Felhaber v Rockhampton City Council  QSC 023
The plaintiff was a 17 year old boy who, in the company of friends, had been swinging from an improvised rope swing attached to the bough of a tree overhanging the Fitzroy River at a recreational area in Rockhampton, known as the Ski Gardens. On the plaintiff's final swing he dived head first into the water, striking his head on the river bed and breaking his neck, rendering him a quadriplegic.
The Rockhampton City Council controlled and maintained the Ski Gardens and the surrounding land by undertaking tasks such as mowing the grass, removing rubbish and pruning trees. The Council had also erected and maintained a playground, picnic tables, barbeque, toilets and a boat ramp in the area. The Council was aware of, and indeed encouraged, public use of the land and the adjacent river for numerous recreational and water activities.
The plaintiff had been in the habit of frequently visiting the Ski Gardens with his friends over the two to three months prior to the incident. Two of the plaintiff's female friends had filmed part of the events on the day of the incident, including part of the plaintiff's last dive, as well as some of his earlier dives.
It was the practice of the plaintiff and his friends to wade out and check the depth of the river prior to diving, and this was carried out by the plaintiff on the day of the incident. The plaintiff and two of his male friends then took it in turns to swing from the rope and dive into the river. They did so, intermittently, for approximately 45 minutes.
When executing his last dive the plaintiff landed to close to the bank in a shallower section of the river bed, resulting in his injury.
The parties had agreed the quantum of damages at $5 million.
It was accepted that the Council, by virtue of its exercise of control over the Ski Gardens, owed a duty to entrants, such as the plaintiff, to take reasonable care to protect them from unnecessary risk of physical harm.
Justice McMeekin found that the exercise of reasonable care did not require the Council to remove the bough of the tree from which the rope was slung, remove the tree or erect a sign. In reaching this decision, His Honour took into account various factors, including:
- The activity of swinging from the tree and diving into the
river was a voluntary recreational activity engaged in by the
plaintiff. Further, the risks inherent in the activity were, on any
view, obvious. As to the plaintiff's knowledge of the
obviousness of the risk, His Honour stated that:
'In my view the plaintiff well understood the danger here – you had to land away from the bank in deeper water to be safe. It was a risk he courted with every dive. I do not see how it can be said that he did not appreciate it or that the Council should assume that younger people old enough to be likely to engage in the practice without the supervision of adults would not have appreciated it'
- As the risk was obvious, the Council could reasonably expect members of the public to exercise care to keep themselves safe. Those persons too immature to appreciate the risk could reasonably be expected to be under adult supervision
- The tree from which the plaintiff swung was no different to any other tree lining the banks of the Fitzroy River upon which such swings might be erected. The risk in question arose at every place where there was a tree overhanging water within the significant area of parkland and waterway, for which the Council was responsible. There was no reason the Council should have singled out this tree
- The Council did not create the risk and in no way 'required or invited or encouraged' entrants to the area to engage in the activity
- The evidence showed that while the Council had cut down similar
rope swings from time to time, they would soon be replaced
– 'the youth of the city seemed determined to pursue
the thrill involved in leaping from swings into the river.' If
the Council had removed the tree in all likelihood another tree
would have been adopted. It was not realistic for the Council to
remove every tree that might be utilised for this activity. As to
the erection of a prohibitory sign, His Honour remarked:
'...why assume that someone will have the interest or ability to read and heed any sign the Council might erect who does not appreciate that water can be shallower near to the bank and hence represent a hazard'
Accordingly, there was little utility in taking the proposed measures as the risk would not have been eliminated
- The activity was one that was widespread and frequently enjoyed in waterways around the region. There was ample evidence that the practice of this activity had been going on for a very long time and that there were many similar rope swings in the area. Despite the long history of this activity, there was no evidence of any injury having been reported prior to the plaintiff's injury, which supported the proposition that no more significant response by the Council was required.
If the Council had breached its duty of care
Despite finding that the Council did not breach its duty of care, Justice McMeekin went on to address causation. On this issue His Honour found that, had there been a breach, the necessary causal element would have been present. That is, had the tree been removed the incident would not have occurred.
Further, had the bough of the tree and rope swing been removed there was no evidence that the plaintiff would have attempted to install another rope swing. In addition, had a prohibitory sign been in place it was likely the plaintiff would have complied with it.
As to the defence raised by the Council of voluntary assumption of risk, His Honour referred to his earlier finding that the plaintiff had full knowledge of, and appreciated the nature and extent of, the risk inherent in the activity. Further, His Honour considered that the plaintiff was not obligated or compelled to accept the risk and had opportunity to avoid it. On this basis it was held that the plaintiff had voluntarily assumed the risk.
The final issue for consideration, if the Council had breached its duty of care, was whether the plaintiff had negligently contributed to his injuries? His Honour, whilst acknowledging consideration of this issue after already deciding there had been no breach required a 'leap of the imagination', agreed that the plaintiff had been negligent for failing to ensure that he kept a safe distance away from the bank during his dive and made a notional apportionment of 50%.
The pursuit by the public of recreational activities involving risks in areas under the control and management of local authorities is a daily occurrence. This decision highlights the need for any consideration of what response is required by a local authority to a particular risk to be carefully balanced against the voluntary and recreational nature of the activity, the obviousness of the risk, the care expected to be exercised by member of the public, the sphere of responsibility of the local authority, the probability of the occurrence of an injury and the utility of taking alleviating action.
It remains to be seen whether the unsuccessful plaintiff will appeal.
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