The decision handed down by the Supreme Court of Queensland on 16 July 2009 in Etemovic v Gold Coast City Council [2009] QSC 185 deals with the obligations of surf lifesavers in conducting rescue operations.
Background
On 1 January 2005, the plaintiff, Ms Etemovic, was struck by a jet ski that had been under the control of a lifeguard (under the employ of the defendant council) at Currumbin Alley.
Although the plaintiff argued that she was swimming in a "flagged" area when she was struck in the lower back by the jet ski and knocked under the water, the Court accepted the defendant's case that Currumbin Alley was, and never has been, a "flagged area". The Court accepted that on the day of the incident the Currumbin Alley was signed "Danger No Swimming".
The defendant argued that although Currumbin Alley was not a patrolled swimming beach, lifeguards were rostered to patrol the beach because so many people swam there, despite the danger signs. On the day of the incident the lifeguard entered the water on a jet ski to pick up two boys on boogie boards who had been swept into the channel. The boys were put onto the sled at the back of the jet ski. The lifeguard then returned to the shore and turned the jet ski around so that the boys could get off the back of the sled. The jet ski was idling in the water when a wave hit it pushing it towards a group of people and hitting Ms Etemovic. The Court accepted this version of events.
Judgment
The Court found that although Ms Etemovic originally argued that the lifeguard was operating the jet ski in a flagged area (which was not factually accurate), the allegations in her Statement of Claim were broad enough to include an argument that the lifeguard owed her a duty of care as the operator of the jet ski.
Justice Mullins found that the "scope of the duty owed by the defendant to the plaintiff was affected by the fact that Currumbin Alley at the time of the incident was signed as 'Danger No Swimming'". It is not unlikely in such circumstances, that a jet ski may be used to patrol such waters.
As the jet ski was stationary prior to the incident, there was no negligence whatsoever on the part of the lifeguard. As such Ms Etemovic's claim could not succeed.
Implications
Although in this case the lifeguard was not found to have been negligent, the duty of care owed turned on the issue of whether there was a "Danger No Swimming" sign on the beach. Had this incident occurred between the red and yellow flags, a different outcome may have resulted.
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