A recent decision of the Queensland Supreme Court highlights the
importance of occupiers installing clear warnings to patrons
utilising recreational facilities at their premises. Partner
Robert Tidbury, Senior Associate
Jacqi Marshall and Associate
Melissa McGarrity discuss the decision of Lennon v Gympie
Motel  QSC 315 where liability was found in favour of
the Plaintiff, but with a reduction of damages for contributory
The Plaintiff, Karla Lennon, was 12 years old when she dived
into the pool within the grounds of the Gympie Motel. The motel had
installed a sign in the pool area which required children to be
supervised by an adult at all times. There were no other signs in
the area. When the Plaintiff's mother allowed her and her
younger sister (aged 7) to enter the pool area, there were other
adults and children utilising the facility. The pool was described
as 10 metres long and having a variable depth between 1.74m and
While the Plaintiff and her sister were using the pool, she
dived into the water and struck her head, suffering a cervical
spine injury and hypoxic brain injury rendering her tetraplegic as
The Plaintiff argued that the motel was negligent for failing to
install a warning sign with respect to diving in the pool, or
installing appropriate depth markers indicating that there was a
Expert evidence was led that there was in fact no safe area for
a person to dive safely, having regard to the depth of the
Arguments were made by the defendant that the failure to install
the markers or signs were not causative of the injury as it could
not be determined how the Plaintiff came to suffer her injury, ie.
whether she slipped and struck her head on the edge of the pool or
intentionally dived into the pool, performing a dangerous dive.
The Gympie Motel was found to have breached its duty of care to
the Plaintiff. With respect to the duty in relation to pools in
particular, Justice Flanagan made reference to the case of
Inverell Municipal Council v Pennington & Anor (1993)
82 LGERA 268 which identified the relevant duty as follows:
"Those in control of the pool had, in general, a duty
to take care for the safety of those using it. This is reasonably
plain. The risk of injury from diving in shallow water is well
recognised. They were, in the relevant sense, in sufficient
proximity to users of the pool to require that they take proper
The Court also had regard to the Australian standards
"Guide to Swimming Pool Safety" which notes:
"Clause 8 Unless specifically designed for diving, private
pools should not be used for that purpose ... Serious injury can
result from diving into a pool that is not of sufficient
"Clause 17(s) Don't dive into the pool unless it is
specifically designed for diving."
Having regard to the well-known risk of diving into a pool, the
potential catastrophic consequences and the variable depth of the
pool, reasonableness required the Gympie Motel to take precautions
such as the provision of a warning to its patrons regarding that
risk, particularly where it is contemplated that children would be
using the facility (albeit directed to have adult supervision).
Those precautions included a warning against diving and
identification regarding the depth of the water.
Evidence was led regarding the Plaintiff's demeanour prior
to the incident, and it was accepted that the Plaintiff was a
responsible young woman despite her age, often charged with the
care of younger siblings and family friends when in and about the
water, particularly on Stradbroke Island.
The Court considered whether the plaintiff had failed to
exercise a degree of care for her own safety which might reasonably
be expected of an ordinary child of the same age.
It was found that the Plaintiff had a general awareness of the
dangers associated with diving and knew not to dive into shallow
water or pools in which she could not judge the depth. Given her
knowledge of the potential danger, it was accepted that she failed
to take reasonable care for her own safety by diving into the
water. The Court reduced the damages by 15%.
Consideration should be given to installing depth markers
around all pools.
Signs warning against diving should be installed if the pool is
not specifically designed for diving.
Occupiers should refer to the Australian Standards with respect
to the facilities provided and what warnings may be relevant to
2016 was an important year for the development of class action jurisprudence in Australia. The year brought at least 25 new class action lawsuits and substantial settlements that will impact litigation moving forward.
This article sets out the circumstances in which privilege for legal communications could be lost or waived.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).