February 28, 2017

The family’s overnight stay at the Gympie Motel in February 1998 was unscheduled.

Their car overheated on the trip from Bundaberg to Brisbane and the decision was made after Karla’s mother had spoken to the RACQ representative about getting it fixed.

Also travelling were Karla’s older brother Isaac and sister Letitia.

Soon after checking in, Karla and Letitia eagerly sought her mum Carol’s permission to cool off in the motel pool.
With a warning they might not be allowed to do so because Karla didn’t have her togs, both kids went to inspect the layout and reported back that the only sign was one on the gate “requiring supervision the children swimming”.

The pool was about 5 m x 5 m with depth at one end of 0.9 m and at the other of 1.7 m. The entry stairs were at the shallow end.

There were no depth markers or pictograms prohibiting diving, to be seen.

When Karla, her sister and Carol arrived at the pool they saw others in it and a child among them.

On the strength of other adults being present and the fact that Karla had a just gained a pool safety certificate and was accustomed to looking after her younger sister, Carol let them go in.

Reminding them to be careful to behave themselves, she left them the motel and walked to a nearby shopping centre with Isaac, to make a phone call.

On return 15 – 20 minutes later she saw an ambulance and feared the worst.

Karla had suffered a burst fracture in her cervical spine that would render her tetraplegic.

She had been found floating face down in the middle of the pool, indicating a dive from outside the deep end of the pool into the shallow end.

Her compensation lawsuit against the motel finally arrived at the Supreme Court in Brisbane in October 2016.
In contest was the adequacy of the pool’s warning signs and whether a “no diving” sign and depth markers would have prevented the tragedy.

The motel’s insurer resisted the payment of any compensation whatsoever claiming there was “insufficient evidence” about how exactly the injury occurred and that the parental supervision sign was a sufficient warning of the risks.
The insurer also contended that “no diving” signs would not have prevented the injury because Karla would have dived into the pool in defiance of the prohibition.

Karla was after all a confident swimmer – the insurer asserted – having spent most weekends and school holidays at Stradbroke Island where she was permitted to swim in the surf unsupervised.

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Other evidence clearly demonstrated – for a pre-teen – very high responsibility and capabilities.

She received a school award for exactly that, helped out in her mother’s second-hand store at Dunwich – operating her shop on for up to 3 to 4 hours at a time – and working as a kitchen hand on Friday and Saturday nights at the island’s Little Ship Club.

She also took responsibility for little sisters Letitia and Emily, regularly riding by train and bus with Letitia from their Milton School to Cleveland to board a water taxi to Stradbroke.

Despite Karla’s testimony denying it, Justice Peter Flanagan ruled that she had dived into pools before February 1998 and had received instructions on how to do so.

He also concluded that there was insufficient medical evidence to explain why she had no memory of the events.

Relying though on the expert opinions of orthopaedist Dr John Tuffley and safety engineer Brendan McDougall – who gave evidence of divers’ trajectories – he was able to conclude that most likely, “the plaintiff had dived into the pool and hit her head on the bottom” rather than, for example slipping on the edge of the pool and falling in.

And – so ruled the court – the motel’s failure to provide effective warnings about the dangers of diving and signs prohibiting diving, such as pictograms and depth markers meant that it was in breach of the common law duty of care that it owed to Karla.

The insurer still resisted responsibility by arguing the risk should have been “obvious” to Karla because she had been diving into the pool with Letitia for about 10 – 15 minutes.

Not so ruled Justice Flanagan.

“In the present case there was a real risk that a guest, including a child, may misjudge the depth of the pool and strike the head on the base when diving,” he reasoned. “I accept the plaintiff’s submission that the risk was not sufficiently obvious [particularly to a 12-yr-old] to alleviate the need to prohibit diving and install depth markers.”

Even so, Karla should have taken great care for own safety and on that basis, he apportioned responsibility 85% to the motel and its insurer and 15% to the now 31-yr-old.

The recent judgement only dealt with issues of liability. A separate contest is required to determine the extent of damages if they are not agreed between the parties.

Lennon v Gympie Motel [2016] QSC 315 Flanagan J, 22 December 2016

Categories: Personal Injury , Litigation & Law Practice , Holiday & Travel Law

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