Civil Liability Act 2002
67It will be necessary in due course to consider a number of provisions of the Civil Liability Act 2002 . In the circumstances it is convenient first to deal with ss 5K and 5L of the Act. They are in the following terms:
" 5K Definitions
In this Division:
"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm.
"obvious risk" has the same meaning as it has in Division 4.
"recreational activity" includes:
(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk."
68Section 5F deals with what is meant by "obvious risk". It is as follows:
" 5F Meaning of "obvious risk"
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."
69The Council must establish that Mr Vreman and Mr Morris were engaged in a dangerous recreational activity and that the harm that they suffered was the materialisation of an obvious risk of that activity: see Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] per Mason P :
"[31] The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92])..."
70There is no dispute in this case that the activities in which Mr Vreman and Mr Morris were engaged were recreational activities. There is a dispute about whether they were dangerous recreational activities. There is also a dispute that Mr Vreman and Mr Morris suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity in which they were engaged.
" Dangerous recreational activity "
71The issue is whether riding a BMX bike at the West Albury skate park was a recreational activity that involved a significant risk of physical harm. "Harm" means harm of any kind, including personal injury or death and economic loss. There is no dispute that Mr Vreman and Mr Morris suffered harm.
72In Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Torts Reports 81-831 Ipp JA discussed the expression "dangerous recreational activity" at [28] - [31] as follows:
"[28] In my view, the definition of "dangerous recreational activity" in s 5K has to be read as a whole. This requires due weight to be given to the word "dangerous". It also requires "significant" to be construed as bearing not only on "risk" but on the phrase "physical harm" as well. The expression "significant risk of physical harm" is coloured by the word "dangerous" and the phrase "significant risk" cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.
[29] The view that a risk is "significant" when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490.
[30] Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.
[31] In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the "risk of physical harm" may be "significant" if the risk is low but the potential harm is catastrophic. The "risk of physical harm" may also be "significant" if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the "risk of physical harm" may not be "significant" if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is "dangerous".
[32] Oztag, like touch rugby, is not what is normally understood as a contact sport. Oztag, in fact, is designed to reduce the extent of physical contact that might be experienced in ordinary touch rugby.
[33] A "dangerous recreational activity" cannot mean an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hard ball. In my opinion, the trial judge erred in finding that Oztag was "a dangerous recreational activity"."
73In Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 the facts were briefly as follows. The defendant accidentally shot the plaintiff in the leg while hunting kangaroos with two other men. At the time of the accident, they were all participating in an activity referred to as "spotlighting" or shooting kangaroos at night with the aid of a spotlight . The men got into a vehicle and drove into the bush in search of kangaroos at around 10.30pm. The defendant was driving the vehicle and the plaintiff sat in the front passenger seat. The plaintiff agreed to hold the spotlight and shine it out of the window of the vehicle while the other men shot. After about 5 to 10 minutes of driving, two of the men got out of the vehicle and began walking in front while the vehicle followed them. At some stage the vehicle stopped and the defendant climbed out of the vehicle with a handgun to join the other men. He returned to the vehicle still holding the handgun. The plaintiff asked him not to come into the vehicle with a loaded gun. The defendant gave repeated assurances that the gun was not loaded and that it was safe for him to enter the vehicle. Once the defendant was inside the vehicle, the plaintiff once again asked him not to bring the gun inside the vehicle and to point the gun outside. The defendant began "clocking [the gun] back and forward" in an effort to un-jam it, and as he was doing so he pointed the gun in the plaintiff's direction. There was then an accidental discharge of the gun resulting in the plaintiff being shot in the leg and suffering injury.
74At trial, the plaintiff contended that the defendant was liable to him in negligence for the damages he had incurred. One of the grounds on which the defendant denied liability was that he was entitled to immunity under s 5L of the Civil Liability Act . The trial judge upheld the plaintiff's claim and found that the defendant had been negligent. Her Honour was not satisfied that the activity being undertaken at the time the plaintiff was shot was a "dangerous recreational activity" as defined by s 5K. Further, her Honour held that the plaintiff "did not suffer harm as a result of the materialisation of an obvious risk of a dangerous recreational activity". Accordingly, her Honour concluded that s 5L did not assist the defendant.
