December 2013

Rope swing injury ‘an obvious risk’

by Kate Tilley, Resolve Editor

A 16-year-old boy severely injured after diving into a river from a rope swing has failed in an attempt to find Albury City Council liable for his injuries.

The NSW Appeal Court has rejected Dylan Streller’s appeal against Justice Megan Latham’s original finding the council was not liable.

On January 26, 2008, Dylan attempted a back flip using a rope attached to a tree branch overhanging the Murray River. The tree was next to Oddies Creek Park on the banks of the river, downstream from the Union Bridge on the outskirts of Albury.

On that day, the council had organised Australia Day events, including live music, children's activities, community exhibitions and a novelty boat race known as the ‘Mad Hatter Regatta’ at the Noreuil Park foreshore, downstream of Oddies Creek Park.

Other than the start of the regatta from upstream of the Union Bridge, none of the activities or entertainment took place outside Noreuil Park and the foreshore area.

Dylan and two mates had seen the rope swing when they floated downstream to the foreshore events and, later in the afternoon, went to Oddies Creek Park where Dylan, an accomplished diver, joined the queue to use the swing.

Dylan swung in an arc over the river while facing the riverbank, releasing his grip from the rope towards the top of the arc, then performing a 360 degree back flip in the air to land feet first in the water.

Appeal Court Justice Rod Meagher, with whom Justices Julie Ward and Arthur Emmett agreed, said the “point of release was likely to have been more than six metres above the surface of the water. Tragically [Dylan] suffered a C7 quadriplegia injury” after landing awkwardly and striking the riverbed.

Dylan’s lawyers argued the council was the occupier and had care, control and management of Oddies Creek Park and Noreuil Park and therefore was liable in negligence for his injuries.

The council’s defence relied on s5L of the NSW Civil Liability Act 2002, which says a person is not liable in negligence for harm suffered by another person if there is an "obvious risk" and they are engaged in a "dangerous recreational activity". Justice Latham decided each of those liability issues in the council’s favour.

The court was told the council conducted regular inspections and removed rope swings, where possible. A routine inspection identified the Oddies Creek Park swing on the afternoon of Friday January 25, 2008, but the council vehicle equipped with a cherry picker could not gain access to the park because it was too heavy.

A council officer tried to get two contractors to remove it, but neither had a qualified, climbing arborist available until the following week.

Dylan’s argument was the council breached its duty to exercise reasonable care in four respects - failing to remove the rope swing, failing properly to supervise the swing having not removed it, failing to ensure water near the swing was sufficiently deep, and failing to warn that it was dangerous to dive into the water or use the rope swing. It was also alleged the council was negligent in representing implicitly the swing was safe to use.

Justice Latham found no implied representation and, because the risk of harm from using the swing was obvious, there was no duty to warn. Dylan’s injury was “the materialisation of an obvious risk of a dangerous recreational activity”.

The 23 grounds of appeal raise three broad topics:

  • The scope of the council's duty of care extended to taking steps to guard against the risk of injury the swing’s existence represented, particularly to children.
  • Having identified the swing before the Australia Day events, the council's duty to exercise reasonable care required it to remove the swing or, by supervision, prevent its use.
  • Whether, when Dylan proposed using the 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.

Justice Meagher said the risk of injury from diving or landing head first in shallow water “would certainly be obvious to an adult exercising ordinary common sense and judgement”.  He said it would also be obvious to “an optimistic, but not foolhardy, and athletic 16 year old” with Dylan’s life experience. Dylan had been “swimming and diving in pools and rivers from a relatively young age”.

Justice Meagher said there was no evidence the council had placed the rope in the tree or encouraged its use. “The rope was not a permanent feature of a specific area the council promoted as a venue for swimming, jumping or diving.”

He agreed with Justice Latham’s finding the chance or probability of suffering serious injury in attempting the back flip was more than trivial. There was “a real possibility” a diver might land in water that was too shallow and make contact with the riverbed.

“The depth of the water in all the areas where [Dylan] might land was not known and, depending 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 it occurring were potentially catastrophic. The risk of physical harm was ‘significant’ 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.”

He agreed with Justice Latham that a reasonable authority would not have taken the precaution of placing a security guard at the tree.

(Streller v Albury City Council [2013] NSWCA 348)