiff has suffered a closed head injury, mild traumatic brain injury, mild neurocognitive disorder and psychiatric injury as a result of the accident.
The evidence before me establishes that the plaintiff had a closed head injury as a result of the accident being a biparietal fractured skull. The various neuropsychological reports establish to my satisfaction that the plaintiff had a mild traumatic brain injury in the accident: see the reports of Ms Dickson and Dr Frees. See also the report of Associate Professor Dr Batchelor which confirms that the plaintiff suffered a complicated mild traumatic brain injury as a result of the accident.
As set out above, the real issue is whether the plaintiff suffers a mild neurocognitive disorder as a result of the accident. As stated above, for the reasons given, I prefer the opinion of Dr Batchelor that she currently does not. Accordingly, for the reasons given, I do not accept that the plaintiff currently has a mild neurocognitive disorder as particularised.
It is further particularised that the plaintiff suffers from a psychiatric injury. As stated above, my medical findings are that the plaintiff has anxiety and depression which are multifactorial in their causation. There are stressors unrelated to the accident which have contributed to these conditions. However, I have concluded on the evidence that the plaintiff’s anxiety and anger/tantrums in her student years as well as her depression, are in part caused by the cognitive difficulties she experienced following the subject accident. I also have concluded and prefer the opinion of Dr McMahon that the plaintiff’s anxiety is partly due to her underlying self-doubts and concerns consequent to previous cognitive impairments or difficulties as a result of the accident. Dr Davies was also of the opinion that the plaintiff’s ongoing mental health issues were an “indirect result” of the accident and its impact on the family. As stated in Value Constructions Pty Ltd v Badra, above, the legal test for causation in negligence is taken by appellate courts to include whether tortfeasors’ negligence materially contributed to the harm even if there were other conjunctive causes. In my view, the 2012 accident materially contributed to the plaintiff’s anxiety and depression even if there were other stressors in her life which contributed to the condition.
From the expert medical evidence it does not seem that the plaintiff requires further neuropsychological assessment because of her mild neurocognitive issues. I therefore allow no sum for such future assessment.
A claim is made by the plaintiff for future out-of-pocket expenses in the nature of psychology sessions and career coaching. In my view, the plaintiff would benefit from continued psychology sessions in relation to her anxiety and depression resulting from the accident. I also consider that significant career coaching and assistance would be beneficial to guide the plaintiff in relation to potential work areas or courses that would assist her in obtaining more secure gainful employment. Some vocational guidance as suggested by Mr Ravagnani would be appropriate. In my opinion, the best way to compensate the plaintiff for the needs indicated is to award a lump sum. I award the plaintiff $14,000 under this head of damages.
The plaintiff’s primary submission is to make a claim for reduced capacity to earn an income and remain employed in the future calculated as $500 per week until the age of retirement. In the alternative, the plaintiff makes a claim for reduced capacity to earn an income as a buffer. The defendant submits that due to uncertainties only a modest buffer should be awarded.
Dr McMahon agreed with Mr Ravagnani that the plaintiff’s anxiety and depressive symptoms, regardless of the cause, reduced her capacity to cope with attaining and sustaining employment. Mr Ravagnani also concluded that the plaintiff had average intellectual capacity and her future ability to undertake tertiary education and employment were unlikely to be affected. He noted that the plaintiff’s symptoms of anxiety may lead to difficulty during interviews. Ms Hamidi notes that the plaintiff’s anxiety and preoccupation with perceived deficits caused by the fall have likely impacted upon her ability to use her capacities to the fullest rather than impairments, if any, caused by the fall. She regarded short-term employment options for the plaintiff to be likely to be in straightforward customer service roles or routine sales roles. Dr Davies was of the view that the plaintiff had no cognitive deficit which would affect her employment and that she had demonstrated fitness for employment in her part-time work while still at school. He emphasised however the nature of the plaintiff’s anxiety in his oral evidence.
Taking into account all of the expert opinion, with support, the plaintiff would be able to undertake a number of courses or positions as recommended by Mr Ravagnani and Ms Hamidi. With support and supervision, she could undertake appropriate simple service or sale based positions.
The task of assessing damages for future loss of earning capacity is necessarily impressionistic: Ramsey v Denton [2021] NSWCA 310 at [51] referring to Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 at [49].
I take into account s 13 of the CLA and the requirements in that section. The plaintiff’s most likely future circumstances but for the injury would have been to undertake a certificate or diploma type level course and work in a sales or service based position similar to the type of position I believe that she would likely undertake now but probably at a higher level due to less anxiety. In my view, the plaintiff will likely have real difficulties in settling in and maintaining her employment with her anxiety even with some coaching and psychological assistance. I take into account the comments of Heydon JA in New South Wales v Moss [2000] NSWCA 133 at [70]-[71]. As Macfarlan JA stated in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [66]-[67], it has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the CLA for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In my view, a buffer is appropriate in the present case to take into account the difficulties which the plaintiff is likely to have in securing income and also maintaining secure employment with her various psychological medical conditions as a result of the accident. There is also the possibility that the plaintiff’s anxiety issues could create difficulties in maintaining secure employment.
| Head of Damages | | | Non-economic loss | $61,000 | | Past out of pocket expenses | $5,058.95 | | Future out of pocket expenses | $14,000 | | Past and future gratuitous assistance | Not claimed | | Loss of future earning capacity | $90,000 | | Total | $165,000 |
I have found that the cross-defendant is in breach of the Lease through the failure to indemnify the defendant in relation to the plaintiff’s claim against the defendant. This appears to be a continuing breach which has existed since proceedings were commenced by the plaintiff against the defendant. I have also found that the cross-defendant did not breach a duty of care owed by it to the plaintiff. In the First Cross-Claim, the defendant seeks contribution from the cross-defendant pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). I assess contribution in the event I am in error that there was no breach by Remlap of a duty of care owed to the plaintiff.
The claim for contribution is in respect of the alleged same damage to the plaintiff and the cross-defendant is said to be a tortfeasor who would have been liable if sued by the plaintiff: see Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509. The making of an apportionment of parties’ respective shares in the responsibility for damage involves a comparison both of culpability, that is the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident should be subject to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494.
The plaintiff was permitted by Mr Sigmund, despite her age and height, to use the three metre diving board with the railing gap. For this analysis I assume that Remlap is somehow liable for this. In my view, the far more significant breach was the failure by the Council to place additional horizontal bars and/or enclosing Perspex type panels at the sides of the diving board. This is particularly in the context of Mr Farrell’s 2004-5 inspection. The Lease in my view squarely puts the obligations relating to structural safety concerning the diving platform on the Council. In my view, the degree of departure from the standard of the reasonable person and the greater relative importance in causing the damage to the plaintiff was the breach by the Council who had control over the structural maintenance of the diving platform structure. In all the circumstances, if I found a breach of a duty of care owed to the plaintiff by the defendant and the cross-defendant, I would determine that the appropriate apportionment of liability would be:
(a) The Council 85%; (b) Remlap 15%.
As I have formed the view that the plaintiff should succeed in her claim against the defendant, the preliminary view I have is that the plaintiff should be awarded her costs against the defendant as agreed or assessed. The defendant should it seems have its costs of the Cross-claim on which it has succeeded.
However, these are preliminary views and I will give the parties an opportunity to apply for different costs order if so advised.
Accordingly, for the above reasons, I make the following orders:
Judgment for the plaintiff against the defendant.
Judgment for the defendant against the cross-defendant on the Cross-Claim.
The cross-defendant is to indemnify the defendant in relation to any liability to the plaintiff.
The parties are to forward to the Associate to Dicker DCJ orders consistent with these reasons within seven days.
The defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed.
The cross-defendant is to pay the defendant’s costs of the Cross-Claim proceedings as agreed or assessed.
Liberty to the parties to apply within seven days for different costs orders to those set out above.
**********
Delaney
Federation Council [2025] NSWDC 141
(2011) 200 FCR 532
(2003) 77 ALJR 1509
(1987) 162 CLR 479
(2000) 50 NSWLR 388
(2022) 275 CLR 165
(2001) 207 CLR 21
(1933) 48 CLR 457
(1985) 2 NSWLR 501
(1986) 160 CLR 16
(2012) 246 CLR 182
(2006) 226 CLR 161
(2013) 250 CLR 375
(2022) 275 CLR 254
(2006) 68 NSWLR 531
(2014) 251 CLR 640
(2015) 256 CLR 104
(2017) 261 CLR 644
(2017) 91 ALJR 486
(2000) 103 FCR 1
A Reply was filed by the plaintiff with leave on 8 November 2024. In it the plaintiff pleaded that the plaintiff’s cause of action against the defendant was not discoverable until receipt of the report of Dr McMahon by the plaintiff’s solicitor on 15 May 2019 “at the earliest.”
At 11.1 it was noted that there was no compliance with having at least two qualified pool life-guards on duty at any one time but the comment was made “predominantly low patronage pool but no quals evident”. At 11.15 it was noted that the rule that children under a certain age be supervised by guardians over a specified age was apparently not enforced.
At paragraph 6.1 it was recommended that a risk assessment be completed on the use of the diving facilities. See also the recommendation as to dive pools and structures at 6.16. At 11.15, it was recommended that a rule be instituted which specified the age under which entrants must be supervised by guardians and the minimum age of those guardians. It was recommended that the rule be strictly enforced with the relevant age recommended to be 10 years.
Observations were made of the Corowa Swimming Centre. The following was included:
At the end of his first report, Dr McMahon recommends further neuropsychological examination in “late adolescence and early adulthood” to see if cognitive development “has been affected by the brain injury” he found. This was not done, as recommended, by Dr McMahon: see Exhibit B page 1572. It was, however, undertaken at the time recommended by the expert retained on behalf of the defendant, Dr Bachelor.
In a later report dated 9 April 2024, following reviewing reports obtained on behalf of the defendant, Dr McMahon agreed that the differences shown in neuropsychological tests provided evidence of anxiety. However, he was of the view that the plaintiff’s current state did not mean that she has not previously had cognitive impairments. In his opinion the impairments or difficulties have probably caused her to develop beliefs about herself “that are causing ongoing anxious symptoms”. He agreed with the view that the plaintiff would benefit from career coaching, psychological support and “medication based treatment”. If the plaintiff’s symptoms were intensifying, in his view the cause was most likely anxiety, likely being fuelled by “underlying self-doubts consequent to previous cognitive difficulties”: Exhibit B page 1598.
In a third report dated 20 May 2024, Dr McMahon considered various matters including the plaintiff’s car accident and her suitability for several occupations. Dr McMahon appears to accept the significance of the plaintiff’s anxiety and its connection to the 2012 accident.
In relation to vocational prospects, Ms Hamidi retained the same view, particularly that the plaintiff should start with part-time hours to ease into a new role and build her confidence although full-time hours were realistic in the light of her school and part-time job. However, Ms Hamidi expressed the opinion that anxiety and preoccupation with perceived deficits caused by the fall have likely impacted Ms Delaney’s ability to use her capacities to the fullest rather than impairments, if any, caused by the fall. She was described as impressing Ms Hamidi as being socially immature and naïve.
From a vocational perspective, Ms Hamidi expressed the opinion that employment options for Ms Delaney would still likely be in the straightforward customer service roles as she has already been doing similar work. Other routine sales roles could be realistic future options and potentially of more interest to Ms Delaney.
Dr Davies was then asked some questions in relation to his second report dated 13 May 2024 (Exhibit D1 page 1696) concerning his opinion as to the relationship between the accident and the plaintiff’s current symptoms. In particular, he was directed to his comment on page 3 of his second report that the plaintiff’s long history of anxiety and self-harm had been “reinforced by her parents’ fears and attempts to provide support and attention”. Dr Davies said that the plaintiff had suffered a serious head injury. It was natural that her parents would be very concerned and anxious in relation to this and place substantial focus on the plaintiff as a result. This considerable anxiety in the parents had “brushed off”, in his view, on the family and had changed how she had been brought up through being protected and with issues being blamed on the head injury: T488.19. These concerns and worries had also “brushed off” on the plaintiff, creating anxiety. Concerns as to the plaintiff’s cognitive development were relevant to this and the plaintiff’s parents had treated her differently which can have a negative effect on a person. In his view, this had happened in the present case with the plaintiff: T488.43. Such matters affected the child’s independence and the risks which she was permitted to take by her parents.
Dr Davies agreed that the plaintiff’s anxiety after the accident had been perpetuated by her treatment by others. He agreed that the plaintiff’s anxiety had played a part in her struggles at school in studying. This also reinforced her own anxiety. This in his view provided a pathway connected to the accident: T489.25-T490.7.
Dr Davies’ attention was drawn to paragraph 7 of his first report in which he states that Ms Delaney has no specific cognitive deficit resulting from the accident that would affect her employability. However, he agreed that anxiety would have an effect on the plaintiff’s employability: T490.26.
Dr Davies was then asked about the reliability of Dr Batchelor’s report because of the suggestion of sub-optimal results from the plaintiff. In his view, the possibility of the report being unreliable and therefore some cognitive defects being missed, was less likely. However, he accepted that the plaintiff’s anxiety could have affected the results of Dr Batchelor’s testing. He confirmed that it was possible that the sub-optimal results could be due to anxiety in the testing process.
In re-examination, counsel for the defendant put to Dr Davies the plaintiff’s mother’s evidence that the plaintiff, prior to the accident, had been short-tempered, quiet in the classroom, concerned about doing the right thing, being concerned with going outside her comfort zone, was seeking security and had some anxiety related behaviours. Dr Davies said that overall those matters could all occur with a young child and there was nothing there to lead to a particular psychological analysis. The factors referred to were in his view fairly normal for a child of that age.
Importantly, Dr Davies said that on the assumption of those matters existing, it did not change his views in relation to the link between the plaintiff’s anxiety and the accident: T493.44. In his view, these matters did not provide a sufficient explanation to negate the anxiety being suffered by the plaintiff as being an overall consequence of the accident. He noted that the plaintiff had climbed a three metre diving board which he was of the view showed an adventurous child and not one displaying anxious tendencies: T493.97-T494.3.
In answer to questions from counsel for the cross-defendant, Dr Davies agreed that he had not undertaken any testing of the personality of the plaintiff. When asked whether a person’s personality could add to a cognitive deficit Dr Davies said that this would need to be examined. On the material issues relating to the current anxiety of the plaintiff, her personality had not been explored. He agreed that anxiety could be related to a person’s personality and not the head injury involved. Dr Davies also agreed that he had taken into account in expressing his opinions that personality testing had not been completed. He said this was commented on by him (see last paragraph on page 2 of his second report at 1607).
Mr Ravagnani agreed that the types of jobs referred to in Ms Hamidi’s report were suitable but accepted that they were lower roles which were less demanding. When asked by the Court whether the plaintiff’s anxiety and reported depression would affect her studies and potential jobs, Mr Ravagnani said that it depended on the levels of anxiety and depression. Anxiety could cause considerable pressure at university in completing assignments and giving presentations which may cause problems. This was similar with work where there was pressure in a job or high levels of responsibility which could create difficulties in performing the work. He agreed that anxiety and poor performance in school could later affect opportunities in life such as tertiary studies and occupational opportunities: T527.22.
Questions were also asked of Ms Hamidi. Ms Hamidi expressed the opinion, based on the material she had examined, that there was nothing of significance in the plaintiff’s cognitive issues which would prevent her ability to gain employment. She agreed that this was based on Dr Batchelor’s report and the other reports which she had read which constituted the cumulative results of testing: T532.7. These reports were consistent that the plaintiff was average or close to average “on most measures”. Ms Hamidi confirmed that her view was based on the cumulative results of testing over time with Dr Batchelor’s testing being the most recent: T532.17.
After being sent again Dr McMahon’s first report, Ms Hamidi said that she would have read it and used it as informing her opinion and had not ignored it. Ms Hamidi said that she focused not on the cause of the plaintiff’s problems but her capacity for vocational options. Ms Hamidi’s attention was drawn to some anxiety and psychological problems of the plaintiff which she described as quite common issues in young people and did not preclude some capacity for some type of employment. These problems did not mean a person was unemployable with no employment capacity: T540.13. She agreed that some types of jobs were not suitable for the plaintiff due to psychological issues which was the same for all persons. She accepted that psychological problems including anxiety created some barriers to work options.
In answer to questions from counsel for the defendant, Ms Hamidi agreed that she had considered Dr Batchelor’s report in detail and the references in that report to earlier testing which had been conducted including by Dr McMahon. Having reviewed Dr McMahon’s report in the light of Dr Batchelor’s report, Ms Hamidi said that she did not wish to change her opinion as to the plaintiff’s vocational capacity. Ms Hamidi agreed that the tests undertaken by Dr Batchelor provided a good basis for the opinion she had expressed: T542.41. She also agreed that having regard to changes which could occur in development in adolescence, it was preferable to obtain the most recent testing as was possible: T542.47.
When asked about potential barriers to tertiary study for the plaintiff, Ms Hamidi was of the view that the plaintiff could complete further studies at least to certificate level but the plaintiff would benefit from vocational guidance.
With proper psychological and psychiatric care, Ms Hamidi was of the view that these issues would provide a limited impact on the plaintiff’s employment prospects in the future if there was motivation from her. She also agreed that if the plaintiff was able to connect with the psychologist these would provide improvements to her mental condition.
Questions were asked by counsel for the plaintiff of Ms Hamidi in relation to the plaintiff’s ATAR of 52 in the Higher School Certificate. She expressed the opinion that a result of that nature would be suitable to obtain tertiary studies to the certificate or diploma level and possibly higher: T545.40.
When asked having regard to the 11 tests performed by Dr Batchelor, whether one could comfortably rely on Dr Batchelor’s findings, Dr McMahon agreed, as long as there were not matters present that could call the tests into question. When asked by the Court whether fatigue could be relevant to a finding of some sub-optimal effort, Dr McMahon said that fatigue could impact on some tests as the testing party may be slightly slower, but that memory recollection and attention would not be significantly impacted and the TOMM test as to memory malingering should not be impacted. T465.31-T466.23. Dr McMahon agreed that the 11 tests undertaken by Dr Batchelor could provide a valid viewpoint on the plaintiff’s current functioning provided they were appropriately interpreted: T466.37.