75In the Court of Appeal, Ipp and Tobias JJA held that the activity in which the plaintiff was engaged was a "dangerous recreational activity" within the meaning of s 5K. Basten JA disagreed. It should also be noted in this context that Ipp and Basten JJA held that the risk that materialised did not constitute an "obvious risk" of the dangerous recreational activity as defined in s 5F. Tobias JA disagreed. In the result the defendant's appeal was dismissed .
76Ipp JA came to the following conclusions. First, an objective test is required in determining whether, in terms of s 5K of the Act, a recreational activity is "dangerous". Secondly, the word "significant", in the expression "significant risk of physical harm", lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Thirdly, a significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk (which may be obvious or not) that materialises. Thus, s 5L may be held to apply where the significant risk (converting a recreational activity into a dangerous one) differs from the obvious risk that materialises. Fourthly, the question of whether a particular activity may be dangerous should be determined by reference to the particular activities engaged in by the plaintiff at the relevant time and to the actual circumstances giving rise to the harm. This could require segmenting the particular activities the plaintiff was engaged in. Fifthly, the activity in which the plaintiff was engaged was sitting in the vehicle, holding the spotlight for the shooters outside, so that at various times one or more of the shooters might leave or enter the vehicle with guns that might or might not be loaded. That limited activity is distinguishable and separate from the other activities, which fall under the general description of "shooting kangaroos by spotlight". Finally, in the particular circumstances of that case, there was a significant risk that one of the men, while leaving or entering the vehicle as the plaintiff was operating the spotlight, might handle a loaded gun in a negligent manner and cause someone in the vehicle to get shot. Therefore, the activity in which the plaintiff was engaged carried a significant risk of physical harm and was a "dangerous recreational activity" within the meaning of s 5K.
77Tobias JA came to the following conclusions. First, in general terms, for a risk to qualify as significant, it must have a real chance of materialising. For a risk to have a real chance of materialising it must lie somewhere between a trivial risk and a risk likely to materialise, although it is probably closer to the second than the first. Secondly, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which the conduct occurs. Finally, having regard to the circumstances of the case, particularly the inexperience of the participants and the excitement and possible bravado involved in the shooting, the subject activity was clearly capable of involving a significant risk of physical harm. Therefore, the subject activity was a "dangerous recreational activity" within the meaning of s 5K.
78Basten JA agreed with Ipp JA that the burden of proof in establishing a defence under s 5L falls on the defendant. In the instant case, once the activity was identified as shooting kangaroos at night, and the relevant risk was identified as a wound caused by accidental discharge from a firearm, it was not possible to characterise a person who merely holds a spotlight as not involved in the activity because they are not involved in the actual shooting. It followed that the plaintiff was engaged in the recreational activity of shooting kangaroos at night. In considering whether a "risk of physical harm" is "significant" the seriousness of the harm must be considered. If the harm is potentially catastrophic, a very low level of risk may be treated as "significant". On the other hand, where the harm is not serious at all, the risk may not be considered significant until it reaches a much higher level. The phrase "significant risk" requires an objective test not dependent upon whether the plaintiff was aware of the risks involved in a particular activity.
79His Honour postulated three possible ways of considering whether a risk is significant. First, assume that any risk will be significant because the results of it eventuating are likely to be catastrophic. Secondly, draw an inference from statistical evidence. Thirdly, examine the particular circumstances of the case. Adopting the first approach would not reflect the statutory test set out in s 5K. The parties did not run their case based on the other two approaches. Therefore, it had not been established that there was a significant risk of injury from the accidental discharge of a firearm whilst shooting kangaroos at night, in the circumstances in which the plaintiff was involved. In those circumstances, in his Honour's view, it had not been established that the subject activity was a "dangerous recreational activity".
