TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY
— CAUSATION — CONTRIBUTORY NEGLIGENCE – where
risk reasonably
foreseeable – where defendant owed duty of care – where obviousness
Source
Original judgment source is linked above.
Catchwords
TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY— CAUSATION — CONTRIBUTORY NEGLIGENCE – whererisk reasonablyforeseeable – where defendant owed duty of care – where obviousnessof risk is in issue – wheremechanism of injury in issue – whetherappropriate precautions were takenCivil Liabilities Act 2003Nature Conservation Act1992Blatch v Archer [1774] EngR 2(1774) 1 Cowp. 63Brodie v Singleton ShireCouncilGhantous v Hawkesbury City Council [2001] HCA 29(2001) 206 CLR 512Chiccov The Corporation of the City of Woodville (1990) Aust Torts Reports81-028Consolidated Broken Hill Ltd v Edwards [2005] NSWCA380Edson v Roads and Traffic Authority [2006] NSWCA 68
(2006) 65 NSWLR
453
Freyling v West Toowoomba Bowls Club Inc BC9303456 Appeal No 90 of
1993, 17 September 1993
Great Lakes Shire Council v Dederer [2006] NSWCA 101
Jabor v
Rockdale City Council [2008] NSWCA 98
(2008) Aust Torts Reports 81-952
Laoulach v
Ibrahim [2011] NSWCA 402
Maynard v Rover Mowers Ltd [2000] QCA
26
Nagle v Rottnest Island Authority [1993] HCA 76
(1993) 177 CLR
423
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
(1985) 59 ALJR
492
Pollard v Trude [2008] QSC 119
Romeo v Conservation
Commission of the Northern Territory (1998) 192 CLR 431
Swain v Waverley Municipal Council [2005] HCA 4
(2005) 213 ALR
249
Vairy v Wyong Shire Council [2005] HCA 62
(2005) 223 CLR 422
Woods
v Multi-Sport Holdings Pty Ltd [2002] HCA 9
(2002) 186 ALR 145
Wyong Shire Council
v Shirt [1980] HCA 12
(1980) 146 CLR 40
Wyong Shire Council v Vairy [2004] NSWCA
247
Judgment (329 paragraphs)
[1]
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
G. ODriscoll with Mr A Katsikalis for the Plaintiff
[23]
[1] McMEEKIN J: On the afternoon of 27 September 2007 the plaintiff, Mr Evan Joseph Kelly, suffered a comminuted C6 body fracture with a fracture of the lateral mass of C6 with spinal cord damage when he entered the water of Lake Wabby on Fraser Island. He was rendered a partial tetraplegic. He alleges the injury was caused by the negligence of the entity having the care, control and management of the island, the State of Queensland, and claims damages. These proceedings are a determination of the separate issue of the defendant's liability. Byrne SJA previously made the necessary order.
[24]
(a) How did the plaintiff come to suffer the injury described above?
[25]
(b) Was the relevant risk "obvious" within the meaning of s 13 of the Civil Liability Act 2003 ("CLA")? If so, there was no duty to warn of the risk - one of the plaintiff's principal contentions.
[26]
(c) Was the plaintiff engaged in a "dangerous recreational activity" within the meaning of s 19 of the CLA at the time he was injured? If so, no relevant duty was owed;
[27]
(d) Did the defendant breach any duty of care owed to the plaintiff? The plaintiff contends that the defendant was in breach of its duty of care to him by failing to do one or more of the following:
[28]
(i) Placing a sign not only at the commencement and end of the track leading to Lake Wabby but also at the water's edge of Lake Wabby and above the path at the entrance to Lake Wabby so that visitors would be required to walk under the sign;
[29]
(ii) Change the wording of the sign's warning of the dangers to include a prohibition on running down the dunes at Lake Wabby and listing the numbers of people rendered paraplegic and quadriplegic at the lake and containing a pictogram of "a person in a wheelchair to clearly show the consequences of running down the sand" into the lake or alternatively to read as they did after the change made in 2009;
[30]
(iii) Make the sand dune where the injury occurred a prohibited area;
[31]
(iv) Fine persons who entered the prohibited area, or ran down the dunes, or dived into the lake;
[32]
(vi) Regulate the times and areas that swimming and/or use of the lake could be undertaken. In oral argument this was supplemented with the submission that the area of the steep sand dunes could be signified as dangerous by the placement of flags;
[33]
(e) If "yes" to (d), would the injury have been avoided if that breach had not occurred?
[34]
(f) If so, was the plaintiff contributorily negligent and, if so, what apportionment is just in all the circumstances?
[35]
[3] Before turning to those issues I need to say a little of the background facts.
[36]
[4] At the relevant time the plaintiff was aged 22 and a tourist. He had travelled out from Ireland to Australia in July 2007. He was with three friends, Allan and Declan Kelly who were brothers but no relation to him, and Brendan Heafey. They had been friends for many years. Their holiday was to last three months. They all came from a small town in Ireland, Kiljames.
[37]
[5] The plaintiff by this stage of his life had completed his schooling, completed an apprenticeship as an electrician and had worked as an electrician for two to three years. He had had some exposure to waterways and the ocean in Ireland. In the course of this holiday he had been exposed to sand dunes for the first time. The plaintiff had not previously had any experience of running down dunes whether in Ireland or in Australia.
[38]
[6] The party of friends came to visit Fraser Island as a result of advertisements they had seen at a hostel where they were staying called Pippies Beach House. The owners of Pippies Beach House (apparently Pippies Beach House Pty Ltd) were licensed as commercial operators to bring tourists onto Fraser Island by means of four wheel drive vehicles. A condition of that licence was that the proprietors ensure that the persons coming onto the island watch a video prepared by Queensland National Parks and Wildlife Service. The plaintiff and his friends watched that video.
[39]
[7] The video portrays some of the rules that apply on Fraser Island and some of the dangers that the Island presents to visitors. The makers of the video highlighted the individual points that they wished to make with a number. Well into the video - at point 24 - the video deals with the issues relevant to this case - warnings about entering shallow lakes and streams. That section of the video lasts for some seven seconds. The stream depicted is an extremely shallow stream with the bed of the stream obvious and grassy reeds evidently protruding through the surface of the water. The stream depicted was obviously extremely shallow - perhaps a foot in depth. No reference was made in the video to steep sand dunes or the dangers of running down steep sand dunes. No reference was made to Lake Wabby.
[40]
[8] The day after seeing the video the plaintiff and his friends visited Fraser Island. On their second day on the island they visited Lake Wabby. To get to Lake Wabby from the place where their vehicle had to be parked required them to walk along a track. They used the southern entrance to the lake. The track was about 2.5 km long. It was a hot day. They arrived at the entrance to the track at around 3 o'clock. The plaintiff recollected that the track was a "tough old track through the wood". By the time the plaintiff and his friends had traversed the track they were hot and looking forward to a swim and so were keen to get to the lake as quickly as they could.
[41]
[9] One of the photographs tendered shows the first view that the plaintiff and his friends had of the lake towards the end of the track (see Ex 3). I can readily accept that the lake presented an attractive enticement to hot walkers.
[42]
[10] The plaintiff had a vague recollection of a sign being present on the path on the way into the lake. He was plainly unclear as to its location or content. He had no recollection of any warning or prohibition on people running down the dunes or running into the water.
[43]
[11] Save for that evidence none of the witnesses had any recollection of any sign on the track leading to Lake Wabby.
[44]
[12] When the plaintiff and his friends arrived at the lake there were numerous other people present. Some were swimming and sun bathing but according to each of the witnesses quite a number were running up and down the sand dunes. The estimates varied between the various witnesses but it was obvious that there was a substantial number. The plaintiff thought that there was "definitely" around 30 at one stage. Mr Heafey had the number at 50 to 60 out of 100 people on the dunes. Mr Alan Kelly spoke of 50 people being present and a "good 10 or 15" initially running down the dunes. When challenged he spoke of the presence of tour buses and day tours and groups of 10 or 15 in each group.