Dr McMahon was taken to paragraph 5.3.5 of Dr Batchelor’s report at page 15 relating to the assessment of the plaintiff including four independent measures of performance validity with Dr Batchelor expressing the opinion that two of the tests relating to memory malingering fell within the range considered “strongly suggestive of invalid responding”. Dr Batchelor continued:
Dr McMahon agreed that in his recent reports he was not saying that Dr Batchelor’s testing was wrong testing or that her conclusions were wrong. He also agreed that there could be some improvement in the plaintiff’s condition due to her age since his testing as she had gone through adolescence: T472.37-T473.2. It was put to Dr McMahon that if it was accepted that his test results in 2018-19 were valid and that Dr Batchelor’s results were valid, that the difference in outcome could be explained by the plaintiff being a child with his testing and an adult in Dr Batchelor’s testing. Dr McMahon appeared to disagree with this and said that there could have been a change or improvement in the plaintiff’s condition. When it was suggested that this was the more probable explanation, Dr McMahon queried the distortion in Dr Batchelor’s testing which she recorded but accepted that there was likely to be an improvement on the testing having regard to the developmental period involved: T473.40.
In re-examination Dr McMahon agreed that there was not poor effort by the plaintiff in all tests. He said there did not appear to be breaches in some tests involving effort. He said that the other tests said to be sub-optimal created ambiguous results. When asked for the reasons for sub-optimal effort Dr McMahon also pointed to the reaction by a patient to the person undertaking the tests and a patient wanting to get attention.
The Court was impressed with Dr McMahon’s evidence. He was highly qualified and listened carefully to the questions asked. He did not appear in my view overly protective in relation to his reports but maintained that the conclusions in the first report were valid as the tests involved appropriate effort by the plaintiff for her age at the time.
The plaintiff gave evidence that she came back to Corowa and had a “lot of issues” after that: T40.24.
The plaintiff was unable to give accurate evidence in relation to the various medical consultations and tests which she had in the years after the accident. She could not recall coming under the care of the Southwest Brain Injury Rehabilitation Service but accepted that she had numerous meetings with doctors in the years immediately after the accident in which her mental capabilities were tested. The plaintiff gave evidence that she had time off school after the accident and did not go to school for a term. When she did attend school again, she attended on a limited basis. The plaintiff described herself as not being well at all on returning to school and being tired “all the time”: T41.15. She said her main issue was trouble understanding and comprehending what was being said in class. This tiredness and difficulty comprehending the teachers resulted in her being let out early on occasions.
The plaintiff gave evidence in chief of attending a public primary school and high school and completing the High School Certificate in 2018. She described herself as not coping well at high school and often feeling very tired. In relation to her performance academically in class, she said that she would forget material and ask her friends what the teacher said. Later, she said she would forget what she was taught in class and required substantial assistance to learn again the subject matter which had been covered. She said she felt different to her siblings who did well at school and felt “a lot dumber”: T42.11. The plaintiff gave evidence that she completed her High School Certificate in 2023 with an ATAR of 52. She gave evidence that her siblings had performed well in their Higher School Certificate with very high ATARs.
The plaintiff gave evidence that in Years 11-12 at high school she was not coping well and had three days a week only at school. She said she dropped mathematics as she could not do it. She also had special arrangements in relation to undertaking exams by being granted extra time and received considerable counselling.
[Redacted].
The plaintiff noted that her parents were teachers and her siblings had performed well at school and the family was focused on education. She said she was worried in relation to her academic performance as she was not doing well although she was trying. She emphasised an inability to understand the material taught in class which required her receiving significant help from her parents and undertaking a lot of work.
The plaintiff gave evidence that she had worked in a restaurant and in a pizza shop whilst at school and was now performing irregular cleaning duties in relation to Airbnb houses. The plaintiff could not give an assessment of her average hours of work undertaking the cleaning duties: T47.48.
The plaintiff gave evidence of being forgetful whilst working in the restaurant and pizza shop including forgetting what customers had ordered and forgetting directions from her superiors in the businesses.
The plaintiff was asked questions about her plans for further studies. She said she did not know whether she could cope with University and did not know what to study if she was to undertake a course. The plaintiff said she was currently seeing a psychologist every two weeks and remained on medication. The plaintiff indicated that she desired to travel overseas particularly to Canada to stay with family and intended travelling by herself.
The plaintiff was asked more questions about her anxiety. The plaintiff described herself as being very angry all the time after the accident and that anger led to anxiety. She said she did not have the anger or anxiety as far as she could recall before the accident. She described herself as growing out of her anger as a child but becoming anxious over a lot of different things particularly attending at school and her struggles in completing work. She said she always felt behind in her work at school. She said her anger issues occurred at primary school up to about Years 6-7. She said she received counselling for her anger issues.
In cross-examination by counsel for the defendant, the plaintiff confirmed that she recalled climbing up the diving board ladder but accepted that she did not have a good recollection of the events of the day of the accident: T50.7. Reference was made to the description in the Statement of Claim to her slipping and falling including falling either under or over the railing to the ground. The plaintiff gave evidence that the rail was at about her nose level, near her shoulders/face and she was only a bit taller than the rail. She said she did not recall much of the lower bar in the diving structure. She recalls the bar being in front of her face. The plaintiff said she recalled stepping up to the diving board and remembered it being wet. She said there were bars to the left and the right of her and she remembered holding onto the bar. She could not give any details about how she held onto the bar: T50.13-T52.24.
The plaintiff was asked numerous questions about attending meetings with the plaintiff’s liability expert Mr Dubos and with various medical practitioners. The plaintiff appeared to have a very poor recollection in relation to these attendances and, in particular, what she or her mother (who usually attended with her) said to the various experts. In relation to the meeting with Mr Dubos, the plaintiff said she remembered the meeting but had a very vague recollection of it. I accept the plaintiff’s evidence in relation to that matter.
The plaintiff accepted that she went to a number of medical consultations where she talked, and her mother talked. She said she did not have an actual recollection of what was said at the various consultations.
Having carefully observed the plaintiff giving her evidence in relation to the consultations, including with Mr Dubos, I am comfortably satisfied that the plaintiff has no reliable recollection of what was said by either her or her mother at the various consultations. The plaintiff was able to say that she did not recall telling Mr Dubos that she walked “quickly” along the diving board before her fall: T56.24. The plaintiff said she did not recall telling Mr Dubos that she turned to her sister to talk to her before she slipped. The plaintiff agreed that she could not remember falling or slipping. She denied telling Mr Dubos that she slipped underneath the rail or indicating where her mother was at the time of the fall. The plaintiff stated that she had not seen Mr Dubos’ report before giving her oral evidence. She agreed that she did not give the instructions set out in paragraphs 34-41 of Mr Dubos’ report to Mr Dubos. She said she did not recall what she said to him in the conference.
It was put to the plaintiff that she could not recall grabbing onto the handrail or the diving board being wet. She denied that and said that she did have a recollection of grabbing onto the handrail and the board being wet before the accident: T63.24-.44. It was put to the plaintiff that the first time that she had said that she had grabbed the handrail was in giving her oral evidence and she denied it saying that she had said it to her family. She said she did not recall slipping: T64.24. She agreed that she could not have told Mr Dubos that she had slipped, even though she believed she had slipped. In summary, she said she did not recall anything that she told Mr Dubos: T65.6.
In relation to her consultations with Dr McMahon and Ms Hamidi, the plaintiff stated that she had been to a lot of doctors and did not recall what she said to them. However, the plaintiff agreed that at one of the assessments she was on her own.
The plaintiff agreed that she had told doctors including Dr Hamidi that she had been in a car accident in August 2023. She also agreed that she told Dr Hamidi that she had fought with her sister and they did not get on.
[Redacted].
The plaintiff confirmed that Dr Cowen asked whether she had been assessed for autism and she said that she had asked her mother that same question who confirmed that she had been tested and it had come back negative. The plaintiff confirmed that she had been prescribed an antidepressant in Year 10 which she had been using since that time. The plaintiff confirmed that she had spoken to her general practitioner in 2023 relating to her anxiety and Dr Cowen’s recommendation of adding another medication but she said she was not keen to take further medication as she had a friend who had taken lots of medication who was mentally unwell. She denied she did not tell him of these things as she did not want him to know.
The plaintiff was asked about a consultation with Dr Davies, psychiatrist, and what she had told him. The plaintiff said that she was very tired at the consultation and her mother did most of the talking. [Redacted].
The plaintiff was asked about telling Ms Hamidi that she had dizziness particularly when she stood up. The plaintiff confirmed that she said that she had had dizziness as long as she could remember. The plaintiff said she understood she had always had low blood pressure. She agreed that she had told her general practitioner in August 2023 that she had fainted a couple of times. The plaintiff said that she did not have dizziness immediately after the accident in 2012, although she had had dizziness in primary school. She claimed that her recent dizziness was different and was due to her eating disorder.
The plaintiff confirmed that in early high school she had plenty of friends and was well behaved. However, she said she had anger issues at home particularly with her sister and her anger improved when her sister moved out from home.
The plaintiff was asked in relation to her marks at school and she agreed that she had mostly had Bs and Cs but did well in Music, Art and English. The plaintiff said that she had only had occasional bullying in 2019 but had more issues about bullying and anxiety which affected her study in 2022-23. She said she stayed at home for a number of days each week from school as she was anxious. The plaintiff also indicated that she was scared to go to classes because she was “getting behind”.
It was put to the plaintiff that her suggestion that she was falling behind at school was not true in the light of her marks in English, Legal Studies and Music in Year 11. The plaintiff denied this and said she was falling behind and forgot material easily in the classroom. She said she had to ask her parents for a lot of help and undertook a lot of work herself outside of school. She said her father was a legal studies teacher and assisted her considerably. The plaintiff expressly denied that she was exaggerating in her evidence about not understanding or remembering work at school. She said that her problems started in Year 7 when she had to do more work and needed further help from her parents at home. The plaintiff agreed that she told her mother as soon as she had problems in understanding and in relation to her anxiety. Later, the plaintiff said that she also had difficulties understanding in primary school but could not remember whether it was in early or late primary school. The plaintiff said that she just remembered it always being the situation.
The plaintiff was not a precise historian in relation to these matters, but having viewed her carefully giving her evidence, I accept that she was doing her best with her limited recollection to give accurate evidence on this issue.
Counsel for the defendant then asked the plaintiff numerous questions about potential occupations she could undertake. The plaintiff accepted that she could undertake the following work:
However, overall, I formed a positive view of the plaintiff. She appeared to give her evidence in a straightforward and honest fashion and made concessions where appropriate. I have no reason to doubt that the evidence she gave of her recollections of the accident was truthfully given by her. I also accept that within those recollections, she was attempting to give an accurate summary in her evidence. What is unclear, however, is whether those actual recollections were hers or had been formed in her memory through discussing the accident numerous times with her mother and sister.
Julia Delaney gave evidence that prior to the accident Loren was a sporty child who she described as an “adrenaline junkie” wanting to go on rides and being active and energetic: T127.1. She said there was a “big” change following the accident, particularly a big behavioural change as if some part of Loren “had left”. She said that the energy and happiness of Loren appeared to change, and she became very angry and temperamental with what she described as a “short fuse”. She described that virtually anything would set Loren off including if she gave Loren a particular look which would send her into a tantrum. She described Loren’s tolerance for anything that she did not like as being “non-existent”. Ms Delaney said that Loren’s anxiety appeared to come later in Years 7 to 12. Ms Delaney said that she had not seen any of the anger or tantrums in Loren prior to the accident.
Ms Delaney described Loren as having “issues” at school. She said she recalled her frequently sitting in the dining room at home crying over her school work, with Loren having difficulties managing and completing simple tasks. She said she observed this through high school.
Julia Delaney gave evidence of her and her brother’s high ATAR marks and her completing a university degree at a private university with plans to undertake medicine in the future. She said that her brother had studied engineering at the University of New South Wales and had a job as an aerospace electrical engineer with the Royal Australian Navy. Ms Delaney confirmed that her family encouraged her to study while she was younger.
When further questioned about the precise mechanism of Loren’s fall, Ms Delaney said that she was not certain of the mechanism, but Loren appeared to lose her footing and tried to hang on to the rail with her hands but could not and landed with a hard thump. The fall tilted her slightly forward from the diving structure. Ms Delaney gave evidence that Loren had fallen under the top bar on the three metres diving board platform: T130.4.
Julia Delaney gave evidence that she had used the three metres diving board before the accident for about two and a half years. She said the family had used the swimming pool from when they had moved to Corowa in 2009 until the time of the accident. She was asked to describe the surface under foot on the three metre board. She described the surface as being blue with a “rough sandpapery texture to the grit”: T130.50. Ms Delaney described the surface of the board as getting wet with use with small splashes on it. She described the dive platform railings as being metal painted white with rust on them.
Julia Delaney was then cross-examined by counsel for the defendant.
Ms Delaney confirmed that she had got into the ambulance with her mother and Loren to go to the hospital. She agreed that she was there when Loren was assessed and heard her mother talking to the hospital staff. She said she was in the area when this was occurring. She could not recall her mother telling the medical staff what had happened but accepted that she must have. She gave evidence that she did not hear her mother telling the hospital staff that Loren had fallen or that she (Julia) had heard a “thump” when Loren had fallen. Julia Delaney confirmed that as far as she was aware her mother did not see what had occurred at the pool, but she said that she told her after the fall first happened in a panicked and hysterical state, “she fell”, “she fell”. Ms Delaney said that she did not recall her mother asking her what had happened. She said in the ambulance she was crying but her mother was calm. Ms Delaney agreed that she had used the word “thump” to describe Loren’s fall on the concrete and said that she appeared to recoil on impact.
The notes of Dr Richtman of 12 February 2012 at Albury Hospital were referred to where he had recorded that there was no actual witness to the fall, but Loren’s sister had heard a “thud”. Julia Delaney stated that she was there and saw the accident. She said she did not remember speaking to a doctor or being questioned by a doctor about the fall and did not give a doctor any statement as to the fall. Ms Delaney said that she had a clear recollection of seeing Loren fall from the diving board under the rail. I think it likely that Mrs Delaney alone spoke to the doctors having regard to Julia’s age and likely repeated some comment from Julia that she heard a “thud”.
Ms Delaney confirmed that she had spoken to her family and friends many times in relation to the accident and had also told Loren what she had seen happen. When asked whether she told her mother what had happened, she said that she might have but her mother generally did not want to hear the details in relation to the accident. She accepted that at some time she had a conversation with her mother about the accident.
Ms Delaney was asked whether she spoke to her mother about the accident at the time her mother was instructing lawyers. She said she may have, but it was years ago and she could not recall. She confirmed that the lawyers had asked her quite a few years ago what had happened, but she gave a more detailed account two weeks before the hearing. When she was first asked, she confirmed that she was in high school, and she finished high school in 2020.
Ms Delaney was asked about the account which she had given to the lawyers of the accident. She did not recall stating that Loren had climbed up the ladder but said that she was on the board and looking at her (Julia). She could not recall saying that Loren had grabbed the rail with both hands but she did recall saying that Loren’s feet were slipping and she fell under the bar. She recalled being asked what Loren was doing while she was standing on the board and saying that she was facing her and discussing about jumping from the diving boards at the same time. Ms Delaney confirmed that she found the incident traumatic and that she was “in hysterics” at the time. Ms Delaney confirmed that Loren had used the three metre diving board on the day of the accident once or twice before the accident. She did not recall Loren saying anything to her at the time during that jump or jumps. She rejected the proposition that whilst Loren was on the three metre board and she was on the one metre board that Loren said words to her to the effect that she would “race you to the pool”: T143.11. She confirmed that Loren’s demeanour at the time was calm, although she called out to her loudly when they were both on the boards at the same time.
Julia Delaney confirmed that she had had issues with Loren over the years and at some stages they had a difficult relationship although that had improved when she (Julia) moved out from home in 2021.
Counsel for the defendant then put a number of propositions to Julia Delaney: T144.38. She denied the suggestion that she did not see Loren fall: T144.41. She accepted that she told her mother that she had heard a thud or thump when Loren fell. She agreed not a lot of people were around at the time of the accident. She said Bruno was at the other end of the pool in the kiosk and did not immediately come to where Loren had fallen after the accident: T145.15.
Counsel for the cross-defendant then asked a number of questions of Ms Julia Delaney. Ms Delaney confirmed that she had a solid and clear memory of the accident and a clear recollection that Bruno was in the kiosk at the relevant time: T146. She said her recollection of where Bruno was, was not as strong as her recollection of what had happened during the fall. It was put to her that Bruno was at the diving board at the time of the accident and she said she did not recall that but he could have been: T146.42. Ms Delaney confirmed that as far as she was aware she was the only person who witnessed the accident: T148.3.
Ms Delaney said that she was not aware that her parents had obtained an expert opinion on liability relating to the case but was aware that in 2019 her parents had retained lawyers.
Ms Delaney rejected the suggestion that Loren was leaning over the edge of the railing on the three metre board when she fell: T153.10.
Ms Delaney said she was not aware that the plaintiff’s pleading indicated that Loren either fell over or under the railing and said that she was surprised that they (presumably the solicitors) were not aware of where Loren had fallen: T153.48.
Counsel for the defendant in his written submissions dated 17 January 2025 described Julia Delaney’s manner as “forthright and supercilious” and her evidence as “unusual.” Her evidence is generally attacked: paragraphs 15-24. In particular, it seems to be submitted that the parents and solicitors did not know about Julia’s version, which was unexplained, until after the initial conferences with Mr Cameron and Mr Dooley SC. The recording by the doctor at Albury Hospital that the accident was unwitnessed was relied on. It was submitted that there was no satisfactory evidence of the accident or how the plaintiff fell. It was submitted that Mr Cameron and Mr Dooley were not called, and a Jones v Dunkel inference should be made in relation to them (paragraph 23 of the written submissions). I decline to make that inference in circumstances where I am not obliged to do so and the defendant was able to cross-examine the plaintiff, Julia and Mr and Mrs Delaney on the issue (as well as Mr Dubos if required). The solicitor Mr Reeks was also not required for cross-examination in relation to his affidavit. Further, file notes of Mr Cameron and opinions from Mr Dooley were available and Mr Dooley could have been called by the defendant. Even if the inference sought was available to be made by me, it would not affect my conclusion on the issue.
Julia Delaney impressed the Court as an intelligent and confident witness. She made concessions where appropriate, particularly in cross-examination. She gave evidence that she had a clear and solid recollection of the circumstances of the fall. She was not relevantly shaken in relation to this evidence in cross-examination.
However, her oral evidence has to be seen in the light of the Albury Base Hospital records and the Ambulance records (Exhibit D5) that the fall was “unwitnessed.” I am satisfied that this information likely came from Mrs Delaney who had not witnessed the fall herself and had not spoken to Julia as at 12 February 2012 (either at all or in any detail) about the circumstances of the fall.
