State of Queensland v Kelly [2014] QCA 27

Further to my earlier post, the Court of Appeal dismissed the appeal by the defendant in relation to finding of obvious risk within the meaning of s 13 of the Civil Liability Act 2003 (Qld).

Fraser JA delivered the leading judgment with Philippides and Henry JJ concurring:

[33] It was not in issue that the decisions to which the trial judge referred accurately described the nature of the enquiry involved in deciding whether a risk was an “obvious risk” for the purpose of the relevant division of the Act. The principles have since been restated in similar language in Laoulach v Ibrahim.[21] The respondent referred also to the summary by Beazley JA (McColl and Basten JJA agreeing) in Council of the City of Greater Taree v Wells:[22]

“Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that ‘the position of the plaintiff’ comprehended the particular circumstances in which the risk materialised and the harm was suffered.

The question of obvious risk requires a determination of whether the appellant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; [2007] NSWCA 4; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff’s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at [106][108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which ‘the aspects of ‘the position’ of the plaintiff are to be ascribed to the reasonable person.”

[34] Similarly, in Glad Retail Cleaning Pty Ltd v Alvarenga[23] Sackville AJA (with whose reasons Barrett and Gleeson JJA agreed) quoted that passage, observed that what was determinative was not the plaintiff’s state of mind but what a reasonable person in the plaintiff’s position would regard as obvious, and held that the plaintiff’s evidence was relevant to the assessment of what a reasonable person would know about the risk.

[40] But the question relating to the signs is not whether they warned of the relevant risk in a way which fulfilled any duty of care owed by the appellant to the respondent. Rather, the question is whether, taking into account the effect of the signs in the context of other relevant circumstances, the risk which materialised was an “obvious risk” within the meaning of s 13 of the Act. In this case, the question may be restated as being whether, in terms of s 13(1), the risk of serious injury from an accident caused by running down the sand dune into the lake “is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of” the respondent. On the face of it, the presence of a sign warning against that precise activity forms one of the circumstances relevant to the question whether the risk would have been obvious to a reasonable person. Warning signs were taken into account in this way in Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of New South Wales v Dederer & Anor[28] by Ipp JA, with whose reasons Handley JA (in this respect) and Tobias JA agreed. (This aspect of the decision was not in issue in the appeal to the High Court.) The trial judge was right to take the signs into account.

[41] The signs should have been regarded as important since, as each sign notified, they had been placed by the State. The significant question then is whether, in all of the circumstances, the signs effectively communicated the risk which materialised so as to make that risk obvious to a reasonable person in the respondent’s position.

[42] The trial judge speculated that the effectiveness of the signs in communicating the message otherwise conveyed by their text was put into doubt merely by the fact that large numbers of people did not comply with the signs. One circumstance which detracts from that proposition is that, as the trial judge accepted, the signs did effectively convey a message that death or serious injury was likely to result from diving into the lake, yet people continued to dive into the lake. A more compelling explanation for the extensive non-compliance with the signs is that numerous visitors simply ignored the signs, it being “human nature to enjoy running down a dune and jump into cooling water on a hot day”.[29] The trial judge also saw possible reasons for the ineffectiveness of the signs to prevent people from running down the dunes as possibly being attributable to their location. As to the sign at the commencement of the track, the trial judge observed in that respect that it was “2.5 km back along an arduous track”. Since that sign was at the commencement of a track close to where the respondent presumably alighted from the vehicle, there would appear to have been no particular difficulty in a reasonable person in the respondent’s position reading and comprehending it. If its message had been half-forgotten in the time it took the respondent to walk the 2.5 km track, the message should have been reinforced by the identical sign at the end of the track as the lake came into view. The trial judge’s observation that this sign “competes for attention with the attraction of the lake” may explain why its message was regularly ignored, but it does not justify a conclusion that the combination of both signs was insufficient to bring their message home to a reasonable person.