[45]
[13] The plaintiff indicated that the people he saw running up and down the dunes were at various locations along the dune. As I understood his evidence at each of those locations the dune was steep. The activity involved was to walk up the sand dune then run back down it and run into the water. There was no diving seen by the plaintiff or Mr Heafey. Mr Alan Kelly saw a few people diving. The plaintiff did not relate the activity he witnessed to any of the warnings that he had seen on the video two days before.
[46]
[14] The plaintiff explained that his understanding as to the depth of Lake Wabby was that it was "very deep". He said that it had been described as the deepest lake on the island in the advertisements that he had read. His visual assessment of the depth of the lake was that it looked deep given its colour.
[47]
[15] After arriving at the lake the plaintiff and his friends had a swim and then decided to run up and down the dunes themselves. The location where they did so was in much the same area as they had observed others to do so. They would run down the dune and then fall or jump into the water. They would swim after running into the water. The plaintiff had noted that the water became very deep very quickly.
[48]
[16] The plaintiff was not conscious of any danger involved in such an activity and nor were his friends. To him it looked "like good fun". My assessment of the plaintiff, as he and his friends and father claimed, is that he was not a risk taker or one inclined to ignore safety messages. Evidence was given of his compliance with safety warnings and directions at other locations during his trip along the eastern seaboard. His companions claimed that they too were of a similar mind and behaviour. Thus there was no peer group pressure to misbehave or take on escapades. There is no reason to doubt this evidence.
[49]
[17] Neither the plaintiff nor any member of his group got into any difficulties in running down the dune. He had not seen any other person get into any difficulties in running down the dune and into the water.
[50]
[18] The plaintiff repeated the activity on approximately 10 occasions.
[51]
[19] The plaintiff's description of the event which resulted in his injury was as follows:
[52]
"Now, on the last run where you had your injury, can you recollect and tell the Court what you did?-- I just ran down and with the steepness of it you kind of - I just - I was gathering up speed and I kind of lost - you know, you kind of can't control your legs, you've got momentum and I kind of just went when I got nearer the edge then head first. I kind of didn't get to run into the water. I just kind of fell before I got into the water.
[53]
Do you know the reason why you fell? What happened with your feet?-- I just kind of slipped in the - you know, with the sand and with the momentum, you kind of, just kind of loose sand, and then I just went over.
[54]
Had you been doing anything on that last run differently to what you had been doing on the runs before?-- No. No.
[55]
Were you doing anything differently than what you observed the others that were running up and down the sand dune?-- No.
[56]
Do you know how far away from the water's edge it was that you lost your footing?-- Maybe a metre, maybe something, kind of - I know I was close to the edge, close enough to the edge, within a metre maybe."[1]
[57]
[20] Mr Heafey was sitting on the waters edge close to where the plaintiff entered the water when he was injured. He confirms the plaintiff's account that on prior occasions the plaintiff had been running down the sand dune and jumping into the water. His oral evidence was to the effect that on the occasion on which the plaintiff was injured he did not observe the plaintiff to run down the dune as the plaintiff came from behind him but he heard a splash and he saw the plaintiff "just kind of bobbing up and down in the water" some 4 or 5 feet out from the edge.[2] When asked how the plaintiff splashed into the water he replied "we call it a belly flop, front down"[3].
[58]
[21] Mr Heafey was asked about a statement that he had given on 10 October 2007 in which he had recalled that the plaintiff had been running down the dune towards the water "and when he put his right foot on the edge of the water the bank appeared to give way" and that the plaintiff lost his balance and belly flopped into the lake. He confirmed that if it was in his statement it was probably true. No doubt his recollection was better then than at trial, over five years later. It seems likely that Mr Heafey was in the best position to see what happened.
[59]
[22] Mr Alan Kelly's recollection of the event is that he was in the water at the time of the plaintiff's last run down the dune, saw him do that and then "he just lost his footing just at the edge of the water".[4] He too thought that his entry into the water was "more like a belly flop". He thought that the loss of the footing was like a trip. He thought that the loss of footing may have come about because the sand was uneven.
[60]
[23] Mr Mark Black was an advanced care paramedic with the Hervey Bay Ambulance Station. He attended at the scene at Lake Wabby at about 6.10pm and so an hour and a half or thereabouts after the incident. When asked whether he recalled what the plaintiff said to him as to what had happened he replied: "basically that he jumped into the lake and he had lost movement in his legs".[5]
[61]
[24] When asked whether he had said anything more about how he went into the lake he replied "I'm pretty sure he said he dived and the people that were with him, everybody said the same thing as I documented he dived into the lake".[6]
[62]
[25] He had made and he referred to a record of the event. The record that he used was one created on a computer the entry being made when he got back to his station at Happy Valley at 9.20pm that evening. His record is exhibit 18 and records the occurrence of the incident as "diving into shallow water".
[63]
[26] In cross examination Mr Black accepted that he didn't really differentiate between the action of jumping and the action of diving and accepted that if he were told the plaintiff jumped into the water he may have construed that as a dive.[7] He accepted that he associated a spinal injury with a diving injury.
[64]
[27] At about one o'clock the following morning the plaintiff was seen by a specialist spinal surgeon, Dr Albietz at the Princess Alexandra Hospital. Dr Albeitz spoke to the plaintiff about the occurrence of the injury. He recorded in his notes that the history was: "dove headfirst into shallow water".
[65]
[28] Dr Albeitz explained the nature of the injury that the plaintiff sustained. Because of the nature of the injury - a C6 burst fracture - the doctor considered that the injury would require a great deal of force and loading through the head as the impact point. He thought it consistent with the mechanism of injury as he understood it, that is through diving, and doubted that the injury could have occurred with a belly flop with the plaintiff's head being flung back. Nor did he accept that a likely mechanism of injury was of the head striking something in the water such as a plank.
[66]
[30] The competing causes both involve the plaintiff running down a steep sand dune. It is common ground that close to the water's edge the water was quite shallow. He landed there on any version. His head impacted with the ground in such a way as to break the vertebra and damage the spinal cord.
[67]
[31] The plaintiff contends that he lost his footing towards the bottom of the dune and effectively stumbled head first into the water. The defendant contends that the plaintiff dived into the water too close to the edge and so brought about his own misfortune.
[68]
[32] I accept the plaintiff's account for several reasons:
[69]
(a) The plaintiff while obviously interested in the result came across as a genuine person. Many of his answers were against interest;
[70]
(b) The plaintiff's account is supported by two eye witnesses. While the eye witnesses were friends of the plaintiff they appeared credible. They gave their evidence in a straightforward manner. They were both very close to the point of entry and in a good position to see the event. Their accounts had some detail suggesting actual recall and not invention;
[71]
(c) The plaintiff was well aware of the danger of diving into shallow water and had been into the water at the entry point or near to it on about ten prior occasions. He could not but have been aware of the danger presented by diving too close to the edge. He said he had no intention of courting that danger;
[72]
(d) The defendant relies on the statements said to have been made by the plaintiff after the event to an ambulance officer and a treating specialist, Dr Albeitz, that he dived into the water. They each have their difficulties. Even assuming the brief versions to be accurately recorded there is no reason to suppose any real attempt was made to elucidate precisely what happened. The precise mechanism of injury was not of much significance at the time to either the ambulance officer or specialist, or to the plaintiff. The prospect of a badly injured man going to the trouble of attempting to correct a mistaken impression of how he had come to be injured, it being of no great significance, seems to me to be remote. Further the plaintiff had had morphine administered at some point which again lessens the weight that can be given to any remark he may have made, particularly to the specialist.
[73]
(e) The foregoing assumes the versions were accurately recorded but there is some reason to question that. The ambulance officer opened his account of what he had been told by the plaintiff as one of him jumping into the water - he corrected that later but his confusion tends to emphasise the problem. His frank concessions in cross examination confirm that. As well the version was recorded some hours after it was given. And there is the difficulty of the witnesses being influenced in what they wrote by some pre-supposition as to the mechanism of injury knowing the type of injury sustained and the general knowledge that it was sustained in or near shallow water.
