Australia: Council not liable for late night fall off cliff

HG Insurance & Risk Alert: 27 May 2015
Last Updated: 31 May 2015
Article by Brooke Jacobs and Elizabeth Harvey

In Morris v Redland City Council [2015] QCS 135, the Supreme Court of Queensland dismissed the plaintiff's claim for damages after he fell from a cliff onto the beach at North Stradbroke Island.

In this Alert, Special Counsel Brooke Jacobs and Solicitor Elizabeth Harvey discuss the various implications of the case for actions based on a "failure to warn", particularly in relation to unforeseeable and obvious risks.

The facts

The plaintiff was holidaying on North Stradbroke Island. At about 10pm on 5 February 2010, after consuming a considerable amount of alcohol, he fell approximately 20 metres from the top of a cliff onto Frenchman's Beach at Point Lookout. The plaintiff fell after detouring off the main boardwalk onto a "well worn track/path" which he said led off from the boardwalk and in the direction of the cliff.

The plaintiff was rendered paraplegic as a result of the incident.

He commenced proceedings against Redland City Council (Council), the local authority responsible for the headland, and Ray White North Stradbroke Island (Ray White), the rental agent who secured his holiday accommodation, seeking damages for negligence.

The decision

The plaintiff had consumed, on his own evidence, about eight beers before falling off the cliff.

The court rejected the plaintiff's evidence that there was a path, man-made or otherwise, leading from the boardwalk through the headland and to the cliff.

Rather, the court concluded that, in darkness and under the influence of alcohol, the plaintiff wandered through an area about which he knew nothing, which was mostly covered by thick natural vegetation and became steeper as he approached the cliff.

The court found that the risk of injury was not reasonably foreseeable to Council. This was particularly the case in the absence of prior incidents or observations of people traversing the area. Furthermore, there was nothing on the headland (an area of thick, natural vegetation) that suggested it led to the beach, and the stairs that did lead to the beach could be easily found at night, because the directional sign was illuminated by a street light. The plaintiff's claim, therefore, failed.

The court further noted that despite the plaintiff's allegations that Council breached their duty of care by failing to erect warning signs, the plaintiff gave no evidence about the number and placement of signs and the content of any warning that he alleged would have prevented his accident. The court noted, with approval, Gleeson CJ and Kirby J's finding in Vairy v Wyong Shire Council:

"Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority...ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning".

The court was not persuaded that signs would have stopped the plaintiff in his state of mind from looking for an entry to the beach at the site of the incident. The court otherwise noted it was impracticable for Council to erect warning signs about the innumerable and obvious risks of entering the heavily vegetated headland.

The court also considered section 15 of the Civil Liability Act 2003 (CLA) and agreed with Council that the risk of injury would have been obvious to any reasonable person in the position of the plaintiff.

Given the claimant's alcohol consumption prior to the incident, the court was required to consider section 47 of the CLA and found that the plaintiff was not able to rebut the presumption of contributory negligence due to intoxication. Section 47 prescribed a minimum reduction of 25% "or a greater percentage decided by the court to be appropriate in the circumstances of the case." The court held that, had Council been found negligent, the plaintiff's damages should be reduced by 50% on account of his contributory negligence.

Indemnity costs awarded to Ray White

The plaintiff alleged in his statement of claim that Ray White breached their duty of care by failing to give a more expansive description of where the stairs to the beach were situated and for failing to warn of the risks associated with the cliff, which was a long distance away from the rental property.

At trial, the plaintiff elected not to proceed against Ray White and judgment for that defendant was entered by consent.

The court awarded indemnity costs to Ray White, on the basis that the claim brought by the plaintiff had no chances of success and Ray White had clearly elucidated the shortcomings of the plaintiff's case as early as October 2011.

The court gave less regard to Ray White's Calderbank offer to walk away bearing its own costs because it was not straightforward and was dependent on the plaintiff indemnifying Ray White in respect of Council's claim for contribution.

Key Take Away Points

  • Local authorities are under no obligation to warn of remote or obvious risks;
  • Plaintiffs seeking to advance cases on the basis of a "failure to warn" must adduce evidence of the content of any warning signs and placement and will also need to demonstrate that a failure to warn was causally relevant to the occurrence of their incident;
  • If a plaintiff's level of intoxication impairs judgment, vision and/or vigilance and materially contributes to the occurrence of the incident, the plaintiff will be unable to rebut the presumption of contributory negligence contained in section 47 of the CLA; and
  • When making Calderbank offers to provide costs protection, parties should make them as "straightforward" (or free of conditions and easy to accept) as possible.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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

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

Brooke Jacobs
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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 by clicking here .

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 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.


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.


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.


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.


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

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

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

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