Streller v Albury City Council [2013] NSWCA 348

Meagher JA

30 In its ordinary use, the adjective “obvious” describes something which is clearly apparent or easily recognised or understood, and that is the meaning which this Court has held it has when used in s 5F(1): see Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Tort Reports 81-952 at [35], [38], [39] (Tobias JA, Campbell JA and Handley AJA agreeing); and Laoulach v Ibrahim[2011] NSWCA 402 at [79]-[80] (Tobias AJA, Giles JA and Macfarlan JA agreeing).

31 Part 1A of the Act applies to claims for damages for harm resulting from negligence. Section 5F(1) requires, for the purposes of Divisions 4 and 5 of that Part, that the question whether a risk of harm is “obvious” is to be determined by reference to the circumstances of the claim to which the provisions of the Part apply. Such a risk is one which “in the circumstances would have been obvious to a reasonable person in the position of that person”, being a reference to the person “who suffers harm”. Thus, the subject of the forward-looking inquiry called for by use of the language “would have been obvious” is the risk of harm suffered by the particular plaintiff to whose claim the Part applies. The reference to the “reasonable person” posits an objective standard, namely the hypothetical reasonable person. That person is assumed to be in the circumstances in which the harm was in fact suffered and to have the knowledge and experience of the person who suffered it. An example of the assumptions which may be made in such an inquiry is provided by Doubleday v Kelly [2005] NSWCA 151. In that case the plaintiff suffered injury while using a trampoline wearing roller skates. The characteristics which were attributed to the hypothetical reasonable person for the purpose of addressing whether the risk was “obvious” included “being a child of seven with no previous experience in the use of trampolines or roller skates”: at [28].

32 Jumping or diving into the river involved risks of harm, which were not limited to impact with the riverbed. There were other risks of impact – with someone in the water, the surface of the water or some object below the surface of the water – associated with that activity which also might have resulted in injury to the appellant. However, those risks were not relevant to the inquiries called for by ss 5H and 5L in this case because the appellant’s injuries did not result from the materialisation of any of those risks. Accordingly, the forward-looking question posed in this case was whether at the time the appellant proposed to use the rope swing to do the back flip manoeuvre, the risk or chance of his being injured from impact with the riverbed “would have been obvious” to a reasonable 16 year old in his position.

33 The risk of injury from diving or landing head first in water which is or could be too shallow would certainly be an obvious one to an adult exercising ordinary commonsense and judgment. If confirmation was needed for the correctness of that proposition, it may be found in the observations in Vairy v Wyong Shire Council at [5], [10] (Gleeson CJ and Kirby J), [41], [43] (McHugh J), [80], [107] (Gummow J), [133], [159] (Hayne J) and [209], [216] (Callinan and Heydon JJ). It would also be obvious to an optimistic, but not foolhardy, and athletic 16 year old with the life experience of the appellant. That experience included swimming and diving in pools and rivers from a relatively young age. The appellant conceded as much in his evidence and did not contend otherwise before the primary judge or in this Court. His case, which was rejected by the primary judge, was that taking into account that knowledge and experience and the particular circumstances as they presented to him, a reasonable person of his age would have concluded that the water was deep enough to attempt the back flip manoeuvre using the rope swing without there being any risk of injury from impact with the riverbed.

34 In relation to this argument, the appellant relied before the primary judge on the following specific matters: that on previous occasions he had dived and jumped into the Murray River safely from the same and other trees, including using rope swings; that he was an accomplished diver; that the manoeuvre he was attempting was for him a “relatively simple dive”; that the area of the river adjacent to the tree and rope swing was “known for being deep”; that when he had floated down the river earlier that day the water in that area had appeared to be fairly deep; that he had observed that when children had jumped or dived from the tree or using the rope, they had become fully submerged; that none of the other boys jumping or performing back flips into the river had appeared to suffer any injury; that he completed three feet first jumps into the river from the top branch of the tree without touching the riverbed.

35 I am conscious that these circumstances must be addressed through the eyes of a reasonable 16 year old. Viewed from that perspective they may have justified a conclusion that in a particular area, where others of similar weight had jumped from a position in the tree, the water was deep enough to jump in the same way and from the same position. However, they did not justify any conclusion as to the depth of the water in other areas or as to whether the water in any area was deep enough to avoid impact with the riverbed if one was heavier, jumping or diving from a different position or height or entering the water in a different way. From the appellant’s perspective, the critical matter was, as he acknowledged in his evidence, that the use of the rope swing increased the possible area in which he could land compared with someone jumping or diving from a fixed point in the tree. The water was muddy and it was not possible by looking to judge how deep or shallow it was. The appellant had not checked the depth of the water by wading in the areas where he might possibly land. There were people standing in the river, including near the middle and adjacent to the position of the tree and rope swing. This confirmed that there were variations in its depth due to sand bars, mud banks and the like and that it got shallower towards the middle. Looking at the matter prospectively, the chance that the appellant could land in water which was too shallow and impact with the riverbed was not excluded by what he had seen or done either on that day or previously.

