The decision in Micallef v Endeavour Foundation 
QDC 142 demonstrates the need for an injury to fall within the
scope of a foreseeable risk in order to establish liability against
The plaintiff was a disability support worker employed by the
defendant. The plaintiff and a co-worker had taken two children to
a local swimming pool. After the children had exited the pool, the
plaintiff had re-entered the pool to retrieve grapes which one of
the children had thrown into the water. Both children were with her
co-worker outside the pool at this time. As the plaintiff was
resurfacing, one of the children jumped feet first on top of her,
causing the plaintiff to sustain injury to her neck.
The defendant had completed a generalised risk assessment
regarding pool visits and the plaintiff acknowledged that she was
aware of the risks identified in this assessment, despite allegedly
not being provided with this specific assessment.
Further, the child who had jumped into the pool was identified
to have aggressive behaviour problems when he felt that his
personal space was being invaded. The defendant noted that they
were aware that in a psychologist's report, it was recommended
the child should not be left unattended in any environment as his
behaviour was unpredictable.
The plaintiff alleged that the child's actions in jumping
into the pool were a foreseeable risk due to his unpredictable
behaviour traits and suggested her exposure to this risk could have
been minimised by a higher ratio of carers.
In response, the defendant denied that the child's actions
were an identifiable risk and further, even if it was possible to
foresee this risk, there was nothing the defendant could have done
without the benefit of hindsight to minimise that risk.
The plaintiff's claim failed. The Court was not satisfied
that it was reasonably foreseeable that the plaintiff was at risk
of being injured in the particular circumstances.
In reaching this decision, Harrison J found that the
plaintiff's case, at best, was that the defendant knew the
child was unpredictable and his noted adverse behaviours arose in
circumstances where he perceived that someone was invading his
space and reacted accordingly. However, as there was nothing in the
circumstances to indicate that the child's space was being
invaded or that he was otherwise behaving unpredictably at the time
of the incident, the child's behaviour did not fall within the
scope of foreseeability.
Although this case was determined on its facts, the decision
illustrates the process of reasoning undertaken in establishing
foreseeability and risk of injury.
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guide to the subject matter. Specialist advice should be sought
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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