80Two years later, in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952, the Court of Appeal dealt with an appeal by the plaintiff who had been seriously injured in a diving accident. The facts were not significantly different from those in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 to which reference is made in the judgment. As in the present case, the critical issues that arose under the statutory provisions were first, whether the appellant's activities involved an "obvious risk" being a risk of harm that, in the circumstances, would have been obvious to a reasonable person in the plaintiff's position and secondly, whether the plaintiff's activity was a "dangerous recreational activity" as defined in s 5K, being one that involved a significant risk of physical harm.
81At [52] - [55] Tobias JA said this:
"[52] The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived.
[53] In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic.
[54] The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real.
[55] In my view the primary judge was correct to characterise the appellant's activity as a " dangerous recreational activity " within the meaning of s 5K of the CL Act. As his injuries were a result of the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by him, it follows that by virtue of the provisions of s 5L(1) of the CL Act , the Council is not liable in negligence for the appellant's injuries. On this further ground, the appeal fails."
82Although I was not referred to the passage specifically, the February 2001 Skate Facility Guide dealt with the question of the nature of skateboarding. At page 84 it contained this reference:
"In the 1990s the situation reversed and many States of the USA passed laws which classified skateboarding as a hazardous recreational activity, thus placing responsibility for injuries back onto the user and reducing concerns about insurance premiums or litigation. However, that approach has not been followed in Australia and the laws of occupier liability and negligence still apply to councils' conduct."
83Since the enactment of the Civil Liability Act the position is quite obviously different.
84Page 85 of the Skate Facility Guide says, "skating involves inherent risk of injury". The publication and the opinion are neither authoritative nor binding but the view expressed is not to my mind controversial or unreasonable. It arguably informs the nature of riding BMX bikes at skate parks.
85In my opinion, the activity in which Mr Vreman and Mr Morris were engaged when they were injured was a dangerous recreational activity. It clearly involved a significant risk of physical harm. The nature and degree of the harm that might be suffered was significant, as was the likelihood of it occurring. I do not consider that the risk of physical harm was low, but even if it had been, the potential harm was catastrophic. I also consider that the risk of physical harm was significant because in this case the likelihood of both the occurrence and the harm was more than trivial.
86Participants engaged in riding BMX bikes at the West Albury skate park necessarily commence almost every, if not in fact every, manoeuvre from the raised platforms positioned at the north and south ends of the park. The drop-ins are effectively vertical and the roll-ins are at approximately 45 degrees. The aim of these structures is to facilitate the instant or rapid attainment of speed on descent from the platforms that is then converted from forward momentum into anti-gravitational or vertical momentum in the form of jumps or other airborne tricks. Pedalling can be used to assist the attainment and retention of speed for these purposes. Ascending the drop-ins and roll-ins also requires considerable speed, and hence momentum, to be retained in order to return to a stationary position on top of the platform at the opposite end. The whole surface of the structure on and over which these manoeuvres are performed, including the platforms, is constructed of concrete in flat or angled or steeply curved configurations. Some angles are steel edged.
87Upon the basis of my observations from a purely untrained and unskilled perspective, performance of these manoeuvres is not for the faint-hearted. The jumps that I was asked to observe by the parties when the skate park was visited involved a BMX bike rider performing each of the manoeuvres performed by Mr Vreman and Mr Morris. In the case of the former, the bike becomes airborne over the full length of the fun box and the landing occurs not on a flat but on a sloping or concave surface. The rider is then confronted with the virtually sheer face of the approaching drop-in and must be prepared for its ascent almost instantaneously. There appears to a lay observer to be a quite limited margin for error. In the case of Mr Morris's activity, rolling forward down the roll-in appeared to be somewhat more straightforward although the performance of any jump planned to follow this entry into the skate park would be largely similar to that following an entry from the drop-in.