Although Julia Delaney was only 10 years old at the time of the accident, and therefore some caution should be exercised, the accident was clearly a traumatic event for her. I did not discern any fabrication or reconstruction in relation to her evidence relating to the fall. I accept Julia Delaney as a witness of truth and accept her account of what she saw in relation to the fall on 12 February 2012. I do that despite the records I have referred to. The information likely came from Mrs Delaney not Julia. At that time Mrs Delaney (and Mr Delaney) had not been told what Julia had seen. Thus, Mrs Delaney thought the fall was unwitnessed. Having regard to those circumstances, the records do not change the views I have reached about Julia Delaney’s evidence. I reject the defendant’s submissions to the contrary. Julia Delaney’s evidence is also relevant as to the mechanism of the fall which I consider further below.
Mrs Delaney described finding Loren facedown with her hands splayed on the ground with her head turned to the right: T164.36. She described herself as being very upset but calming Julia down and then pushing Julia away from Loren to sit on the pool edge. She went to Loren as she thought she might be injured and Loren woke up. She went to pick Loren up, but Bruno came over. Loren began to cry. The next thing she recalled was the ambulance arriving and her calming Julia down further. Mrs Delaney said that she recalled another family being a lady and two boys by the name of Brown being at the pool also at this time.
Mrs Delaney gave evidence that she and Julia went in the ambulance with Loren to Albury Base Hospital. She said she rang her husband who was out fishing with her son to inform him what had occurred, and he came one to two hours later.
Mrs Delaney gave evidence that she spoke to hospital staff and recalled that a Dr Richtman, paediatrician, was the main person who she dealt with in the emergency department. Mrs Delaney stated that Loren was assessed and a decision was made to transfer her to the Melbourne Children’s Hospital where she stayed until being discharged on 15 February 2012 home to Corowa. Mrs Delaney gave evidence that she understood that Loren had a 10cm skull fracture on the right side of her head with no other injuries on the assessment. She understood that Loren’s brain had “bounced” against her skull in the fall and she had mild to medium concussion with the hospital staff not suspecting any brain injury.
Mrs Delaney confirmed that soon after the accident, Loren was referred by the Royal Children’s Hospital to the South-West Brain Injury Rehabilitation Service (“SWBIRS”).
The discharge summary from the Royal Children’s Hospital was in evidence which included the following:
Mrs Delaney described Loren as putting in a huge effort and trying “100 percent”: T183.47. Loren described herself as feeling “stupid” and “dumb” because she did not understand the work at school: T183.50.
Mrs Delaney gave evidence that Loren had commenced part-time work at an Asian restaurant connected to a pub. She described Loren as “hating” the work as she could not understand the orders and the work there was quick paced. She described Loren as not remembering things easily. Thereafter, Loren began part-time work at a local Italian restaurant for two to three nights per week making pizza dough, taking telephone orders, dealing with customers and boxing up the food. She described Loren as having an understanding boss. Frequently, Loren felt sick before going to work and did not want to go to work. If Mrs Delaney thought the reluctance was due to anxiety, she would push Loren to go. She described Loren as not liking dealing with customers and becoming flustered easily and forgetting orders. She said Loren left of her own accord at the end of 2023 because of plans to go overseas. She said Loren cut back on her working hours in 2023 but did not tell Mrs Delaney of that.
[Redacted].
[Redacted].
Mrs Delaney gave evidence that Loren achieved a mark of 52 for her ATAR in the High School Certificate. She said that she had family in Canada and Loren proposed to connect with members of the family in Canada and then travel to Europe. When asked what she thought Loren would do in the future Mrs Delaney said that she had “no idea”. She noted difficulties with Loren of retaining information and what would occur if she got upset without one or both of her parents being present. She noted that there was a TAFE in Corowa but no university. She also expressed a concern if Loren left home to attend university that she would not have the support of her parents.
Mrs Delaney was subject to a very detailed cross-examination by counsel for the defendant.
Mrs Delaney agreed that in 2017 she had concerns in relation to Loren’s difficulties with meltdowns, rages, memory issues and her comprehension difficulties. She also agreed that these concerns particularly about rages were present in her mind prior to 2017.
In relation to her dealings with the SWBIRS, Mrs Delaney agreed that she spoke to representatives of the service at various points from 2012. Initially, she was told in 2012 at the Melbourne Children’s Hospital that Loren had not suffered a brain injury. She said she only understood that Loren had suffered a brain injury during testing at the SWBIRS where there was a reference in emails to a traumatic brain injury. See also the report of Clare Dickson following an assessment on 3 May 2012 where Ms Dickson described Loren as suffering a traumatic brain injury during the fall. Mrs Delaney regarded this as having been confirmed in the report of Dr McMahon. Mrs Delaney rejected the suggestion that the first time she considered Loren to have had a brain injury was following reading Dr McMahon’s report in 2019 but could not recall when she first was of this view.
In the end, Mrs Delaney said that she wanted to get the best assistance for Loren as nothing she had provided as a parent seemed to help and Loren’s rages were getting worse which she considered with the learning issues to be potentially linked to the accident. She agreed that she did not think that there was any other cause for Loren’s injury other than the accident. She accepted that it was the sole event which could have caused the comprehension difficulties, memory loss and anxiety which Loren was experiencing. Mrs Delaney agreed that she had seen the reference to a traumatic brain injury in the report of Clare Dickson following the assessment on 3 May 2012.
It was put to Mrs Delaney that she did not need Dr McMahon’s report to establish the connection between Loren’s difficulties and the accident. Mrs Delaney described Dr McMahon’s report as being to allow her to pursue a claim and take the matter further: T192-3. She accepted that she was protective of Loren and encouraged her to wear for example a helmet in sport.
Mrs Delaney said that after the fall she discussed with her husband whether they should pursue a liability claim for negligence. She said they decided not to do so as she thought any difficulties could be dealt with through assistance and counselling help. However, things became worse rather than better and she noted that with Loren progress from primary school to high school things would potentially become more difficult and she reassessed the issue. She and her husband formed the view that they needed to speak to lawyers to establish the link between the accident and Loren’s difficulties: T193.44. She agreed that she was of the view that she needed to speak to lawyers in order to establish “the causation issue”.
Mrs Delaney was then asked questions in relation to the position of Loren before and after the accident. She said that Loren might have been “somewhat anxious” before the accident but not as she was after the accident. She said Loren had no anger issues or experienced rages prior to the accident and had learned to read in kindergarten. On occasion she showed slight anxiety or nervousness such as starting school and making friends, but this was the same as it had been with her other two children: T194.20.
Mrs Delaney was then asked questions about the relationships between her children. She said that overall, Julia and Jack got along, although there was sibling rivalry. When asked whether that was not the same as the interpersonal difficulties between Julia and Loren after the accident, Mrs Delaney said that Loren took out her rage on her son Jack as well, but the relationship was different.
Mrs Delaney was taken to the SWBIRS paediatric team initial assessment document which described Loren’s behaviour and attitudes within the family setting and with peers prior to the accident as follows:
Further questions were asked of Mrs Delaney in relation to the question of delay and time. Mrs Delaney had initially given evidence at T207.37 that she could not recall Mr Cameron or Mr Dooley SC asking her any questions about the issue of time: T207.37. Then Mrs Delaney said that there was “a question about that” (T207.44) but that she and her husband were “first apprehensive” to the point that they did not pursue anything when they had noticed a change in Loren’s behaviour until that became more extreme: T207.44-.50. Mrs Delaney confirmed that that was a decision she made jointly with her husband: T208.5-.17. Mrs Delaney said that she did not recall Mr Cameron saying anything about a delay in the first meeting in April 2017: T214.7. Similarly, she did not recall anything being said about a statutory time limit or about three years from the date of the accident to commence an action: T214.9-.14.
Mrs Delaney said that she attended the conference which went for about an hour with her husband. However, Mrs Delaney conceded that she contacted Mr Cameron to discuss the possibility of legal proceedings being started for the purposes of bringing a claim: T214.34. Mrs Delaney said that she and her husband were trying to establish if a claim would be pursued: T214.43. Mrs Delaney then gave evidence about the meeting with Mr Cameron and Mr Dooley SC. She understood that he was “more an expert than Mr Cameron in these proceedings” and believed that she might have been told that he was a barrister: T214.19. After some questions, Mrs Delaney agreed that she knew she was sitting down with a barrister to talk about legal proceedings and potentially commencing an action: T214.30. Mrs Delaney said that she and her husband were concerned about Loren’s future and “where she was going to”: T215.34.
Mrs Delaney said numerous questions were asked by Mr Dooley and Mr Cameron during the conference: T215.45. Mrs Delaney did not recall the detail of the conference but accepted that they would have gone over the background facts relating to the accident, Loren’s treatment and the effect of the accident on her: T215.50-T216.11. Mrs Delaney did not recall Mr Dooley or Mr Cameron mentioning a delay in commencing an action but accepted that they may have: T216.20. Mrs Delaney said that she and her husband were there to get legal advice as to whether they should proceed with their concerns. They understood that the lawyers would inform them as to guidelines “and whether we were within the right guidelines, including timeframe”: T216.24. Mrs Delaney, in answer to a question from the Court, stated that she did recall “that there was a conversation around time” but she could not recall what words were said in relation to it: T216.40. Mrs Delaney could not recall if they were told that Loren was out of time to commence an action: T216.46. Mrs Delaney did not recall when she provided instructions to file the Statement of Claim on behalf of Loren which was filed on 16 March 2022: T217.23.
Mrs Delaney was then asked a number of questions about the changes in Loren which caused her concern. She said that Loren’s difficulties had become worse later in her primary school years, in Year 5 or Year 6 which were not due to a lack of effort on Loren’s behalf: T218.1–.9. Loren had a teacher which she liked in Year 4 or possibly Year 5. In Year 4 Loren “was achieving fairly well”: T218.21.
Mrs Delaney was taken to various conversations with representatives from the SWBIRS (Ms R Lichter and Ms C Frees) in 2014-15 where she had indicated that Loren was doing “really well” and appeared a much “happier child”. The notes which were in evidence referred to Loren still having occasional tantrums and anxiety with the latter being problematic at times, and also difficulties with her memory (see entries for 22 May 2014 and in December 2015 in the progress notes).
Mrs Delaney was then asked a number of questions about the accident and whether Julia had witnessed it. Mrs Delaney confirmed her earlier evidence that she did not witness the accident on 12 February 2012: T221.21. Mrs Delaney denied that she spoke to Julia many times over the years about what had happened on the day of the accident. She said both she and Julia found it very traumatic, and they did not speak about it a lot: T221.30-.35. Mrs Delaney accepted that in the conferences with the solicitor and barrister in 2017 that she was asked what happened on the day of the accident and she told Mr Cameron that she did not witness it: T221.50. However, Mrs Delaney agreed that she wanted to know how the accident occurred not having witnessed it: T222.13. Mrs Delaney said that she understood that the only person who had witnessed the accident was her daughter Julia: T222.28. She agreed that she asked Julia what had occurred in order to become aware of that, but it was not discussed many times: T222.33. Mrs Delaney said that Julia told her what she had seen: T222.39. While she could not recall the exact timing when she asked Julia what had occurred, Mrs Delaney said she believed it was soon after the accident. Initially she said that she could not recall if it was in the ambulance when things became calmer or soon after that: T223.17. Later Mrs Delaney said that she believed she was told by Julia what had happened in the accident a few days after it had occurred: T235.17.
Mrs Delaney gave evidence that Julia told her that she had seen Loren fall and that it was “very quick”: T223.27. Mrs Delaney could not recall the specific words that Julia had said to her in relation to what she had seen: T223.41. Mrs Delaney said that she could not recall Julia telling her that she heard a “thump” or a “thud” but accepted that she may have said that: T227.27.
Mrs Delaney was then asked questions in the light of Albury Base Hospital records where a Dr Chaffy recorded that the fall was “unwitnessed”. Mrs Delaney said that she told the doctor that Loren had fallen off a three metre diving board onto concrete: T228.1. Mrs Delaney believes that she would have told the doctor that she did not see the fall: T228.8. She accepted that she may have told the doctor words to the effect “sister heard thump”. Mrs Delaney then gave evidence that at some time Julia did tell her that she saw the fall and heard a thump: T229.7. Mrs Delaney rejected the proposition that Julia told her that she did not see what had happened. Rather, Mrs Delaney said that Julia told her that she saw Loren fall: T332.40; T332.25.
Mrs Delaney accepted in answer to a question from the Court, that as far as she could recall, when she was at the hospital the only person who provided information to Dr Chaffy or Dr Richtman as to what had occurred was Mrs Delaney herself: T234.23. Mrs Delaney then gave evidence that she had obtained the detail in relation to the accident when they came back from the hospital being some three days after the accident, although she could not be certain of that: T234.41. At that time, Julia gave the detail of Loren having climbed the three metre diving board ladder and called out to Julia “let’s jump together”: T235.2; see also T235.17. Mrs Delaney added that she was told by Julia that Loren had lost her footing, that Loren was already wet and that Loren was speaking down towards Julia who was on the lower diving board: T235.24-.48. Those items were the details provided in the account given by Julia: T236.6. Mrs Delaney conceded that she may have had a later conversation with Julia as to the mechanics of the fall, but she did not recall this: T237.31. Mrs Delaney gave evidence that she did not discuss the details of the accident a lot after the conversation with Julia as she did not want to bring the matter up again so that Julia had it in her memory: T238.44.
Mrs Delaney was asked some questions about the period just before and after the conference with the lawyers relating to the plaintiff, Loren. Mrs Delaney gave evidence that in relation to Loren’s Year 7 (2018) she reported that Loren was “doing alright”: T251.11. Mrs Delaney was asked about a conference she and Mr Delaney had with Mr Cameron, solicitor, on 9 July 2018. It was put to Mrs Delaney that she told Mr Cameron that Loren was handling school at that time very well. Mrs Delaney agreed that when Loren started Year 7 she seemed to be “going alright”. Mrs Delaney said that her concern was not of a drop-off in performance through school but what she saw at home. She said that Loren always tried her best at school and that on her marks she did “fairly well”, better in some subjects than others. Her real concern was the behaviours displayed at home and in particular problems with memory and comprehension, with Loren getting upset and having what she described as “meltdowns” and “rages”. This would particularly happen when Loren had difficulties understanding the work at school or having problems with her memory: T251.26–.39.
Mrs Delaney was asked whether the difficulties with anxiety which Loren had in Years 9 and 10 was when she started to perform not as well as she had been at school. Mrs Delaney appeared to dispute this and indicated that Loren had difficulties with anxiety in primary school as well. On occasions when Loren was picked up for counselling sessions or doctors’ appointments, Mrs Delaney could not get Loren back to school on the relevant day. She was also asked to pick her up on occasions because of significant anxiety. Mrs Delaney described the anxiety as anxiety which built up “over the years, certainly well before Year 9 and 10”: T252 .47. Mrs Delaney summarised Loren’s position as being that her anxiety was “very evident” well before her attendance in Years 9 and 10: T252.7. Later, Mrs Delaney accepted that she may have informed Loren’s general practitioner, Dr Smith, that Loren’s anxiety and panic issues were much worse since about Years 9 and 10 and that it was now affecting Loren’s school attendance and performance: T253.24-.31. Mrs Delaney accepted that although there were problems in Years 4 and 5 in primary school, Loren’s attendance at school improved in the early years of high school where she appeared to be more settled: T253.37.
In answer to a question from the Court as to when after the accident Mrs Delaney noted any degree of anxiety which caused her to have a greater concern, Mrs Delaney said it was in Year 2 and Year 3. After the accident in Year 1, Loren was very withdrawn, very quiet and very tired. She appeared to improve in Year 2 with a teacher that she liked but the anxiety started to “flare up” in Year 3. In Years 4 and 5 the anxiety appeared to be much greater at home and Loren became more concerned with her understanding of her schoolwork: T254.1-.26.
Mrs Delaney was then asked a number of questions about Loren’s experiences in 2023 which she accepted was a “pretty difficult year” for Loren: T254.32. [Redacted].
[Redacted].
The initial approach to lawyers was in April 2017: T280.20. Mrs Delaney said that she had not spoken to lawyers about the accident on 12 February 2012 and any possible claim Loren might have prior to speaking to lawyers from Slater and Gordon in April 2017: T280.25-.32. Mrs Delaney confirmed that she approached the lawyers then in relation to the causal connection between Loren’s behaviours and the accident because of what she described as the incidents getting worse and having a greater impact on Loren and the whole family: T280.34-.43. She agreed that the reason she went to see the lawyers was linking the complaints of Loren to the accident and a legal action: T280.47. Mrs Delaney accepted that that involved a consideration of Loren’s development from the accident until she spoke to the lawyers: T281.11. Despite file notes, Mrs Delaney did not recall any prior discussions with a Mr Uniacke of Slater and Gordon: T281.43. In addition, Mrs Delaney had a limited recollection of the initial conference with Mr Cameron and did not describe him as referring to the case as being “a goer”: T283.1. Further, Mrs Delaney did not recall any details of any discussion about damages or figures for damages: T282.6.
Mrs Delaney was then asked about the conference conducted with Mr Dooley SC and Mr Cameron on 7 August 2017: T283.42. Mrs Delaney did not recall Julia being present at the meeting. She also could not recall the specifics of the meeting but said she was guided by the questions asked of her. Mrs Delaney said that she believed Julia spoke to Mr Dooley a few days later: T284.44. By that time, Mrs Delaney accepted that Julia had told her that she had seen Loren fall on the day of the accident: T285.14; T285.33-T286.2. Mrs Delaney denied the proposition put to her that Julia had not told her that she had witnessed the fall by August 2017. Mrs Delaney said that Julia had told her that she had seen the fall soon after the accident: T294.39; see in particular T295.22-T297.3. Mrs Delaney added, that although Julia may have told her that Loren had slipped under the railing, she had certainly made that assumption because of how the diving board was structured. Mrs Delaney said she had no doubt that Loren had slipped under the railing: T296.31. This was an assumption made by Mrs Delaney throughout 2021: T297.3. Mrs Delaney could not state how long that assumption had been in her mind: T297.8.
Mrs Delaney was then asked about the instructions given to Mr Dubos for the purpose of his expert report. Mrs Delaney said that as far as she could recall she never instructed her lawyers to plead that Loren had fallen over the railing in the alternative to falling under the railing: T298.13. She accepted that it was possible that she had given the account of what had occurred in paragraphs 34 to 41 in Mr Dubos’ report to him. She had no recollection of telling Mr Dubos that Loren had walked quickly along the three metre diving board. Mrs Delaney could not recall where the instructions from Mr Dubos came from but to her it was obvious that he was getting the facts from herself and/or Loren because they were present at the meeting: T298-T302.7. Mrs Delaney rejected the proposition that the factual instructions to Mr Dubos had been developed or reconstructed: T302.15.
