CLA: “Obvious Risk” and “Dangerous Recreational Activity”

Vreman and Morris v Albury City Council [2011] NSWSC 39

Harrison J applied ss. 5F, 5K, 5L of the NSW Civil Liability Act 2002 in respect of an “obvious risk” and “dangerous recreational activity”. The equivalent QLD provisions are ss. 13, 17, 18 and 19 of the Civil Liability Act 2003.

Severe injuries were sustained by the plaintiffs when falling from their bikes in a purpose built skate park. The plaintiffs alleged that the council’s application of a graffiti resistant paint made the surface slippery.

The plaintiffs failed in their claims as Harrison J found they were engaged in a dangerous recreational activity (i.e. a recreational activity that involves a significant risk of physical harm) and that the harm that they suffered was the materialisation of an obvious risk of that activity.

69 The Council must establish that Mr Vreman and Mr Morris were engaged in a dangerous recreational activity and that the harm that they suffered was the materialisation of an obvious risk of that activity: see Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] per Mason P :

“[31] The principles as to how an activity is to be characterised to determine if it is a “dangerous recreational activity” (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92])…”

72 In Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Torts Reports 81-831 Ipp JA discussed the expression “dangerous recreational activity” at [28] – [31] as follows:

“[28] In my view, the definition of “dangerous recreational activity” in s 5K has to be read as a whole. This requires due weight to be given to the word “dangerous”. It also requires “significant” to be construed as bearing not only on “risk” but on the phrase “physical harm” as well. The expression “significant risk of physical harm” is coloured by the word “dangerous” and the phrase “significant risk” cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.

[29] The view that a risk is “significant” when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490.

[30] Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.

[31] In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the “risk of physical harm” may be “significant” if the risk is low but the potential harm is catastrophic. The “risk of physical harm” may also be “significant” if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the “risk of physical harm” may not be “significant” if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is “dangerous”.

[32] Oztag, like touch rugby, is not what is normally understood as a contact sport. Oztag, in fact, is designed to reduce the extent of physical contact that might be experienced in ordinary touch rugby.

[33] A “dangerous recreational activity” cannot mean an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hard ball. In my opinion, the trial judge erred in finding that Oztag was “a dangerous recreational activity”.”

 

80 Two years later, in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952, the Court of Appeal dealt with an appeal by the plaintiff who had been seriously injured in a diving accident. The facts were not significantly different from those in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 to which reference is made in the judgment. As in the present case, the critical issues that arose under the statutory provisions were first, whether the appellant’s activities involved an “obvious risk” being a risk of harm that, in the circumstances, would have been obvious to a reasonable person in the plaintiff’s position and secondly, whether the plaintiff’s activity was a “dangerous recreational activity” as defined in s 5K, being one that involved a significant risk of physical harm.

 

81 At [52] – [55] Tobias JA said this:

“[52] The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, ‘significance’ is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived.

[53] In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic.

[54] The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real.

[55] In my view the primary judge was correct to characterise the appellant’s activity as a ” dangerous recreational activity ” within the meaning of s 5K of the CL Act. As his injuries were a result of the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by him, it follows that by virtue of the provisions of s 5L(1) of the CL Act , the Council is not liable in negligence for the appellant’s injuries. On this further ground, the appeal fails.”

90 In Greater Taree City Council v Peck [2002] NSWCA 331 at [65], Einstein J described skateboarding at a skateboard park as ” plainly an inherently dangerous sport”. In Shellharbour City Council v Rigby [2006] NSWCA 308 at [300]; [2006] NSWCA 308; (2006) Aust Torts Reports 81-864, Basten JA commented as follows with respect to an accident to a rider that occurred at a BMX bike riding track:

“[300] This was a constructed facility, not part of a natural environment. The fact that a recreational facility involved risks was a matter to be taken into account in making it available to the public without supervision: see [63] above, quoting Woods v Multi-Sport Holdings Pty Ltd at [37] (Gleeson CJ), referring to Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 at 387. The ability to become airborne was undoubtedly part of the intended excitement of the feature, and the risk of an inexperienced airborne rider losing control of his or her bicycle was no doubt likely to be appreciated at some level by all riders, both experienced and inexperienced. However, the real concern related to inexperienced young riders who might lack the maturity and understanding to appreciate adequately the risks involved.”

91 The Council in this case contended that the classification of the activities undertaken by Mr Vreman and Mr Morris as dangerous would be consistent with what was said in those cases in similar circumstances.
92 One of the submissions made on behalf of Mr Vreman and Mr Morris was that in statistical terms it could not be said that BMX bike riding at purpose built facilities was dangerous. It was suggested that material to be found at page 82 of the Skate Facility Guide under the heading “How dangerous is skating” showed that injury from BMX bikes accounted for 158 of the 136,000 presentations for accident related injuries to Victorian Hospitals over a three year period, and that this was statistically insignificant and consistent with little danger. That was promoted as at least prima facie support for the proposition that BMX bike riding is not a dangerous recreational activity, especially if it is carried out in a purpose built facility. The Council’s response was that activities might be statistically “safe” but fundamentally dangerous. Although not cited as an example, one instance of this idea would seem to be recreational parachute jumping, which is not notoriously associated with unduly high rates of injury or death, but which could in my view only be described as a dangerous activity. Motorcar and motorbike racing would seem to fall into a similar category.

 

93 In my opinion it would be an exercise in sophistry to conclude that the activities in which Mr Vreman and Mr Morris were each separately engaged were not dangerous recreational activities, even if the incidence of injuries was not particularly high or the degree of seriousness of injuries that were caused were not always or often catastrophic.