[43] However, those matters were not central to the trial judge’s conclusion that the risk which materialised was not an “obvious risk”. Rather, the trial judge’s conclusion turned upon the nature of the risky behaviour conveyed by the signs. I agree with the trial judge that, when all of the circumstances are taken into account, the signs conveyed that serious injury or death might result from “running and diving” rather than from “running or diving”. To put that another way, in all of the circumstances the signs did not effectively communicate that running down the dune into the lake involved the risk of serious injury which materialised.

[44] The signs warned of two categories of risks and gave a different explanation for each category of risks. The second warning was that “running … down the sand towards the lake is dangerous” because the sand dune was “steep”. That warning described the activities as “dangerous” but, in contradistinction to the first warning, it did not warn that the activity involved a risk of injury which was very serious. The first warning, against running, jumping or diving into the lake (but not against running down the sand dune), did bring home that a very serious injury might result (“serious injury or death is likely to occur”), but the impression conveyed by the sign is that the explanation for this risk is that the lake is often shallower than it appears. That impression is reinforced by the pictograms. The pictograms apparently relate only to the first warning. The upper pictogram appears to show a man diving, probably into water (the darker area,) and striking his head against a jagged surface apparently under the water (although that is not entirely clear). The lower pictogram appears to show a man diving into water; the indication of waves perhaps suggests that its depth might be difficult to judge. The impression may be reinforced by a reasonable person’s perception of the obvious danger of diving head first into water the depth of which is not readily ascertainable.

[45] The message in the signs that running into the lake would likely cause serious injury or death because the lake was often shallower than it looked was likely to be lost in the mind of a reasonable person by the discovery that the depth of the lake was in truth readily ascertainable. At least that is so in the conditions at the lake on the day when the respondent was injured. It was not suggested that there were any waves or turbulence in the lake, such as were conveyed by the lower pictogram, or that there was any other factor which made it difficult to judge the depth of the water. On the trial judge’s unchallenged findings a reasonable person in the appellant’s position quickly would have appreciated that the lake was shallow very close to the waters’ edge and the bottom of the lake then dropped away rapidly. There was no apparent danger in running and jumping into the water in the way in which the respondent had done on about 10 occasions without incident. This might have been reinforced in the mind of a reasonable person by the circumstance that the video shown to the respondent included warnings about other dangers and activities on the Island but did not include any warning about running down the sand dunes into Lake Wabby.

[46] It is also necessary to take into account the evidence that the magnitude of the risk involved in the respondent’s activity was unusually high. As the trial judge recorded in a footnote, the summary of the incidents in exhibit 11 included two incidents which specifically involve running down the sand dune, the first of which (6/6/1992) resulted in an injury involving pain in “C2 & C4 in Neck (patient evacuated by chopper)” and the second of which (12/4/1993) involved running and a trip resulting in bruising to the lower back, kidney and ribs.[30] Another incident described as “running down sand dunes at Lake Wabby” (18/04/2009) was said to have resulted in “unconscious and nearly drowned”. There was no challenge to the trial judge’s finding that the record, on its face, revealed 13 injuries involving the back, neck or spine. Further, whilst most of the serious injuries were said to have occurred when the person injured was diving or attempting to dive, the trial judge found that it was a “moot point” whether the real risk of injury was from diving, given that it was very evident where the shallows of the lake were located and that the water deepened from the shallow area immediately adjacent to the waters edge; the trial judge considered that the plaintiff’s facts might answer the question why visitors were entering the water head first close to the edge.[31] Also of significance was the 1993 advice by the appellant’s manager that Lake Wabby was “clearly one of the most dangerous areas on park estate in Queensland by virtue of the number and seriousness of accidents there”.

[47] The signs did not clearly communicate that the risk was so high. As Tobias JA observed in Jaber v Rockdale City Council in the passage quoted in [29] of these reasons, “the extent to which the probability of its [a risk’s] occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff” is relevant in determining whether or not the risk is “obvious”.