Counsel for the cross-defendant then asked a number of questions of Mrs Delaney. Mrs Delaney gave evidence that she became aware that the RLSSA had completed an inspection of the Corowa swimming pool after the accident and during 2012. She believed her knowledge came from a conversation her husband had with someone: T302.41. Mrs Delaney denied that she and her husband were making enquiries in 2012 about the accident: T303.35. Mrs Delaney gave the following evidence:
Earlier, Mrs Delaney had given evidence that after initially getting legal advice, she and her husband wanted further neuro-psychological testing of Loren’s cognitive abilities to occur, in order to progress the matter and assess Loren’s level of injuries. This was something they wanted to investigate before commencing proceedings: T180.34-T181.3. Mrs Delaney said that after receiving the report of Dr McMahon relating to the connection between the injuries and the accident she and her husband decided to proceed with the action: T181.44.
Mrs Delaney impressed me as an intelligent and honest witness. She was careful in her answers and made concessions where appropriate. She had a limited memory of some matters, including most conferences, having regard to the effluxion of time. This was to be expected. In general terms, I accept her as a witness of truth.
Mr Delaney gave evidence that before the accident the plaintiff was bright and inquisitive and had a love of learning and wanted to be the best at everything. Mr and Mrs Delaney assisted her with education at home and she could read before she went to school. After the accident, Mr Delaney was of the view that there appeared to be a delayed response to the brain injury. Initially they thought the problems would subside and the plaintiff would get better. The plaintiff had problems with memory, particularly remembering facts and her ability to concentrate. In addition, what he described as the plaintiff’s “bubbly” and “effervescent” personality had changed. Thereafter, the plaintiff did not do well at school, and she could not appear to remember things that she was taught including information which she needed to succeed at school. Mr Delaney gave evidence that the triggering factor was the plaintiff’s emotional response whilst on a holiday which he believed was in the first part of 2017: see T334.10.
Mr Delaney said that initially he was reluctant to seek advice until that family holiday when the plaintiff exhibited anxious behaviour. He and his wife formed the view that they needed to get advice and were told that it was necessary to get Loren tested. He said the results and the lawyer’s advice prompted he and his wife to move the matter forward. The testing he referred to was the testing from Dr McMahon in relation to the plaintiff’s anxious behaviour and cognitive problems which he had observed up to that time. Mr Delaney said that he used his other two children as a comparative baseline to assess Loren.
Mr Delaney said that instructions were given to obtain the neurocognitive testing from Dr McMahon after seeing the solicitors and the decision to proceed to litigation occurred after the testing came back: T334.31. Otherwise, he said the decisions were left to the lawyers.
Mr Delaney was asked questions about his observations of Loren now that she had grown up. He stated that the plaintiff had completed the HSC but that he had a higher expectations for his children in circumstances where Loren was struggling deeply with anxiety. He said difficulties with performing well at school made the anxiety worse. The part-time jobs which the plaintiff had in restaurants and her part-time cleaning job were lower for Loren than he and his wife’s expectations after the assistance which had been given at home to her: T334.40.
Mr Delaney gave evidence that he had tutored all his children at home and had observed anxiety and frustration in Loren, including the inability to comprehend documents including concepts and the links between sentences. Loren was having difficulties with HSC subjects that he was assisting her in such as legal studies. The areas included problems with comprehension and memory: T335.32.
As for the future, Mr Delaney said that he would like Loren to do a TAFE or university course but was fearful that she may have piecemeal employment relying on the minimum wage. He said he and his wife were hopeful of more but were realistic: T335.36.
Mr Delaney was subject to a detailed cross-examination, particularly by counsel for the defendant. Mr Delaney was asked questions about the use of the diving boards by his children prior to the accident. He denied that he had trained his children how to jump off the diving boards, which was inconsistent with Mrs Delaney’s evidence. However, it seems from his evidence that he was present when the plaintiff started to use the diving boards. Mr Delaney denied that prior to the accident he had seen the plaintiff using the three metre diving board “quite a bit” and in the end said that he had seen her use it once or twice and not often: T337.14; T338.24. He said often his wife took the children, including the plaintiff, to the pool. He denied the suggestion that the plaintiff was experienced in using the three metre diving board prior to the accident.
Mr Delaney denied that prior to the accident Loren could be described as “a bit of a daredevil” and said she was like other six year olds: T339.5. He agreed that Loren wanted to complete things and pushed herself prior to the accident. Mr Delaney said that the plaintiff was not short-tempered with him prior to the accident and did not know whether the plaintiff had been short-tempered with his wife.
In relation to Mr Delaney’s evidence in chief that he spoke to Julia as to what had happened in the accident one or two days after the accident, his initial evidence was that he had not spoken to Julia since that time in relation to the mechanism of the accident and had only spoken to her once in relation to the fall: T339.49-T340.37. Later, Mr Delaney slightly amended that evidence to say that he could not recall speaking to Julia subsequently in relation to the fall: T377.40. He said he recalled the conversation occurring in the evening in the loungeroom of their house.
Mr Delaney confirmed that he spoke to Ms Kristy Kay from Corowa Shire Council on 14 February 2012 and that he was coincidentally with Mr Christopher Johnson, the Principal of his school, at the time. He described being “caught on the hop” by her call and he could not remember the detail of what he said to Ms Kay. Mr Delaney confirmed that his conversation with Julia Delaney occurred after his conversation with Ms Kay from the Council: T334.25-.34. Mr Delaney disagreed with the proposition that he spoke to Julia either on 12 February 2012, being the day of the accident, or the next day, 13 February 2012. Mr Delaney said the context of his conversation with Julia as to what had happened was that his wife had told him that she did not see what had happened at the pool on 12 February 2012.
Mr Delaney emphasised the fact that he had very little recollection of his conversation with Ms Kay. He did recall that Ms Kay wanted to ask about both the plaintiff’s and he and his wife’s welfare.
Mr Delaney was asked about a number of things recorded by Ms Kay in an email relating to the conversation and appeared to have little recollection of what he had said. Whilst accepting that it was plausible that he should have said that there should be enclosing side panels on the three metre board he did not recall it: T347.32.
Mr Delaney was asked questions about the suggestion in the Kay file note that he had said that as at the time of the accident the plaintiff had been using the diving board “all the time for fun: T348. He said he did not recall that and said that he saw Loren jump off the three metre diving board prior to the accident very few times: T348.45. In particular, Mr Delaney did not recall stating that Loren may have been a “larrikin” to Ms Kay: T349.44. He said that if he had said it, it may have been conjecture on his part. He also described it as a possible “throwaway line” if he said it: T351.11. Mr Delaney denied recalling that Loren screamed and squealed whilst using the diving board and said his recollection was that she was very tentative and dived in a crouched position whilst using the board. However, he emphasised that he saw her jump from the three metre diving board on very few occasions. Mr Delaney gave evidence suggesting that the idea the plaintiff may have been a larrikin was inconsistent with her conduct in using the three metre diving board which he had seen. He said he had never seen the plaintiff acting in a foolhardy fashion or acting like a larrikin: T351.36; T350.43. Mr Delaney said he did not recall stating to Ms Kay that he did not think that the fall was anyone’s fault: T352.13. He said he was not there to witness the accident and did not recall the conversation in detail.
Mr Delaney confirmed that he had not seen the note by Ms Kay before (see page 2929). Mr Delaney said, after reviewing the note, that on the assumption that Ms Kay had transcribed what had occurred accurately in the conversation, he may have said those matters but then later agreed that he must have told those matters to Ms Kay: T353.38; T354.7.
Mr Delaney was then asked numerous questions about his contact with Slater and Gordon, Solicitors, in April 2017. He agreed that the triggering factor was the plaintiff’s conduct on a family holiday in central Queensland which he understood to be some time before Slater and Gordon were contacted. Mr Delaney agreed that by late April 2017 he and his wife had made the decision to seek legal advice with the trigger being the conduct of the plaintiff on the family holiday. He recalled that initially there was a telephone conversation but could not recall that it was with a Peter Uniacke from Slater and Gordon.
Mr Delaney was asked about who contributed to conversations with Slater and Gordon and his current solicitors from April 2017 to now. He said that both he and his wife contributed about 50/50 but on different aspects. He agreed that they probably referred to Loren’s symptoms of memory loss, anger, frustration and anxiety and her comparative performance compared to her siblings.
Mr Delaney recalls having multiple conversations with Mr Cameron, solicitor, but said they tended to blend into one recollection.
Mr Delaney agreed that as at April 2017 he was aware of numerous things in relation to Loren’s health including that she had been assessed by the South West Brain Injury Service, that she had a brain injury, that her siblings had high academic achievement when she had not, and that Loren had problems with her memory and concentration and was prone to anger, frustration, stress, anxiety and depression. He also agreed that he knew that she had fractured her skull and had intermittent headaches in the period from February 2012 to April 2017. He agreed that as at April 2017 he had significant concerns for Loren and her future. He agreed that as far as he was aware the fall in February 2012 was the only cause for the complaints indicated in relation to Loren. He qualified this by saying he was not a medical professional but was only giving his view as her father: see T358.50-T359.49; T360.36.
Mr Delaney said he could not recall being told that the claim was “out of time” in April 2017.
Mr Delaney was asked a number of questions about a conference with Mr Cameron in May of 2017 and said he could not recall the conference specifically, including what was told to Mr Cameron as to what had happened on 12 February 2012. Mr Delaney emphasised that he always told the truth and always attempted to be accurate in his dealings with the solicitor. He gave evidence that he only said things which he believed to be true and was attempting to be careful even though he did not recall what was said: T361.
Mr Delaney said that he recalled being very reluctant to sue at the time. He agreed that he spoke with Mr Cameron on one occasion before speaking with Mr B Dooley SC. He could not recall any reference by Mr Cameron to the concept of a “duty of care” or that Mr Cameron said words to the effect that “it looked like a goer”: T362.44. Mr Delaney emphasised that he believed he asked questions as to whether the case was a viable one or not. He agreed that he probably asked how much the case was worth in the concept of costs but did not recall the conversation. Mr Delaney, in particular, did not recall telling Mr Cameron that the plaintiff was “still forgetful” and “anxious” but believed that it was fair to assume that he did say that the plaintiff was anxious to Mr Cameron. Although Mr Delaney was asked a number of other questions as to what he may have said to Mr Cameron in conference I formed the clear impression that whilst he agreed that some matters were plausible he did not have a recollection of what he had said.
Mr Delaney agreed that as at May 2017 he had significant concerns that Loren was forgetful and anxious and performing below her peers at school: T363.49-T364.7.
Mr Delaney was then asked questions about a conference with Mr Dooley SC on 7 August 2017. He said he remembered the conference and the pointed questioning by Mr Dooley in relation to the matter. He agreed that there were discussions about “time” and why there was such a long gap between the accident and the Delaneys seeking legal advice. He recalled being given advice that where a child was involved a court could possibly be sympathetic. Mr Delaney said that they were relying on Mr Dooley’s advice. He did not recall being told that technically they were “out of time” or that an action should be brought within three years. He agreed that Mr Dooley pressed them in relation to delay and said that they were reliant entirely on his advice as to whether they could pursue a claim. Mr Delaney said at the time they had no idea that there was relevance to a gap between an accident and when they could pursue litigation. When asked whether they were concerned when the question of a time limit was raised, Mr Delaney said that they were after “instruction” (which appeared to mean advice) from Mr Dooley as to whether they should proceed with a claim.
Mr Delaney agreed that it was his understanding from advice received from Mr Dooley in conference that courts can allow claims to proceed where time limits had expired in certain circumstances: T366.25.
Mr Delaney was then asked a number of questions about a conference with Mr Dubos, the liability expert, in October 2021. It was clear that he did not have a good recollection of what was said in the conference whilst remembering the conference itself. He said he had a “vague recollection” of the discussion. He agreed that he and Mrs Delaney contributed to the conversation in the conference.
Mr Delaney stated that Julia Delaney had never told him that Loren had walked “quickly” along the diving board prior to the accident: T378.49. He also said that Julia had never told him that Loren had slipped “suddenly and without warning” as that was not her language: T379.7. Mr Delaney said that he also did not recall Julia telling him that Loren had called out “let’s jump together”: T379.12.
Mr Delaney was asked some questions about whether he understood that Loren had fallen under the railing. He said he did not recall Julia telling him this but he said he became aware that she had fallen under the railing. This was certainly his belief as at October 2021. He said he was surprised by the suggestion in the Statement of Claim that Loren either fell over or under the rail and said that any suggestion that she fell over the rail was not part of any conversation he had had in relation to the fall: T380.
Mr Delaney appeared to have some recollection of being told by his wife that when she arrived after the fall Loren was lying on her stomach and that Mrs Delaney had picked her up and was cradling her in her arms. He said he did not recall Mrs Delaney leading the conversation with Mr Dubos.
Mr Delaney agreed that since June 2016 he had been aware that Loren had significant concerns in relation to anxiety: T381.35.
Mr Delaney was then asked a number of questions in relation to assessments by the South-West Brain Injury Service, the first being in May 2012 and the second being in June 2016. In relation to the report of Dr C Frees in June 2016, Mr Delaney said he did not read the report, but he was sure that Mrs Delaney had, and she gave him a summary of what was in the report. He was asked a number of questions about particular aspects of the report and said that he did not recall what Mrs Delaney had said to him. However, he accepted that as at June 2016 he was aware that Loren had short-term memory difficulties, had difficulties with anxiety, had reduced frustration tolerance at home, had tantrums over small issues, and had difficulty controlling herself and calming down. He agreed that as at June 2016 he had significant concerns as to Loren’s forgetfulness and her becoming overwhelmed easily and had concerns about Loren being worried about making mistakes and being a form of perfectionist. Mr Delaney agreed that as at that time he believed that Loren had anxiety at school and that it had been recommended to Mrs Delaney that Loren be treated by a psychologist and that the school would need to limit time pressures on Loren. Mr Delaney agreed that all of these matters he linked in his mind to the accident in February 2012 and this view had not changed in the period until he met with Slater and Gordon in April 2017. Mr Delaney gave evidence that if anything, his views as to the connection with the accident had “solidified” in that period: T386.38.
It was put to Mr Delaney that if the plaintiff sued that he had no doubt that she would be suing the Council. He said he did not know how to answer that question as he did not know the financial arrangements of the Council or who had liability: T392.24. He said he was aware that the pool was a Council owned facility. He also said that he believed that the railings were a problem prior to becoming aware of anything about the “Royal Lifesaving group.”
Mr Delaney was asked some further questions about the conference with Mr Dooley in August 2017. He said that as far as he could recall Julia was not present at the conference. He said he had “cloudy” recollections about the substance of the conference. He could not recall whether Loren was present at the conference.
Mr Delaney was asked some questions about a telephone conference with someone at Slater and Gordon on 9 August 2017. He said that he recalled the telephone conversation vaguely but not the nature of the conversation or what he said. I was not confident from Mr Delaney’s evidence that he had any real recollection of the telephone conversation. He did not recall knowing that Julia had a telephone conversation with the lawyers a few days after the 7 August 2017 conference. He did not recall being home when Julia spoke to the lawyers on the telephone.
Mr Delaney was asked questions about a reference in an affidavit from the plaintiff’s solicitor about him ringing concerning prospects of success. He agreed that he was concerned as to whether the case was viable and was nervous about commencing proceedings because of community perception. In the end, Mr Delaney said he was not aware of Julia speaking with Mr Dooley a few days after the 7 August 2017 conference. Mr Delaney stated that it was always his understanding that Julia had seen Loren fall and that that recollection was always consistent.
Mr Delaney was cross-examined to suggest that prior to the accident, the plaintiff had some anxiety type behaviours. Mr Delaney said that any anxiety type behaviours were in his view within the normal range of any child. He stated that he could not recall the plaintiff exhibiting extreme behaviour or anxiety prior to the time of the accident. He said the plaintiff was always driven to succeed in whatever she did and could become frustrated when she could not perfect things. He saw the plaintiff as being no different in that respect to his other children. He rejected the proposition that the plaintiff exhibited anxiety behaviours which his other children did not. He also rejected the proposition that the plaintiff had been short-tempered from time to time with him but accepted that from time to time she had been short-tempered with Mrs Delaney.
He accepted the proposition that the plaintiff was a reserved child in the classroom, and she was a child who wished to observe rather than to “rock the boat”: T424.17. He rejected, however, the proposition that the plaintiff was tentative with things outside her comfort zone before the accident and said that she took on challenges and persisted with them until they were mastered.
Mr Delaney rejected the proposition that the behaviours as to anxiety and being of a tentative nature exhibited by the plaintiff prior to the accident mirrored the position after the accident. He described the plaintiff’s behaviours before the accident as within a normal range in those type of behaviours and no different to his other children.
There were then some questions directed to Mr Delaney in relation to discussions he had with Mrs Delaney concerning obtaining legal advice. He agreed that he had had discussions with Mrs Delaney in relation to the potential for legal advice and an action over a number of years. He was concerned that taking action may affect their profile in town because they wanted to fit in the community. He also agreed that it influenced his actions as to whether to speak to a solicitor or not but appeared to reject the concept that it was a primary consideration to him and said it was a consideration: T425.37.
Mr Delaney was asked whether he and his wife delayed commencing formal proceedings for a number of years out of concern as to what would happen if the case could not be resolved. Mr Delaney said that they were guided by what was in his daughter’s best interests. He agreed that he was reluctant to go down the path of legal proceedings but was willing to pursue legal proceedings for her benefit. He denied that the main reason for delaying proceedings was a concern about what would happen if the claim could not be settled. He said his main concern was for his daughter and how she was developing. Their observations of his daughter’s problems were the primary reason to seek advice. While the perceptions of the community about them taking proceedings would be noted these were on the periphery of matters which were relevant: T429.32. Between 2012 and 2022, he was hopeful that there would be a natural progression of improvement with his daughter and adopted a wait and see approach. He agreed that on average in that period the plaintiff was getting worse but it was not a linear progression: T429.42. Certainly, he did not form the view that the plaintiff was getting any better.