[74]
(f) The most cogent evidence supporting the version that the plaintiff dived rather than stumbled into the water was the evidence from Dr Albeitz as to the force needed to cause the injury sustained. A belly flop type of entry seemed to the doctor to be an unlikely mechanism of injury. His answer was in the context of the head being flung back. But it seems to me quite within the realms of possibility that the plaintiff's head could have been in a downward type position by the time of entry into the water whatever the starting point. There could have been a deliberate, instinctive attempt to tuck the head under as the fall commenced to try and make a clean entry into the water. There are other possibilities. The relevant point is that the doctor's opinion does not preclude acceptance of the accuracy of the plaintiff's account.
[75]
[33] The case stands to be decided on the basis that the plaintiff was running down a steep sand dune towards the bottom of which he lost his footing, probably because the sand gave way or shifted underneath him, causing him to inadvertently plunge into the water too close to the edge and so suffered injury.
[76]
[34] It would appear it was the sudden giving way of the sand, or the losing of the footing in the sand, that converted what was intended to be a jump into the water in perfect safety into an inadvertent head first plunge into the water with the potential for catastrophic results.
[77]
[35] While the plaintiff and his companions have no particular recollection of seeing a sign at the commencement of the track or have any recollection of the detail of the sign at the entrance to the lake it is common ground that there were signs present at both locations at that time.[8] The signs present in 2007 had been in place at least since 1999. They were in the same terms. I will ignore the languages other than English. In large capital letters and in red type is the word "DANGER". There are two pictograms. One clearly indicates no diving. The other is not quite so clear. I did not grasp its message immediately. It is a red triangle surrounding a pictogram of a person apparently diving and striking their head. It suggests to me to take care because the water is shallow with hard surfaces below the level of the water on which one might strike one's head. I noted that Mr Heafey, like me, was not sure of the meaning of the pictogram.[9] The sign reads, with capitals as in the original:
[78]
[36] The sign indicates that it had been erected by Queensland National Parks and Wildlife Service.
[79]
[37] The plaintiff placed great significance upon the history of serious injury at Lake Wabby. Effectively he argued that this location was unique in its propensity to produce incidents of serious injury.
[80]
[38] Exhibit 11 is a summary of those incidents. There were 18 incidents in the 17 year period prior to the plaintiff's injury. Many involved serious spinal injuries. Whether the summary at exhibit 11 is a complete record is unknown. No formal record is apparently kept of the occurrence of serious injury. Nor can it be certain that the manner of the occurrence of injury has been accurately recorded. The plaintiff's entry exemplifies the problem. It is recorded there that he "dove into shallow waters of Lake Wabby". As I have said, in my view, that entry does not accurately reflect the mechanism of injury.
[81]
[39] Accepting the record on its face there are four entries for injuries suffered whilst descending the sand dunes at Lake Wabby. There are 13 entries of injury involving the back, neck or spine. I include in that total the entry of September 1990 which makes no reference to the back, neck or spine (and which I assume is ignored by Mr O'Sullivan in his total of five spinal injuries) which reads "no feeling below waist (patient evacuated by chopper)" with a recording of the incident as "dove into shallow waters of Lake Wabby".
[82]
[40] In addition to those injuries there were references to injuries to feet, legs and shoulders.
[83]
[41] This record of serious injuries at Lake Wabby is quite alarming. On 20 April 1993 a manager recorded a memorandum in which he attached two reports of injuries and wrote:
[84]
"I am particularly concerned with a report of yet another accident at Lake Wabby. I am advised by staff on Fraser Island that at least two people have broken their necks at Lake Wabby over the past two years and have become quadriplegics. Earlier this year another person seriously injured his spinal cord but may walk again.
[85]
It appears that visitors injured generally read the warning signs at the lake but ignore the dangers. This area is clearly one of the most dangerous areas on park estate in Queensland by virtue of the number and seriousness of accidents there."[10]
[86]
[42] I observe that another possibility to ignoring the dangers is that the signs are not effective in bringing home the true dangers.
[87]
[43] The manager at that time thought that "Lake Wabby requires urgent evaluation and formulation of an action plan". He thought that the factors that needed consideration included the adequacy of existing signage, of other visitor information and of the desirability or need for fencing or other physical barriers to prevent visitors running down the dune.[11]
[88]
[44] No action plan was formulated at least in any timely way. In 2002 an assessment was carried out. It was entitled "Risk Assessment on Diving Injuries at Lake Wabby".
[89]
[45] I interpose that it is a moot point whether the real risk of injury at Lake Wabby is from diving. The lack of any record keeping or full investigation of the manner of past injuries makes it difficult to say much more. Generally speaking, one can understand persons suffering injury from diving into waters of unknown depth. But it is difficult to believe that the waters of Lake Wabby fall into this category. Here it seems very evident where the shallows of the lake are located. They are only to be found in the area immediately adjacent to the water's edge. The water deepens suddenly from there. That circumstance at least raises the question of why it is that visitors are entering the water head first close in to the edge. The plaintiff's facts might supply the answer.
[90]
[46] Assuming the plaintiff's day at the lake was typical the numbers running into the lake exceeded those diving by many times. Ironically the person undertaking the assessment could provide a photograph of someone rolling down a sand blow into Lake Wabby presumably taken on the day of the visit.[12] That visitors run or roll down the steep dunes into the water as an every day event seems almost certain. That the plaintiff was not the first to find himself in difficulties as a result seems clear from exhibit 11, the summary of serious injuries.
[91]
[47] The 2002 assessment concluded, unsurprisingly, that the risk of injury in terms of consequences and likelihood was "High". The authors observed that "considerable effort and strategies were in place" to control the level of risk and mention was made of the two warning signs I have referred to. One of the suggested risk control options was to further educate commercial operators of the risk associated with their patrons diving into Lake Wabby. It was recommended that there be a review of "the possibility of amending conditions of commercial operators to highlight the danger of persons diving into Lake Wabby (including an induction style orientation of Lake Wabby)."
[92]
[49] In my view the manager's opinions expressed in 1993 were plainly accurate and applied with equal force at the time of the plaintiff's injury in September 2007. I note that there have been five more entries of serious injury since the plaintiff's incident. While these post injury events obviously cannot inform the defendant prospectively of the risk as at September 2007 they can assist with the issue of the effectiveness of the existing warnings. Of those five recorded events, three appear to involve running or rolling down the sand dune. One is recorded as a fall at Lake Wabby with a neck injury, which at least suggests the dune may have been involved. The fifth has no mechanism of injury recorded.
[93]
[50] It seems patently apparent that the warning signs and information provided to visitors did not bring home to those visitors the risks involved in the activities likely to be enjoyed at Lake Wabby. That is proved not only by the very serious injuries suffered over the years but by the plaintiff's observations and those of his friends on the day of their visit. It was not shown that this day was any different to any other day. In the few hours that the plaintiff and his friends were there numerous people - perhaps more than 30 - were doing precisely what the signs at the entry to the track and the lake said they should not do, that is run down the dunes. It would be a remarkable thing if so many people all fell into that category of visitor mentioned in the "Management Plan 1994 - 2010" for the Great Sandy Region which records: "a proportion of visitors remains very resistant to safety messages and enjoy taking risks, especially involving driving and water."[13]
[94]
[51] An important point to note is that no where else on Fraser Island has anything like this record of injury. Indeed so far as the evidence shows no other lake on Fraser Island has had an incident of serious injury caused by the method by which visitors enter the waters of the lake. I will detail the evidence a little later. As the manager recorded in his memorandum in April 1993 it would seem that Lake Wabby is "one of the most dangerous areas on park estate in Queensland".