88The risk of physical harm resulting from this activity could not on any view be regarded as trivial. By reference to the particular activities engaged in by Mr Vreman and Mr Morris at the time and to these actual circumstances giving rise to the harm that they suffered, BMX bike riding at the West Albury skate park was objectively and prospectively a dangerous activity. Part of the activity may arguably not have been dangerous in isolation. For example, riding around the flat portion of the skate park circumnavigating the fun box without attempting tricks or jumps and without launching from the platforms by use of the drop-ins or roll-ins would not seem to be particularly dangerous at all. It would be the equivalent of recreational bike riding. Not all forms of cycling constitute dangerous recreational activity: see, for example, Edwards v Consolidated Broken Hill Pty Ltd [2005] NSWSC 301 at [24]:
"[24] The defendant submitted that it was not liable because the plaintiff was injured as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by him. The riding of a bicycle scarcely fits the concept of what I would understand the legislature to have intended to have comprehended by its expression "dangerous recreational activity". The risk in this case of falling from the bridge because the space for passage had been limited by the presence of rail cars is not a risk of bicycle riding as such, rather it is a risk created by the defendant's activity in allowing the storing rail cars in that position. Section 5L has no application to the present circumstances."
89However, in the present case, once a rider has determined upon an activity commencing with an accelerated entry from the raised platform dropping to the flat concrete surface below, with the likely or anticipated need to negotiate a raised obstacle in the form of the fun box, and then perform a jump or other trick in the air, a risk of falling is created that is completely different to the same risk that arises from simply riding the bike on a flat surface. There was a risk in the former case that the jump or the trick would not go as planned and that the landing may lead to a fall. That risk had a real chance of materialising. Mr Vreman was an experienced rider and expressly acknowledged the existence of this very risk. Mr Morris also agreed, "if you make a mistake and have a fall you might hurt yourself".
90In Greater Taree City Council v Peck [2002] NSWCA 331 at [65], Einstein J described skateboarding at a skateboard park as " plainly an inherently dangerous sport". In Shellharbour City Council v Rigby [2006] NSWCA 308 at [300]; (2006) Aust Torts Reports 81-864, Basten JA commented as follows with respect to an accident to a rider that occurred at a BMX bike riding track:
"[300] This was a constructed facility, not part of a natural environment. The fact that a recreational facility involved risks was a matter to be taken into account in making it available to the public without supervision: see [63] above, quoting Woods v Multi-Sport Holdings Pty Ltd at [37] (Gleeson CJ), referring to Rootes v Shelton (1967) 116 CLR 383 at 387. The ability to become airborne was undoubtedly part of the intended excitement of the feature, and the risk of an inexperienced airborne rider losing control of his or her bicycle was no doubt likely to be appreciated at some level by all riders, both experienced and inexperienced. However, the real concern related to inexperienced young riders who might lack the maturity and understanding to appreciate adequately the risks involved."
91The Council in this case contended that the classification of the activities undertaken by Mr Vreman and Mr Morris as dangerous would be consistent with what was said in those cases in similar circumstances.
92One of the submissions made on behalf of Mr Vreman and Mr Morris was that in statistical terms it could not be said that BMX bike riding at purpose built facilities was dangerous. It was suggested that material to be found at page 82 of the Skate Facility Guide under the heading "How dangerous is skating" showed that injury from BMX bikes accounted for 158 of the 136,000 presentations for accident related injuries to Victorian Hospitals over a three year period, and that this was statistically insignificant and consistent with little danger. That was promoted as at least prima facie support for the proposition that BMX bike riding is not a dangerous recreational activity, especially if it is carried out in a purpose built facility. The Council's response was that activities might be statistically "safe" but fundamentally dangerous. Although not cited as an example, one instance of this idea would seem to be recreational parachute jumping, which is not notoriously associated with unduly high rates of injury or death, but which could in my view only be described as a dangerous activity. Motorcar and motorbike racing would seem to fall into a similar category.
93In my opinion it would be an exercise in sophistry to conclude that the activities in which Mr Vreman and Mr Morris were each separately engaged were not dangerous recreational activities, even if the incidence of injuries was not particularly high or the degree of seriousness of injuries that were caused were not always or often catastrophic.