Materialisation of an obvious risk

94 In Jaber at [27], Tobias JA said this:

“[27] It was common ground that the question of obvious risk involves the determination of whether the appellant’s conduct involved a risk of harm which would have been obvious to a reasonable person in his position: Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 at [93].”

95 The risk in this case was one that included at least the following segments or elements: (i) falling from a BMX bike, (ii) while riding at the West Albury skate park, (iii) when a wheel that might not slip on an unpainted concrete surface might slip on a painted concrete surface (iv) in the course of landing from a jump or when descending during a roll-in, (v) leading to or causing injury. As appears earlier, Mr Vreman accepted that any sloping surface was a riskier place to ride a BMX bike than a flat surface, that a smooth surface was a more risky place to ride a bike than a rough surface with better grip, and that wet surfaces were generally and usually more slippery than dry surfaces. He had noticed that after parts of the West Albury skate park had been painted that the painted areas appeared to him to be more slippery than the other unpainted areas and he knew that it was riskier to be riding a BMX bike on the painted areas than the bare concrete. As also appears earlier, Mr Morris accepted that as a matter of common sense, riding a bike on a steep surface was riskier than riding it on a flat surface, riding a bike on a smooth surface was riskier than riding a bike on a rough surface and riding a bike on a wet surface was riskier than riding a bike on a dry surface. He agreed they were “all things that everybody knows as a matter of common sense”.
96 Were these risks that were patent or a matter of common knowledge? Were they risks that would have been obvious to Mr Vreman and Mr Morris and risks that should have been obvious to anyone in their position of similar age and experience? Would the whole or any part of the segmented risk have been obvious to a reasonable person in the position of Mr Vreman or Mr Morris?

 

97 In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 , Ipp JA said this:

“[149] In Fallas v Mourlas [2006] NSWCA 32; (2006) Aust Torts Reports 81-835 Tobias JA said at 68,362, [98]:

‘It is clear from the definition of ‘obvious risk’ in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged as a ‘dangerous recreational activity’ as defined, all of the surrounding circumstances which occurred immediately prior to the respondent’s suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was ‘obvious’.’

[150] In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2004) Aust Torts Reports 81-754 Tobias JA at 65,892, [161] defined the word “obvious” as meaning that:

‘Both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment.’

At 65,892, [162] Tobias JA noted that in this definition the word “condition” referred to the factual scenario facing the plaintiff.

[151] The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Section 5F requires the question whether that risk was obvious to be answered by reference to a reasonable person in the position of Mr Dederer. In accordance with Fallas v Mourlas , regard must be had to the particular circumstances in which the harm was suffered.

[152] Whether the risk was obvious to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable 14 and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time: Fallas v Mourlas .”

98 His Honour concluded at [172]:

“[172] … Mr Dederer dived from a height of some nine metres into the estuary, and entered the water about 10 metres from a visible sandbar. In my opinion, even without the sign, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries.”

99 Some authorities indicate that the risk should be characterised quite specifically. In C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173] – [175], Bryson JA was at pains to emphasise the importance of obviousness in the statutory equation as follows:

“[173] Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of “obvious risk” to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished.

[174] However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly.

[175] When the risk is stated at this degree it is in my opinion quite unsustainable that it should be found as a fact that there was an obvious risk to which the provisions of Div.4 applied; obviously so.”

100 The Council argued that if the risk being considered is characterised too specifically then the section would have little practical utility, except in failure to warn cases. It submitted, therefore, that a more general characterisation of the risk was consistent with the express purpose of the Act, being “to limit the recovery of damages in relation to negligence and it must be given effect in accordance with that purpose”: per Basten JA in Fallas v Mourlas at [121].
101 In subjective terms the distinction is not significant in the case of Mr Vreman to whom the most specific level of risk was apparent. However, in objective terms, I can discern no material difference between Mr Vreman, taking into account such matters as his age, his observations, his experience and his knowledge of the prevailing local conditions, and a hypothetical reasonable person with similar characteristics in the same position. Putting the matter the other way, there was no special fact or characteristic peculiar or unique to Mr Vreman which armed him with an appreciation of the risk, or which made it obvious to him, which no other reasonable person in his position could be expected to possess. The position is similar in the case of Mr Morris.

 

102 In each case these obvious risks materialised. Each man suffered harm when he fell from his bike. I consider that a reasonable person in the position of each man would have known, as Mr Vreman and Mr Morris knew, that the slippery surface of the skate park increased a risk that he or she might fall and be injured. That was something that Mr Vreman gleaned from riding on the painted surface many times before. Mr Morris knew that Mr Vreman had allegedly fallen because his bike had slipped on the painted surface. This is not a case like Maloney v Hutton-Potts where the person suffering harm was confronted with a risk that could not have been anticipated or detected as a normal (or obvious) risk associated with a freshly polished floor. The fact that the floor had been polished was obvious but the unremoved residue of polish was not obvious to a reasonable person in that plaintiff’s position. The reasonable person in the position of Mr Vreman must be taken to have ridden on the painted surface of the skate park many times and to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. Similarly, the reasonable person in the position of Mr Morris must be taken to have had knowledge that Mr Vreman had been injured because his bike wheel reputedly slipped on the painted surface and also to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. The risks would have been obvious to a reasonable person in the position of each man.

Conclusion

103 In these circumstances I find that the Council is not liable to Mr Vreman or Mr Morris in negligence for harm suffered by them because the harm was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity in which they were each separately engaged.

 

Brisbane Barrister – David Cormack

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