[95]
[52] Fraser Island is an extremely popular tourist destination. In May 2008 it was estimated that some 356,000 visitors a year came to the Island. Fifty-five percent (that is 189,000) of those were on commercial tours, predominantly on day tours. Thirty percent of visitors were independent travellers in their own vehicles or had hired four wheel drive vehicles. Fifteen percent of visitors were backpackers who shared troop carrier type vehicular transport to travel around the island.[14] That same report suggests that visitor numbers had increased dramatically over the decades. Visitor numbers were estimated at 220,000 in 1993 and 314,000 by 1999-2000.
[96]
[53] Lake Wabby is known as a barrage lake and so is of some geological interest. It was formed by the movement of migrating sands across exposed dunes. It is gradually being engulfed by the Hammerstone sand blow. It was formally the deepest lake on the island but is now much shallower. One report has it that the water depth has decreased from 13 metres to 6.6 metres over the last 40 years.[15]
[97]
[54] A significant number of visitors to the island come to Lake Wabby. It was estimated in May of 2008 that some 109,400 people came to the lake with a peek daily use of 600. The maximum persons at any one time was said to be 210 with a maximum group size of 52. Some 44% of all visitors were with commercial operators. It is described as being popular with backpackers with an average length of stay of two hours.[16]
[98]
[55] The video seen by the plaintiff was required to be shown to all visitors who came onto the island through licensed commercial operators. The statistics indicate that that meant that some 55% of all visitors to the Island were exposed to the video.
[99]
[57] The principal focus of the plaintiff's case was on the need for more and better warnings. The defendant responds that it did all that was reasonable, but also contends that the risk here was "obvious" within the meaning of s 13 of the CLA and so no duty to warn arose. Further it argued that this was a dangerous recreational activity within the meaning of s 19 of the CLA and hence no duty at all was owed. If the defendant is right in these submissions then there is no need to go on and consider the content of the duty of care owed and whether it was breached.
[100]
[58] The definition of "obvious risk" in the CLA, so far as is relevant, is:
[101]
(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.
[102]
(2) Obvious risks include risks that are patent or a matter of common knowledge.
[103]
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
[104]
(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....
[105]
[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."
[106]
[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.
[107]
[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]
"... 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):
[110]
"'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..."
[111]
"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]
[112]
[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.
[113]
[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.
[114]
[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.
[115]
[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.
[116]
[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:
[117]
(b) The plaintiff had no experience with sand dunes or running down sand dunes;
[118]
(c) The plaintiff had not previously been to Lake Wabby which was probably typical of the vast majority of visitors to the area;
[119]
(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;
[120]
(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;
[121]
(f) The plaintiff had carried out the activity of running down the sand dune on about 10 occasions without incident;
[122]
(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;
[123]
(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;
[124]
(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;
[125]
(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.
[126]
[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.
[127]
[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.
[128]
[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.
[129]
[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.
[130]
[73] It is necessary then to turn to general considerations of the duty owed and whether that duty has been breached.
[131]
[74] The defendant did not dispute that a duty of care was owed. Mr O'Sullivan, who appeared for the defendant, claimed the authority of the reasons of Hayne J in Romeo[22] and Vairy[23] as to this formulation of that duty: "to take reasonable care of visitors attending the island who were exercising reasonable care for their own safety; it was not a duty to prevent any and all reasonably foreseeable injuries or to ensure that no visitor came to harm."[24]
[132]
[75] Hayne J did not say that. In Vairy, his Honour declined to attempt to define the content of the duty beyond asserting that it was one to take reasonable care. He did confirm that it was "not a duty to ensure that no harm befalls the entrant".[25] In that the duty owed is not peculiar to statutory authorities having the care, control and management of areas of public land. The qualification applies to every duty of care to protect others from physical harm imposed by the common law, substituting for "entrant" the person to whom the duty is owed. Importantly Hayne J did not assert that the duty was owed only to those "who were exercising reasonable care for their own safety". That would have the remarkable effect of doing away with the notion of contributory negligence from this area of the law. In fact Hayne J asserted that it needed to borne in mind when looking at the reasonable response to a foreseeable risk of injury "that there will be times when others do not act carefully or prudently."[26]
[133]
[76] What the judgments in Vairy stress are that the content of the duty owed is fact specific. The duty owed depends on all the circumstances. That there is a foreseeable risk of injury does not inevitably mean that there comes onto the "occupier" the duty to warn against or prohibit the conduct in question.[27] The decision in Vairy makes so much plain. Whether the occupier does come under such a duty, or a duty to take some further action, stands to be determined as a breach issue. Six of the seven judges in Vairy approached the matter in that way.
[134]
[77] What then is the duty? It is common ground that the defendant had the care, control and management of Fraser Island. As a result the defendant owed a duty to lawful entrants to that area, such as the plaintiff, to take reasonable care to protect them from risk of physical harm.[28]
[135]
[78] The statements in Vairy do not require any different formulation. Gleeson CJ and Kirby J identified the relevant duty as "a duty to do what is reasonable in all the circumstances".[29] McHugh J formulated the duty the law imposes on a public authority having the control and management of land as one owed to lawful visitors "to take reasonable care to protect that person from physical injury".[30] Hayne J said it was a duty to take reasonable care. Heydon and Callinan JJ agreed with McHugh J that the Council had correctly conceded the duty owed[31] which concession McHugh J described as a duty "to take reasonable care to safeguard the appellant from physical harm".[32]
[136]
[79] What then did the exercise of reasonable care demand of the defendant? In approaching the question I am conscious of the deep division of opinion that plainly exists among judicial officers as to the proper answer in these difficult cases. Vairy exemplifies that division. Of the eleven senior judicial figures to consider the issue five thought that reasonableness demanded that a sign warning of the relevant danger be erected and six did not. The High Court divided four to three. With that melancholy reflection I turn to the facts in this case.
[137]
[80] Sections 9 and 10 of the CLA are relevant. These sections appear in Chapter 2 (Civil Liability for Harm) Part 1 (Breach of Duty) Division 1 (General Standard of Care) of the CLA. They provide:
[138]
(1) A person does not breach a duty to take precautions against a risk of harm unless -
[139]
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
[140]
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
[141]
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) -
[142]
(a) the probability that the harm would occur if care were not taken;
[143]
(c) the burden of taking precautions to avoid the risk of harm;
[144]
(d) the social utility of the activity that creates the risk of harm.
[145]
In a proceeding relating to liability for breach of duty happening on or after 2 December 2002 -
[146]
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
[147]
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
[148]
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
[149]
[81] It is not in issue that there was a foreseeable risk of injury involved in the activity of running down the sand dunes. Obviously the defendant knew that the risk had come to pass on several occasions. The history of injury demonstrates that the risk was "not insignificant".[33] There was no submission to the contrary.
[150]
[82] What is in issue is what response could reasonably be expected from the State in all the circumstances. The defendant effectively argued that the provision of the information in the video seen by the plaintiff and the two warning signs that were in place that I have mentioned were a sufficient response to the risk of injury.
[151]
[83] Whether that is right requires a weighing up of numerous factors. The relevant factors include those set out in ss 9(2) and 10 of the CLA but are not limited to them. A starting point for the decision maker is Mason J's oft cited passage in Wyong Shire Council v Shirt:
[152]
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."[34]
[153]
[84] The reference by Mason J to the defendant's "conduct" involving a risk needs some qualification - the defendant did not create the risk here. Lake Wabby and the sand dunes adjacent to it have been formed by nature. There was no encouragement to run down the dunes and indeed an express warning that it was dangerous. The most that can be said is that the defendant did provide the track to the lake and hence made it accessible.