" Materialisation of an obvious risk "
94In Jaber at [27], Tobias JA said this:
"[27] It was common ground that the question of obvious risk involves the determination of whether the appellant's conduct involved a risk of harm which would have been obvious to a reasonable person in his position: Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 at [93]."
95The risk in this case was one that included at least the following segments or elements: (i) falling from a BMX bike, (ii) while riding at the West Albury skate park, (iii) when a wheel that might not slip on an unpainted concrete surface might slip on a painted concrete surface (iv) in the course of landing from a jump or when descending during a roll-in, (v) leading to or causing injury. As appears earlier, Mr Vreman accepted that any sloping surface was a riskier place to ride a BMX bike than a flat surface, that a smooth surface was a more risky place to ride a bike than a rough surface with better grip, and that wet surfaces were generally and usually more slippery than dry surfaces. He had noticed that after parts of the West Albury skate park had been painted that the painted areas appeared to him to be more slippery than the other unpainted areas and he knew that it was riskier to be riding a BMX bike on the painted areas than the bare concrete. As also appears earlier, Mr Morris accepted that as a matter of common sense, riding a bike on a steep surface was riskier than riding it on a flat surface, riding a bike on a smooth surface was riskier than riding a bike on a rough surface and riding a bike on a wet surface was riskier than riding a bike on a dry surface. He agreed they were "all things that everybody knows as a matter of common sense".
96Were these risks that were patent or a matter of common knowledge? Were they risks that would have been obvious to Mr Vreman and Mr Morris and risks that should have been obvious to anyone in their position of similar age and experience? Would the whole or any part of the segmented risk have been obvious to a reasonable person in the position of Mr Vreman or Mr Morris?
97In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 , Ipp JA said this:
"[149] In Fallas v Mourlas (2006) Aust Torts Reports 81-835 Tobias JA said at 68,362, [98]:
'It is clear from the definition of 'obvious risk' in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged as a 'dangerous recreational activity' as defined, all of the surrounding circumstances which occurred immediately prior to the respondent's suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was 'obvious'.'
[150] In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754 Tobias JA at 65,892, [161] defined the word "obvious" as meaning that:
'Both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment.'
At 65,892, [162] Tobias JA noted that in this definition the word "condition" referred to the factual scenario facing the plaintiff.
[151] The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Section 5F requires the question whether that risk was obvious to be answered by reference to a reasonable person in the position of Mr Dederer. In accordance with Fallas v Mourlas , regard must be had to the particular circumstances in which the harm was suffered.
[152] Whether the risk was obvious to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable 14 and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time: Fallas v Mourlas ."
98His Honour concluded at [172]:
"[172] ... Mr Dederer dived from a height of some nine metres into the estuary, and entered the water about 10 metres from a visible sandbar. In my opinion, even without the sign, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries."
99Some authorities indicate that the risk should be characterised quite specifically. In C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173] - [175], Bryson JA was at pains to emphasise the importance of obviousness in the statutory equation as follows:
"[173] Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of "obvious risk" to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished.
[174] However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly.
[175] When the risk is stated at this degree it is in my opinion quite unsustainable that it should be found as a fact that there was an obvious risk to which the provisions of Div.4 applied; obviously so."
100The Council argued that if the risk being considered is characterised too specifically then the section would have little practical utility, except in failure to warn cases. It submitted, therefore, that a more general characterisation of the risk was consistent with the express purpose of the Act, being "to limit the recovery of damages in relation to negligence and it must be given effect in accordance with that purpose": per Basten JA in Fallas v Mourlas at [121].
101In subjective terms the distinction is not significant in the case of Mr Vreman to whom the most specific level of risk was apparent. However, in objective terms, I can discern no material difference between Mr Vreman, taking into account such matters as his age, his observations, his experience and his knowledge of the prevailing local conditions, and a hypothetical reasonable person with similar characteristics in the same position. Putting the matter the other way, there was no special fact or characteristic peculiar or unique to Mr Vreman which armed him with an appreciation of the risk, or which made it obvious to him, which no other reasonable person in his position could be expected to possess. The position is similar in the case of Mr Morris.
