Australia: Court of Appeal finds there was no duty of care owed by operators of a vessel to ensure the water depth was safe for diving and examines scope of "dangerous recreational activity"

Curwoods Case Note
Last Updated: 1 February 2012
Article by Samantha Thorndike

Judgment date: 16 December 2011

Laoulach v Ibrahim [2011] NSWCA 402

NSW Court of Appeal1

In Brief

  • In determining the existence and scope of a duty of care in novel situations, it is necessary to look at the relationship between the plaintiff and defendant, including:
    • the degree and nature of control able to be exercised by the defendant to avoid harm;
    • any assumption of responsibility by the defendant;
    • the degree of vulnerability of the plaintiff to harm from the defendant's conduct; and
    • the capacity and reasonable expectation of a plaintiff to take steps to protect him or herself.
  • An "obvious" risk within the meaning of s 5F(1) of the Civil Liability Act 2002 (CLA) means that both the condition and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgement. A risk may be "obvious" even though it is not significant.
  • A "dangerous recreational activity" within the meaning of s 5K of the CLA requires the recreational activity to involve a significant risk of harm. This standard lies somewhere between a trivial risk and one that is likely to occur. As a general guide, the risk cannot be "significant" unless there is a real chance of it materialising. This is even if the risk was significant in terms of its catastrophic consequences.

Background

On 30 November 2004, Robert Laoulach (plaintiff) and his friends had taken a vessel for a test drive. They moored the vessel in Botany Bay approximately 40 m from the shoreline. The friends began diving from the vessel's bow. The plaintiff initially entered the water feet first to check its depth. After a period of time, Mr Ibrahim and Mr Beaini, the second and fourth defendants in the primary proceedings and the only respondents in the appeal (respondents), moved the vessel as Mr Ibrahim had hit his shoulder whilst diving and decided it was too shallow to dive safely. The vessel was moved approximately 15 to 20 m further out to sea.

At the second anchor point, the plaintiff and his friends all dived off the bow safely at first. The plaintiff then returned to the boat and commenced a second dive into the water, which he believed to be the same area as he had previously dived. The plaintiff's head struck the sand and he suffered a significant fracture of the C5 and became a tetraplegic.

The plaintiff initially commenced proceedings against the owner of the vessel and 3 of his friends who navigated the vessel on the date of injury (defendants). The plaintiff alleged that the defendants had control of the vessel at the relevant time and that he was reliant upon their expertise for his safety. The particulars of negligence included failing to warn the plaintiff of the risk of injury and to adequately secure the vessel to ensure the vessel did not drift into shallow water. Damages were agreed in the sum of $8 million, subject to argument about any limitation under the Limitation of Liability for Maritime Claims Act 1989.

Supreme Court

The trial judge in the Supreme Court of New South Wales, Price J, made various findings of fact (discussed below) and concluded that although the defendants owed the plaintiff a duty of care, this duty of care was not breached. Although Price J found that the risk of harm of the plaintiff diving into water of uncertain depth was foreseeable and not insignificant, he did not consider the defendants had failed to act in a manner in which reasonable people in their positions would have acted as they reasonably held the belief that the water was sufficiently deep to dive into.

On an obiter basis, Price J determined that the plaintiff was engaged in a "dangerous recreational activity" as diving into water from a vessel was "recreational activity" for which the potential harm was catastrophic. He did so despite finding the obviousness of the risk of injury to a person in the position of the plaintiff at the time was low. Accordingly, he found the defendants would not have been liable in negligence for the plaintiff's injuries, even if a breach of duty of care had been found, pursuant to s 5L(1) of the CLA. Section 5L(1) provides that:

"A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff."

Judgment was entered in favour of the defendants. We note the primary decision was the subject of a Curwoods Case Note and can be referred to for further details of Price J's decision.

