waverley council decision reversed

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    Swain loses $3.75m damages payout

    A man rendered a quadriplegic after diving into a sand bank at Sydney's famous Bondi Beach will not see a cent of his $3.75 million payout after a council won its appeal.

    Guy Edward Swain, 29, has been confined to a wheelchair since he broke his neck while swimming between the flags at the eastern Sydney beach in November 1997.

    A four-person jury last year found Waverley Council had breached its duty of care and ordered it to pay Mr Swain $3.75 million.

    It found the council was negligent because flags had been erected in an area where there was a sand bank and no warning signs had been used to alert swimmers to the bar.

    That decision was reversed in the NSW Supreme Court of Appeal after the council appealed the finding.

    The three-member panel was split on the judgment with Chief Justice Jim Spigelman finding in favour of Mr Swain.

    However, the views of Justices Kenneth Handley and David Ipp delivered the council a victory.

    "In our opinion there was no evidence that could sustain a finding of negligence on the part of the council in the placement of the flags," they wrote in their judgment.

    They also said the risks of channels and sand bars on the ocean floor "were obvious and inherent".

    In a second blow, Mr Swain was ordered to pay the costs of the original trial, which could run to nearly half a million dollars.

    The turnaround comes two weeks after Irish backpacker Garry Mulligan, 32, who became a quadriplegic after diving into a shallow creek on the NSW north coast, lost his bid for $9 million in damages.

    Mr Mulligan had sued Coffs Harbour City Council plus four other NSW government agencies but his claim was rejected by a judge who found he was responsible for his own injuries.

    Waverley Mayor Paul Pearce welcomed Thursday's ruling, saying it showed people need to take responsibility for themselves regardless of where they swim.

    "All councils have a duty of care to provide as far as possible a safe swimming environment," Mr Pearce told reporters.

    "... but what it also indicates is that where the flags are is the safest place to swim, it is not necessarily a safe place to swim because surf swimming is an inherently dangerous activity and a level of personal responsibility has to be taken."

    Community debate over excessive personal injury compensation has raged in recent years as increasing payouts pushed up insurance premiums for local councils, community groups and voluntary organisations.

    To curb the rise, the NSW government last year passed amended personal responsibility laws which limited a person's capacity to claim damages.

    Speaking outside court, Mr Swain's lawyer Hugh Macken said the loss of compensation meant his client's independence and dignity would be severely affected.

    He also did not rule out taking the matter to the High Court.

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