Mr Delaney rejected the proposition that his concern for his daughter’s welfare could not have influenced any decision to hold off on the taking of action. Mr Delaney said that Loren’s welfare was the key factor and he and his wife expected there to be an improvement after the accident: T430.5. They were involved intensely in intervention with Loren in relation to her schooling and did not see that there was any improvement which led to them going down the path of seeking legal advice. The behaviour of Loren on the 2017 holiday was what Mr Delaney described as a “tipping point” towards a need to do something for Loren in obtaining legal advice as she was not exhibiting normal behaviours: T430.38.
Counsel for the defendant then put a number of propositions to Mr Delaney. It was first put that during the 7 August 2017 conference with Mr Dooley SC, Mr Dooley had expressed concerns as to liability in the matter as there was no witness to the accident. Mr Delaney said that he could not recall that.
Secondly, it was suggested that neither Mr nor Mrs Delaney corrected Mr Dooley in conference as to there being no witness to the accident. Mr Delaney said he could not recall that, and it would be implausible why they would not have said that Julia Delaney was a witness to the accident. It was put to Mr Delaney that after the conference they went home and then called Sharla Sutcliffe of Slater and Gordon to inform her that in fact Julia Delaney had witnessed the fall. Mr Delaney did not recall that but regarded it as plausible if they had omitted to tell Mr Dooley that in the meeting.
Mr Delaney rejected the proposition that he had seen the plaintiff Loren using the three metre board many times prior to the accident and said that he had seen her use the board a few times when he was in the water. He denied the proposition that when using the three metre board, the plaintiff was acting as a “larrikin”. He also denied seeing Loren use the three metre board “heaps” of times for fun in his presence: T432.26.
Mr Delaney denied the proposition that prior to 20 April 2017 he had spoken with his wife and they had jointly made the decision about not seeing lawyers in relation to the accident for a number of years. He said that they did not make a decision not to talk to lawyers for a number of years: T433.2. He also rejected the proposition that they deliberately decided not to seek advice from lawyers until April 2017 due to concerns for the ramifications of any action to their standing in the community. Mr Delaney said that this was a matter on the periphery and did not drive any decision to wait to take legal action: T433.12.
Mr Delaney agreed that as at 30 June 2016, some four and a half years had passed since the accident and that the plaintiff had not improved in those four and a half years. He also agreed that as at 30 June 2016 he had significant concerns in relation to the plaintiff’s well-being and the future, saying in summary that he and his wife “were worried”: T433.40.
Importantly, Mr Delaney denied the proposition that he did not need an assessment from Dr McMahon to understand the plaintiff’s condition and her problems. He stated that they did need an assessment to ascertain if Loren had been and would be impacted by the accident at the pool. In addition, he denied the proposition that there was no need to wait until March 2022 to commence the current proceedings by Statement of Claim: T433.46-T434.20.
Mr Delaney was then asked a number of questions by counsel for the cross-defendant, Remlap. Mr Delaney agreed with the proposition that Mrs Delaney could not have done a single thing to prevent the plaintiff’s fall if she had been standing at the bottom of the diving board at the time of the accident. He agreed that both he and his wife believed the problem causing the fall was lack of enclosing on the diving board: T435.27. He agreed that the real problem with the diving board was that the area below the railing was open and a young child could fall through it.
Mr Delaney was then asked some questions about his knowledge of a limitation period. He stated that he had no idea of any limitation period before talking with the lawyers in April 2017. He also disagreed with the proposition that he must have known that there was some limitation period if he had thought about it: T436.20-.25.
Mr Delaney denied the proposition that he and his wife had made a positive decision not to see a solicitor in the period after the accident. He said a decision was made to seek advice in 2017 and not before: T436.29. Prior to that, they were focusing on Loren’s welfare and that was the guiding thing as to whether they would seek advice. He rejected the proposition that there was any active decision not to seek legal advice up to that time. He disagreed with any evidence given by Mrs Delaney that there was any discussion of the possibility of pursuing a claim in negligence and a decision not to. Mr Delaney then said that there was a general discussion of how it would look in the town if they pursued a matter, but it was not the “driver” of the conversation: T437.10. The passage of time had solidified his view of concerns for Loren and prior to that they were hopeful of a change in her through parental intervention and assistance.
As to any difference between the evidence of Mr and Mrs Delaney on this issue, I prefer the evidence of Mr Delaney. He appeared to me to have a more nuanced analysis and explanation for the failure to take action with it being based partly on a discussion about a small town reaction but primarily on a decision to focus on Loren and any improvement which she may have had.
Mr Delaney was then asked about discussions between himself and Mrs Delaney after the accident once he had been told by Julia that Loren had fallen through the railing of the diving board and hit the concrete. He stated that he had lots of discussions with his wife about Loren but not many discussions about the accident itself. Their focus was on Loren and whether she was getting better.
Counsel for the cross-defendant then asked numerous questions of Mr Delaney about his awareness of the neuro-psychometric testing done in 2012 and his knowledge of Loren’s injury and her problems thereafter. He agreed that Mrs Delaney had given him a summary of the 2012 neuro-psychometric testing. He also was aware that Loren had fractured her skull in the fall and had a traumatic brain injury. He knew that Loren had difficulties with her memory and concentration and was withdrawn with poor performance at school. These symptoms had continued after 2012 with slight fluctuations but with the same problems continuing. He also agreed that the plaintiff was struggling deeply with anxiety at school and had problems with reading and comprehension. Mr Delaney agreed that the 2016 testing involved a different person and his wife discussed with him the results of that test. He could not recall that Mrs Delaney had told him that the results were the same as in the 2012 tests. He believed all of the plaintiff’s medical problems as at 2016 were due to the fall and that she had not had problems prior to that.
It was suggested to Mr Delaney that he really did not need a report from Dr McMahon in the light of that and he said that he could not answer that question: T443.1. It was suggested to him that in 2017 he did not consult solicitors to get a study by someone like Dr McMahon and he said he did not attend for that purpose but to obtain legal advice: T443.11.
Mr Delaney agreed that Loren had used the three metre diving board before with his or his wife’s knowledge and he was not uncomfortable with Loren accessing the board and using it. He agreed that if he had any concerns in relation to Loren using the diving board in 2011-12 either he or his wife could have said to her not to use the diving board. He said he did not believe his daughter Julia had used the three metre diving board as she was more tentative.
In re-examination, Mr Delaney agreed that in giving his reasons for not seeing a solicitor until 2017 he had referred to two reasons: the first being considerations for allowing for Loren’s injuries to recover over the years with active intervention by him and his wife and secondly, a personal reluctance that seeing solicitors might “make waves” in his local community. Mr Delaney agreed that there were thoughts about the perception of them taking action in the community but he said that he could not “care less” about these in decisions made: T446.33. He agreed it would be irrational to take community factors into account in making any decision to commence legal proceedings: T446.43.
The Court had the advantage of seeing Mr Delaney give evidence over one and a half days. I formed the view that Mr Delaney was an entirely honest witness who was doing his best to give his evidence fully and correctly. He made concessions where appropriate. He was a cautious and reflective witness. The accident and its effect on Loren had clearly caused him particular concern and worry over the years. I have no reason to doubt his evidence that her conduct in the 2017 holiday was the triggering point or tipping point in raising behavioural concerns about Loren which led his wife and him to seek legal advice in April 2017.
While in general terms I have a similar view in relation to Mrs Delaney’s evidence, Mrs Delaney did appear to be tentative in some of her answers and in some ways seemed to be analysing the purpose of the question before answering it. To the extent there are differences in their evidence (which appear to me to be modest) I would generally prefer the evidence of Mr Delaney. That is not to make any suggestion that Mrs Delaney was not an honest and straightforward witness.
Mr Farrell confirmed that he was involved in hazard inspections at Corowa pool prior to 2013 which were similar to the checklist in the 2013 email: T554.41.
Mr Farrell’s evidence was slightly ambiguous about the nature and number of hazard inspections conducted at the Corowa pool prior to the beginning of February 2012. Initially, he said he could not be sure if there was a recorded hazard inspection completed prior to 2012 (T554.45). Then he said that there were inspections carried out after his appointment to the Council and prior to February 2013 which he initially said numbered three and then later amended to two: T554.45; T555.8; T555.23.
In due course, Mr Farrell gave evidence that he was involved in two inspections of the pool prior to the accident, particularly one which he gave evidence about which occurred in 2004-2005. He said he could see the pool from his office where he worked in the Council’s chambers: T555.30.
In relation to the inspections, Mr Farrell said there was no pattern and that they were not done annually or biannually.
In relation to the first two inspections of the pool undertaken prior to 2012, Mr Farrell indicated that he and Mr Singleton inspected the pool deck being anything that was part of the structure of the pool itself as well as surrounding items from the pool including access ladders, steps, railings, walkways and paths and tiles. In addition, Mr Farrell importantly gave evidence that he inspected the pool diving board and made observations to Mr Singleton in relation to it: T556.3.
In relation to what Mr Farrell stated that he said to Mr Singleton during the 2004-5 pool inspection the following evidence was given:
Mr Farrell stated that after learning of the plaintiff’s accident he was surprised that the condition of the diving board had not been rectified from his inspection in 2004-5 to the date of the accident: T576.5. Mr Farrell then gave evidence of a discussion with Mr Warner after learning of the accident for the purposes of the inspection required in 2013. Whilst Mr Farrell could not recall the specifics of the conversation, he recalled referring to the fact that there were hazards or problems with the diving board structure and that he had identified those things in 2004-5. Mr Farrell said he was concerned whether the hazards had been rectified at the time: T578.12-.44; see also T579.5-T579.34. Mr Farrell then said that he recalled saying to Mr Warner after the accident in relation to the inspection in 2004-2005 that “nothing had been done about it since then”: T580.9. Mr Farrell said that he told Mr Warner that there was an inspection that Mr Singleton and he had completed that should be available on council records showing the findings of the inspection and the concerns Mr Farrell had about the condition of the pool and in particular the diving platform: T580.15. Mr Farrell said he had no cause to look at the document completed in 2004-5 by Mr Singleton after it was completed. He did not believe Mr Singleton had provided a completed copy of the document to him. However, Mr Farrell said that he did believe he signed the 2004-5 document completed by Mr Singleton: T581.10. Mr Farrell did not recall looking at the document specifically in relation to what it recorded about the condition of the diving board: T581.32. Mr Farrell accepted that if the matter raised about the diving board had been omitted by Mr Singleton that he would have likely raised that omission with Mr Singleton: T584.5.
Mr Farrell was then asked questions in relation to an email chain ending with an email from Ian Rich to Mr Bob Parr at the defendant Council. Part of the email was an email from Mr Farrell to Mr Rich and Mr Singleton relating to hazard inspections and risk assessments at sporting grounds and facilities. The email from Mr Farrell referred to discussions he had with Mr Tony Cantwell, Risk Manager at Statewide Mutual, concerning the position the Council should take in relation to sporting fields and facilities and risk assessments. Mr Farrell was shown the Royal Life Saving Society 2009 report in relation to the Corowa pool and did not recall receiving the document. Mr Farrell said he was concerned in relation to the responsibility of Council in relation to hazards. Mr Farrell confirmed that he had no recollection of ever seeing any risk assessment report from the Royal Life Saving Society in relation to the Corowa swimming pool including during his employment with the Council. Mr Farrell believed that Statewide Mutual undertook its own inspection of facilities. He said he had access to a Statewide Mutual guidance document concerning risk assessments. This, he said, was a reasonably extensive document: see T597.32. Mr Farrell gave evidence that Mr Cantwell gave Mr Singleton and him verbal advice on what needed to be done concerning the Council’s pool facility: T598.23.
After a short break in the proceedings, the cross-examination of Mr Farrell by counsel for the defendant continued. Mr Farrell was asked further questions in relation to his earlier evidence of inspecting the pool facilities in 2004-2005, indicating his concerns to Mr Singleton of the Council at that time.
Initially, Mr Farrell gave evidence that he had not seen the 2009 RLSS Safety Assessment Report. He then gave evidence that he may have seen the report having been taken to an 8 March 2010 email from him. After some cross-examination, Mr Farrell conceded that he would have had a copy of the 2009 report or had access to it. However, on questioning by the Court, Mr Farrell said he did not recall having it and it was an assumption on his part as he was communicating with an officer of the Council’s insurer in relation to the inspection. Mr Farrell gave differing evidence on this issue and in the end said he was not sure whether he had the report or if he had read it. Whilst at one stage saying that he believed he must have been sent a copy, it was clear that Mr Farrell was not sure on this issue. However, he accepted that he had a conversation with Mr Cantwell of the insurer in relation to the content of the 2009 inspection report some years after his 2004-5 inspection.
In cross-examination by counsel for the cross-defendant, Mr Farrell said he was not certain the document he referred to in his email was the RLSS Safety Report from 2009 and he agreed that he must have had it based on the questions Mr McMahon was putting to him. He said he was not sure what the Corowa pool document referred to in his email of 8 March 2010 was.
Mr Farrell accepted that he understood that as at 2010 the three metre diving board had not been modified or removed from use and he had not forgotten the issues relating to the three metre diving board he was concerned about, in particular, the absence of the mid-rail on the diving board structure. He agreed he was aware of the significant risk the absence of a mid-rail posed: T617.39. Mr Farrell clearly did not have a good recollection in relation to his conversation with Mr Singleton in 2004-5 in relation to the diving board. His recollection was he told Mr Singleton that it was unsafe and did not meet the current requirements for walkways and ladders: T617.43. He said he was not sure if he told Mr Singleton at the time that the diving board should not be used: T617.49.
Mr Farrell was then taken to questions he was asked in chief concerning his alleged conversation with Mr Singleton in relation to the risks which the diving board posed in 2004-2005: see T561; T618. Mr Farrell agreed that he had difficulty recalling exactly what he said but stated that he recalled raising concerns with Mr Singleton relating to the safety of the diving board platform: T621.34. He agreed his recollection was not clear in relation to this issue.
Mr Farrell also gave evidence that it was likely that in 2004-5 he would have conveyed his concerns to other officers due to the duty of care which he understood he had to people. In the end, Mr Farrell said he could not recall speaking to other people in relation to the risks which the diving board posed. He agreed that he did not take steps at the time to prevent access to the diving board. He said that he regarded it as being the responsibility of Council for rectification and he believed the report as prepared by Mr Singleton would identify the risk. In answer to questions from the Court, Mr Farrell agreed that he had seen the report prepared by Mr Singleton at the time but not thereafter.
Mr Farrell accepted that he had knowledge of the risk assessment and could have taken steps to address the risk: T620.21. It was put to him that he did not take steps as no risk had been identified by him in 2004-5. Mr Farrell accepted that this was a possibility: T620.33.
Mr Farrell identified the risk as the absence of a mid-rail on the diving board with a mid-rail being another safety measure to prevent someone falling between the top rail and the bottom of the board: T621.34-.43.
During the inspection, Mr Farrell said that he had identified other concerns including relating to the ladder and the chlorine systems in place at the pool: T621.45-T622.15.
Mr Farrell was taken to the 2012 RLSS report dated 5 March 2012 and indicated that he did not believe he had seen the document before he was cross-examined in relation to it: T624.3.
Mr Farrell stated that he had discussed the later RLSS document with Mr Singleton of the Council and Mr Cantwell of the insurer at a later date, because of the concerns that were raised by him in his initial inspection in 2004-2005: T626.18-.28. Mr Farrell stated that he was “highly concerned” that nothing had been done to rectify the railing issue hazard and that a person had been injured: T626.39. Later, Mr Farrell recalled being “devastated” that the Council had not rectified what he regarded as a significant risk that was relatively easy to rectify at the time: T626.45. Mr Farrell asserted that he recalled speaking to Mr Singleton, Mr Warner of the Council and Mr Cantwell about his concern: T627.3.
Mr Farrell was then asked some questions by counsel for the defendant about previous evidence given by him on 17 October 2024 that he did not recall having a conversation to that effect with Mr Singleton: T573.42. Mr Farrell agreed that he was struggling to recall the conversation with Mr Singleton but claimed the recollection that he discussed with Mr Singleton that the hazard which led to the injury to the plaintiff was the same hazard which had been identified in the 2004-5 inspection: T627.3.
When asked how his recollection had changed from his earlier evidence Mr Farrell said that he had had:
In the course of his evidence, Mr Farrell confirmed that Mr Bob Parr was a senior man at the Council and held the position of Director: T648.44. Mr Farrell also gave evidence that the Council had a works department where persons were employed by the Council to carry out rectification works for the Council to the extent of their qualifications and if they were not qualified, they would get appropriate experts to do it: T649.49-T650.15.
Mr Farrell was then taken to a number of photographs which are identified as being photographs of the diving board structure after the tower was cordoned off with construction fencing. He confirmed that he recognised parts of the diving board in the photographs and gave evidence that the condition of the metal in the diving board structure as shown was consistent with what he saw on his inspection in 2004-5 with perhaps the condition of the metal shown in the photographs in relation to the corrosion as being more noticeable in the photographs than it was during the earlier inspection: T657.6-.17.
Mr Farrell gave evidence that some of the items identified as needing attention in 2004-5 were later attended to: T657.33-.47.
Mr Farrell stated that the Council had prior to 2012 considered replacing or removing the entire swimming pool complex but he was not aware why it was not done before 2012.
In re-examination, Mr Farrell gave evidence that the practice at the Council after an inspection report was completed was to pass it on to the responsible manager for action. The report could also be provided to the Director of the relevant area. Those persons would then consider what rectification work needed to be carried out. Mr Farrell gave evidence that Mr Singleton would likely have sent the report to Mr Jeff Lewis who was in charge of water and sewerage services. He was an engineer and his responsibility included pools. Mr Lewis’ senior was Mr Barry Mann who had responsibility for the oversight of all day-to-day works including rectification works. In the course of being cross-examined in relation to a work order, Mr Farrell gave evidence that a Mr Harders at the Council was the person allocated work who was a carpenter and also undertook welding activity.
In his written submissions, counsel for the defendant is highly critical of Mr Farrell’s evidence and points out various inconsistencies in his evidence: written submissions dated 17 January 2025 paragraphs 9-10 and 49-50. It is submitted that Mr Farrell’s evidence was unsatisfactory and should not be accepted, including because no written report from Mr Singleton (with or without him) could be located despite extensive investigations by the Council. See in particular paragraph 9 of the 17 January 2025 written submissions.