[48] It is not difficult to accept that a reasonable person in the respondent’s position would readily have concluded that running down the sand dunes towards the lake was dangerous in the sense that it involved the risk of some injury, such as a sprain or bruising as a result of a fall consequent upon looseness of the sand. The second warning on the signs should have reinforced such a danger in the mind of a reasonable person. But although the first warning on the signs stated that serious injury or death was “likely to occur” from running into the lake (or jumping or diving into the lake), the cumulative effect of the circumstances to which I have referred militate against a conclusion that this risk was so clear that it would have been “obvious” to a reasonable person in the respondent’s position: the message in the pictograms that the real danger was diving into water of uncertain depth; the fact that the explanation for the risk that the lake was often shallower than it looked was falsified by the ease of ascertaining the true depth of the water; the presence of numerous persons repeatedly running down the sand dune into the lake in apparent safety; the respondent’s own experience in running into the lake without mishap on nine or ten occasions; the absence of any warning of that activity in the video which warned of different dangers on the Island; and the unusually high degree of the risk of very serious injury involved in running down the sand dunes into the lake. These circumstances justified the trial judge in finding that the risk of serious injury which was inherent in the respondent’s activity was not an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003.

[49] It should not be assumed that the trial judge omitted to take into account the respondent’s own evidence that if he had read the sign he would not have engaged in the activity which led to his injury. The respondent said in cross-examination that if he had read the sign he would have done what the sign said and “I didn’t dive into the lake anyway”.[32] His evidence went beyond that. He was shown photographs of the signs and agreed that if he had seen the sign he would not have run or rolled in the sand towards the lake and he would not have run, jumped or dived into the lake;[33] he would have “known not to really do any of the things you were doing with your friends on this particular day … [p]articularly not the running and jumping into the water …”.[34] These answers were relevant to the allegation that the respondent was negligent in not heeding the signs, but they are not inconsistent with a conclusion that the risk of serious injury which eventuated was not obvious to the respondent or, more relevantly, would not have been obvious to a reasonable person in his position.

[50] The trial judge accepted that the respondent could be criticised for his “failure to study the signs closely”, that it “was incumbent on him to read the signs”, and that the signs alerted him to a danger and expressly warned against running down dunes. The trial judge reconciled those conclusions with the earlier finding that the risk was not obvious in the observation that the signs “did not bring home the real risk in running down the dune – a reasonable reading of them could lead a visitor to think it was the act of running and diving that represented the risk of injury not running and jumping.” That did not involve any error. As I have indicated the fact that, having regard to the warning that running down the sand dune was dangerous, the respondent unreasonably failed to take precautions against the risk which materialised does not necessarily require the conclusion that the risk of serious injury in that activity would have been obvious to a reasonable person. The finding of contributory negligence is not in conflict with the finding that the risk which materialised was not an “obvious risk” within the meaning of s 13.

[53] The knowledge which the respondent gained in his nine or 10 previous runs down the dune was relevant in the assessment of the degree to which the respondent departed from the standard of care of a reasonable person in failing to appreciate and heed the signs warning that running down the dune was dangerous. Whilst the sign did warn against running down the dunes it did not clearly convey that the respondent’s activity carried a risk of serious injury of the kind involved in diving into waters of unknown depth. I am not persuaded that the trial judge made any error of fact or failed to take into account any relevant fact in making the apportionment. That being so, the appellant encounters the difficulty that, as Gibbs CJ, Mason, Wilson, Brennan and Deane JJ pointed out in Podrebersek v Australian Iron & Steel Pty Ltd:[35]

“[a] finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds” … Such a finding, if made by a judge, is not lightly reviewed.”

[54] The apportionment might be thought to be generous to the respondent. A larger award of contributory negligence would have been open, but I am not persuaded that the trial judge’s apportionment was unreasonable or unjust such as to indicate error of a kind which would justify this Court in substituting a different apportionment.

Brisbane Barrister – David Cormack


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