In brief - Court finds that diving into river from a rope swing entails an obvious risk
The Court of Appeal in NSW has determined that a local council was not liable for harm suffered by a 16-year-old who became a quadriplegic after a diving accident because diving into a river from a rope swing is a dangerous recreational activity involving an obvious risk.
Increasing tendency to rely on defence of "obvious risk" and "dangerous recreational activity"
The Court of Appeal continues to consider defences made under section 5L of the Civil Liability Act 2002 (NSW) (CLA). Most recently, the decision in Streller v Albury City Council  NSWCA 348 continues the trend of cases where the defence of "obvious risk" and "dangerous recreational activity" has been successfully used to deny liability.
In addition to the recent developments in NSW, other states across the country have seen a similar uptake in the use of defences based on obvious risk and dangerous recreational activity to deny liability. Whilst insurers and their insureds have successfully relied on the defence, whether an obvious risk and dangerous recreational activity exist ultimately turns on the particular facts and circumstances of each case. (Please see also our earlier articles Civil liability for personal harm - dangerous recreational activity and obvious risk and Risk warnings, recreational activity and personal harm.)
Legislative schemes in the states of Australia
In NSW, pursuant to the CLA, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk (being a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person) of a dangerous recreational activity (being a recreational activity that involves a significant risk of physical harm) engaged in by the injured person.
Every state has enacted legislation codifying the position with respect to obvious risk. However, unlike the other states, Victoria and South Australia do not provide for an absolute defence to liability where the obvious risk arises from a dangerous recreational activity.
The territories have not enacted any provisions relating to obvious risk or dangerous recreational activity and continue to rely upon the common law.
Streller v Albury City Council
On 26 January 2008, Dylan Streller ("Appellant") attended Australia Day celebrations held at a local park within the municipality of Albury City Council ("Council"). The Appellant was then aged 16 and was an experienced diver, having jumped from 10 metre platforms before.
The Appellant swung from a rope hanging off a tree branch into a river which bordered the park. He attempted a 360 degree flip and struck his head on the riverbed, rendering him a quadriplegic.
There was evidence to suggest that the Council had identified the rope swing but that no contractors were available to remove it before the Australia Day event.
Diver fails to check depth of water in river
At first instance, Justice Latham found that the activity of jumping from the rope swing was a dangerous recreational activity, given that the river was undulating and it was not clear what the depth of the river was.
Much reliance was placed on the cross examination of the Appellant, who admitted that he had not checked the water depth before diving and that the use of a rope swing increased the area in which he could land, thereby increasing the risk of injury.
Although the Appellant observed others jumping from the rope swing, the trial judge found that this was not sufficient to remove the risk of injury to the Appellant as, by his own account, the river could be different depths depending upon where he landed.
Appellant argues that Council's failure to prevent risk of harm amounts to breach of duty of care
The Appellant sought to challenge the trial judge's decision by advancing the following arguments:
- that the scope of the Council's duty of care extended to taking steps to guard against the risk of injury, including removing the rope swing or preventing its use
- that by not removing the rope swing, the Council was endorsing that it was safe to swing from it and that the risk of harm was not obvious
- that by not removing the rope swing or otherwise eliminating the risk of injury from the rope swing or posting a security guard to prevent its use, the Council had breached its duty of care
- the defence of obvious risk from a dangerous recreational activity in section 5L of the CLA did not apply
Court finds obvious risk of harm from diving into water of unknown depth
The plurality of the Court of Appeal dismissed the appeal on the basis that section 5L did apply and acted as a complete defence.
In coming to that conclusion, the plurality considered that the risk of diving from a rope swing was obvious due to the following factors:
- the risk of injury from diving into a riverbank is obvious to an "adult exercising ordinary commonsense and judgment" and to an "athletic 16 year old"
- the plaintiff's knowledge and experience as a skilled diver
- the water was muddy therefore it was hard to judge the depth of the water
- failure to check the depth of the water by either wading in or any other method
- undulation of the height level of the sandbar was known to the plaintiff
- the varied landing points possible depending on the trajectory and point of release
- diving headfirst into shallow water is potentially catastrophic and commonly appreciated as such
As to the balance of the arguments raised in the appeal, the plurality commented that the Appellant had not established that the Council could have done anything further to prevent the injury and that the processes it had in place to deal with rope swings was adequate.
Obvious risk from dangerous recreational activity increasingly used as a defence
Streller is one of the most recent cases considering obvious risk and dangerous recreational activities at the appellate level and shows that the judiciary are willing to apply the defence in situations where plaintiffs have failed to take adequate care for their own safety when engaging in dangerous recreational activities, which are defined very broadly in the CLA.
By way of example, courts across the country have applied the defence of obvious risk from a dangerous recreational activity in the following circumstances:
- riding a motorbike on sand dunes where the rider had not previously attempted the activity at that location and approached the top of a dune at an unsafe speed (see Shire of Gingin v Coombe  WASCA 92)
- flying gliders whilst attempting to land near overhead powerlines and where the potential harm of engaging in the activity is catastrophic (see Echin v Southern Tablelands Gliding Club  NSWSC 516)
- BMX bike riding where it was found that performing jumps on a BMX bike at a skate park was a dangerous recreational activity and the risk of the wheel slipping on landing on a painted concrete surface was an obvious one (see Vreman and Morris v Albury City Council  NSWSC 39)
- undertaking flying lessons which constituted a dangerous recreational activity and the risk that the engine might fail during flight which may in turn necessitate the possibility of a forced emergency landing was an obvious risk (see Noel Campbell v Rodney Victor Hay  NSWDC 11)
Not all activities will be judged to be dangerous and involving obvious risk
That said, not every activity will meet the threshold requirements in establishing the defence. The defence was not made out in the following circumstances:
- a cyclist colliding with a closed boom gate on a cycleway where it was found that the position of the boom gate negatived a finding of obvious risk and the act of cycling was found not to be a dangerous recreational activity (see Simmons v Rockdale City Council  NSWSC 1431)
- riding a motorbike on windy roads - the court found no obvious risk or dangerous recreational activity where the plaintiff was travelling within the speed limit and there was inadequate signage warning of the bends ( Kerslake v Shire of Northam  WADC 129)
- running down sand dunes into water - there was no obvious risk where the plaintiff had performed the activity on 10 previous occasions and saw many others perform the same activity (see Kelly v State of Queensland  QSC 106)
- risky driving - despite there being evidence that the teenage boys may have exceeded the speed limit and were doing "laps", the court did not consider there to be sufficient evidence to establish obvious risk or dangerous recreational activity (see Wilson v Lambkin  QDC 254)
- horse racing - no dangerous recreational activity where the rider was a professional jockey and employed to engage in the horse race (see Dodge v Snell  TASSC 19)
Facts and circumstances of each case must be considered carefully
As the above case summaries illustrate, whether a defence under section 5L (or its equivalent in the other states) can be successfully relied on to uphold a denial of liability will always depend on the peculiar facts and circumstances of each case. It is not possible to extract a hard and fast rule.
The trend of cases, including the most recent Court of Appeal decision in Streller, reveals that the tort reform philosophies behind the introduction of the CLA back in 2002, which included the concept of personal responsibility, continue to be relevant when these types of cases are determined.
Where the defence cannot be made out, it may be possible to raise other defences such as voluntary assumption of risk, contributory negligence and/or that an adequate risk warning was given.
|Melissa Fenton||Jun Zhou||Rory Butler|
|Colin Biggers & Paisley|