I formed the clear view from Mr Farrell’s extensive oral evidence that he was an honest witness who was doing his best to give his evidence completely and truthfully. I particularly observed him for any suggestion of exaggeration or fabrication of evidence. The events in question occurred a long time ago and I take that into account. I am comfortably satisfied from his evidence overall and I find that an inspection of the pool and the three metre diving platform did occur by Mr Farrell and Mr Singleton on behalf of the defendant Council in about 2004-5. Mr Farrell had a reasonably clear memory of the views he formed during the inspection and what was inspected. I accept his evidence on that matter. It was also clear that he did not have a complete recollection of what occurred at the inspection in 2004-5 including what he said to Mr Singleton and his discussions with Council officers after the accident. There is force in the defendant’s submissions that there were a number of inconsistencies in Mr Farrell’s oral evidence. Mr Farrell stated he had a clear recollection of seeing the report on the day which was completed by Mr Singleton. In my view, that recollection should be regarded with some real caution having regard to inconsistencies with his oral evidence on the issue and the inability of the Council, despite extensive investigations, to locate any such document.
However, a court may accept only some of a witnesses’ evidence. Also, in determining which witness or group of witnesses is to be preferred on the various issues, the Court is not obliged to accept one witness only or one version only. In A v B [2021] NSWDC 491 I stated the following in paragraph 203:
Mr Sigmund was then asked a number of questions about the surface of the diving boards. He described them as “the special type of diving board” which was already treated. However, he then gave evidence that if the boards needed something the council would organise any coating that needed to be put on the boards: T716.43. Mr Sigmund gave evidence that he would check the boards, particularly if someone said that a board was “slippery” and if he thought the board needed attention, he would let the maintenance staff know at the Council who would put the appropriate paint on the diving board: T717.3. He agreed that he did not check the diving boards every day and sometimes it would be every second day, but a checking occurred when someone said that it was “slippery”. Mr Sigmund gave evidence to the following effect: “But we always checked the boards”: T717.16. Mr Sigmund stated that he tested the diving boards himself with his bare feet and if his feet slipped he formed the view that the boards needed attention. He would then close the diving boards until the maintenance staff for the Council were contacted and they attended the site to put new paint on the relevant diving boards: T717.19-T718.2. Mr Sigmund conceded that he did not have a good memory as to how often the boards had a new coat to avoid slipperiness: T718.6. Mr Sigmund said that he had never seen anything occurring in the period from 1998 to 2013 concerning someone using either of the diving boards which caused him to call the maintenance person at the Council: T719.20.
Mr Sigmund was then asked a number of questions about the plaintiff and her family. He confirmed he was familiar with the plaintiff’s family, including the plaintiff, and described himself as knowing them “very well” as at February 2012: T719.32.
Mr Sigmund confirmed that he opened the swimming pool on 12 February 2012: T720.5. He saw the plaintiff, her sister Julia and Mrs Delaney at that time. There was only one other adult woman and two children in addition present at the pool at that time. He recalled the two Delaney sisters using the diving boards on 12 February 2012 and assumed that they had also been swimming in the pool: T720.22. Mr Sigmund said the other adult woman was placed near the diving boards whereas Mrs Delaney was on the other side of the pool reading a newspaper. Mr Sigmund was somewhat vague in his evidence about where he was located when the incident occurred but asserted that he was about four to five metres from the diving board at the relevant time: T721.14. This is inconsistent with his diary note as will be discussed further below. Mr Sigmund could not recall whether he was connecting or disconnecting a hose at the time (T722.21) but asserted that he heard the plaintiff say “I’ll race you in”: T722.38.
Mr Sigmund’s evidence was somewhat inconsistent in relation to where he was facing. Initially, he said that he was facing towards the diving boards (T723.28), but then said he was not looking at the boards when the incident occurred with him turning around: T723.31. He said he heard the thud when the plaintiff landed on the concrete: T723.35. Mr Sigmund initially said that he saw the plaintiff trying to grab the top rail of the diving tower and that “she must have missed it” (T723.39) and then said he could not recall which hand he saw the plaintiff grab the rail with: T724.9. Mr Sigmund asserted that Julia Delaney was on the one metre board: T724.20. Later, Mr Sigmund said that when he heard the plaintiff say “I’ll race you into the pool”, he was not facing the person who said it but asserted that he knew the plaintiff’s voice: T725.24-.29; T725.17. Later, Mr Sigmund inconsistently said that he did not see the plaintiff trying to grab the rail but that was what he imagined she did as that was the only way in his view that the plaintiff could have fallen off. He said that she did not go over the rail because she was “too little”: T726.12-.17. This inconsistent evidence was somewhat confusing. I take from it that Mr Sigmund was not looking at the plaintiff when she was on the diving board but was turning away from the plaintiff. His evidence seems to be that he heard her say “I’ll race you into the pool” (T725.14) but did not turn around until he heard the thud. In those circumstances, it seems to be inconceivable that he could have seen the plaintiff with her hand on any rail or removing it from any rail. This conclusion is consistent with Mr Sigmund saying that he could not recall seeing the plaintiff actually physically grabbing onto the rail on 12 February 2012 immediately before the accident: T726.21; see also T724.9.
In answer to a question as to how patrons used the diving board, Mr Sigmund said at T728.20: “well, if they’ve been on it a few times, they just run and either jump off or dive off” (emphasis added). Later, Mr Sigmund added at T728.44: “well, they usually run and then have a bounce on the end of the board”. It seems clear, therefore, that it was not unusual for people to run on the board and bounce at the end before jumping or diving into the water. Mr Sigmund added that if people went up to the three metres board and then looked around to see if their parents or their friends were watching that did not matter as long as they hung onto the rail: T730.18.
Mr Sigmund was asked further questions about his inspection of the surface of the diving boards and could not recall inspecting the surface of the boards on the day of the accident. He said he probably would have checked it, but he could not remember for sure: T730.38. As he regarded February as a very slow time of the year, he accepted that he may have not checked the surfaces on the day of the accident: T730.45.
Mr Sigmund then gave evidence as to what he did when he heard the “thud” from the accident and turned around to see the plaintiff lying on the ground: T730.50 and following. Mr Sigmund confirmed that he was not looking at the plaintiff on the board immediately prior to the accident but had his back to her, heard the comment “I’ll race you in” and then very soon after heard the thud and turned around upon hearing the thud: T730.21. Thus, Mr Sigmund was facing away from the plaintiff before he heard the thud for a couple of seconds: T731.25.
Mr Sigmund was then taken to a diary account of the accident dated 12 February 2012 which he agreed was in his handwriting and assumed that he completed it on the day of the accident: T734.44-T735.34. This document appeared to suggest that Mr Sigmund was much further away at the time of the accident than he indicated in his oral evidence.
Mr Sigmund was then subject to detailed cross-examination by counsel for the cross-defendant, Remlap. Mr Sigmund gave some detailed evidence about the role of the Council in relation to the operation of the swimming pool whilst he was present. He stated that it was “most likely” that the opening and closing dates of the pool had to be approved by the Council: T738.18. He also agreed that the fees were set with the approval of the Council. On the opening of the pool at the start of the season, Council officers would attend the swimming pool. Mr Sigmund said it would be more than one person from the Council and they would perform an inspection of the pool complex: T740.16 and following. The things that were inspected by the Council officers included the diving boards: T740.26. He noted that he would see the Council officers inspect the diving boards (T741.4) and then have a discussion with Mr Sigmund about any work that needed to be done including, where necessary, work to the surface of the diving boards: T741.6-.17. If further work needed to be done to the surface of the diving boards, Mr Sigmund said he would report that to the Council officer at the Maintenance Department who would then send someone out to inspect the boards and if necessary to undertake work to them: T741.36.
Mr Sigmund also agreed that that maintenance officer was his point of contact in the event that he determined that some structural work needed to be done to the diving boards: T741.44. Mr Sigmund agreed that that was the case since at least 1997. If repairs were needed, he would go through the Council although sometimes he would go through Mr Andrew Palmer at Remlap: T742.9. Mr Sigmund was then asked a number of questions about various repair works that were conducted by Council and stated in relation to repairs: “They always did whenever I asked for something”: T743.5. This included repairs to machinery such as a machine cleaner.
Mr Sigmund confirmed that his practice was that if he identified an issue with the three metres diving board he would have reported that to the Council and he would have expected the Council to repair it: T743.19-.24.
Mr Sigmund was then asked about the income which he derived from his work at the pool. He confirmed that from 2008 his income from the pool was derived from running the kiosk and the gate takings: T743.44 and following. He said the sole source of his income for the work he did at the pool was the takings from the gate and the kiosk: T744.6. He received no money from any other source and would take all of the gate keepings: T744.10-.16. In relation to the additional lifeguards who attended, Mr Sigmund confirmed that he paid their fees for services at the pool: T744.49.
Mr Sigmund was then asked some questions about Loren Delaney’s use of the swimming pool before the accident. He asserted that Ms Delaney had used the three metre diving board “hundreds of times before”: T746.1 and T746.22. He confirmed that the plaintiff had always used the diving board as far as he was concerned in a responsible manner, and he could not recall any occasion where he had to “pull her up for behaviour” that was in his view irresponsible: T746.29. He also agreed that on occasions when the two sisters had used the two boards concurrently their behaviour was in his view appropriate: T746.50; T747.25. Mr Sigmund then gave this evidence:
Mr Sigmund gave evidence that if a guard had been stationed near the board at the time of the accident, perhaps the lifeguard could slow down the plaintiff’s fall a little but otherwise there was not much that could be done and it would pose risks to the person trying to catch the falling child: T759.25. See also paragraphs 60 and 117 of the cross-defendant’s written submissions.
Mr Sigmund was then asked some further questions in relation to his terms of work at the pool. He stated he did not wear any uniform provided by Remlap or any other person: T759.32. He wore a uniform of his own design. He said he controlled the work he did and how he did the work: T759.41. He decided whether he would employ people or not and organised his own training and licences: T759.49. He also paid his own tax and he and his wife organised their own superannuation: T760.2 and T760.16.
Importantly, Mr Sigmund stated that if he had formed a view that some structural work had to be done to the railing on the three metre diving board, that was something he would have reported to the Council and would have expected the Council to have attended to the matter once raised by him. He said he had done that in relation to rust spots which required re-welding on the three metre diving board: T760.29-.43. This was before the plaintiff had had her accident: T761.1.
Mr Sigmund was then asked questions by counsel for the plaintiff. In relation to his lifeguard certification, Mr Sigmund said he was certain that he had a lifeguard qualification in 2012 which he undertook in Melbourne and received just after Christmas in 2011: T761.31.
Mr Sigmund was asked questions about the audit of the pool by the RLSS in 2009. He agreed that he was present when Mr Davis of the RLSS did an assessment of the pool. Mr Sigmund said he thought Mr Davies did the assessment with the Palmers and they passed on the assessment report to him. He said that the Palmers had to “update a few things” which they did.
Significantly, Mr Sigmund was asked whether he had discussions in about 2009 with the Palmers in relation to entering into a new pool management contract. Mr Sigmund said that he could not remember exactly but that either his wife and he or the Palmers were not happy with something and that is why a contract was not signed. He could not remember the issue that was involved: T762.29; T763.3. No contract was produced following a call in relation to the first two years after 2008 involving Remlap or the Palmers and a management contract for the pool with Mr and Mrs Sigmund. Mr Sigmund said that he was “pretty sure” that he and his wife had a written contract for a year or two but that his wife undertook those matters: T763.29-.32. Mr Sigmund did not believe he was mistaken about the existence of the original contract for the 2008-10 period. Mr Sigmund was of the view that the Palmers concentrated equally on the caravan park and the pool and did what he described as “a pretty good job”, which included renewing a number of things at the pool: T763.41. However, he said he was the only person responsible for organising lifeguards at the pool: T763.50. He paid for the lifeguards and his own training courses: T764.38; T765.8. Mr Sigmund gave evidence that the Council supplied safety equipment for the pool such as a stretcher, neck braces and a first aid kit as well as the buoy devices.
Mr Sigmund confirmed to counsel for the plaintiff that he did not see the plaintiff fall on 12 February 2012. The first thing that he knew that the plaintiff had fallen is when he heard a “thud”: T766.24-.31. Mr Sigmund confirmed that he was attending to some duties with a hose at the time. Mr Sigmund was taken to the diary entry where Mr Sigmund recorded on or about 12 February 2012 that he was 20 metres from the three metre diving board “hooking up a hose” when he heard screaming. This was inconsistent with his earlier evidence that he was about four to five metres from the three metre diving tower. When it was put to him that he may have been mistaken about where he was standing, Mr Sigmund said that to hear the Delaney girls talking he would have had to be closer than 20 metres. He did not accept that he was down at one end of the pool away from the diving towers when he was working with the hose: T768.15-T769.11. Mr Sigmund confirmed that he heard the plaintiff say, “I’ll race you in”, but said that he knew that the plaintiff was experienced at using the diving board, so he did not think there was any danger of her falling: T770.16. Significantly, Mr Sigmund stated: “Well, they always run along to get to the end, but she would have had to miss the railing when she talked to her sister. Otherwise, how could she fall under the rail? She couldn’t fall over the top”: T770.21. He confirmed the rail was at about the plaintiff’s shoulder or head height at the time.
This evidence clearly establishes that, at the time, persons including younger users, ran along the diving board to get to the end to the knowledge of Mr Sigmund. Secondly, it appears that as he knew the plaintiff had some experience of using the diving board, he was not watching her in her use of the board despite the rail being at shoulder or head height: T770.27. Mr Sigmund accepted that when the plaintiff stopped at the board and talked to her sister, he had most likely taken his eyes off them, although he could not remember exactly: T770.41. When it was put to Mr Sigmund that he was mistaken that the plaintiff had said “I’ll race you into the pool” but rather said “let’s jump together” Mr Sigmund said that he could not be sure anymore, but his recollection was that the plaintiff said “I’ll race you in”: T770.47.
When asked about Mr Singleton inspecting the pool prior to the accident, Mr Sigmund said that he could not recall whether he had: T772.16.
Mr Sigmund was then taken to Mr Singleton’s diary entry dated 15 February 2012 at court book 2952 and accepted that it looked like he had met with Mr Singleton on that date but could not recall speaking to him two days after the accident: T772.43; T773.10.
It is noted that Mr Sigmund’s claim that the plaintiff said “I’ll race you in” is not referred to in Mr Sigmund’s file note dated 12 February 2012. When that matter was raised with Mr Sigmund, he said that he appeared to have forgotten to place that in his diary note. Mr Sigmund said that while he agreed he made a mistake in relation to the distance recorded in the diary note he did hear the plaintiff talk: T775.26.
In re-examination, counsel for the defendant Federation Council asked Mr Sigmund about his evidence concerning contact with persons concerning maintenance issues for the swimming pool facility. Mr Sigmund confirmed that he would contact a council worker directly in relation to maintenance issues: T777.32.
Mr Sigmund was then asked some questions in relation to his answer in cross-examination that sometimes he would go through Mr Andrew Palmer at Remlap: T742.9. Mr Sigmund stated that he contacted Mr Palmer in relation to maintenance issues “very rarely” and his main contact was directly to the Council: T782.26. In relation to the contact with Mr Palmer, Mr Sigmund did not recall any specific issue concerning maintenance or something which needed to be attended to of a maintenance nature that he spoke with Mr Palmer about other than merely letting him know of the issue and then going to the Council directly. He also said that sometimes “they” (which appears to be a reference to Mr and possibly Mrs Palmer) may have contacted the Council but he could not remember exactly: T782.31. Mr Sigmund said that he remembered mostly going directly to the Council but he may have mentioned a matter to Mr Palmer a couple of times, although his recollection was poor on the matter: T783.2.
Mr Sigmund in re-examination gave evidence that he was comfortable with the plaintiff using the three metre diving board because he had seen her use it before: T785.25. Mr Sigmund asserted that he could properly supervise the plaintiff and her sister on two separate diving boards even though his attention was drawn away only very quickly to attending to a hose: T786.39. Mr Sigmund said he saw there was nothing wrong with the plaintiff talking to her sister for a very short period of time before she then jumped off the end of the diving board (T788.16) because he knew the plaintiff and her family very well, the plaintiff was in the swimming club and he knew her to be a very good swimmer with experience on the diving board: T788.24.
Mr Sigmund also gave evidence that although he could not remember well, he did not think he had any problems with the Council attending to putting anti-slip preparation on the surface of the diving boards quickly when asked: T788.43.
In further evidence in chief, Mr Sigmund stated that he believed his aquatic facility licence was kept on a register at Victoria University. He also believed he would have given copies of the certificates to Remlap, although his wife handled the matter: T790.2-.17. Mr Sigmund also recalled his aquatic facility licence and his lifeguard certificate being displayed on the wall at the kiosk at some stage, although he could not remember whether they were there in February 2012: T790.21.
Mr Sigmund impressed as in general terms an honest witness who was doing his best to recall what had occurred but with a limited recollection of the detail. He appeared to have a good memory in relation to the financial and organisational matters which he and his wife were responsible for as part of managing the pool between 2008 and 2013. He did not appear to have any real recollection of the terms of any contract between Remlap and he and his wife whether in writing or orally or through conduct.
I accept Mr Sigmund’s evidence that he was closer to the plaintiff shortly before she fell than the 20 metres he was cross-examined on recorded in his contemporaneous diary entry. I reject the defendant’s submission that the diary note should be preferred on the point as it was likely he was closer if he heard the plaintiff call to her sister. However, it would appear, and I find, that he was several metres away from the plaintiff at least. Mr Sigmund said that he heard the plaintiff say words to the effect “I’ll race you in” but I am not satisfied that he has any real recollection of what he heard, although I do accept that he heard the plaintiff say something as he was familiar with her voice. I also accept his evidence that while he was managing the pool persons using the pool often ran on and bounced at the end of the three metres diving board to his observation before they jumped into the pool.
I do not accept from his evidence that Mr Sigmund has any real reliable recollection of seeing the plaintiff on the diving board platform immediately before she fell. I do not accept that he saw her with her hand on the railing. He had his back to the plaintiff attending to the hose. I am not satisfied that any recollection of seeing the plaintiff on the platform holding or not holding the railing immediately before the fall was reliable. I accept and find that the first Mr Sigmund heard of the accident was the thud and he then turned around when he heard Julia Delaney screaming.
I accept Mr Sigmund’s conclusion that he was not concerned about the plaintiff using the diving board platform because she had used it before and was a good swimmer. However, it must be recalled that the plaintiff was only six and consequently was of a short stature. Her height was only a little bit more than the horizontal railing. At the time of the accident, Mr Sigmund was the only person at the pool other than patrons. I accept that he was attending to the hose and had his attention focussed elsewhere. There seems to have been no real concern in Mr Sigmund that there was any danger to younger people falling through the gap between the horizontal railing and the board on the diving platform structure because it had not happened before. However, I am comfortably satisfied that because of the gap, there was a real risk that this could occur with younger persons, because of the absence of any mid railings or any Perspex/mesh type enclosure before the end of the platform as it protruded over the pool.
