Before a five-year-old boy fell four metres off an old timber jetty onto hard sand, causing serious injury, he and his grandparents walked past a sign urging people to "please be careful".
That warning wasn't good enough, a NSW court has ruled after hearing how the young child was the third to fall off the Coffs Harbour Jetty in 14 years.
Coffs Harbour City Council now faces paying Ted Polglase's family more than $750,000 in damages after the Court of Appeal upheld a decision that the local government breached its duty of care.
Ted suffered serious injuries, including to his brain, after falling through a railing and hitting the sand below in September 2011.
The court had heard the boy's grandparents were walking within two metres of the boy and walked with him towards the railing.
His grandfather said something like "let's keep walking" and took a few steps towards the centre of the jetty before the boy slipped through a gap of about 45 centimetres.
A sign at the start of the 360-metre timber structure had stated: "USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL".
The council said that general warning covered the specific risk of children falling.
But the Court of Appeal said the sign needed to be looked at as a whole, including a silhouetted figure diving headfirst into water.
"Read as a whole, the sign was directed to the risk of diving from the jetty into water whose depth varied with the tide," Justice Mark Leeming said, in reasons published on Friday.
"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 council already knew of three previous incidents involving children and the railing, the court was told.
The day after the disused jetty reopened as a tourist attraction in 1997, a girl fell 4.6 metres onto her back but apparently escaped serious injury.
Two years later, a man told the council how he'd grabbed a hold of a small child who'd suddenly run at the railing and "almost" fallen through.
A toddler was airlifted to Sydney in 2007 after cracking their skull when slipping through the railing and hitting the ground three metres below.
An updated version of the sign now has general warnings about supervising children and the risk of falling off the edge.