[154]
[85] I am conscious that the considerations mentioned by Mason J are not necessarily the only relevant considerations - they can vary depending on the case.[35]
[155]
[86] The matters that seem to me to be relevant to the determination of what was required of the State and which arguably favour the defendant include:
[156]
a) The defendant had the responsibility of managing large areas of recreational land throughout the state;
[157]
b) Fraser Island is itself of a substantial area (including marine areas some 187,000 hectares) and contains within it many hazards for visitors. Those hazards were not restricted to accidents involving the method of entering into lake water and had the potential for serious harm;
[158]
c) There are in excess of 100 lakes on the island with varying numbers of visitors;
[159]
d) There are significant practical difficulties in erecting and maintaining signs. The environment of shifting sands and winds presents special problems. The signs themselves can become a hazard;[36]
[160]
e) Quite apart from those practical difficulties there were cultural sensitivities to which the defendant had to have regard;
[161]
f) It would be impossible for the defendant to sign off or separate every potential risk on the island and even if it were possible that would greatly detract from the natural beauty of the island, the reason that it attracts so many visitors;
[162]
g) The defendant had not "required or invited or encouraged"[37] visitors to the area to engage in the activity and indeed had warned against it;
[163]
h) Apart from the provision of the track, the defendant was not instrumental in putting visitors in harms way;
[164]
i) The activity on which the plaintiff was engaged was a voluntary recreational activity. He was not compelled by circumstance, employment or other duty to do so. That being said there is social utility in people enjoying outdoor activities and considerable advantage to the Australian community and economy in fostering tourists coming to these shores to enjoy the beauty of our pristine natural landscape. It was an activity that the plaintiff and many others would find enjoyable.
[165]
[87] The factors that seem to me to favour the plaintiff's side are:
[166]
(a) The defendant had the capacity to prohibit and warn. Its coercive powers were said to derive from the Nature Conservation Act 1992. The matter was not explored further but the parties proceeded on the basis that coercive powers were available;
[167]
(b) There were large numbers of visitors both to Fraser Island, and to Lake Wabby in particular, with varying degrees of experience and knowledge of the likely hazards. It could be expected that significant numbers would have little experience and little knowledge;
[168]
(c) While Lake Wabby is not a recreational area on the island in the sense that its only purpose is for use as such[38] it could be expected that visitors would engage in recreational activities that would include running down the dunes;
[169]
(d) The practise of visitors running down the sand dunes was well known to the defendant or if it was not it ought to have been;[39]
[170]
(e) There was every reason to think that the warning signs that were in place were not having the desired effect of deterring visitors from running down the sand dunes, whether because of their wording or location or a combination of the two;
[171]
(f) It was not in issue that the magnitude of the risk - the degree of harm that might conceivably be suffered - was plainly high;
[172]
(g) Given the number of cases of serious injury at the lake the degree of probability of such occurrence was also relatively high. Thirteen spinal injuries in 18 years is a substantial number. Every few years, on average, there was a catastrophic injury. This must be measured against a background of many hundreds of thousands of visitors over that period;
[173]
(h) The defendant was well aware of that long history of serious injury. The defendant was thus armed with special knowledge relating to the risks inherent in carrying out the activity, knowledge that was not shared by the plaintiff and probably not by the vast majority of visitors to the island;
[174]
(i) No other area on Fraser Island is shown to have had anything like the same level of risk - no other lake had recorded a serious incident of injury so far as the evidence shows;
[175]
(j) In my view the risk in question was not obvious and more in the nature of a trap.
[176]
[88] I need to say a little more about the relevant factors.
[177]
[89] The fact that the defendant had responded to the risks of injury with the video and the two signs does not amount to a concession that it was obliged by law to do either of those things. It does support a finding that the taking of such measures - say providing a video or signs with a more compelling and definitive message - would not have involved "expense, difficulty and inconvenience" sufficient to avoid an obligation to do so or that "any other conflicting responsibilities which the defendant may have" justified inaction.
[178]
[90] A matter which deserves significant weight is the history of injury and of catastrophic injury.[40] It was pointed out in evidence that many hundreds of thousands of people had avoided the risk of harm. One might ask by what margin? If the events on the day of the plaintiff's visit are a reliable guide, and I cannot see why they are not, then dozens of visitors every day were courting the risk of catastrophic injury by running down the dunes and entering the lake. If the past is any guide then sooner or later such injury was inevitable.
[179]
[91] That the defendant had many other conflicting responsibilities is plainly relevant. It can no doubt be legitimately said that the defendant's responsibilities covered the entire State and so were indeed vast. But the legitimate focus here must be on its management of Fraser Island.
[180]
[92] It is significant that there were other risks on the island that the defendant was duty bound to respond to. In 1998, Ms Mugford, a safety officer with the Department of Environment and Heritage, identified several risks - drowning hazards in the lakes; driving on the eastern beach; dingoes; fire.[41] To that can be added the hazards presented by the sea - the Coral Sea forming the eastern seaboard.[42] As Ms Mugford said this was "a natural remote environment where there are a diverse range of risks". Any response expected of the defendant must bring into account its obligation to respond to those hazards.
[181]
[93] But no effort was made by the defendant to show that any other area of Fraser Island carried anything like the risk of injury that had been experienced here.
[182]
[94] The cross examination of Mr Belcher, the Fraser Coast Area Manager for Queensland Parks and Wildlife Service, made so much clear. He was asked about alterations that were made to the instruction video to encompass the perceived risk of injury at Indian Head on the Island and the questioning proceeded:
[183]
"In relation to the injuries at Indian Head how many paraplegics and quadriplegic injuries have been occasioned at Indian Head over the last five years?-- I'm not aware of any.
[184]
There hasn't been any, has there?-- Not to my knowledge.
[185]
No. So in relation to a potential risk of injury at Indian Head the video was changed to include the potentiality, but on the video itself there has not been and still is not any specific warning about the danger and risk of actual injury occurring at Lake Wabby, has there?-- I don't think Lake Wabby is mentioned.
[186]
And Lake Wabby by far is the most dangerous lake on the entire island, isn't it?-- I don't know.
[187]
Well, in relation to Lake Mackenzie, how many paraplegic and quadriplegic injuries have been occasioned there in the last five years?-- Not - not that I know of.
[188]
Any of the other lakes?-- None that I know of."[43]
[189]
[95] I refer too to the 1993 memorandum of the manager that I spoke of earlier.[44]
[190]
[96] If "evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted"[45], as I perceive to be a basic consideration, then the conclusion that this area carried a special, if not unique, potential to injure catastrophically is difficult to avoid. With all its resources and access to statistics of injury throughout the State the defendant did not seek to gainsay its managers. If the defendant wished to demonstrate that its conflicting responsibilities included managing risks with a similar level of likelihood and magnitude then it was in the defendant's interests to show that other areas had a history of similar or greater risk of injury and it did not.
[191]
[97] That this was not an obvious risk but more in the nature of a "trap" is of considerable significance too. The more obvious the risk then the more reasonable it may be for the relevant authority to do nothing or little in response in the expectation that the vast majority of people will take care to avoid the risk. There was no warrant for that assumption here.
[192]
[98] Given the history of serious injuries suffered and the lack of evidence about serious injuries elsewhere on the island it seems that the manner of entry into the water at Lake Wabby was one of the more significant risks that visitors faced on Fraser Island.
[193]
[99] The most cogent argument mounted against the plaintiff's case was that there were two signs in place, the plaintiff walked passed both signs, and the plaintiff failed to heed both. I have explained what I see to be the problem with the signs. In my view those problems were compounded by the failure to mention anything in the instruction video about running down the dunes. The danger as suggested by the video was in diving into shallow water. I can understand a trekker thinking that so much was the purpose of the signs.
[194]
[100] Many of the factors relevant in Vairy are relevant here. Hence the discussion in the various judgments in that case assists in identifying the relevant factors and how they might impact on the decision. Obviously Vairy cannot provide the answer. The judges stressed the lack of any precedential value in decisions on questions of breach. But if the decisions of the High Court are to provide the guide to community expectations of what is a reasonable response - and I have no other reliable guide - then close attention needs to be paid to the similarities and differences between the various cases.
[195]
[101] I observe that there are at least six significant differences here from the fact situation in Vairy. Two favour the defendant: first, there were two warning signs here and they were explicit in warning that there was a risk of serious injury in running down the sand dunes; secondly, the environment restricted its capacity to erect and maintain signs in a safe condition in the locations that the plaintiff pressed for.
