by Emily Billiau
Following a 3 day trial in the Supreme Court of Queensland, Gympie Motel has been found liable in negligence for catastrophic injuries sustained by a 12-year-old plaintiff when she dived into the swimming pool at the hotel in 1998.
In the decision of Lennon v Gympie Motel [2016] QSC 315 liability was apportioned 85% to the Hotel and 15% to the child Plaintiff, who was found to have failed to take care for her own safety. The result being, she will recover 85% of her damages, the quantum of which is yet to be determined.
Why is the Hotel Responsible?
Relevantly:
- the depth of the pool was just 90cm at one end gradually increasing to 174cm at the other;
- the pool did not have any depth indicators;
- there was no sign to warn swimmers against diving into the pool;
- there was a sign instructing children to be supervised by an adult at all times while using the pool;
- the plaintiff and her younger sister were unsupervised at the time of the accident.
Ultimately, the court had regard to the evidence of orthopaedic surgeon, Dr Tuffley, as to the most likely mechanism of injury and found the most likely mechanism to be a dive into the pool which resulted in the Plaintiff’s head striking the bottom of the pool. Bearing in mind, the Plaintiff’s height was almost equal to the depth of the pool at the deep end and the evidence of the witness about the nature of the games engaged in by the children leading up to the incident, the court did not find that the Plaintiff’s dive was a particularly dangerous one.
The Court found that the Hotel was negligent for not erecting a sign which prohibited diving into the pool or otherwise warning swimmers of the shallow depth of the pool and for not installing depth markers in the pool. The Court found that the risk of diving into the pool was not a risk that was sufficiently obvious to alleviate the need for the Defendant to take these precautions. This was particularly so given the class of swimmers who tended to use the swimming pool often included children. Had such a sign been erected or depths markers been in place, the Court was satisfied the Plaintiff would not have dived into the pool and struck her head.
Why did the Court Find the Plaintiff had contributed to the Accident?
In making a finding of contributory negligence against the Plaintiff, her young age was considered, however, the Court held that being an experienced swimmer and a responsible girl for her age, she knew of the dangers of diving and therefore failed to take care for her own safety by diving into the pool. Her culpability was assessed at only 15%, although the Court made comment that a higher percentage in the order of 25 – 30% would have been appropriate had she been a mature adult.
You can read the full decision here.