5 March, 2019
In times of ever increasing claims brought against Local Councils for personal injuries sustained in public recreation areas, a recent District Court judgment[1] serves as a timely reminder that Local Councils are not bound to provide warnings for (or take unnecessary precautions against) hazards that present as an "obvious risk".
In this case, his Honour Judge Lakatos found that the Hills Shire Council (Council) owed no duty of care to warn of the obvious risk of slipping and falling on a Fire Trail, located within a bushland reserve.[2]
Background
On 9 September 2014, San Mei Pan slipped and fell whilst bushwalking on a Fire Trail which was under the care, control and management of the Council. As a result of the fall, Ms Pan sustained injuries to her jaw and teeth.
Ms Pan commenced proceedings against the Council, alleging that it owed members of the public a duty of care to ensure the Fire Trail did not give rise to a foreseeable risk of injury. Ms Pan asserted that the Council was negligent for failing to barricade the Fire Trail, failing to ensure the surface of the slope did not contain loose material and failing to erect a warning sign at the entrance of the Fire Trail, cautioning bushwalkers as to the presence of a steep slope. Ms Pan also alleged the Fire Trail did not constitute an obvious risk because it was visually deceptive in its presentation.
Decision: An obvious risk
An obvious risk is defined in s5F of the Civil Liability Act 2002 (NSW) as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.[3] Lakatos DCJ found that the risk of slipping and falling on the Fire Trail was "obvious" and, consequently, no warning was required. In arriving at this conclusion, his Honour gave weight to:
The view of the Fire Trail, conducted in the course of the Hearing, which led his Honour to dismiss Ms Pan's assertion that the Fire Trail was visually deceptive as "it [was] unavoidable but to see and have a reasonable grasp of the steepness and condition of the trail ,"[4] such that he could not "agree that the degree of steepness would not have been apparent to most reasonable people.''[5]
Ms Pan's evidence about the moments before she traversed the Fire Trial, including her recollection of stopping at the top of the Fire Trail and discussing whether to proceed with her friend, and her memory of previous bushwalking experiences. These particular facts led his Honour to conclude that Ms Pan had not discharged the burden of proving that, on balance, she was not aware of the risks posed by the Fire Trail.
In the circumstances, his Honour was not persuaded to find that Council had breached its duty of care by failing to barricade the Fire Trail, or ensure that the slope of the Fire Trail did not contain loose material. In arriving at this conclusion, his Honour had regard to the Bush Fire Coordinating Committee Policy No 2/2007 (Policy), which prohibited the installation of physical barriers which impeded emergency vehicle access, and proscribed the use of certain materials in the construction of the Fire Trail.
Implications
This decision assists in defining the scope of a Council's duty to warn of risks, and supports the well-established principle that:
If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective.[6]
This case reiterates that while a Local Council will be found to owe an entrant a duty of care to take reasonable steps to avoid foreseeable loss or injury, that duty does not extend to warning of an obvious risk, and may not extend to requiring a Local Council to take precautions to guard against the materialisation of that obvious risk.
For further information, please contact:
Michelle Dunne, Partner, Clyde & Co
michelle.dunne@clydeco.com
1. San Mei Pan v The Hills Shire Council [2017] NSWDC
2. Ibid, [176]
3. See also Collins v Clarence Valley Council [2015] NSWCA 263, [138]-[139] per McColl JA
4. San Mei Pan v The Hills Shire Council [2017] NSWDC, [144]
5. Ibid, [143]
6. Vairy v Wyong Shire Council (2005) 223 CLR 442, [7]
