Just after his 9th birthday in March 2008, Joey Zaiter suffered a brain injury when he lost control of a bicycle he was riding down an unfamiliar grass slope and fell into a 2m deep concrete drainage channel at Holroyd Sports Ground.
At the time of the accident the sports ground was under the care and control of Holroyd City Council (“the Council”).
At first instance, District Court Judge Kearns found that the Council had been negligent in not erecting a fence along the length of the channel. His Honour found that Joey had contributed to his damage to the extent of 10 percent as he was not wearing a helmet.
Joey in cross-examination admitted to the Court that his parents had told him to wear a helmet when riding his bike and that he understood that the reason he should wear a helmet was because it would protect his head if he fell off his bike.
Importantly, on 4 October 2007 the Holroyd Sports Ground Local Park Committee (the Committee) wrote to the Council, putting them on notice of the risk specifically stating “… the concrete canal … presents a fall hazard as there is no edge protection and a person could easily fall well over one metre and could be closer to two metres… many small children using Field No 2… we are concern[sic] that a child could fall in the canal.”
While not aware of Joey’s accident on 30 May 2008 the Council wrote to Sydney Water requesting a child safety fence be installed. On 6 June 2008 Sydney Water responded advising they had no responsibility for the channel.
In December 2008 the Council issued a proposal to install a safety fence at an estimated cost of $20,000 stating “The concrete canal… is not fenced and is considered a safety issue for children.” The fencing was installed in 2009.
Proceedings were commenced in 2011 with the hearing taking place in February 2013.
The issue in the proceedings was whether the Council, in order to discharge the duty of care that it owed to Joey, ought to have erected a fence along the channel to prevent an accident such as that suffered by him.
Judge Kearns found that:
- it was foreseeable by the Council that the slope posed a risk of harm to young children who rode their bikes onto the Sports Ground;
- a person in a position of the Council could and ought to have appreciated that a 9-year-old or other young child who came to the Sports Ground from the path on a bike could not see the entire slope and that the slope could cause a bike to gather speed that might make it uncontrollable with them ending up injured at the bottom of the channel;
- that other factors known to the Council made such foreseeability stronger including the letter from the Committee, the Council’s letter to Sydney Water, the works request and subsequent installation of the safety fence.
- The Council owed a duty of care to Joey and that the content of that duty was the obligation to erect a fence along the channel to prevent injury to him.
The Council unsuccessfully appealed the decision of Judge Kearns.
If you have been injured by someone else’s negligence and as a result are unable to work or require assistance with personal care or medical expenses, we can help.
Holroyd City Council vs Zaiter [2014]
