On holiday, a tourist tripping on a sand dune was held not to be an obvious risk
You’d may assume so right? As part of our ongoing key facts articles, we analyse cases and bring you a breakdown of just what happens and the sometimes surprising facts.
In this case of Kelly v State of Queensland [2013] QSC 106
Basic facts about the case
The plaintiff was a 22 year old Irish tourist. On 27 September 2007 he became a partial tetraplegic after running down a sand dune and entering the waters of Lake Wabby on Fraser Island.
The plaintiff and his friends visited Lake Wabby with a licensed commercial operator.
Queensland national parks and wildlife service warnings given
After having watched a video prepared by the Queensland National Parks and Wildlife Service, warning of certain dangers on the island, including the danger of diving into shallow water.
Commercial operators licensed to take patrons onto the island were required to show this video to visitors as a condition of their licence.
It was estimated that approximately 55% of all visitors to the island were shown the video
Knowing and seeing a warning sign
The plaintiff admitted that on the trail to the lake he walked past a warning sign and the plaintiff was unable to recall the specific contents of that warning.
The Court held that although the warning was ambiguous, the sign warned of two mutually exclusive dangers – running/rolling down the dunes and diving into the lake.
The decision
The defendant submitted that it was not liable for Kelly’s injury as it had resulted from an obvious risk and under s 13 of the Civil Liability Act 2003 (CLA), such an injury is not compensable.
It was also submitted that the act of running down a sand dune was engaging in a dangerous recreational activity which is also precluded from compensation by s 19 of the CLA.
Running down the hill and tripping was not an obvious risk
The Court determined that the act of running down the sand hill and tripping was not an obvious risk in the circumstances of the dunes at Lake Wabby.
The Court found that the plaintiff tripped as he ran down the dune and then he fell into the lake.
The court said that upwards of 50 other people had run down the dunes and jumped into the water without injury on the day Mr Kelly was injured.
The risk of catastrophic injury was not an obvious one, but rather a trap
The Court found that this, measured against the likelihood and magnitude of the risk of injury, meant that the risk of catastrophic injury was not an obvious one, but rather a trap.
Having held that the risk was not an obvious one, the Court said that it did not need to then go on to consider whether the plaintiff was engaged in a “dangerous recreational activity”.
Under the provisions of the CLA, the injury must arise from the materialisation of an obvious risk of the dangerous recreational activity.
Risk assessment on diving injuries at Lake Wabby
In 1993 one of the defendant’s managers had specifically raised the risks of catastrophic injury at the lake. He had noted in a memorandum that 2 spinal injuries resulting in quadriplegia had occurred over a 2 year period.
In 2002 the defendant conducted a “risk assessment on diving injuries at Lake Wabby” which found the risk of catastrophic injury was “high”.
The Court found that despite the ambiguously worded warning signs at the entrance to the lake, there had been 18 instances of serious injury in a 17 year period – 13 of which involved serious spinal injuries akin to those suffered by the plaintiff.
Existing signs were inadequate to convey the real danger of injury
The Court defined the scope of the defendant’s duty as “a duty to take reasonable care to protect persons such as the plaintiff from risk of physical harm”.
The Court held that the existing signs were inadequate to convey the real danger of injury at the lake.
It also held that the defendant could have easily and effectively incorporated specific warnings into the video that licensees were required to show to visitors, such as the plaintiff.
A breach of a duty of care
The Court held (per Wyong Shire Council v Vairy [2004] NSWCA 247) that these were relatively simple and inexpensive measures when weighed against the magnitude of the risk.
In failing to modify the signs and video the defendant had breached its duty of care.
Had the video been seen, He would have heeded its warning
Hence causation was made out and the plaintiff was awarded 85% of his damages to be assessed (He was found to have contributed to his injury and a 15% reduction was made for contributory negligence).
NOTE: The Attorney General appealed this decision. The Queensland Court of Appeal upheld the trial judge’s decision.
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