[196]
[102] Four factors are against the defendant: the plaintiff here did not have "considerable experience and knowledge of the waters that he was entering"[46] or of the dunes; there is here a long history of serious injury at the lake and because of that history an express recognition, 14 years before the plaintiff's injury, and by a presumably responsible manager, that something had to be done; the obviousness of the risk - the risk in Vairy (a diving case) was thought to be obvious to both the plaintiff and to the population generally but in my judgment the risk of serious injury here, as I perceive it, was far from obvious; finally the defendant cannot argue that its conflicting responsibilities included other areas that had anything like the history of injury here. Those last two factors were of great importance to the majority decision in Vairy that no action was required.
[197]
[103] I conclude that the factors mandating a response from the defendant are far more compelling here than in Vairy.
[198]
[104] Relevant to the issue are the observations in Edson v Roads and Traffic Authority where Ipp JA, with whom Beazley JA and Hunt AJA agreed, said:
[199]
"Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result."[47]
[200]
[105] That seems to me to be the situation here - it is human nature to enjoy running down a dune and jump into cooling water on a hot day. The evidence of the activity at the lake on the day shows that many did it. In my view it is plain that the defendant was under an obligation to meet the risk of injury. This is not a case where the defendant could stand by and say it was obliged to do nothing.
[201]
[106] Against this background, was it a sufficient response for the defendant to persist with signage that was plainly not having the desired effect, and with a video that made no reference at all to Lake Wabby and its dunes - one of the more serious risks that visitors faced on Fraser Island? In my view, visitors to Lake Wabby had no real appreciation of the risk they were incurring in doing so. In my view it was incumbent of the defendant to do more than it did.
[202]
[107] The remaining questions are whether any of the plaintiff's suggested responses to the risk of injury were reasonably practicable and if so whether the adoption of them would have prevented the injury occurring.
[203]
[108] The steps urged included closing down the lake by fencing the lake off to prevent entry; exercising the defendant's coercive powers to prohibit entry, running down the dunes or diving into the lake; stationing a ranger at the lake to supervise and enforce such prohibitions; and regulating times and areas for swimming at the lake.
[204]
[109] In my view these steps were not reasonably practicable in all the circumstances.
[205]
[110] In reaching that view I am conscious that the manger in 1993 made suggestions that similar measures be considered. It is relevant that a responsible person recognised the need for action and relevant too that he evidently thought such measures were sufficiently practicable to be considered. But his views were only suggestions as to possible future courses of action.
[206]
[111] I am conscious too of the plaintiff's criticisms of the defendant's use of a risk matrix[48] but I do not see that analysis as particularly relevant. The complaint was that the defendant failed to comply with an Australian Standard Risk Assessment Model (AS/NZ 4360:1999).[49] I acknowledge that the categories selected by the defendant are questionable - in my judgment the relevant categories fell between the available levels, hence the limited utility of the matrix. However such standards can only ever be a guide and are not determinative of the negligence issue: Maynard v Rover Mowers Ltd [2000] QCA 26 at [17]; Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reports 81-028; Freyling v West Toowoomba Bowls Club Inc BC9303456 Appeal No 90 of 1993, 17 September 1993 especially per Ambrose J at p 5. The issue is what the defendant did do in response to the recognised risk and whether that was a reasonable response - whether the risk matrix supported it or otherwise.
[207]
[112] I return to the question of why I consider the suggested measures not to be practicable. A very significant point is that people come to Fraser Island because it is as close to pristine wilderness as most will ever see. Prohibitions, regulations and supervision are not expected or welcome. They may be necessary for the maintenance of the pristine condition of the island. That seems to be the major purpose of those existing regulations that were mentioned. But the notion of using coercive powers to prohibit a recreational activity or access to a site where such activities are to be enjoyed is the very antithesis of the island's purpose. The remarks of Callinan and Heydon JJ in Vairy are entirely apposite: "... authorities should not lightly criminalise recreational conduct, particularly conduct ... which is not likely to harm others."[50]
[208]
[113] The appointment of a ranger to supervise activities also seems to me to run counter to the purpose of a visit to the island. All visitors are well aware that there are hazards that they are required to face well out of the ordinary for urban and city dwellers. Part of the attraction is that the visitors to the island face those hazards without outside assistance and supervision.
[209]
[114] Mr Belcher was opposed to that course. His evidence on the issue is as follows:
[210]
"So in relation to rangers being there, what is the difficulty of having a ranger station at Lake Wabby to further educate people?-- It would be very difficult and it would be also outside the scope of what we employ rangers to do, but you would have a full time - at least one full-time salary and a portion of another full-time salary with related oncosts. So probably coming into the hundred thousand dollars a year. And then infrastructure for someone to work from and then to communicate with. It would be a significant cost.
[211]
Is it a cost issue?-- No, it's - that is not what we employ rangers to do."[51]
[212]
[115] Those are relevant matters. As well there is the question of cost. The plaintiff's arguments were that a ranger's wage was only $40,000 per annum. But Mr Belcher claimed that there were many additional costs associated with each ranger and he put the costs of an additional ranger at more like $100,000. He said the appointment of a specific purpose full time ranger was "well beyond the scope of a reasonable budget ... It's just not one staff member. It's back-up staff and infrastructure as well. We just don't have the resources and we would never have the resources to allocate to that."[52] There is no reason not to accept this evidence. While not determinative of the issue the fact that reasonably significant costs are involved is not irrelevant.
[213]
[116] And there is the issue of effectiveness. Groups of 52 people arriving in one group, with up to 11 groups being present at any one time,[53] keen to dash into the water, of varying nationalities and languages, might tax any ranger in getting the message across effectively.
[214]
[117] The question is whether assuming, on average, that one serious injury occurs a year at the Lake, and a catastrophic injury every few years, is it a reasonable response to spend one hundred thousand dollars a year on a solution that almost certainly will not stop dangerous practices entirely. Injuries might well be reduced but there is no warrant to think they will be eliminated. That must be assessed in the light of people undertaking voluntary activities for enjoyment and balanced against the relatively minimal cost of warnings.
[215]
[118] While I consider the magnitude and likelihood of the risk of injury to be high those considerations in my judgment do not compel such a response from the defendant.
[216]
[119] The notion of fencing off the lake has numerous difficulties. One major issue is the notion of preventing people getting to one of the major natural features of the island - a barrage lake, a creek system blocked by an encroaching sand dune.[54] Another, as Mr Belcher remarked, is that the traditional custodians would be unlikely to take kindly to such a restriction. And a third is the practical difficulty in erecting and maintaining a fence around ten kilometres in length in the ever shifting sands of the island.[55]
[217]
[120] The regulation of times and areas for swimming was proffered with the idea that rangers would be on hand to supervise and instruct at those times. The suggestion was that the area could be patrolled much like many of the beaches throughout Australia. Areas could be delineated by flags, much as is done at surf beaches.
[218]
[121] There are again the problems associated with using rangers in this way as discussed above. Another issue is the implicit assumption that everybody will do as directed by flags or instruction. A third problem is keeping flags where you want them assuming shifting sands and winds have their usual effect.
[219]
[122] Again I do not see that the defendant, looking prospectively at the problem from the information available in September 2007 was obliged by its duty of care to go so far.
[220]
[123] The remaining submissions concerned warning signs and changes to the video of instruction.
[221]
[124] First the video. One purpose of the video, and a major purpose, was to bring to the attention of visitors the principal dangers facing them on the island. Diving into shallow waters was expressly mentioned. The message was brief and not reached until well into the video. But the message had no bearing on the issues presented by Lake Wabby. There is no reference to the lake, to steep sand dunes, or to running down such dunes. There is no reference to the long series of catastrophic injuries at the lake. Given the history of injuries it is puzzling why the makers of the video did not see fit to expressly warn of those dangers. Presumably the makers of the video saw diving into shallow creeks as the principal danger. The defendant led no evidence of any serious injury ever having occurred in such a way.