102In each case these obvious risks materialised. Each man suffered harm when he fell from his bike. I consider that a reasonable person in the position of each man would have known, as Mr Vreman and Mr Morris knew, that the slippery surface of the skate park increased a risk that he or she might fall and be injured. That was something that Mr Vreman gleaned from riding on the painted surface many times before. Mr Morris knew that Mr Vreman had allegedly fallen because his bike had slipped on the painted surface. This is not a case like Maloney v Hutton-Potts where the person suffering harm was confronted with a risk that could not have been anticipated or detected as a normal (or obvious) risk associated with a freshly polished floor. The fact that the floor had been polished was obvious but the unremoved residue of polish was not obvious to a reasonable person in that plaintiff's position. The reasonable person in the position of Mr Vreman must be taken to have ridden on the painted surface of the skate park many times and to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. Similarly, the reasonable person in the position of Mr Morris must be taken to have had knowledge that Mr Vreman had been injured because his bike wheel reputedly slipped on the painted surface and also to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. The risks would have been obvious to a reasonable person in the position of each man.
Conclusion
103In these circumstances I find that the Council is not liable to Mr Vreman or Mr Morris in negligence for harm suffered by them because the harm was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity in which they were each separately engaged.
Risk warning regarding recreational activity
104Section 5M of the Act is in the following relevant terms:
" 5M No duty of care for recreational activity where risk warning
(1) A person ("the defendant") does not owe a duty of care to another person who engages in a recreational activity ("the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
(2) ...
(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).
(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).
(6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.
(7) ...
(8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.
(9) ...
(10) The fact that a risk is the subject of a risk warning does not of itself mean:
(a) that the risk is not an obvious or inherent risk of an activity, or
(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.
(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity."
105For the reasons given earlier, only the larger sign, the wording of which is set out in detail above, needs to be considered.
106The sign in question was a general warning sign in the sense that it warned generally about the need to wear protective clothing, including helmet, knee and elbow pads and wrist guards at all times and that users skated at their own risk. It drew attention to the need for users to skate carefully and not to exceed their skill level. It also advised that the facility should only be used in daylight and that children under 12 were to be supervised by an adult. The sign did not warn that the surface of the skate park may be, or become, slippery if wet, that it was likely to be more slippery on steeper slopes or that it was, or could be, more slippery on surfaces that were painted. It did not warn of anything at all specifically directed to bike riders, as opposed to skateboard riders, and did not warn that the wheels of bikes may slip or "wash out" in circumstances that either equated to, or that incorporated, the events that occurred in the plaintiffs' accidents. It did not mention that there was a risk of serious or catastrophic injury, as opposed by implication, to bruises or grazes or other minor injuries that could be prevented or lessened by protective gear and falling short of tetraplegia or brain damage.
107In the circumstances at least the following questions need to be answered:
- What was the risk associated with the recreational activity of riding bikes at the West Albury skate park?
- Was the risk warning given by the Council specific to the particular risk encountered by the plaintiffs, or was it a general warning?
- Did the Council give a warning in relation to the recreational activity of riding bikes at the West Albury skate park that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity?
- If the risk warning given by the Council was not specific to the particular risk encountered by the plaintiffs, but was a general warning, did it warn of risks that included the general nature of the particular risk concerned?
- Did the Council owe a duty to the plaintiffs in the circumstances?
108I shall deal with these in turn.
109First, as earlier indicated, the risks associated with the recreational activity of riding bikes at the West Albury skate park included at least (i) falling from a BMX bike, (ii) while riding at the West Albury skate park, (iii) when a wheel that might not slip on an unpainted concrete surface might slip on a painted concrete surface (iv) in the course of landing from a jump or when descending during a roll-in, (v) leading to or causing injury. In this last respect, the injuries of which participants took a risk ranged from minor or insignificant to serious and even catastrophic.