Court of Appeal

The plaintiff appealed the decision of Price J to the New South Wales Court of Appeal in respect of 4 findings of fact, the finding with respect to breach of duty of care and the findings with respect to a dangerous recreational activity. The respondents in turn appealed against the primary judge's finding with respect to the existence of a duty of care.

The plaintiff's appeal was ultimately dismissed with costs on a unanimous basis. Tobias AJA provided the unanimous judgment.

Findings of Fact

The plaintiff appealed against 4 findings of fact regarding the wind speed, the sea conditions, the use of a depth sounder and whether the vessel dragged its anchor into shallow water. On all points, the Court of Appeal found no demonstrable error in the primary judge's assessment of the evidence. Importantly, the Court of Appeal could find no fault in Price J's finding that it was more probable than not that the plaintiff dived into a shallow bank rather than the vessel drifting back towards the shore into shallow water due to the effects of wind causing it to drag its anchor, which might arguably have been observable by the respondents.

Duty of Care

Price J found that the respondents had a duty to exercise reasonable care to ensure that the vessel did not move back towards the shore into shallow water from the second anchor point. He found that the relationship between the respondents and the plaintiff gave rise to a duty of care as they had assumed responsibility for moving the vessel to the second anchor point which they considered to be safe for diving and had also taken on the responsibility of ensuring the vessel was securely anchored.

The respondents appealed this finding. The Court of Appeal agreed with the respondents' submissions that once the vessel had stopped and the anchor deployed, the relationship between the respondents and the plaintiff was no different to the relationship between any others on the boat.

Tobias AJA stated that when establishing a duty of care in a novel situation, reference should be made to the decision of Allsop P in Caltex Refineries (Qld) Pty Limited v Stavar2. Having regard to that decision, the "salient features" to be considered include:

  1. The degree and nature of control able to be exercised by the defendant to avoid harm;
  2. Any assumption of responsibility by the defendant;
  3. The degree of vulnerability of the plaintiff to harm from the defendant's conduct, and
  4. The capacity and reasonable expectation of a plaintiff to take steps to protect itself.

The Court of Appeal found that once the vessel had been anchored, the respondents ceased to exercise some degree of control over the movement of the vessel. Nor had they assumed responsibility to take steps to ensure the vessel did not move. Further, it could not be asserted that the plaintiff was in a position of vulnerability. He had the capacity to protect himself and it would be reasonably expected that the plaintiff would satisfy himself that the water was of sufficient depth to enable him to dive safely, which is precisely what he did. The respondents were in no better position to be able to judge the depth of the water than the plaintiff.

The Court of Appeal cited with approval comments made by McHugh J in Dovuro Pty Limited v Wilkins3 that:

"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community ... To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute ..."

Accordingly, the Court of Appeal found the primary judge was in error in finding that the respondents owed to the plaintiff a duty to take reasonable care to ensure the vessel did not drift into shallow water.

Breach of Duty of Care

In finding that there was no breach of duty of care, Price J found that reasonable people in the positions of the respondents would have held the belief that the water was sufficiently deep to dive into safely, given their observations of water colour and having dived safely on numerous occasions before the injury occurred. Further, Price J held the respondents were entitled to act on the expectation that the plaintiff would exercise reasonable care for his own safety before diving. In addition, reasonable people in the positions of the respondents would not have considered it likely the vessel would move to any significant extent.

The Court of Appeal agreed with the analysis of Price J in determining the issue of breach of duty of care with reference to s 5B(1) of the CLA. The Court accepted the primary judge's findings that the risk of harm when diving in shallow water was foreseeable and not insignificant, as required by s 5B(1)(a) and (b). The issue then became in terms of s 5B(1)(c) as to whether a reasonable person in the position of the respondents would have taken precautions to prevent that risk of harm from materialising.