[222]
[125] In my view acting reasonably the defendant ought to have ensured that the video dealt with one of the most significant risks on the island. The warning needed to make plain that it was not only diving into shallow water that was the problem. An explicit prohibition on running down the dunes was required. As well more was needed in my view to bring home the hidden risk - an express reference to the large number of catastrophic injuries at the Lake would seem to me to be called for. Nor would it have been difficult to include in the video the signs that were present on the track leading to the lake with an appropriate explanation and so highlighting the purpose behind the signs and perhaps removing any possible ambiguity or misapprehension.
[223]
[126] Given that monies were spent on preparation of the video and its distribution I cannot see that expense, difficulty and inconvenience have any bearing on the matter, and nor does any conflicting responsibility weigh against it.
[224]
[127] I asked Ms Mugford about adjusting the video and here is her response:
[225]
"My question to you is, and you may not be able to answer it, but do you see any practical difficulties in having that video so adjusted or any pros and cons to that idea?-- I see strong advantages in having such a video available for all of our visitors. The difficulty would be, I guess, making it available for our free and independent travellers. They may have limited access to the video and we would only be able to, I guess, source a pool of people through our commercial operations. We could get it out to our nearby communities. Logistically it might be difficult to make sure that every visitor had access to that."[56]
[226]
[128] I too see strong advantages in adapting the video to the real life situation and problems.
[227]
[129] Mr Belcher offered no reason not to adapt the video as well.[57]
[228]
[130] The only significant argument against adapting the video is that mentioned by Ms Mugford - not every one would see it. But 44% of visitors to Lake Wabby would see it (on the May 2008 figures nearly 50,000 people) and 55% of visitors to the island. That is a very significant penetration rate. In fact no warning, no matter how couched or portrayed, will probably be seen and understood by every one. That is no reason for not communicating with such significant numbers. And there is always the prospect of someone seeing the video passing on its content to someone who has not if they see them engaging in an activity likely to cause them significant harm.
[229]
[131] I am conscious that in terms of s 9(2) of the CLA the question to address is whether, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions against the risk of harm. That must be assessed in light of my responses to the identified relevant factors which are:
[230]
(a) the probability of harm occurring if the precaution was not taken was high if not inevitable;
[231]
(b) the likely seriousness of harm was potentially catastrophic;
[232]
(d) there was some social utility in encouraging the activity in question.
[233]
[132] The plaintiff also urged that the signs were inadequate in bringing home the message required. As I have mentioned above I agree. As to what precise message the signs should have conveyed is a more difficult question. I am somewhat hampered by the lack of evidence. No doubt there are those in the community with considerable expertise in conveying a relevant message through signage. Presumably size, colour and positioning are all relevant and significant. No such expert was called.
[234]
[133] Nonetheless I accept that the message could certainly have been clearer. The wording of the sign adopted in 2009[58] is clearer in identifying spinal injuries as a serious concern, in identifying the danger in jumping into the lake - "do not dive or jump" - and in separating the warning "do not run, slide or roll down the dune" from the warning not to "dive or jump". In my view it is an improvement on the signs in place at the time of the plaintiff's injury. But the incidents of injury from the dunes have continued to occur. A pictogram akin to the no diving pictogram, but banning running down the dunes and express reference to the numbers of injuries of a catastrophic nature would have brought the message home more clearly. Combined with the message that I suggest be set out in the instruction video, the signs so adapted would have been much more helpful in identifying for visitors the real nature of the risk of injury presented by the slopes at Lake Wabby.
[235]
[134] There is the countervailing consideration that no doubt one can reach the point that too much information is sought to be conveyed and the sign loses its effectiveness. The defendant called no evidence on that issue.
[236]
[135] The plaintiff was critical of the positioning of the signs. Again I agree. The difficulty is in determining any better point that is also practicable. The plaintiff's arguments were that signs could be positioned near to the water's edge or over the immediate entrance to the lake. Such positioning would have the advantage that visitors could hardly miss them.
[237]
[136] But there are significant practical difficulties with each of those ideas. Mr Belcher's response was as follows:
[238]
"Is it possible to put an overhead sign over the lake or over any of the entrances to the lake to advise people of the dangers posed by the lake?-- It wouldn't be put possible to put a sign over the land because, again, of the moving sand and the water rising and falling lake levels. And also not possible over a walkway because that introduces an additional risk to people for possible - the possibility of the sign falling on someone.
[239]
All right. Is it possible then to put a sign on the water's edge advising anyone of the dangers in the water?-- It's not practical because the water levels change and also people tend to use the sign for various reasons, to - I think you probably get the sign pushed over."[59]
[240]
[137] No evidence was called by the plaintiff to establish that these practical difficulties could be overcome. The plaintiff bore the onus of proof. It was not discharged.
[241]
[138] In my opinion while the positioning of the signs was less than ideal for the purpose of getting the message through to visitors it was the best that could be done in the circumstances.
[242]
[139] I observe that the less effective the signs are seen to be the greater the need for the video to convey a clear warning of the true nature of the risk accurately and efficaciously.
[243]
[140] In reaching these conclusions I have borne in mind the defendant's submission that the plaintiff also had access to visitor's guides (Ex 1 Tab 34; Ex 6) and "Tips and Hints" from the hirer of the four wheel drive vehicle that he and his friends used (Ex 10).
[244]
[141] It is not clear that the plaintiff read these documents or was aware that they contained warnings that are here relevant. In any case in my view neither was likely to bring home the true nature and level of the risk of injury at Lake Wabby. The driver tips make no reference to Lake Wabby at all but a general caution against diving into creeks or lakes. The brochure contains a great deal of information about the Island and by no means highlights the dangers at Lake Wabby. On the page on which a picture of the lake and its steep dunes appears there is a warning under the heading "Water Safety": "Do not dive or jump into creeks or lakes as submerged obstacles can be everywhere". On the photograph itself appears a warning: "Serious injuries have been sustained by people diving or jumping into Lake Wabby. The lake is shallower than it first appears. Do not dive or jump into lakes." It can be seen that the emphasis is not on running down dunes and getting into difficulties but on jumping into shallow waters or avoiding the danger of concealed objects.
[245]
[142] There was no breach of duty in the positioning of the signs.
[246]
[143] The existing signs were not adequate to convey the real danger at Lake Wabby.
[247]
[144] In my view 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.
[248]
[145] It also breached its duty by failing to ensure that the signs leading into the lake more definitively identified the dangers by reference to the numbers of catastrophic injuries suffered and by the provision of a message that emphasised that the risks were not merely in diving into shallow water but in the running down the dunes.
[249]
[146] Section 11 of the CLA is relevant. So far as relevant it provides:
[250]
(1) A decision that a breach of duty caused particular harm comprises the following elements -
[251]
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
[252]
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
[253]
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach -
[254]
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
[255]
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
[256]
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty."
[257]
[147] The question posed by s11 requires some adaptation here. The defendant has not caused the harm by its breach. The issue is would the adaptations to the video and the signs have prevented the injury occurring?
[258]
[148] Subsection 11(3) is engaged and so the relevant enquiry is what the plaintiff subjectively would have done in the light of all relevant circumstances.
[259]
[149] As it happens the plaintiff came to the island with a commercial operator and saw the video. He appears to have paid attention to it as did his companions. I think it more probable than not that had the video contained the adaptations discussed he would have seen and appreciated the dangers of running down the dunes at Lake Wabby.
[260]
[150] In reaching this view I bear in mind the defendant's submission of reconstruction by the plaintiff. In an earlier statement the plaintiff could not recall any mention in the video of "diving into lakes".[60] That is unsurprising - the scene depicted in the video bears little relationship to a lake, or at least a lake like Lake Wabby. It appears to me to depict a creek bed. While the possibility of reconstruction cannot be discounted entirely, I was impressed with the plaintiff's apparent candour. As well there was good reason for him and his friends to watch the video. Not only was Fraser Island an entirely new experience for them but they were to take a four wheel drive vehicle into that sandy environment which patently had its risks. That they would wish to be armed with information about those risks is perfectly natural. As well the submission to an extent misses the point. It assumes that a failure to recall the content of the video in this particular two years after seeing it leads to a conclusion that a viewer was not paying attention at the time. The conclusion simply does not follow. And a failure to recall is at least as consistent with the plaintiff's point - the video simply did not highlight one of the most significant risks a visitor to the island faced.