Overall, Mr Sigmund’s recollection of the detail was not strong other than in relation to the various areas of responsibility of he and his wife and their financial remuneration. I accept that in relation to maintenance issues his overwhelmingly main contact was with the Council, although he may have told Mr Andrew Palmer of Remlap on occasions when matters arose which he had asked the Council to attend to.
Loren climbed the ladder of the three metre board to the board itself. She walked partly along the board with her hands holding the railing on each side. She reached a spot on the board and noticed that Julia was on the one metre board. The top horizontal railing was at about the plaintiff’s shoulder/neck height. The plaintiff called out to Julia that they should jump from the boards in unison. I reject the evidence of Mr Sigmund that Loren said “I’ll race you in” as his recollection on the issue appeared to be poor compared to that of Julia Delaney. Even if Mr Sigmund’s recollection was preferred, this did not cause him concern as he kept his back to the diving boards whilst attending to the hose. He also had stated that he had seen persons run on the board before jumping in on other occasions and this did not appear to concern him. In turning to speak to Julia, Loren let go of the right railing from her right side (facing the pool) and turned and gripped the left railing with both hands.
In holding the left hand railing with both hands, the railing was at about Loren’s shoulder/neck level as found above. If I am found to be wrong with that factual finding, based on Julia Delaney’s evidence I find that after turning Loren held the left-hand railing with at least her left hand. Loren then lost her footing, apparently slipping, and fell through the gap between the railing and the diving board landing on the concrete surrounds of the pool.
Why Loren lost her footing is not completely clear, but I find that she did, possibly after slipping due to the wet surface. She was likely wet at the time as she had been in the pool. The diving board itself was also likely wet. I reject the submissions of the defendant that the evidence does not permit me to make findings as to the mechanism of the fall. In my view, they can be made relying on the evidence of Julia Delaney and on appropriate inferences from it. The cross-defendant submits that the plaintiff lost her footing and did not slip due to the surface of the board: written submissions paragraph 57. I accept that the plaintiff lost her footing but cannot find that she slipped due to any inadequacy in the surface of the board.
Julia describes a double strike of Loren hitting the ground, rising slightly through the force of the fall, and then hitting the ground again. I accept that evidence as Julia was an eye witness who I find to be reliable. She had a clear memory of the fall. In falling, Loren hit the ground including with her head.
In making the above findings, I accept the oral evidence of Julia Delaney: see at T122.50-126; T129. She was the only direct witness as to what occurred, and I find that she saw Loren’s fall. I accept her evidence as to where Loren was when she fell: see Exhibit A. Although she was only 10 at the time, this incident clearly is fixed in Julia’s memory. I found her to be an impressive and truthful witness. Loren’s evidence was less persuasive and may well have been affected by reconstruction or suggestion. However, her evidence that the diving board was wet is consistent with the evidence of Mrs Delaney and Julia that Loren had already been in the pool and using the board before the fall. I reject the suggestion that Loren walked quickly along the board as is referred to in the assumptions to Mr Dubos’ report. This is inconsistent with Julia Delaney’s evidence. As stated above, the fall was not “unwitnessed” as is claimed in various medical records and the ambulance records. I have taken into account in accepting Julia’s evidence of the fall that it was a traumatic event for her and she was only 10 at the time. Courts frequently accept the evidence of children as to traumatic events provided their reliability is accepted in the light of the whole of the evidence. Julia was heavily cross-examined on the issue, and I thus had the advantage of seeing her evidence tested in some detail.
At the time of the fall, Mrs Delaney was sitting on a nearby grassed area reading. After her fall, Loren was initially unconscious. Julia raced to Mrs Delaney screaming and hysterical. After some confusion, Mrs Delaney found Loren who shortly after regained consciousness and started crying/screaming. Bruno Sigmund arrived where Loren had fallen soon after the fall. An ambulance was called, and Loren was initially taken to Albury Base Hospital and then to the Royal Children’s Hospital in Melbourne.
Mrs Delaney does not recall speaking to police officers about the accident, but she was not an eye witness to it.
At the hospitals, the medical staff spoke to Mrs Delaney only about what had occurred. I find that Mrs Delaney informed them what she believed had occurred.
I accept Mrs Delaney’s evidence that she obtained an account from Julia as to what had occurred a few days after the accident: T235.17; T238-9. As stated, Julia was the only witness to the fall and the events leading up to it, other than Loren herself. I also accept Mrs Delaney’s evidence that she avoided discussing the detail of the accident with Julia thereafter as she knew the fall was traumatic to Julia. I also accept Mr Delaney’s evidence that he spoke to Julia about the fall and what she had seen a few days after the accident before Mrs Delaney had returned and after he had spoken to Ms Kay from the defendant Council.
In relation to the surface of the three metre diving board, this is shown in the photograph in figure 8 at page 2792 (Exhibit H tab 13). The caption includes: “Diving boards require maintenance and recoating or surface. They present a slip hazard in current condition”. The photograph shows raised metallic circles and a surface which is not smooth. The RLSSA report for 5 March 2012 states at 2789: “There is also a concern regarding the standard and finish of the actual diving platforms (boards) themselves due to their age and wear and tear”. However, at 2745 the following is stated: “Unable to assess some components due to three metre board being fenced off. No access to assessor”.
Julia Delaney described the diving board as being blue and having a “sort of like a – a rough, sandpapery texture to the grit …”: T130.50. Mr Dubos did not examine the board as it had been removed by the time he was retained: report, paragraph 74. He noted that anti-slip strips could have been readily applied to the diving board: paragraphs 77-80. However, Mr Dubos also notes that there is no Australian Standard related to diving, diving springboards or diving facilities: report, paragraph 109. Mr Sigmund stated that he checked the boards for slipperiness fairly regularly and I accept that evidence.
I am not satisfied on the evidence that the diving board was unreasonably slippery when wet and thus posed a hazard. Although the board was old, no slip-coefficient testing was performed on it. The RLSSA report in 2012 suggests there was only a visual inspection. Julia Delaney referred to a rough sandpapery texture. Mr Sigmund’s evidence suggests regular checking and some repainting by Council officers. In my view, the evidence does not satisfy me that the board surface needed the preventative measures suggested by Mr Dubos. It had been used many times before without incident. I reject this aspect of the plaintiff’s particulars of negligence.
Following the fall, the cross-defendant arranged for the 2012 RLSSA report to be undertaken which was highly critical of the diving facilities including the pool depth from the boards. An earlier 8 January 2009 report had not involved a detailed review of the diving equipment (Exhibit H tab 3: page 1472) but had noted that the diving pools were less than the FINA minimum depth and concluded: “Because the diving platform does not comply with FINA recommendations for depths of diving pools, RLSSA recommends its closure and dismantling.” (report, 1547).
I now turn to findings relating to the position of Mr and Mrs Sigmund. Mr Sigmund had been involved in managing the pool for many years. Any signed contracts relating to his role were not in evidence. I think it likely that any copies had been discarded by Mrs Sigmund before her death. I accept that she dealt with the “paperwork” relating to her and her husband’s role at the pool.
I also accept Mr Sigmund’s evidence that a written contract existed between Remlap and Mr and Mrs Sigmund relating to the pool for a period of about two years from 2008 to 2010. I accept Mr Sigmund’s evidence that there was no written contract in place between Remlap and Mr and Mrs Sigmund from 2010 to 2013 when they ceased at the pool: T706.16. There was no evidence to the contrary on this issue. Mr Sigmund stated that there was a partnership between him and Mrs Sigmund relating to their work and remuneration at the pool which I accept as likely, even if primarily for taxation purposes: T703.19.
There must have been a contract between Remlap and the Sigmunds for the period 2010-2013. That contract was likely to have been partly oral and partly constituted by conduct. I am unable to determine the precise terms of the contract on the evidence however it clearly required Mr and Mrs Sigmund to manage and run the pool facilities on a day to day basis providing or paying for appropriate life-saving supervision in exchange for takings from the pool.
The following matters are established by Mr Sigmund’s evidence:
Loren has the distinct advantage of loving and supportive parents.
Parental concerns relating to the plaintiff’s serious and apparently unreasonable emotional outbursts on a holiday in early 2017 ultimately led to Mr and Mrs Delaney seeking legal advice in mid-2017. Mr Delaney regarded this as a “tipping point” in the decision to get advice. I accept that evidence.
There is a difference in medical expert opinion relating to the plaintiff’s current neuro-psychological position. As set out above, Dr McMahon in his first report dated 30 April 2019, after the administration of tests, including age suitable tests for a child, found the plaintiff had a mild neurocognitive disorder due to mild traumatic brain injury, with a modest impairment causing significant difficulty with processing and retrieving meaning rich verbal information and “some verbal perseveration in abstract word generation tasks”. Mild emotional difficulties including anxiety were noted. A mild range difficulty in constructing and retaining narrative based memories of events and information was recorded. Dr McMahon recommended further neuropsychological examination in late adolescence and early adulthood to see if cognitive development had been affected by the brain injury. These recommended tests were never undertaken by him. Why they did not occur is unclear on the evidence.
Different opinions were expressed by Associate Professor Batchelor who, whilst finding that the plaintiff suffered a complicated mild traumatic brain injury as a result of the accident, was of the view that the accident did not cause brain injury related cognitive deficits at the time of testing. Significant ongoing anxiety was noted by Dr Batchelor. The tests conducted by Dr Batchelor included age suitable tests as an adult. Dr McMahon agreed in his oral evidence that that was appropriate. Mr Ravagnani was of the opinion that the neuropsychological assessments indicated that the plaintiff did not currently demonstrate any evidence of cognitive impairment. Ms Hamidi was of the opinion that the plaintiff’s responses fell in the severe range for anxiety and depression but also accepted that the Batchelor test results did not indicate cognitive impairment at present.
In his responsive report, Dr McMahon maintained his view that the plaintiff had cognitive impairments or difficulties and was of the view that these had probably caused the plaintiff to develop beliefs about herself that are causing ongoing anxious symptoms. He describes these as “underlying self-doubts consequent to previous cognitive difficulties”. Dr Davies, psychiatrist, in his report is of the view that aspects of the plaintiff’s ongoing mental health issues, particularly anxiety, are an “indirect result of the accident and its impact on the family”. He strongly confirmed this in his oral evidence: eg T488-T490.7; T493.44. He was the only psychiatrist to give oral evidence and medico-legal evidence.
I find that the plaintiff suffered a biparietal fractured skull with a limited loss of consciousness as a result of the accident. No other fracture occurred. This is established by the Royal Children’s Hospital discharge summary. The clear weight of the neuropsychological expert opinion is that the plaintiff suffered a mild traumatic brain injury in the accident. I accept that opinion.
I accept the opinion of Dr McMahon that the tests conducted by him were age suitable for the plaintiff as a child in 2018-19 and indicated mild neurocognitive impairments as a result of the accident at the time. I was impressed by Dr McMahon’s first report and his oral evidence and I accept it. Dr Batchelor did not see the plaintiff in 2018-19.
However, on the evidence I prefer the report of Dr Batchelor as to the plaintiff’s current cognitive position to that of Dr McMahon. First, Dr Batchelor conducted age suitable tests to the plaintiff as an adult. The plaintiff by 2023 had transitioned through adolescence to her late teenage years. Secondly, Dr McMahon agreed that the age suitable tests conducted by Dr Batchelor were appropriate. Thirdly, Dr McMahon had recommended later tests of the plaintiff in late adolescence and early adulthood that were never undertaken by him. Fourthly, the Batchelor tests were more recent and thus more reliable as to the plaintiff’s current position. Despite some hesitation relating to the Batchelor tests due to reported sub-optimal effort by the plaintiff, there was no suggestion by Dr McMahon that the Batchelor tests involved wrong testing or involved incorrect conclusions: see T472.37-T473.15.
Fifthly, Mr Ravagnani, Ms Hamidi and Dr Davies all appeared to be satisfied with the Batchelor report opinion. Sixthly, Dr Batchelor appears to be highly experienced and qualified, and her report was particularly thorough on its face.
For these reasons, I find that the plaintiff no longer has mild neurocognitive impairments arising from the February 2012 accident.
I must admit to some slight hesitation in reaching this conclusion having regard to the results in Dr McMahon’s first report relating to the plaintiff’s difficulties in processing and retrieving meaning rich verbal information. This, in my view, is consistent with and supported by:
I will consider the legal issues relating to causation further below.
The Delaneys saw Mr Cameron, solicitor, in conference on 17 May 2017. Mr Cameron discussed the legal process with the Delaneys. I accept Mr Cameron advised the Delaneys that in his opinion the potential claim “looked like a goer” by which he appeared to mean a potentially good case worth pursuing. A further appointment was proposed including with the plaintiff. Mr Cameron did not give oral evidence in the proceedings.
I also accept that the Delaneys had a conference with Mr Cameron and Mr B Dooley SC on 7 August 2017. At that time or soon thereafter, Mr Dooley SC had a short conversation (likely by telephone) with Julia Delaney to obtain her recollection of the accident: Dooley SC 14 August 2017 opinion paragraphs 1-2. Mr Dooley recommended that further investigations be undertaken including in relation to the presence of “risk warnings”. What seems to be clear is that following advice from Mr Cameron and Mr Dooley in the light of the conferences with Mr and Mrs Delaney and the telephone conversation with Julia Delaney, a decision was made by the Delaneys to make further investigations. Mr Dooley wanted material from the Council to be reviewed. He also proposed an expert report “to see whether we pursue the matter”: Dooley SC 14 August 2017 advice paragraphs 25 and 28 and Annexure D to the Reeks 22 May 2024 affidavit. It seems clear no advice was given at this time to Mr and Mrs Delaney by the solicitors or Mr Dooley to commence proceedings.
A letter was sent to the RLSS in relation to its review. A Government Information (Public Access) Act 2009 (NSW) application was made to the defendant Council. Delays occurred in the responses to the requests. The solicitors attended to the investigations.
Clearly the parents of the plaintiff were concerned about legal costs and whether any proceedings were justified. The parents raised the issue whether the plaintiff had any significant permanent deficit from the accident. A decision was made on 9 July 2018 to obtain an expert neuropsychological report: Reeks 22 May 2024 affidavit, Annexure “I”.
This history is in my view consistent with the evidence, including the oral evidence of the plaintiff’s parents. First, Mr Delaney wanted to determine whether the plaintiff’s 2017 behaviour was related to the fall: T179.33; T181.34; T193.44. Secondly, Mrs Delaney said she understood the neuropsychology testing was to assess the level of the plaintiff’s injuries (T180.50) and was something that she understood needed to be investigated before commencing proceedings (T181.3). See Annexure “I” to the Reeks 22 May 2024 affidavit. Thirdly, the neuropsychological report from Dr McMahon from Mrs Delaney’s viewpoint established a possible connection between the plaintiff’s behavioural issues and the fall: T181.41-.48; T210.20; T210.27. Fourthly, Mrs Delaney regarded the Dr McMahon report as “confirmation … that we could pursue something further”: T193.5. It was “proper testing to confirm” that there was a cause of action available to the plaintiff: T210.42-.50; T211.26-.34; T212.44; T217.39. Fifthly, the Dubos report was also arranged to establish expert evidence as to breach. The oral evidence of Mr Delaney was to a similar effect: T433.46; T434.20; T445.50-T446.43. I accept this evidence.
It seems to me, from the above matters, and I find, that Mrs Delaney’s decision as tutor for the plaintiff to commence the proceedings was not taken until the Dr McMahon report was obtained to establish a connection between Loren’s issues and the fall and to establish the extent of any ongoing injuries and disabilities allegedly resulting from the fall, to determine whether proceedings were worthwhile. This followed the positive advice obtained from Mr Cameron and the advice from Mr Dooley SC, subject to further enquiries being made. The Dubos report was also relevant to Mrs Delaney’s decision. There are some inconsistencies in Mrs Delaney’s evidence and earlier knowledge of a brain injury and potential fault in the defendant, but the McMahon report seems to have established to her satisfaction and the satisfaction of Mr Delaney (the decision apparently being jointly arrived at), the necessary required connection.
The defendant submitted that the claim was discoverable well before 2017 and expert opinion from Dr McMahon and Mr Dubos was not required: written submissions dated 17 January 2025 paragraphs 70-85. See also the cross-defendant’s written submissions to a similar effect. For the reasons given, I reject those submissions on the facts. As at early 2017, the parents were unaware whether the plaintiff’s problems entitled her to bring an appropriate action. After April 2017, the parents had placed the matter with the solicitors who investigated the matter, consulted Mr Dooley SC and sought expert advice which then satisfied them to commence proceedings through Mrs Delaney as tutor for the plaintiff. I accept the plaintiff’s reply submissions on these issues.
Accordingly, in my view the defendant was contractually obliged under the Lease to install the mid railings and/or infill. I reject the defendant’s submissions to the contrary.
I accept paragraphs 106-107 of the cross-defendant’s written submissions dated 10 February 2025 on this issue.
I reject the point raised by the cross-defendant that the construction of clause 1(w)(i) of the Lease put forward by the defendant should have been raised in a Reply to the Defence to Cross-claim. This was a legal construction issue turning on the Lease itself. Separate Lease obligations were pleaded in paragraphs 15 and 16 of the Cross-claim. Further, the proper construction of the clause was always an issue on the pleadings.
The cross-defendant denies that it was under an obligation to obtain the insurance referred to in the latter part of clause 1(w)(i) of the Lease. It was not pleaded by the cross-defendant, as the defendant submits, that such insurance was obtained or that such insurance could not be obtained by it. No such policy was in evidence. It seems to me that the onus rests on the defendant as to this issue to establish a breach of Lease and that such insurance was reasonably available. I accept the cross-defendant’s written submissions on the issue: see paragraph 113. I also accept that any obligation to obtain insurance was relevantly breached between 2008 and 2012 and would thus be statute barred: Defence to Cross-claim paragraph 16(c). I am not satisfied on the evidence that I can find a waiver of the obligation as submitted by the cross-defendant in paragraph 114 of its written submissions. A waiver must be established by clear evidence or appropriate inference from evidence. Therefore, I find that there was not a breach of clause 1(w)(i) of the Lease by Remlap relating to the insurance obligation: Cross-claim paragraph 15.
I also accept the cross-defendant’s submissions as to clause 1(w)(v): see paragraph 115. The word “activities”, in my view, limits the operation of this term of the Lease.
