A Brisbane barrister says specific circumstances determine whether a risk is obvious.

David Schneidewin told an AILA breakfast seminar in Brisbane the statutory concept of obvious risk was a precursor to the Queensland Civil Liability Act (CLA).

He examined the Queensland Supreme Court case State of Queensland v Kelly, in which Queensland was found liable for serious injuries a tourist sustained after jumping into a Fraser Island lake.

Mr Schneidewin said the Supreme Court scrutinised a sign at the lake and found it had insufficient information. But, in his opinion, although “tainted by hindsight”, it conveyed “enough information for a reasonable person to make an informed decision about whether to engage in the activity of running down the dunes.

“It was not incomprehensible, as the trial judge suggested,” he said. “The court's analysis of the sign was bordering on over-analysis.”

But he said evidence showing a lack of people complying with the sign suggested the “message of danger was not being effectively communicated”.

Queensland’s unsuccessful appeal argued the contributory negligence finding was inconsistent with a finding the risk was not obvious.

Mr Schneidewin said obvious risk offered a “more prospective consideration which involves a greater level of abstraction than the retrospective consideration of contributory negligence”.

He said there was substantial contest for the mechanism of injury, with trial judge Justice Duncan McMeekin questioning whether Kelly dived or fell onto the sand bank.

The court heard medical evidence Kelly could not have suffered such injuries from running down the dunes and slipping, but that was dismissed.

However, had the case occurred today, Kelly would be unlikely to have a cause of action because Queensland’s Nature Conservation and Other Legislation Amendment Act (No 2) 2013, passed last October, amended section 7 of the CLA and reduced Queensland’s potential liability within national parks.

“It had a cumulative effect in that, in cases such as these that occurred in national parks, the state was now exempt from liability,” Mr Schneidewin said.

In Resolve’s December 2013 issue, barrister Guy Hampson said the adverse decision against the Queensland Government in Kelly “could have gone the other way if it were litigated differently or in NSW”.

He asked whether Queensland’s public authorities had a higher duty of care than in NSW or if Queensland law had not developed to the same extent as in NSW.

Mr Schneidewin said trial judge Justice McMeekin’s 15% contributory negligence finding was generous “from the plaintiff’s perspective”. The Appeal Court did not change that finding.

The state said the contributory negligence finding was inconsistent with finding the risk was not obvious.

He said that aspect was “glossed over a bit” in Kelly v State of Qld, and the judge did not address it.

Mr Schneidewin also spoke about Ackland v Stewart, in which the ACT Supreme Court awarded $4.6 million in damages to a student after he became a quadriplegic after attempting a backwards somersault at a NSW amusement park (See June 2014 Resolve).

He said the case was heard in the ACT but applied NSW legislation.

In Campbell v Hay, theNSW Appeal Court refused to overturna District Court finding a recreational flying instructor was not liable for injuries a student sustained in a forced landing.

The court heard Noel Campbell was injured on May 15, 2007, when the Jabiru light aircraft in which he was taking a flying lesson had an engine failure after experiencing two sets of engine vibrations. Flight instructor Rodney Victor Hay was forced to land the aircraft in a paddock.

Campbell brought proceedings against Hay, seeking damages for negligence under the NSW CLA on two grounds. He argued Hay was negligent in not ensuring the aircraft was flown to a landing strip immediately after a second set of engine vibrations; and, but for that negligence, Campbell would not have sustained injuries because the aircraft could have been landed safely on a proper landing strip.

Campbell claimed flying the plane was not a dangerous recreational activity because the instructor was experienced and had a perfect safety record.

But Mr Schneidewin said one in 500 flights in that type of plane crashed. “This illustrates the extent to which statistical evidence might be allowed in assessing the danger of an activity.”

The Appeal Court decision was “interesting in that it looks at [what] a dangerous recreational activity is”. The risk was found to be obvious.

In Collins v Clarence Valley Council, a bike rider on a charity tour caught her wheel in the gaps of an old timber bridge and fell into a ravine, sustaining serious injuries.

NSW Supreme Court Justice Robert Beech-Jones found the risk of injury to a cyclist if their wheels became stuck in the gaps between planks was foreseeable and not insignificant. It was an "obvious risk" and the council therefore had no duty to warn.

But Justice Beech-Jones rejected the council's contention the cyclist was engaged in a "dangerous recreational activity" and its argument of contributory negligence.

Mr Schneidewin said it was a “curious decision”.

Obvious risk offered a more prospective consideration which involved a greater level of abstraction than looking at it retrospectively, as with contributory negligence.

“The lesson is: don’t be prejudiced by your initial reaction to descriptions of how incidents occurred. All circumstances have to be taken into account: not just the activity itself. It is not enough to say an activity itself is dangerous. It involves a more abstract consideration of the activity,” Mr Schneidewin said.

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