The Court of Appeal agreed that the plaintiff was in just as good a position to judge the depth of water as the respondents. They agreed no warning was required and that further, the respondents were entitled to expect the plaintiff would exercise reasonable care for his own safety. The facts suggested that all men onboard had previously dived without mishap and no one had observed the vessel to swing or move significantly. Accordingly, a reasonable person in the position of the respondents would not have taken the further precautions suggested by the plaintiff such as checking the water depth with a depth sounder. Accordingly, the Court of Appeal rejected the plaintiff's challenge to the primary judge's finding of no breach of duty of care.

Dangerous Recreational Activity

The primary judge, on an obiter basis, made a finding that the defendants would not have been liable for the harm suffered by the plaintiff, even if a breach of duty of care had been found, as the harm was a result of the materialisation of an "obvious risk" of a "dangerous recreational activity", as specified in s 5L of the CLA. In dealing with the plaintiff's appeal, the Court of Appeal looked at the meaning of these terms in their assessment of whether s 5L would have applied to this case.

Firstly, the Court referred to the definition found in s 5F of the CLA which provides that an "obvious risk" is one which is obvious to a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgment, as per the decision in Jaber v Rockdale City Council4. In Jaber, Tobias AJA stated that diving from a vessel into water of unknown depth created an "obvious risk" of injury. However, in this judgment, Tobias AJA modified his comments and observed that the factual context must always be considered. In some circumstances, such as diving from a vessel in the middle of the ocean, the risk of injury might not be obvious.

In this case, the plaintiff had exercised his own judgment prior to his dives in deciding whether it was safe to do so from the vessel. The Court of Appeal agreed that a reasonable person in the position of the plaintiff would have considered the risk of injury from diving into the water was low. Despite this, the Court of Appeal held that once the risk existed and was known to the plaintiff, it became an "obvious risk".

Secondly, the Court of Appeal looked at the definition of a "dangerous recreational activity", which is defined in s 5K of the CLA to mean a recreational activity that "involves a significant risk of physical harm". The Court of Appeal confirmed that when determining whether the risk is "significant" one must look at the chance of it occurring and the consequences if it does. The Court of Appeal observed that a "significant" risk lies somewhere between a trivial risk and one which is likely to occur. As a general guide, the risk cannot be "significant" unless there is a real chance of it materialising, as per the decision in Fallas v Mourlas5.

In this particular case, although the risk of harm of hitting a sandbar was significant in terms of its catastrophic consequences, there had already been a finding that the risk of the harm materialising was low in terms of the probability of its occurrence. Accordingly, although the Court of Appeal agreed the risk of harm to the plaintiff was "obvious", they found Price J had erred in finding the plaintiff was engaged in a "dangerous recreational activity".

Implications

Despite the unfortunate and significant injuries suffered by the plaintiff, the Court of Appeal has supported the decision of the Supreme Court of New South Wales that a finding of negligence will not be made unless each of the elements set out in the legislation and common law are met. The Court of Appeal will not make findings in relation to the existence of a duty of care without consideration of the common experience of the community. Negligence law, to serve any useful social purpose, must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community.

This decision will be of assistance to insurers in defending allegations of negligence both in relation to the existence of a duty of care in novel situations and also as to whether that duty of care has been breached. In particular, in determining breach of duty of care, each of the elements outlined in s 5B(1) must be met and the onus is on the plaintiff to establish that a reasonable person in the position of the defendant would have taken the alleged precautions.

The Court of Appeal in this case modified its comments in relation to diving from a vessel into water of unknown depth. Importantly, the factual context must always be considered and there will be circumstances where a risk of injury may not be "obvious", such as diving from a vessel in the middle of the ocean.

Even if a risk of injury is "obvious", and the potential consequences catastrophic, unless there is a real chance of the risk materialising, defendants will be unable to escape liability for harm caused by the materialisation of an obvious risk of a "dangerous recreational activity" under s 5L of the CLA.

Footnotes

1 Giles JA; Macfarlane JA; Tobias AJA
2 [2009] NSWCA 258
3 [2003] High Court 51
4 [2008] NSWCA 98
5 [2006] NSWCA 32

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions