What protection do warning signs give
against personal injury claims?
Case Study #2 a jetty
Walking along a wooden jetty extending over the water is
a pleasant recreational activity. A warning sign displayed
at the entry point is reassuring because it warns of risks
But not all warning signs are effective as risk warnings.
The sign examined by the NSW Court of Appeal in Coffs
Harbour City Council v Polglase  NSWCA 265 (23
October 2020) failed the test of effectiveness.
In this article we examine the duty of care owed by the
Coffs Harbour Council to users of the Coffs Harbour Jetty
and why the warning sign was not effective as a risk warning
to protect the Council from a breach of its duty of care.
What was the duty of care
owed by the Council?
The Coffs Harbour Jetty extends from the shore over a
sandy beach then to the harbour. It is a wide wooden jetty
with railings on each side. There are two rails – a middle
rail 39.5 cm above the base and a top rail 48.0 cm above
that, with gaps in between the rails.
The jetty is a heritage item, having been used for cargo
handling from 1892 until 1984, when it was closed to the
public. It was restored for use as a public walkway and was
opened to the public in 1997 as a tourist attraction. It was
handed over to the Council in 2002.
On 30 September 2011, the plaintiff, a little boy then
aged five, fell through the rail and landed onto hard sand
some 4 metres below. He suffered serious injury, including
to his brain. He had been walking with his grandparents, who
were close by. They had stopped at the rail to look out at
the people swimming. As they resumed their walk, they took
their eyes off the boy, and that is when he fell through the
The Council owed a duty of care because the jetty was
under its care, control and management.
The NSW Court of Appeal (Leeming JA, Basten JA and
Macfarlan JA agreeing), identified the duty of care in this
case as: to take precautions against the risk of a child
falling through the rails onto the hard sand below and
But was the Council in breach of its duty of care, and
Section 5B of the Civil Liability Act 2002 (NSW)
sets out three requirements for negligence:
(1) A person is not negligent in failing to take
precautions against a risk of harm unless—
- the risk was foreseeable (that is, it is a risk of
which the person knew or ought to have known), and
- the risk was not insignificant, and
- in the circumstances, a reasonable person in the
person’s position would have taken those precautions.
The risk of harm was foreseeable and was not
insignificant - the Council knew that children had
fallen, or nearly fallen on three occasions previously. On
one occasion there were serious consequences.
The Court said that a reasonable person in the
position of the Council would have made the railing safe by
installing additional stands of wire or infill to narrow the
gaps in the railing, to prevent children from falling
Therefore the Court found that the Council was negligent
because all three requirements were satisfied.
In so saying, the Court rejected the Council’s submission
that the railing was sufficient because it complied with
Australian standards at the time the wharf was restored and
reopened in 1997:
“The Council’s submission does not attend to the
proposition that what is a reasonable response varies over
time, depending on the known history of the site.”
That is, safety measures need to be reviewed and upgraded
Was the warning sign an
effective risk warning?
The Council relied upon a sign at the entrance to the
jetty. This was the sign:
The “GENERAL WARNINGS” words, and the yellow diamonds (and
words below) refer to the dangers of diving into shallow
water. At the bottom are the words:
“USE OF THIS FACILITY MAY BE HARZARDOUS. PLEASE BE
The Court had to decide whether the risk warning was
sufficient warning to satisfy s 5M of the Civil Liability
Act 2002 (NSW) of the general nature of the particular
risk that a child might fall:
“5M No duty of care for recreational activity where risk
(1) A person (the defendant) does not owe a duty of
care to another person who engages in a recreational
activity (the plaintiff) to take care in respect of a
risk of the activity if the risk was the subject of a
risk warning to the plaintiff.
(5) A risk warning need not be specific to the
particular risk and can be a general warning of risks
that include the particular risk concerned (so long as
the risk warning warns of the general nature of the
The Court found that s 5M did not apply for these
“Read as a whole, the sign was directed to the risk of
diving from the jetty into water whose depth varied with the
tide. There is nothing in the warning alerting the reader to
a quite different risk, one which is potentially very
dangerous for young children, namely, falling from the wharf
more than four metres onto hard sand. The risk warning did
not warn of the general nature of the particular risk – the
risk of a young child falling through the railing onto the
hard sand below – which eventuated in this case.” [judgment,
The Court concluded that the Council could not rely upon
the sign as a risk warning under s 5M to avoid a duty of
care. As a result, the order against the Council to pay more
than $750,000 in damages for the child’s injury stood.