Kelly v State of Queensland [2013] QSC 106

TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY — CAUSATION — CONTRIBUTORY
NEGLIGENCE – where risk reasonably foreseeable – where defendant owed duty of
care – where obviousness of risk is in issue – where mechanism of injury in
issue – whether appropriate precautions were taken

McMeekin J

[58] The definition of “obvious risk” in the CLA, so far as is relevant, is:

Meaning of obvious risk

(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable….

[59] Section 15 of the CLA provides: “A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff.”

[60] The question for determination is whether the plaintiff’s conduct involved a risk of harm which “would have been obvious to a reasonable person” in his position. All relevant circumstances are to be brought into account. The test is an objective one.

[61] There are relatively few decisions further elaborating on the meaning of “obvious” in the CLA. An obvious risk could be contrasted with one that was unusual, concealed or hidden. Thus in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [53] Ipp JA described obviousness of risk as “merely a descriptive phrase that signifies the degree to which risk of harm may be apparent.” The relevance of the obviousness of the risk is that “persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards”. [17]

[62] In Jabor v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952 at [35] Tobias JA said in relation to the New South Wales analogue of the CLA[18]:

“… the focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured, or more accurately, a reasonable person in his position. Whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. Thus in this court in Vairy (see Wyong Shire Council v Vairy [2004] NSWCA 247) at [161], with the agreement of Mason P, I adopted the following definition of “obvious”, found in the commentary to [343A] of the Restatement (Second) of Torts (1965) (Rest 2d Torts para 343A):

“‘obvious’ means that both the condition and the risk are apparent to and will be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment…”

[63] His Honour went on in Vairy (at [162]):

“In this definition ‘condition’ refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact the plaintiff was faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water in which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury.”[19]

[64] With those observations in mind I turn then to the question in this case. The determination of the question depends on the definition of the risk that the plaintiff encountered. If it be defined as the risk of serious injury from entering the water head first too close into the shore then it is obvious enough.

[65] But if the risk be defined as the risk of serious injury – as serious as that of a possible broken neck – because of the possibility of the sand giving way or tripping up at the crucial moment when running down the dune sufficiently to throw the person off balance and so converting an intended feet first jump into an unexpected and awkward head first entry into the water then I am not at all persuaded that the risk was an obvious one. Rather it seems to me to have been a trap for the unwary. And it remains so if the definition of the relevant risk be restricted to one of running down the sand dune into the water.

[66] To revert to the reasons of Tobias JA in Vairy, in this case the “condition” includes that the depth of the water was known; the steepness of the dune evident; the firmness of the sand known – or presumed to be known; the ability to reach deep water easily with a running jump demonstrated. Under such conditions the risk that running down a sand dune and jumping might result in serious injury needs to be assessed.

[67] Accepting Tobias JA’s approach, in my opinion, the risk here was not apparent to or would be recognised by a reasonable man in the position of the plaintiff exercising ordinary perception, intelligence and judgment. It would seem very plain that to a significant percentage of the visitors to the lake the risk of serious injury from such an activity was far from apparent.

[68] In reaching that conclusion I have had regard to what seem to me to be the relevant objective circumstances that ought to properly be brought into account in making the assessment. I received no submissions directed expressly to that issue. Those that occur to me include:

(a) The plaintiff was relatively young;

(b) The plaintiff had no experience with sand dunes or running down sand dunes;

(c) The plaintiff had not previously been to Lake Wabby which was probably typical of the vast majority of visitors to the area;

(d) There was no apparent danger from jumping into the water in the sense that the depth of the water was adequate for such an activity;

(e) Numerous other people were engaged in a similar activity whilst the plaintiff was at the lake and before he suffered injury, all doing so without incident;

(f) The plaintiff had carried out the activity of running down the sand dune on about 10 occasions without incident;

(g) There was no suggestion that the plaintiff had observed the sand to give way causing him to lose his footing on any previous occasion or have that affect on any other person engaged in this activity;

(h) There was no sign or other warning in the plaintiff’s immediate vicinity that running down the sand dune involved a risk of serious injury such as a broken neck;

(i) There was no reference in the video that the plaintiff had seen which included warnings about the dangers presented by the topography and activities on Fraser Island which alerted him to any problem with running down the sand dunes and jumping into a lake, or Lake Wabby in particular;

(j) There was no warning expressly of the number of serious injuries or description of the nature of those injures that had in fact occurred over the years at Lake Wabby or of those injuries being associated with running down the sand dunes in the video shown, in any signage or in brochures that had been published.

[69] I recognise that running down a steep sand dune has the potential to result in a trip or fall and that might be seen as “obvious”. What that ignores however is the experience of the plaintiff, and apparently many others, of the firmness of the sand, the consequent lack of likelihood of the occurrence of the trip or fall, and the lack of foreseeability of serious injury from the activity. When measured against likelihood and magnitude of risk of injury I do not see it as “obvious” in the relevant sense at all.

[70] Relevant to the discussion too is the fact that signs were present on the track leading to the lake. The effectiveness of those signs must be seriously doubted. They warned of a risk of serious injury in running down the sand dunes. The large numbers of people obviously not complying with the signs suggests that the message was not being communicated. I note that the Manager’s assessment in 1993,[20] the Risk Assessment in 2002,[21] the observations of the plaintiff and his friends in 2007, and the experience since the plaintiff’s injury were all consistent – people ran down the dunes despite the presence and message on the signs, signs that had been in place for many years apparently to much the same effect. Why that is so may be a matter of speculation although it strikes me that there are two problems. One is the location of the signs. The sign immediately at the entrance to the lake competes for attention with the attraction of the lake. It comes at a time when visitors are keen to get to the lake. The other is 2.5km back along an arduous track.

[71] The second possible problem is in the combination of the pictograms and the wording. It seems to me that the focus of the pictograms, if indeed one could understand them, was in diving and striking ones head on a hard surface immediately below the surface of the water. It is understandable if that focus was assumed by readers to be behind the remainder of the warning – it is the diving that one must avoid. The message, perhaps unintended perhaps not, was that running and diving are the problems, not running or diving.

[72] By reason of my finding it is not necessary to go on and consider whether the defendant can avoid liability under the “Dangerous Recreational Activities” provisions in the CLA. That too requires the materialization of an “obvious risk” as defined in section 13 and in my judgment that has not happened here. Further, as will be seen, in my view the only legitimate complaint the plaintiff can make is in respect of warnings and if I am wrong in this assessment then in my view his proceedings should be dismissed.

[73] It is necessary then to turn to general considerations of the duty owed and whether that duty has been breached.

Appeal by the defendant dismissed – State of Queensland v Kelly [2014] QCA 27

Fraser JA (Philippides and Henry JJ concurring)

Consideration

[38] The last mentioned argument should not be accepted. In Chotiputhsilpa v Waterhouse the Roads and Traffic Authority of New South Wales, the entity which was responsible for the design and construction of the ANZAC Bridge in Sydney, was found to have breached its duty to take reasonable care to protect pedestrians using the bridge from risk or harm by failing to provide adequate signs to direct the attention of pedestrians to the presence of a subway allowing access from one side of the bridge to the other. The plaintiff was hit by a car whilst attempting to cross in front of traffic on the bridge after he had not been able to find any other way across. In the passage cited by the respondent, Beazley JA pointed out that the Court was not concerned with a “warning sign as such” but with “signage that should have provided information that the evidence suggested was required as a matter of course in the design of the Bridge …”. There is no analogy with the present case, in which the relevant finding of negligence, apparently reflecting the way in which the case was put to the trial judge, was that “the defendant breached its duty of care in failing to provide adequate warning of the dangers inherent in a visit to Lake Wabby by appropriate adaptation of the video, mentioning not only diving but running down the steep dunes with express reference to the long list of catastrophic and serious injuries sustained there over the preceding years.”[27] That was unequivocally a claim based upon a duty to warn.

[39] The appellant did not argue and I would not accept that, if the signs were absent, the risk of serious injury resulting from a fall when running down the sand dune into the lake would have been obvious to a reasonable person in the respondent’s position. Should the signs be taken into account in determining whether the relevant risk was “obvious”? The definition of “obvious risk to a person who suffers harm” in s 13(1) of the Act is applied in three sections in Div 3 of Pt 1 of the Act. In addition to sections 15 and 19, subsection 14(1) provides that “[i]f, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.” There appears to be no incongruity in taking into account a warning sign in deciding whether a particular risk is an “obvious risk” for the purpose of sections 14 and 19. In relation to section 15, however, it arguably involves circularity –a defendant does not owe a duty to a plaintiff to warn of a risk to the plaintiff which is obvious because the defendant has warned the plaintiff of that 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.

David Cormack – Brisbane Barrister and Mediator

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