36 The same considerations led the primary judge to conclude that this risk of harm was present and would have been “obvious” to a reasonable person in the appellant’s position. In doing so the primary judge took into account some matters of “common knowledge”. Her Honour’s findings as to these matters are not challenged on appeal and accord with the appellant’s evidence as to his appreciation of them:

“[87] … The fact that the depths of rivers may vary according to the drift of sand banks and mud banks, the fact that the landing point of a person using a rope swing varies depending upon the trajectory and the point of release, the fact that the depth of penetration into the water by a diver depends upon the diver’s weight and method of entry, and the fact that the consequences of diving headfirst into shallow water are potentially catastrophic are all commonly known and appreciated.”

37 Having referred at [81] to several of the factors relied upon by the appellant which I have set out above, her Honour observed:

“[82] The selective nature of these factors ignores the fact that the plaintiff himself acknowledged that there was a range of entry points into the water that were possible from the use of the rope swing. The fact that those persons who had previously jumped or dived using the rope swing had not been injured said nothing about the risk of injury to someone using the rope swing to enter the water from a higher point of the arc.”

38 I agree with the primary judge’s conclusion that the risk would have been “obvious” to a reasonable person in the appellant’s position. The circumstances as they presented themselves did not exclude the risk of the appellant landing in an area where other jumpers or divers had not landed which was closer to the middle of the river where there was shallow water. Nor did those circumstances exclude the risk of his landing in an area where others had landed but in such a manner that he went deeper into the water because of his weight, the height of his jump or his method of entry. Each of these matters would have been clearly apparent to a person in the appellant’s position exercising ordinary commonsense and judgment.

39 As the appellant conceded, there was a chance that he might not get the manoeuvre he was attempting “right”. This carried with it the risk that he would not land where he intended to land or in an area where he had seen others safely enter the water or in the way he intended to enter the water. A reasonable person in his position would not have concluded that the risk of his landing in water which was not deep enough to avoid impact with the riverbed had been eliminated or made fanciful by the particular matters upon which the appellant relies.

40 One of the matters said by the appellant to be relevant to whether the risk of injury was “obvious” is his contention that a reasonable person in his position would have assumed that the rope had been deliberately placed in the tree as part of the recreational activities organised by the Council and that it was safe to use it. I have not taken this matter into account because there is no support for it in the evidence or by reference to any standard of reasonable behaviour. There was no evidence of any conduct on the part of the Council which indicated to members of the public that the Council had placed the rope there, or knew of its presence, or that it had otherwise encouraged the rope’s use. The rope was not a permanent feature of a specific area which the Council promoted as a venue for swimming, jumping or diving: cf Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 430; Berrigan Shire Council v Ballerini at [26]. The evidence was that rope swings “came and went” from different places on the riverbank. I would not infer, in the absence of any supporting evidence, that someone in the appellant’s position would reasonably assume that adults or an authority like the Council might deliberately place a rope swing in a tree as part of a recreational activity without making that fact expressly known in some way.

41The primary judge’s findings to that effect are not challenged on appeal:

“[72] … The effect of the evidence given by the plaintiff and his witnesses was that it was their own past experiences of jumping and/or diving from that location, together with their own observation of a number of other boys jumping or diving from the tree and from the rope, that informed their impression that it was safe for them to do so. The presence of the rope itself and the absence of any security guards at that location were not relevant to their decision to undertake that activity.”

I conclude that a reasonable person of the appellant’s age and experience would not have made an assumption of the kind relied upon.

42 That conclusion makes it unnecessary to consider the appellant’s further argument, made only faintly, that the relevant risk of harm was that such a representation might be wrong; and that such a risk was not obvious. That argument is not available because the representation was not made and because the risk that the representation may be wrong is not, where the relevant harm is personal injury, the risk which materialised and resulted in the appellant’s injury.

Dangerous recreational activity

43 A “dangerous” recreational activity is one that involves a “significant risk of physical harm”. In Falvo v Australian Oztag Sports Association [2006] NSWCA 17, this Court held that the ordinary meaning of the defined term (“dangerous recreational activity”) could be taken into account when considering what is a “significant risk of physical harm”: at [28], [30] (Ipp JA, Hunt AJA and Adams J agreeing); the relevant principle being that where a statutory definition is of a word or words which have an ordinary English meaning, that meaning can influence the construction of the language of the definition: see Delaney v Staples [1992] 1 AC 687 at 692; Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394 at [8]-[9]; Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 at [17]; and Rennie Golledge Pty Ltd v Ballard [2012] NSWCA 376; 82 NSWLR 231 at [129]-[130]. The reason why it is permissible to do so is referred to by Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 at [17], albeit in the context of construing a definition in a commercial agreement:

“The words used as labels are seldom arbitrary. They are usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition. In such cases the language of the defined expression may help to elucidate ambiguities in the definition … .”

