The New South Wales Court of Appeal recently considered the issues of 'obvious risk' and 'dangerous recreational activity' under the Civil Liability Act 2002 (NSW) (CLA). The case, Jaber v Rockdale City Council  NSWCA 98, involved an action brought by a person who sustained significant injuries from diving off a wharf and striking his head on the seabed.
On 5 October 2003, Bilal Jaber dived head first from a pylon or bollard located on a wharf at Dolls Point under the care, control and management of Rockdale City Council. In the dive Jaber struck his head on the seabed sustaining significant injuries to his cervical spine.
Jaber sued the Council for negligence alleging that it was in breach of its duty of care in failing to adequately warn persons that it was dangerous to dive from the wharf.
The Council denied that it was guilty of negligence as alleged in the particulars provided in the Statement of Claim or at all. It relied upon the provisions of Division 4 (Assumption of Risk) and Division 5 (Recreational Activities) of Part 1A of the CLA.
The trial judge rejected Jaber's claim and found for the Council. Jaber then appealed the decision contending that the trial judge erred in finding:
- The risk of diving from the wharf was an 'obvious risk' to a reasonable person in Jaber's position.
- The recreational activity undertaken by Jaber was a 'dangerous recreational activity' within the meaning of section 5K of the CLA in that it involved a significant risk of physical harm.
The principal issue on appeal concerned whether the risk of diving from the wharf into water of uncertain depth was an 'obvious risk' to a reasonable person in Jaber's position.
The Court of Appeal found that Jaber accepted he knew generally that diving into shallow water or water of uncertain depth, might result in injury and was aware of what the trial judge referred to as 'the potential for danger'. The Court of Appeal held that it was this 'potential for danger' that constituted the relevant risk and this risk was, on Jaber's own evidence, a risk that was apparent to him.
Accordingly, the Court of Appeal found this would be a risk that would have been readily apparent to a reasonable person in Jaber's position. The Court concluded the fact Jaber believed the water was deep enough, because he had checked its depth by treading water prior to diving, did not militate against a finding that there was an 'obvious risk' that would be readily apparent to a reasonable person in Jaber's position. It was held that a reasonable person who wished to dive head first from the top of a bollard, which was only two or three metres above the level of the water, would not regard that method as a reasonable substitute for testing the depth by more reliable means like jumping in feet first.
Therefore the Court of Appeal held that the relevant risk of harm to which Jaber was exposed, fell within the meaning of 'obvious risk' under section 5F(1) of the CLA. Accordingly the Appeal was dismissed and, by virtue of section 5H(1), it followed the Council did not owe a duty of care to Jaber to warn him of that risk.
Dangerous recreational activity
Jaber also challenged the trial judge's finding that the recreational activity undertaken by him was a 'dangerous recreational activity' within the meaning of section 5K of the CLA. The Court of Appeal stated the activity must involve a significant risk of physical harm and the relevant standard for a significant risk of physical harm will lie somewhere between a trivial risk and one that is likely to occur.
The Court of Appeal discussed in detail the meaning of the word 'significant' and determined 'significant' is to be informed by the elements of both risk and physical harm. In this case the Court of Appeal held that it could not be said the risk of physical harm was in the circumstances trivial, but nor was the risk one which would inevitably eventuate.
However, there was a real chance of the risk materialising if, as in this case, Jaber misjudged the depth of the water. Additionally, it was acknowledged by Jaber the nature of the physical harm that could be sustained if the risk materialised was extremely serious.
Therefore, it was held the trial judge was correct to characterise Jaber's activity as a 'dangerous recreational activity' within the meaning of section 5K of the CLA. Accordingly, the Court dismissed the Appeal finding the Council was not liable in negligence for Jaber's injuries as the injuries were from the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by Jaber himself.
It was also found to be correct that the trial judge held the Council not liable to Jaber for his injuries by virtue of the provisions of sections 5H(1) and 5L(1) of the CLA. The consequence of the first of these provisions is that Council had no duty to warn Jaber of what was an 'obvious risk'. Due to the second, the Council was not liable in negligence for the injuries suffered by Jaber from the materialisation of that risk for the recreational activity that involved a significant risk of physical harm.
Comon law position
It should be noted the Court of Appeal stated the claim would also fail under general law, as the Council had no duty to warn Jaber of a diving risk and had not invited or encouraged Jaber to dive head first off the bollard.
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