[261]
[151] I have mentioned earlier my assessment of the plaintiff's character. There was no history of disobedience or defiance of authority. There was evidence of compliance with directions in respect of the novel hazards he experienced travelling around Australia's eastern seaboard. On the balance of probabilities it seems to me that he would have heeded a warning that brought home the true cause and level of the risk of injury. The video adapted as discussed would have probably resulted in the plaintiff avoiding the relevant activity and so avoiding the harm. Factual causation is established.
[262]
[152] I see no reason at all why it is not appropriate for the scope of the liability of the defendant to extend to the harm so caused. Subsection 11(4) is engaged and requires consideration of whether or not and why responsibility for the harm should be imposed on the defendant. As Fryberg J observed in French v QBE Insurance (Australia) Ltd [2011] QSC 105 at [133]:
[263]
"Sub-section (4) indicates two factors which must be taken into account, but they are explicitly not the only factors. Foreseeability/reasonable contemplation must surely be another. Proximity (or lack of it) in time, place and relationship I take to be another."
[264]
[153] I respectfully agree. Dealing first with the video. Relevant factors here have already been identified and include:
[265]
(a) the defendant had the relevant control of the land;
[266]
(b) the defendant invited visitors to the island and provided access to the lake;
[267]
(c) the defendant was aware of a long history of injury including many instances of catastrophic injury and also aware that visitors to the lake were unlikely to have that knowledge unless it so informed them;
[268]
(d) the signs in place were patently not effective in deterring the dangerous conduct;
[269]
(e) the defendant had the ability to prepare and distribute instructional videos alerting visitors to the relevant dangers and had in fact done so;
[270]
(f) such a video was likely to reach a near majority of visitors to the lake.
[271]
[154] Effectively liability ought to be imposed because the defendant was in the best position to assess and control the risk.
[272]
[156] So much is sufficient for the plaintiff to succeed on the liability issue.
[273]
[157] I observe that it is more problematic as to whether the signs, adapted as discussed, would have been seen and heeded by the plaintiff. In the plaintiff's favour is the fact that he did have a recollection of seeing a sign. So it follows that he would have seen a sign suitably adapted. The problem was that the sign he saw did not bring home the message to him. He cannot explain why. If the sign he saw was the one near to the lake and he merely glanced at the sign rather than studied its message because of the invitation of the cooling waters of the lake then it is difficult to see why that may not have proved as great a distraction again. On that assumption the plaintiff simply missed the sign near to the entrance to the track. If that was so then why would he not have missed it whatever its message?
[274]
[158] The converse may have been so and the prospect of studying the message more closely at the entrance to the track but in the absence of any evidence I cannot make any finding on the probabilities.
[275]
[159] The onus lies on the plaintiff to establish that the signs would have been seen and so effective in deterring his conduct and in my judgment he fails to demonstrate those matters. Factual causation in respect of the complaint about the inadequacy of the signs is not shown.
[276]
[160] Section 10(1)(b)Law Reform Act 1995 requires that "the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant's share in the responsibility for the damage."
[277]
[161] There was no evidence that alcohol played any part in the accident.
[278]
[162] Sections 23 and 24 of the CLA are relevant. They provide:
[279]
"23 Standard of care in relation to contributory negligence
[280]
(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
[281]
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
[282]
(b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
[283]
In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.
[284]
[163] These legislative provisions have not affected the principles that apply generally. They were explained in the joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek v Australian Iron & Steel Pty Ltd:
[285]
"It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether, in those circumstances and under those conditions, the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence.
[286]
....The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris[1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre[1958] TASStRp 11; [1958] Tas SR 36 at 42-49 and Broadhurst v Millman[1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."[61]
[287]
[165] The defendant argued for an apportionment of 100% against the plaintiff.
[288]
[166] Here the assessment must be made against a background that the true nature and extent of the risk of injury had not been brought home to the plaintiff but was well known to the defendant. In my view that feature alone justifies rejecting the defendant's submission.
[289]
[167] The defendant pleads[62] that the plaintiff is relevantly guilty of contributory negligence because:
[290]
(a) he failed to heed the warnings provided to him;
[291]
(b) he ran down the dune and/or dived into the lake in circumstances where:
[292]
(i) a reasonably prudent person exercising care for their own safety person would not have done so;
[293]
(iii) he did not know or test the depth of the water;
[294]
(iv) in the alternative he knew the water in the lake was shallow;
[295]
(v) he knew or ought to have known of the risk of injury associated with such behaviour;
[296]
(vi) there was adequate signage and/or warning of the risk of doing so.
[297]
[168] I observe that the necessary factual basis for many of those allegations is not made out. The plaintiff did not dive into the lake in the sense of intentionally doing so; he did know the depth of the water and he had tested it by entering it on about nine or ten previous occasions; while he knew the water was shallow immediately adjacent to the shore he had not intended to enter the water head first at that point; he did not appreciate the risk of injury associated with the act of running down the dunes; there was not adequate signage warning of the risks.
[298]
[169] While the actions of the plaintiff in running down the dune were the proximate and significant cause of the injury sustained they must be judged bearing in mind that he did not appreciate the true level of risk involved. Indeed the hypothesis here is that had the defendant discharged its duty of care the plaintiff would have been alerted to the danger and avoided it by not running down the dune.
[299]
[170] Other factors also militate against any apportionment on this ground. As mentioned the plaintiff was an Irish tourist unaccustomed to running down dunes. That consideration of course can count for and against him as he was engaging in an activity in which he had no experience and so arguably should be alert to exercise more caution. But by the time of the subject event he had carried out the run on nine or ten occasions without any mishap or hint of mishap. He saw many others do the same. Absent knowledge of the risk he was running it is difficult to criticise the plaintiff's conduct.
[300]
[171] The principal criticism that can be made of the plaintiff is in his failure to study the signs closely. It was incumbent on him to read the signs. They plainly alerted him to a danger. They expressly warned against running down dunes. As I have said the problem is 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. Acting reasonably he may not have understood why the signs contained that message, but the message not to do so was nonetheless clear. The authorities advised against running down the dunes.
[301]
[172] Had he read the signs and obeyed their message the accident would have been averted.
[302]
[173] The difficulty is that all the other information that he received suggested there was no significant danger. Many others were doing precisely the same activity, without mishap. He had done so himself without mishap on numerous occasions as had his friends.
[303]
[174] I have found the question of apportionment as difficult as any in this assessment. In my view even though the signs did not adequately convey why visitors should not run down the dunes visitors enjoying a novel experience ought in their own interests exercise the caution that the authorities advise.
[304]
[175] I assess the plaintiff's contribution to his injury at 15%.
[305]
[176] Subject to any submissions from the parties I propose that there should be judgment for the plaintiff against the defendant for 85% of the damages to be assessed. I will allow the parties seven days to make such further submissions as they may be advised as to the orders that are appropriate in accordance with these reasons.
[306]
[8] For photographs of the signs see Ex 1 at Tab 14
[307]
[17]Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512, 581 (Gaudron, McHugh and Gummow JJ). And see Carver, Tracey L. (2007) 'Obviously Obvious: Obvious Risks, Policy and Claimant Inadvertence' eLaw Journal 14(1) 66 at p 67.
[308]
[18] I note that the definition of "obvious" in the New South Wales legislation is identical to that in the CLA.
[20] By inference - the manager made no express reference but the incidents he refers to are presumably recorded in Ex 11 and one of those (6/6/92) records the incident as "injured whilst running down Lake Wabby" and another (12/4/93) as "running down sand dune and tripped"
[311]
[22]Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at p 488
[54] On the significance of aesthetic aspects to the assessment see the comments of Callinan J in Roads and Traffic Authority of New South Wales v Dederer(2007) 234 CLR 330; [2007] HCA 42