However, as stated, I find there was a breach by the cross-defendant of the clause 1(w)(i) indemnity obligation in the Lease. The defendant is entitled to the indemnity which it seeks against the plaintiff’s claim. In general terms I accept the defendant’s submissions on this issue. The right to the indemnity (“and keep indemnified”), in my view, survives the termination of the Lease. This is a significant finding in relation to the position between the cross-defendant and the defendant concerning the plaintiff’s claim.
Simpson AJA noted that ordinarily a lay person will not have either of those appreciations without legal advice and sometimes specialist expert advice, although it was not the case that legal advice would be required in every case. Often an appreciation of the causes of action that may be available was needed including an appreciation of the facts necessary to support such an action. Her Honour noted that rarely is that likely to be understood, that is “known”, by a lay plaintiff without the benefit of both legal and medical advice. Her Honour appeared to accept the proposition that this would require, at the least, knowledge (whether derived from the plaintiff’s own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages and that the damages that could be recovered were large enough to be worth the time and trouble of suing. Reference was made to State of New South Wales v Gillett [2012] NSWCA 83: see Synergy at [72]-[74]. Her Honour emphasised again that a proper view could often not be formed about the justification for bringing an action absent appropriate legal and medical advice in respect of such matters.
In Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 the New South Wales Court of Appeal considered section 50D of the Limitation Act in circumstances where it was suggested that the plaintiff’s solicitor could have done more by acting diligently to identify the appropriate defendant to sue in that matter. Synergy, above, was referred to with apparent approval.
At [95]-[101], Kirk JA (with whom Ward P and Stern JA agreed) held that the language of section 50D of the Limitation Act indicated that the focus should be on what it would be reasonable for the plaintiff not the plaintiff’s lawyers to take. Whilst it may have been the case that the lawyers, acting diligently, could and should have done more to clarify the corporate structure much earlier than they did in that case, any omissions by them should not rebound on a plaintiff. It was held that the plaintiff in that case had taken all reasonable steps by engaging lawyers in time and providing instructions as sought by them. Accordingly, the focus is on what it was reasonable for the plaintiff to have done not the lawyers retained by the plaintiff: at [100].
In the present case, once Mr and Mrs Delaney became particularly concerned about the plaintiff in 2017 following the important “tipping point” incident during the holiday, they promptly sought legal advice from Mr Cameron. Mr Cameron involved Mr Dooley SC. I accept that the plaintiff’s parents were told that the matter was “a goer” by Mr Cameron. However, in my view that advice only clearly indicated that it was a matter worth considering pursuing. This was particularly the case once it was ascertained that Julia Delaney was an eyewitness to the accident. Mr Dooley advised that further steps be taken to find out information including the potential obtaining of an expert report. He did not advise to commence proceedings immediately.
Although Mrs Delaney, who became the tutor, believed that the cause of the accident was the absence of appropriate protections to the side of the three metre diving board platform, and although she had seen neuropsychological reports which indicated that the plaintiff had a brain injury and continued comprehension difficulties, what she did not know was whether it was appropriate legally to bring proceedings or that proceedings were appropriate having regard to the plaintiff’s limitations. It is clear that she wanted, following the “tipping point” holiday incident, independent medical advice in relation to this issue which came in the form of the report from Dr McMahon. See Annexure “I” to Mr Reeks 22 May 2024 affidavit. It was left to the solicitors to obtain this report. The solicitors also obtained the report from Mr Dubos as to liability. In my view, it was only when Mrs Delaney had both of these reports and obtained advice, that she and her husband were in a position to decide that the action was worthwhile under the CLA and one which had legal merit supported by expert medical evidence. This is confirmed, in my view, by Mrs Delaney’s oral evidence and Mr Delaney’s oral evidence which I accept. Accordingly, it was only then that the facts necessary to support an action were “known” by Mrs Delaney. Similarly, there was no reasonable basis for knowledge prior to this time. In my view, the matter appears to fall directly within the comments made by Simpson AJA in Synergy at [71]. I reject the defendant’s submissions to the contrary.
Similarly, applying Agrigrain, above, focus needs to be given to the conduct of Mr and Mrs Delaney. They went for advice to Mr Cameron and it was reasonable for them having engaged lawyers and providing instructions as sought by them to leave the matters to the lawyers. The Delaneys, and Mrs Delaney in particular, had taken all reasonable steps by engaging Slater and Gordon and providing instructions. as sought by them.
Therefore, in my view, until the expert reports were obtained, a cause of action against the defendant was not “discoverable” by Mrs Delaney. While she knew that an injury had occurred and she believed it was caused by the fault of the defendant, she did not have confirmation of that fact and without the expert reports she did not know, and she ought not to have known, that the injury to Loren was sufficiently serious to justify the bringing of an action on the cause of action under the CLA.
For these reasons, in my view, the cause of action in negligence is not statute barred. I reject the defendant’s and cross-defendant’s submissions on this issue.
Similarly, for those reasons I do not consider that the cause of action by the defendant against the cross-defendant in tort is statute barred under s 26.
It is unnecessary for these reasons to consider in detail the s 62D argument made by the plaintiff in her reply submissions. Further, that section was not raised on the pleadings by the plaintiff. In my view, for the reasons submitted by the defendant and cross-defendant, the plaintiff should not be allowed to rely on the point and the point was not a good one. First, the matter should have been formally raised in a Reply. To mention it only in a letter providing particulars, without more, was not enough. Pleadings play an important role in informing parties of the matters relied on by another party: see South Western Sydney Local Health District v Gould [2018] NSWCA 69 at [69]. Secondly, the only evidence obliquely referring to “irrationality” was that of Mr Delaney, not the tutor Mrs Delaney whose state of mind was crucial. Thirdly, the onus rests on the plaintiff to establish the factual matters establishing s 62D. The onus was not satisfied on the evidence. Fourthly, I accept that the case would have been run differently by the defendant and cross-defendant if the matter was pleaded. It is very likely that they would have sought to cross-examine Mrs Delaney on the point if pleaded. If raised in re-examination, it is very likely they would have sought leave for further cross-examination which leave would probably have been granted. Therefore, allowing the point to be relied on by the plaintiff in submissions would be unfair to the defendant and cross-defendant.
Useful assistance is also provided by Justice Perram in ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532; [2011] FCA 1204 at [27]-[29], [45] and [97]: does the person in question serve his employer in his, the employer’s business, or does the person carry on a trade or business of his own; the “totality” of the relationship must be looked at; all indicia of the relationship must be considered including whether wages are paid or whether there is a commission structure; whether one party “represents” the other and how the business is conducted.
In Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 the majority found that the refrigerator mechanic there, essentially conducted his own business: at [33]. Other relevant factors were that the respondent there did not control the way in which the mechanic worked, and the mechanic supplied his own tools and equipment and brought his skills to bear on the work to be done. See also the comments in the Personnel Contracting case above at [41]–[42].
Although on one view, the decisions in Personnel Contracting and in ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; [2022] HCA 1 appear to place less weight on the concept of the “totality of the relationship between the parties”, involving a multifactorial analysis, and give primacy to the contractual arrangement between the alleged employer and the employee, the totality of the relationship was not regarded as irrelevant in either case.
Here, there was no written contract at the relevant time. In the Jamsek case the written contracts in question did not appear to include all the arrangements between the parties: at [65]-[66]. The High Court emphasised that the central question remained as in a written contract, whether or not the person was an employee. Important factors remain as to whether the putative employer has the right to control how, when and where the putative employee performs the work and the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business: see at [69]-[70].
I acknowledge the assistance which I have gained from the comprehensive analysis of the principles in Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499 at [715]–[727] by Meek J.
In my view, the evidence is overwhelming that Mr and Mrs Sigmund were independent contractors and not employees of Remlap at the time of the accident. I have set out the factors above relevant to the relationship. Importantly, the duties undertaken by Mr Sigmund involved the need for expertise and qualifications such as the aquatic facility licence, a lifeguarding certificate and a first aid certificate. There was no evidence that anyone at Remlap had these qualifications.
Secondly, there was no regular salary paid by Remlap or superannuation paid to Mr and Mrs Sigmund. They obtained their entire remuneration from the takings from the pool and the kiosk. Mr Sigmund determined what he did at the pool on a day-to-day basis and how he did it and when he did it. He ran the pool on a day-to-day basis. He paid for additional lifeguards. He arranged for maintenance from the Council. Clearly the work had to be undertaken at the pool itself because of the nature of the work. However, in my view it is clear that Mr and Mrs Sigmund were working in their own business as distinct from Remlap’s business. They were not employees in the legal sense of Remlap.
One then has to look at the contractual relationship between Remlap and Mr and Mrs Sigmund to determine whether it fulfills any tortious obligations which Remlap had to the users of the swimming pool. In Sweeney, above, a customer at a convenience store was injured when the door of a refrigerator containing milk cartons fell and struck her. The refrigerator in question was leased from a company which by contract was required to service and maintain it. However, the manager of the store notified the company of a defect in the fridge and it arranged for a mechanic to attend to fix the door. The trial judge found that the mechanic did not act with reasonable care and that the company was vicariously liable for his negligence.
The High Court held that the mechanic in question was not an employee of the company but was an independent contractor pursuing his own business. Hence the company which arranged for the repairs was not vicariously liable for his negligence. The plurality held “the bare fact that the second person’s actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second”: at 167.
Here, did the contracting with Mr and Mrs Sigmund by Remlap fulfill their obligations to users of the pool as amounting to the taking of reasonable precautions to meet the risk involved? Remlap had the contractual obligations to the Council under the Lease. It also had Mr and Mrs Sigmund as managers of the pool on a day-to-day basis. Mr Sigmund had the three qualifications referred to above. There is no evidence that Remlap should have believed that his performance was less than satisfactory. He retained additional persons as lifeguards. His aquatic facility licence was a specialist qualification. It seems to me that if a person engages an apparent expert to undertake a task, then, in the absence of any other circumstances such as a non-delegable duty or knowledge of deficiencies in performance, the first person will be regarded as having reasonably fulfilled their duty of care to any person subsequently injured by the skilled person’s negligent or allegedly negligent conduct.
Here Mr Sigmund was an experienced manager of the swimming pool. He had a specialist qualification in the aquatic facility licence. He had also a lifeguard certificate and first aid qualifications. As such, he had expertise in the running and management of a swimming pool like that involved in the accident. As a result of the above analysis, I reject paragraphs 127-133 of the defendant’s written submissions dated 17 January 2025. Remlap had fulfilled its lease obligations in this regard by its contract with Mr and Mrs Sigmund, having regard to the qualifications and experience of Mr Sigmund. In the alternative, I am not satisfied that any breach as alleged by the defendant caused the accident. Even if there was active supervision by Mr Sigmund as seems to be argued was absent, it appears the accident would have still occurred. This is considered further below.
As set out above, clause 4 of the Lease makes a distinction between maintenance of lawns and gardens at the pool and daily maintenance of the pool and the operation of the filtration plant during the swimming season on the one hand and works such as the structural maintenance of the pool and the associated buildings on the other hand which were to be carried out by the lessor Council.
In relation to the three metre diving board platform, the evidence suggests that it had been in place at the pool for many years prior to 12 February 2012. Criticism has been made by the plaintiff’s expert Mr Dubos in relation to the sides of the diving board and particularly, that there should have been other railings or the board pathway should have been enclosed with clear Perspex or similar mesh sides. In my view, the Lease placed the obligation in relation to works of that nature on the Council and not on Remlap as the lessee occupier: see clause 4(i) and my analysis above. In my view, such works cannot be seen as daily maintenance works to be undertaken by Remlap.
For those reasons, in my opinion the Council owed a duty of care to entrants to the pool in relation to the structural maintenance, integrity, suitability and safety of the pool and associated buildings including the three metre diving board platform structure. In my view, it should have been clear to the Council that any failure by it to take reasonable steps to properly review and update the diving board platform through structural maintenance and to make it reasonably safe for users of it, including children, posed a serious potential risk of injury to such users. Mr Farrell on his inspection of the pool in 2004-5 with Mr Singleton identified the three metre platform as posing a risk to users because of at least the absence of a mid rail. He was the Council’s work, health and safety officer at the time and was an employee of the Council. As an employee, the Council was vicariously liable for his acts and omissions. His views and knowledge are relevant to the imposition of a duty of care as at the date of the accident.
In those circumstances, in my view the defendant Council owed a duty of care to the plaintiff as a lawful entrant to the pool and as a user of the three metre diving board platform to take reasonable care in relation to the structural maintenance, integrity, suitability and safety of the diving board platform so as to avoid reasonably foreseeable risks of harm to users of the platform and to avoid a reasonably foreseeable risk of injury to the plaintiff arising from the physical nature of the platform on the assumption that she used reasonable care for her own safety. I am also of the view that Remlap as the occupier of the site owed a duty of care to the plaintiff as a lawful entrant to the site. That duty was to take reasonable care to avoid a foreseeable risk of injury to the plaintiff arising from the physical state of the land of which it was an occupier on the assumption that the plaintiff as a user would exercise reasonable care for her own safety in the circumstances. In my view, that duty of care is clearly established on the authorities: Jackson v McDonald*’*s Australia Limited [2014] NSWCA 162 at [7]-[8] and at [82]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [53].
The cause of action pleaded against the Council by the plaintiff and by the Council against Remlap (seeking contribution or indemnity) includes a cause of action in negligence. In my view, the risk of a child slipping or losing their footing, falling and injuring themselves while using the three metre diving board platform having regard to the lack of appropriate horizontal railings, enclosed sides and the height of the rail was both reasonably foreseeable and not insignificant. There was thus a relevant risk of potentially serious harm. The Court must then consider what a reasonable person in the position of the defendant and cross-defendant would have done in response to the risk: see Patrick Stevedores, above, at [49]-[51]. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 that what precautions against the relevant risk of harm were reasonable in the circumstances is to be determined by taking into account s 5B of the CLA which applies to the action by the plaintiff against the defendant in the present case. Thus it is necessary to identify correctly the risk of harm because it is only when one identifies the relevant risk of harm that one can assess what a reasonable response to that risk would be. The authorities are clear that it is ordinarily unnecessary and undesirable to define the relevant risk of harm with too much particularity: see Lloyd v Thornbury at [47]-[48]; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [106].
In my view, the relevant risk of harm in the present case was the risk that a user of the three metre diving board platform, including a child, and including whilst it was wet, would slip or otherwise lose their footing whilst on the board and fall under the horizontal rail on the board platform to the concrete below. This would particularly be the case where a small child such as the plaintiff at the relevant time was using the board.
In the Patrick S**tevedores case which I have referred to above, Leeming JA stated that the measure of the discharge of a defendant’s duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. See also the analysis by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. The authorities make it clear that the actions that should reasonably have been taken must be considered prospectively. In addition, it is always assumed that users of the platform will exercise reasonable care for their own safety.
Section 5 of the CLA defines “negligence” as a failure to exercise reasonable care. The Court in considering the case must consider ss 5B and 5C of the CLA which provide as follows:
However, Remlap had contracted with Mr and Mrs Sigmund to manage the day-to-day operations of the swimming pool. Although the terms of the relevant contract were not in evidence and were not clear, it was Mr Sigmund who undertook the management and supervision of the pool and who controlled day-to-day matters at the pool, not Remlap. Mr Sigmund imposed his own rules. He was an independent contractor with expertise in pools through his aquatic facility qualifications. It was thus Mr and Mrs Sigmund not Remlap who controlled access to the three metre diving board. In my view, Remlap had satisfied the duty of care owed by them to the plaintiff by contracting the management of the pool to Mr and Mrs Sigmund. Mr Sigmund opened and shut the pool and limited access to the diving board. He also brought maintenance matters to the attention of the Council. A further mid rail horizontal bar was in my view clearly a relevant structural maintenance matter.
Accordingly, in my view there was a breach of duty of care owed by the Council to the plaintiff but not a breach of a duty of care owed by Remlap to the plaintiff. This conclusion is reached after taking into account the various submissions made including by the defendant and cross-defendant.
I reject those submissions. First, the case seems to be substantially indistinguishable in principle from the decision of the majority of the Court of Appeal in Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501. See at pages 504-506 and 530-538.
Secondly, as stated above, I do not accept that the plaintiff was an unduly anxious child before the accident.
Thirdly, the plaintiff’s parents did provide her with extensive help with her homework outside of school hours. It appears they did everything they reasonably could as parents and teachers to assist her with her studies. On the evidence, the plaintiff was clearly very anxious about her difficulties in understanding her school work after the accident.
Fourthly, the New South Court of Appeal recently considered the principles relating to a break in the chain of causation in Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [117]-[118] per Leeming JA. It was made clear that the chain is not necessarily broken by another act being a more immediate cause of the damage than the defendant’s breach: at [118]. I do not consider that the parents’ acts broke the chain of causation when they reasonably assisted the plaintiff in the light of the earlier neuropsychological assessments.
Fifthly, I do not regard the loss as being too remote. The plaintiff had a brain injury with diagnosed mild neurological deficits by three neuropsychologists including Dr McMahon. The plaintiff struggled at school. It was perfectly reasonable and to be expected that the plaintiff would be assisted by her teacher parents. In my view, it was clearly reasonably foreseeable that the plaintiff would suffer anxiety as a result of her physical injuries and the circumstances of the accident, particularly as it occurred at a young age. It was the type or kind of injury which was reasonably to be foreseen: Nader, above, at 536.
I therefore reject the defendant’s submissions on this issue.
Accordingly, in my view causation is established in the present case against the defendant.
In assessing non-economic loss, I have taken into account not only the expert medical evidence but also the evidence of the plaintiff, her sister and her mother of the severe anxiety which she had during her schooling and in her part-time work and its effect on her. I accept the evidence in the various neuropsychological tests that the plaintiff is of average intelligence. I discount the amount to be awarded because of unrelated factors being other matters including those at school causing anxiety. Taking into account all of the evidence including the expert medical evidence and the factors I have referred to above, I assess the plaintiff’s severity of non-economic loss as a proportion of a most extreme case as being 26%. This equates to 8% as a proportion of the maximum amount which totals $61,000. As stated, in arriving at this figure I have taken into account the non-accident related stressors in the plaintiff’s life and reduced the amount allowed accordingly.
I therefore allow $61,000 under this head for non-economic loss damages. In doing this I take into account the various difficulties which the plaintiff and Mrs Delaney have described in their evidence.
Doing the best I can on all of the evidence and also taking into account that the plaintiff had other stressors in her life that created anxiety in her (and discounting for that), I award $90,000 for loss of future earning capacity allowing about $12,000-$20,000 per year for several years.
The amounts I have allowed include an allowance for any loss of future superannuation benefits.