Posted on September 21, 2015 by Frances Tse

Risk Warning Signs – Enter at Your Own Risk

Councils can take some comfort regarding the effectiveness of general risk warning signs as a result of the decision of the Court of Appeal in Sharp v Parramatta City Council [2015] NSWCA 260. In 2009, the appellant suffered injuries as a result of landing awkwardly in the water after jumping from a 10m diving platform at Parramatta War Memorial Swimming Centre.

Council displayed a risk warning sign which read:

PARRAMATTA CITY COUNCIL

PERSONS USING

THE PLATFORMS

AND

SPRINGBOARDS

DO SO AT THEIR

OWN RISK

Council was found not liable as the Court held that the sign was sufficient to give the Council the benefit of the defence in section 5M of the Civil Liability Act 2002 (‘CL Act‘).

The relevant parts of section 5M are as follows:

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.

…

(3)  For the purposes of subsections (1)…, 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.

…

(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).

…

(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.

The Court found on the evidence that the sign was affixed to a supporting pillar of the diving platform at eye level, it was in large and clear letters and persons who approached the diving platform via particular stairs leading to the platform had to walk towards and directly past the sign.

The appellant argued that the Council could not rely on the risk warning sign to absolve it from liability because:

• the sign did not warn of the general nature of the particular risk as referred to in section 5M(5),
• the warning was not a ‘risk warning’ because it was not given in a manner that was reasonably likely to result in people being warned as required under section 5M(3), and
• oral instructions given by the duty lifeguard contradicted the risk warning (see section 5M(8)).

The Court disagreed with the appellant in all three respects.

General nature of the risk

The Court first identified the general nature of the risk as ‘injury from diving or jumping from the platform’.

The Court then considered what risk the warning sign was directed at and concluded that it was directed at the risk involved in the activity of using the platforms and springboards. The Court considered that the platforms and springboards were used to jump or dive into the pool, and therefore the warning sign did warn of the general nature of the risk because it warns that there is a risk of injury in undertaking the activity of diving or jumping into the pool from the platforms and springboards.

Likelihood of people being warned

The Court emphasised that this test was an objective one. The question to ask was not whether the appellant received or understood the warning but whether the warning, by the manner in which it was given was reasonably likely to result in people in the same position as the appellant receiving and understanding the warning.

In this case, the appellant was a person who approached the diving platform via the stairs leading to the platform. Having regard to the fact that the sign was placed at eye level, in large and clear letters and in a location where persons who approached the diving platform the same way would have had to walk towards and directly past the sign, the Court held that the warning sign was reasonably likely to result in people who gained access to the platform in the same way as the appellant being warned of the risk.

Contradiction of the risk warning

An allegation was put forward that the lifeguard on duty, in addition to giving instructions to the appellant to ‘enter the water vertically and feet first’ also gave instructions to ‘just take a run and jump’.

The Court held that even if the lifeguard did allegedly give those instructions that those instructions did not contradict the general warning of the risk of jumping or diving from the platform.

Conclusion

There are many and varied circumstances under which local councils may put up risk warning signs in respect of recreational activities.

Councils must turn their minds to the identification of the general nature of the risk they are warning about and whether the physical characteristics of the sign and the location of the sign are appropriate. A badly placed sign with a general statement such as ‘Enter at your own risk’ is unlikely  to be sufficient.

However, what the case demonstrates is that the sign does not need to be detailed in order to meet the requirements of section 5M of the CL Act.

Although the lifeguard’s comments in this case did not affect the Council’s ability to rely on the defence, councils should generally ensure that employees (such as lifeguards) who give directions to the public on behalf of the council are properly trained to ensure they do not contradict risk warning signs.