Australia: Obvious Risk And Dangerous Recreational Activity - Sections 5F, 5H, 5K And 5L Of The Civil Liability Act

Jaber v Rockdale City Council [2008] NSWCA 98

Tobias JA; Campbell JA; Handley AJA

In Brief

• The risk of injury to the plaintiff who dived into water from a pylon located on a wharf was an "obvious risk" within the meaning of s 5F(1) of the Civil Liability Act and there was no duty to warn of that risk.

• The recreational activity undertaken by the plaintiff was a "dangerous recreational activity" within the meaning of s 5K of the Civil Liability Act in that it involved a significant risk of physical harm.

Background Circumstances

• On 5 October 2003 the plaintiff, then 19 years old, dived headfirst from a pylon or bollard located on a wharf at Dolls Point, under the care, control and management of the Rockdale City Council ("the defendant"), causing him to strike his head on the seabed, sustaining significant injuries to his cervical spine.

• The trial judge found that the plaintiff dived into the water from a height of two to three metres above its surface and that the depth of the water into which he dived was such that when he stood up after striking the bottom, his head and shoulders were above the surface of the water.

• The trial judge also found that the plaintiff:

(a) trod water from time to time as he swam towards the steps for the purpose of ascertaining the depth of the water and that he did so before he climbed onto the steps;

(b) was mindful that a sufficient depth of water was needed before he could commence diving;

(c) was aware of the potential danger of not being certain that the depth of water was sufficient to enable him to dive safely;

(d) did not know the exact depth of water into which he was diving;

(e) knew that if he hit his head on the bottom, he could be very badly injured, killed or confined to a wheelchair;

(f) had turned his mind to those dangers at the time.

• In its defence the defendant denied that it was guilty of negligence, and also alleged contributory negligence, including that the plaintiff exposed himself to an obvious risk and was engaged in a dangerous recreational activity.

• At trial the defendant also relied upon the provisions in the Civil Liability Act 2002 in relation to there being no proactive duty to warn him of obvious risks, and that there can be no liability for harm suffered from the materialisation of obvious risks of dangerous recreational activities.

• Section 5H of the Civil Liability Act states:

" A person does not owe a duty of care to another person to warn of an obvious risk to the plaintiff "

• Section 5K of the Civil Liability Act states:

" Dangerous recreational activity means a recreational activity that involves a significant risk of physical harm & Recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. "

• Section 5L of the Civil Liability Act states:

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

District Court Decision

• Robison DCJ held that the defendant was entitled to rely upon the provisions of the Civil Liability Act, notwithstanding that they had not been specifically pleaded, as the defendant had expressly pleaded in the particulars of contributory negligence that the plaintiff exposed himself to an obvious risk and had engaged in a dangerous recreational activity.

• In upholding the defendant's Civil Liability Act defences, and accordingly finding in its favour, Robison DCJ concluded as follows:

" Diving per se, absent diving from a wall or rocks or bridges is not necessarily a dangerous recreational activity. But diving from a wharf with [sic] the proximity of that wharf, or more correctly the post on that wharf to the surrounding sand which effectively is the beach, is an entirely different matter in my view...

The cases refer to a number of activities which could be classified a dangerous activity or not. But when one looks at this case in the context of the plaintiff undertaking the specific diving manoeuvre that he did from a wharf which jutted out from a beach, one can only form one conclusion, adopting the objective test in Fallas v Mourlas [2006] NSWCA 32 and other authorities that this indeed was a dangerous recreational activity. In my view no other view can be entertained...

It is quite clear to me that the injury, loss and damage which was sustained and complained of by the plaintiff, occurred wholly as a result of his own fault. He failed to take any reasonable care for his own safety. He certainly failed to keep a proper lookout. This was an obvious hazard. Clearly when one looks at the photographic evidence relied upon by the plaintiff himself in his case, there can only be one conclusion drawn from that. That is, that it was far too close to the sand, the plaintiff exposed himself to that, he failed to avoid it and came to grief.

Whilst there was some check for the depth of the water, clearly it was an insufficient check of the depth of the water. He exposed himself to an obvious risk and an inherent risk and indeed in the circumstances before me, this was a plaintiff engaged in a dangerous recreational activity. "

Court of Appeal Decision

• Tobias JA, who wrote the unanimous judgment, noted that it was common ground that the question of obvious risk involved the determination of whether the plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in his position (Carey v The Lake Macquarie City Council [2007] Aust Torts Reports 81-874).

• Tobias JA noted that recent decisions in Roads & Traffic Authority NSW v Dederer [2006] NSWCA 101, and Vairy v Wyong Shire Council [2005] 223 CLR 422, were decided prior to the introduction of the Civil Liability Act, and that under the Civil Liability Act the focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his position.

• Tobias JA found that just because the plaintiff believed that the water was deep enough did not militate against a finding that there was an obvious risk, as a reasonable person, in the position of the plaintiff, wishing to dive headfirst from the top of a bollard two or three metres above the surface level of the water, would not regard that method as a reasonable substitute for properly testing the depth. It was the "potential for danger" that constituted the relevant risk which would be readily apparent to a reasonable person in his position.

• Accordingly Tobias JA found that the trial judge was correct to find that the relevant risk of harm was an obvious risk, such that the defendant did not owe a duty of care to the plaintiff to warn of that risk, and for that reason alone the plaintiff's appeal must fail.

• Tobias JA nonetheless went on to also find that the plaintiff was engaged in a dangerous recreational activity within the meaning of s 5K of the Civil Liability Act.

• In determining whether or not the plaintiff was engaged in a dangerous recreational activity, Tobias JA stated that the relevant standard lies "somewhere between a trivial risk and one that is likely to occur". Tobias JA also quoted from Ipp JA in the case of Falvo v Australia Oz Tag Sports Association [2006] Aust Torts Reports 81-831, that the concept involved "a significant risk of physical harm".

• Tobias JA found that this case did constitute a serious risk of physical harm and that accordingly the trial judge was correct to characterise the plaintiff's activity as a "dangerous recreational activity" within the meaning of s 5K of the Civil Liability Act, and it followed that by virtue of the provisions of s 5L(1) of the Civil Liability Act the defendant was not liable in negligence for the plaintiff's injuries.

• Campbell JA and Handley AJA concurred with Tobias JA's decision, with Handley AJA also adding that "the council had no duty to warn the plaintiff of a diving risk and had not invited or encouraged the plaintiff to dive headfirst off the bollards", such that the plaintiff also failed under the general law and not simply pursuant to the provisions of the Civil Liability Act.

Implications

• Whilst this decision of the Court of Appeal would appear to be an obvious one based on the facts, it nonetheless is a good example that the law of negligence has in some respects changed since the introduction of the Civil Liability Act, and that defendants should take advantage of the provisions in relation to obvious risks and/or dangerous recreational activities.

• The decision also confirms that the test for obvious risks and determining whether in terms of s 5K a recreational activity is 'dangerous' is an objective one, and the fact that a plaintiff may not have appreciated the folly of his or her actions should be irrelevant. The question for the court to determine is whether the risk would be readily apparent to a reasonable person in the plaintiff's position.

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