110Secondly, the risk warning given by the Council was not specific to the particular risk encountered by the plaintiffs, but was a general warning. Indeed, it did not in terms warn of any "risk" at all. A warning that users skated at their own risk clearly implies that a risk exists but is silent upon what it might be. Alternatively, coupled with the reference to protective clothing, the warning may be one that actually warns of risks but only those that can be obviated or sufficiently guarded against by conforming to the requirement to wear such equipment. Even if it be accepted that the nature of the activities engaged in at skate parks obviously include a risk of falling, the warning in this case did not extend to include the most serious consequences that may be caused by a fall. More particularly for present purposes, the warning did not include a reference to the risk of serious or catastrophic injury. Finally, the warning in this case said nothing about any risk or risks associated with the slipperiness of the surface of the skate park, the difference between a painted and an unpainted surface, the characteristics of gradients or steep surfaces and their relationship to the likelihood of slipping or falling or the effect upon any of these of the presence of moisture on the surface.
111Thirdly, in my opinion the Council did not give a warning in relation to the recreational activity of riding bikes at the West Albury skate park that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity. This is because the warning was general and not sufficiently specific to do so. The reasonable likelihood of the warning having such an effect must be judged at least by reference to the content of the warning. I consider that the warning was inadequate to convey the nature or extent of the risks associated with riding bikes at the skate park to which I have previously referred.
112Fourthly, it follows from the preceding paragraph that in my opinion the warning, even in its general form, did not warn of risks that included the general nature of the particular risk concerned. A warning such as "riding bikes on slippery surfaces may result in falls causing serious injury" or some equivalent formulation cannot be teased out of any warning given by the Council's sign in fact. At best, the sign erected by the Council is a sign exorting people to take care and reminding them that whatever they do they do at their own risk. See, for example, Belna Pty Limited v Irwin [2009] NSWCA 46 at [16] - [17] to similar effect. It is clear from s 5M(5) of the Act that a risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). However, in my opinion, the Council's sign does not give a general warning of risks that include the particular risks concerned because it does not warn of the general nature of the particular risks concerned. On one view, the sign does not warn of any risk at all. Moreover, even though a prohibition sign may operate as a warning sign (see, for example, Great Lakes Shire Council v Dederer at [168] - [170] and Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [39] and [79]), the sign in this case did not prohibit anything. In particular, the sign made no reference to bikes at all and was on one view directed in terms only to skate boarders or in-line skaters.
113As I have earlier indicated, the Council conceded that the evidence supported a finding that the bike prohibition sign was not present at the skate park when Mr Vreman had his accident and the evidence does not permit me otherwise to conclude that it was there when Mr Morris fell. However, even if the smaller sign that purported to prohibit bikes had any effect or relevance in this case, I do not consider that it operated as a risk warning. The Council had clearly acquiesced in the use of bikes at the skate park in the first place. However, more importantly the sign does not to my mind in a clear or obvious way warn of any explicit danger at all, nor even a danger that implicitly derives from a prohibition on the riding of bikes at the park. A sign banning swimming on a day of large surf or dangerous conditions at a beach, or a sign prohibiting diving from a bridge into an estuary may be in a different category. A sign banning fishing from the same bridge, or prohibiting dogs from running in or even entering a public park, or a sign prohibiting smoking on public transport are not in my view signs that are reasonably capable of being construed relevantly as risk warnings, as the other examples quite clearly can be. A sign banning or prohibiting the riding of bikes at the skate park in this case operated as a prohibition and no more. This is supported in my view as well by the fact that another sign purporting to address the dangers of using the skate park had also been erected by the Council and did not address bikes in terms at all.
114Finally, in my opinion it follows, that for the purposes only of the operation of the immunity provided to a party that complies with the requirements of s 5M of the Act, the Council continued to owe a duty of care to Mr Vreman and Mr Morris.