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Question4:(20marks)

ParadiseRipplesis anew swimming pool complex in Parramatta Park, owned and operated by Wessex Ltd.Within the complex there is an area titled 'Toddler Town', described as beinga safe shallow paddle pool for 2-4 year olds, another area titled 'Small Fries' for children aged 5-9, a General Area for capable swimmers, and a grassed area with a caf offering a take-away service.

On the opening day,Max, a two-year-old toddler playing within Toddler Town,crawls under the fence into the General Area and falls into the pool. Max immediately starts sinking and his father, Benjamin,dives in to save him. Max survives but needs to be treated at the local hospital for a brain injury caused by the temporary lack of oxygen flow. Benjamin is also diagnosed as suffering psychological shock as a result of seeing Max come so close to drowning.

AdviseBenjamin of any claim he may bring for himself and his sonunder the tort of negligence.

As per CLA s5B(1)(A) the Civil Liability Act states 'A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and in the circumstances, a reasonable person in the person's position would have taken those precautions.' Max, A two-year-old toddler crawls under a fence into the general area and falls into the pool. Max starts sinking and his father, Benjamin dives in to save him. Max survives but has a brain injury caused by lack of oxygen flow and Benjamin, the father, is now suffering from psychological shock after nearly seeing max nearly drown. Negligence is the failure to exercise reasonable care and skill. In order for Benjamin to make a claim against 'Paradise Ripples' due to breach of the tort of negligence, all elements of negligence must be met. These include Duty of Care, Breach of duty and Damages.

A 'Duty of Care' is 'the duty of a person to take reasonable care to avoid causing harm to another person' (Uni Guide, 2020). To go in-depth, duty of care explores whether or not it was foreseeable that the defendant's actions ......

There is a recognised relationship between Benjamin and Paradise Ripples as paradise Ripples opened its swimming pools for public use. In a Previous cases in court 'RTA of NSW VS DEDERER' a 14 year old boy was injured from diving off a bridge. He because paraplegic and claimed negligence against the RTA of NSW for them failing to put higher fencing and failing to put explicit signs to not jump off the bridge.

Stage 2 is establishing a breach of duty. In order to establish a breach of duty the plaintiff must establish that the defendant actions to prevent a breach of duty was unreasonable and foreseeable. Within Section 5B of the Civil Liability Act 2002, it states that in order for the plaintiff, Benjamin, to establish a breach of duty, three main fundamentals must be verified. These are that the risk was foreseeable, the risk was not insignificant and in the circumstances, any reasonable person in the same position would take have taken more provision in reducing the risk of a person being harmed. In the current scenario, Benjamin vs Paradise Ripples, the risk of harm was foreseeable as the gate had a big enough gap between the it and the ground where Max the two year old was able to crawl right through. Risk was also foreseeable as 'Paradise Ripples' only didn't take enough safety precautions to ensure that the area was safe for use. This is seen through a small gate that was able to be crawled through and just a sign that only states that it is safe for children aged 5-9. Risk/ significance of harm of it happening again is very significant. The probability of this happening again with other child is high and the seriousness of the harm is very high as it could lead to a serious injury or death. Precautions taken by Paradise Ripples only show that they have a fence that has a gap that kids who aren't great swimmers can crawl through and a sign which Max, who is 2 and is not able to read. This shows that there was not enough precautions taken by Paradise Ripples to reduce the risk of harm happening again. Within similar cases, such as 'RTA of NSW VS DDERRER' the RTA of NSW failed to provide 'reasonable care' by not placing enough warning signs to stop people from jumping off the bridge. This lead to the RTA of NSW to place further measures such as a bigger fence and more signs to stop people from jumping off the bridge and protect themselves from being sued any further for lack of duty of care. From this scenario, Benjamin vs Paradise Ripples, there was a breach of duty and all three elements that suggest a breach of duty has been breached.

Stage 3 required for lack of negligence is damages. Damages is where the plaintiff, Max and Benjamin, prove that they have been harmed by the defendant (Paradise Ripples) lack of care. Benjamin and Max have been seriously harmed by the Paradise Ripple's breach of duty. This caused Benjamin to suffer from physiological shock and Max to be treated at the local hospital for a brain injury caused by the temporary lack of oxygen flow. The court will satisfied once proved the factual causation and the scope of liability. For factual causation it raises the question whether if the defendant (paradise Ripples) breach of duty caused the plaintiff (Max and Benjamin) harm. In this scenario it is true as if Paradise Ripples took more precautions to ensure that there was no breach of duty, the plaintiff (Benjamin and Max) wouldn't be harm. This also stratifies the scope of liability as if Paradise Ripples added more precautions to the swimming pools then Max and Benjamin would have been fine. In court the court may use a similar case such as 'Bryan V Maloney (1995) to explore further in damages.

In conclusion there was a duty of care held between Benjamin and Wessex Ltd at Paradise Ripples. Wessex Ltd failed to uphold the duty of care leading to Max and Benjamin being serious harmed in the matter. Wessex Ltd failed to apply enough precautions to stop Max and Benjamin from being harmed. All elements of Negligence against Wessex Ltd has been satisfied as Wessex Ltd risk was not foreseeable and this could have happened to any reasonable person in this scenario. There are no defences against of duty of care, breach of duty or damages that Wessex Ltd can deploy as they are at fault for failing to reduce harm caused to people under their duty of care. Benjamin and Max will be successful if suing Wessex Ltd for their breach of duty.