Posted on July 20, 2012 by 6

Council’s liability: Dangerous recreational activities

On 28 May 2012 Latham J of the the Supreme Court of NSW delivered judgment in the case of Streller v Albury City Council [2012] NSWSC 729.

The principle issue was whether the Council owed a duty of care to a young man who had sustained catastrophic injuries as a result of diving from a tree into the Murray River.

The basic facts of the case were as follows:

• Australia Day celebrations occurred in Noreuil Park in Albury.
• The Plaintiff and his friends attended the celebrations
• An area adjacent to Noreuil Park was Oddies Creek Park. That park had frontage to the Murray River.
• A tree that was on the riverbank of the Murray River had a rope attached and many boys were using the tree and rope to jump into the Murray River.
• The Plaintiff, who was an accomplished competitive diver, dove several times from the tree and then finally used the rope to back flip into the water.
• The Plaintiff suffered severe injuries, namely C7 quadriplegia.

The argument put forward by the Plaintiff was that the Council owed him a duty of care to take reasonable precaution to avoid a foreseeable risk of injury to him, and that the duty of care was breached. Specifically the Plaintiff argued that the breach of the alleged duty of care resulted from a failure to remove the rope swing, failure to properly supervise the rope swing, failure to ensure that the water was sufficiently deep to safely use the rope swing and a failure to warn the plaintiff that it was dangerous for him to dive into the water or to use the swing.

Duty of Care

The Court found that should a duty of care be found to exist the qualification to that duty would be that the Council ‘owed a duty to take reasonable care towards those entering Oddies Creek park who exercise reasonable care for their own safety, as opposed to ensuring that no harm comes to any entrant…’

Ultimately the Court concluded that the Council did not owe the Plaintiff a duty of care in this case. The Court did not accept that the Council encouraged recreational use of the tree. Rather, the Court found that the Council ‘attempted, by the erection of signage, to discourage persons from swimming in the river and removed rope swings or caused them to be removed as soon as practicable.’

Whilst the Court concluded that no duty of care was owed, the Court still went on to discuss the issue of breach.

Breach of duty of care

Section 5B of the Civil Liability Act provides:

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

…

The Court found that the risk of harm in the present case was the risk associated with using the rope swing to launch from the particular tree and a risk of harm from hitting the surface of the water.

The reasonable response to a risk of harm is to be determined prospectively and is not to be coloured by the particular way in which the plaintiff came to be injured. The Court found, in this case, that the reasonable person in the place of the Council was ‘a local government body with limited resources and large areas of land to supervise and manage.’

The Court determined that the Council exercised reasonable care in relation to the risk of harm arising out of the use of the rope swing. The factors relevant to the Court’s decision in these circumstances were:

• The weekly inspections by the Council of trees by the water, and removal of rope swings located during those inspections.
• The Council had no greater knowledge of the depth of the water than the Plaintiff.
• No evidence of any previous jumping or diving incident at Oddies Creek Park.
• Removal of the rope swing required the services of a specialist contractor, the two contractors contacted by the Council were not available to remove the rope swing until after the Anzac day holiday.
• The Council had no control over the depth of the river.

Defence – dangerous recreational activity

The Council argued that it was not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the Plaintiff.

The Court held that the risk of harm was an obvious risk.

To determine whether a recreational activity is dangerous, that is involving 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 plaintiff but also the circumstances which provide the context in which that conduct occurs.

The Court concluded that in this case the recreational activity did involve a significant risk of harm, as such ‘the harm suffered by the Plaintiff was the result of the materialisation of an obvious risk of that dangerous recreational activity.’

The Court’s finding in this respect was based on factors such as the height of the rope swing, the current in the centre of the river and the potential for submerged obstacles to be brought by the current to land in the area below the rope swing and the risk involved in the Plaintiff’s manoeuvre (the back flip).

The Court ultimately found that the Plaintiff’s claim in negligence failed.

UPDATE: On 23 October 2013 the NSW Court of Appeal handed down a decision (Streller v Albury City Council [2013] NSWCA 348) dismissing an appeal against the decision of Latham J.

Meagher JA, with whom Ward JA and Emmett JA agreed, held that the primary judge was correct to conclude that the risk of harm was an obvious risk, was one that made the activity dangerous, and therefore the Council had a complete defence to the claim under s5L of the Civil Liability Act 2002.