$5 million quadriplegic diving claim dismissed – obvious risk & no need for council action

Felhaber v Rockhampton City Council [2011] QSC 023

McMeekin J

The plaintiff on 17 September 2002 when aged 17 years was rendered a quadriplegic when he fell from a rope swing from the bough of a tree into the Fitzroy River. The quantum of damages was agreed at $5 million, however, liability against the council was in issue, and in particular whether:

(a) remove the bough of the tree from which the rope was slung;

(b) remove the rope swing;

(c) erect a sign warning the public that the depth of the river may change and that diving was prohibited.

Ultimately, McMeekin J found against the plaintiff on several fronts after having considered at length the seminal decisions on the content of the duty, obvious risk, competing interest of the council and voluntary assumption of risk:

  • Edson v Roads and Traffic Authority (2006) 65 NSWLR 453;
  • Ghantous v Hawkesbury City Council (2001) 206 CLR 512;
  • Great Lakes Shire Council v Dederer [2006] NSWCA 101;
  • Imbree v McNeilly and Another (2008) 236 CLR 510;
  • Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; (2005) 80 ALJR 43; [2005] HCA 63;
  • Nagle v Rottnest Island Authority (1993) 177 CLR 423;
  • Podrebersek v Australian Iron & Steel (1985) 59 ALR 529;
  • Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42;
  • Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; 151 ALR 263;
  • Swain v Waverley Municipal Council (2005) 213 ALR 249; 213 ALR 249; 79 ALJR 565; [2005] HCA 4;
  • Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [37];
  • Vairy v Wyong Shire Council [2005] HCA 62;
  • Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145;
  • Wyong Shire Council v Shirt (1980) 147 CLR 40.

His Honour found the council was not required to remove the bough or the trees, rope swing or erect a warning sign.

Furthermore, his Honour found if he was not correct, that contributory negligence would have been 50% each party.

Brisbane Barrister – David Cormack

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