State of Queensland v Kelly [2014] QCA 27
The Respondent was rendered a partial tetraplegic by injuries he suffered when he ran down a sand dune and fell into Lake Wabby on Fraser Island in September 2007. Prior to the incident, the Respondent had been shown a safety video about the dangers of Fraser Island in general, and he had also walked past, but did not take notice of, two warning signs on his walk to Lake Wabby.
The trial judge held that:
(a) The content of the appellant’s duty of care was to take reasonable care to protect lawful entrants from risk of physical harm.
(b) The respondent’s injuries were caused by the appellant’s breach of its duty of care in failing to provide adequate warning of the dangers inherent in the visit to Lake Wabby in a video which was shown to the respondent.
(c) The damages recoverable by the respondent for the appellant’s negligence should be reduced by 15 percent because of the respondent’s contributory negligence in failing to closely read and obey warning signs in relation to Lake Wabby.
The appellant appealed on 5 separate grounds in relation to this judgment, however the two ultimate issues to be determined by the Supreme Court (the Court) were:
(1) Did the trial judge err in finding that the risk of injury which materialised was not an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003 (Qld) (the Act)?
(2) Alternatively, did the trial judge err by making an insufficient reduction of the damages on account of the respondent’s contributory negligence?
The Judges submitted separate judgments, each concurring to dismiss the appeal with costs.
“Obvious Risk”
The trial judge held that all relevant circumstances must be brought into account and the test is objective. It was accepted from both sides and the Court that the trial judge had used the correct enquiry to determine what constituted an “obvious risk”.
The Court held that the two warning signs should be taken into account when determining what is an obvious risk under s 13(1) of the Act. The court then determined that the relevant question in relation to the warning signs is not whether they warned of the relevant risk in a way which fulfilled the appellant’s duty of care owed to the respondent, but rather: ‘in the terms of s 13(1) of the Act, the risk of serious injury from an accident caused by running down the sand dune into the lake is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the respondent’.
Fraser JA further commented that if the appellant had argued that if the signs were absent that the activity would have been an “obvious risk” anyway, he would have rejected this argument. Therefore the “obviousness” of the risk of running down the dunes into the water hinged on how well the warning signs communicated the danger of the activity.
The Court ultimately held that the warning signs did not communicate the danger of running down the dunes and into the water at Lake Wabby.
Firstly, the court found that the warning signs depicted different risky behaviour than that was engaged by the respondent. The signs conveyed that serious injury or death might result from “running and diving” rather than from “running or diving”. Therefore the signs did not effectively communicate that running down the dune and into the lake involved the risk of serious injury which materialised.
Secondly, the warning signs did not communicate the high probability of the risk that materialised for the respondent. The Court, agreeing with Tobias JA in Jaber v Rockdale City Council (2008) Aust Torts Reports 81-952 at, held that it was necessary to take into account (when determining the “obviousness” of a risk) that the magnitude of the risk involved in the respondent’s activity was unusually high, and this should have been communicated to visitors of Lake Wabby.
The Court further agreed with the trial judge’s reconciliation that although the respondent should have studied the signs more closely, and that the signs did warn against running down the dunes, a reasonable reading of the signs would lead a visitor to think that it was the act of running and diving that represented the risk of injury and not running and jumping. Therefore the respondent’s statements (that if he had seen the two warning signs he would not have engaged in the activities that he did) were not inconsistent with the conclusion that the risk of serious injury which eventuated was not an obvious risk.
On a side note, the Court rejected the respondent’s argument that even if the relevant risk was an “obvious risk” within the meaning of s 13 of the Act, s 15 negated only a duty to warn, but not the duty to take the “remedial step” of supplying further information about the safe use of Lake Wabby. Fraser JA held that the case of Chotiputhsilpa v Walterhouse [2005] NSWCA 295 (which was relied upon by the respondent for this submission) was clearly a case of duty to warn and therefore there was no analogy with the present case.
Contributory Negligence
The Court agreed with Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 that:
“[a] finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may be well differences of opinion by different minds”…Such a finding, if made by a single judge, is not lightly reviewed.”
Therefore the Court was not persuaded that the trial judge’s apportionment was unreasonable or unjust as to indicate error of a kind that would justify a substituting apportionment.
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