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HG Insurance and Risk Alert: Recent Court of Appeal decision serves as a warning sign for public authorities - 6 March 2014

The placement and content of warning signs has undergone extensive judicial scrutiny in recent times, particularly in relation to signs erected by public authorities. In State of Queensland v Evan Kelly the Court of Appeal again considered the meaning of ‘obvious risk’ in s13 of the Civil Liability Act 2003 (CLA) and the adequacy of warning signs erected by the State of Queensland.

In this Alert, Senior Associate Anna Hendry and Associate Claire Bruggemann discuss the background of the case, and explain why the Court of Appeal ultimately upheld the original decision of the trial judge.

Key Take Away Points

  • Warning signs must specifically address the relevant risk.
  • Warning signs should be placed in close proximity to the risk.
  • If possible and applicable, warning signs should include a reference to the number or severity of injuries caused by the particular risk, or both.

Background

The State of Queensland requires commercial tour operators to show a video to visitors to Fraser Island which include warnings about the danger of diving into swimming places. Signs on Fraser Island warn visitors of the risk of diving into Lake Wabby and other popular swimming places.

In light of those warnings, many visitors to Lake Wabby enjoy running down the sand dune and jumping, feet first, into the lake. However, this activity also poses risks, including the risk of tripping or slipping on the sand in such a way that the intended feet first jump turns into an unexpected, awkward and dangerous dive into the water. Is that risk ‘obvious’ or should the State of Queensland warn visitors of the risk, just as it warns visitors of the risk of diving?

State of Queensland v Evan Kelly required a consideration of that very scenario. At first instance, McMeekin J concluded that the State of Queensland had breached its duty of care to Kelly, a visitor to the island, by failing to warn him of that specific risk. In particular, he found that:

  • the risk of injury was not an ‘obvious risk’ as defined by s13 of the CLA;
  • the State of Queensland had breached its duty of care by failing to provide adequate and specific warnings about the danger of running down the dunes by way of the safety video and signs; and
  • the plaintiff’s loss and damage ought to be reduced by 15 percent to account for his contributory negligence.

Court of Appeal

The State of Queensland appealed the decision on the basis that the trial judge:

  • erred in finding that the risk of injury was not an ‘obvious risk’; and
  • made an insufficient reduction of damages for contributory negligence.

The Court of Appeal unanimously held that the trial judge was correct in concluding that the risk of injury that materialised was not an ‘obvious risk’. 

In deciding whether the risk was ‘obvious’ and whether there was a breach of duty, the Court of Appeal considered the following:

  • Whether the warning signs erected by the State of Queensland were relevant in assessing what a reasonable person would do in the circumstances;
  • Whether there ought to have been more warning signs and the content of the warning signs and video were inadequate because:
    • they warned of a risk of injury from ‘running and diving’ but failed to warn of the risk of simply running down the sand dune;
    • they did not effectively communicate the risk of serious injury that materialised; and
    • they did not communicate the magnitude of the risk, which was unusually high considering  the number of previous serious injuries sustained in that way at Lake Wabby.
  • Whether the risk was ‘obvious’ might be influenced by factors including:
    • the person’s own experience in relation to the activity; in this case, Kelly had run down the sand dune on nine or ten prior occasions without mishap.
    • The above circumstances justified the trial judge’s finding that the risk of injury was not an ‘obvious risk’ and that the State of Queensland had breached its duty of care.

In relation to contributory negligence, the Court of Appeal concluded that it was open to the trial judge to make a finding on apportionment and a finding of 15 percent was not so unreasonable or unjust as to justify the Court of Appeal substituting a different decision.

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