44 Whether a risk of physical harm is “significant” requires an objective assessment of the relevant activity which takes account of the probability of that harm coming to pass and the seriousness of the harm which would or might then result: Falvo v Australian Oztag Sports Association at [28]-[31]; Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [12]-[18] (Ipp JA), [91] (Tobias JA), [131], [136] (Basten JA); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] (Mason P, McColl JA and Hunt AJA agreeing); and Jaber v Rockdale City Council at [46]-[47] (Tobias JA, Campbell JA and Handley AJA agreeing).

45 The primary judge described, at [87] and [95], the physical harm which might result from the activity in which the appellant proposed to engage as “potentially catastrophic” and “serious”. Her Honour also described the probability of the occurrence of such harm as something which “could not be regarded as trivial”: [95]. She concluded that the activity involved a “significant” risk of physical harm. The appellant criticises that conclusion on the basis that for a risk to be “significant” within s 5K it must have a “real chance of materialising”. The appellant also says that in assessing the probability of the occurrence of such harm, the primary judge did not have sufficient regard to the circumstances which are also relied upon as justifying a conclusion that the risk of an impact injury was not “obvious”.

46 In her consideration of whether the risk was “significant” the primary judge referred at [94] to the observations of Ipp JA at [18] and Tobias JA at [91] in Fallas v Mourlas. In the first of these paragraphs, having noted that whether a risk is “significant” is to be informed by the probability of its occurrence as well as the nature of the harm which might result, Ipp JA said in relation to the former that it was not practicable or desirable to impose any further definition other than to say that the risk of its occurrence should be “somewhere between a trivial risk and a risk likely to materialise”. In the latter paragraph, having referred to this statement and noted that a risk having “a real chance of materialising” lay somewhere between the two points referred to, Tobias JA said that as a “general guide” “the risk should have a real chance of materialising for it to qualify as significant”.

47 The appellant relies upon Tobias JA’s statement as laying down what must be established in every case for there to be a “significant risk”. That reliance is misplaced. That is not the effect of what Tobias JA decided. Nor does it reflect what later decisions of this Court have held to be the relevant principle. Tobias JA was not seeking to lay down any more than “a general guide” to assessing what is a “significant” risk. He accepted that in each case the characterisation of a risk as such must depend upon the particular facts and circumstances. In Lormine Pty Ltd v Xuereb, this Court (Mason P, McColl JA and Hunt AJA agreeing), after referring to earlier decisions, including Fallas v Mourlas, summarised in the following terms what the statutory provisions required when determining whether a recreational activity is “dangerous”:

“[31] … The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm.

48 In Jaber v Rockdale City Council, having referred to this statement, Tobias JA (Campbell JA and Handley AJA agreeing) said that “the relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, ‘significance’ is to be informed by the elements of both risk and physical harm”. The primary judge applied that construction of the relevant statutory provisions and, contrary to the appellant’s submissions, did not err in doing so.

49 Her Honour was satisfied that the chance or probability of the appellant suffering serious injury in attempting the back flip manoeuvre was more than trivial. In being so satisfied, she did not fail to take account of the particular circumstances to which the appellant refers. As the analysis above in relation to “obvious risk” shows, those circumstances did not exclude the real possibility that the appellant might land in water which was too shallow and make contact with the riverbed.

50 In some cases, this being one, it may not be possible to assess on a prospective basis, and by reference to the circumstances of the activity engaged in, the probability of a risk of harm coming to pass other than by saying that it lies in a range between not fanciful or of no significance and high. That is the case here because the depth of the water in all of the areas where the appellant might land was not known and depending upon where and how he landed the probability of his hitting the riverbed could be high. The risk or chance of that happening was “real” and “present” and the consequences of its occurring were potentially catastrophic. In my view that risk of physical harm was a “significant” one and the activity which involved that risk was “dangerous” in the sense of being unsafe because it was accompanied by a real risk of serious injury.

51 The appellant also relied upon the observation of Tobias AJA in Laoulach v Ibrahim at [123] that for a risk to be “significant there must be a finding not only that it was more than trivial or very slight but also, generally speaking, that there was a real chance of the risk materialising”. In that case this Court overturned the conclusion of the primary judge that the risk of harm in diving from the bow of a vessel moored in Botany Bay was “significant”. It did so on the basis of his unchallenged finding that the “probability of the risk of harm materialising was low” (at [123]). That is not this case. Here the probability of the risk of harm materialising was more than trivial and could have been high.

52 The obvious risk, which resulted in the appellant’s injury, was one which made the activity in which he was engaged “dangerous”. For that reason it is not necessary to address whether the “obvious risk” which materialises and results in the relevant physical harm has to be the or a “significant risk” of the relevant recreational activity so as to constitute it as a “dangerous” one: cf the differing views expressed in Fallas v Mourlas by Ipp JA at [29] and Basten JA at [151]. The primary judge correctly concluded that s 5L(1) applied with the result that the Council was not liable to the appellant. That conclusion means that the appeal must be dismissed.

Brisbane Barrister – David Cormack

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