The Applicant suffered severe injuries when he fell 10 metres from a cliff onto rocks. The cliff was located on Council land. The Applicant claimed that the Council was negligent as it failed to erect signs and barriers to warn visitors of the cliff and fall. The Court held that the Council was not negligent and that they had acted reasonably despite not responding to the foreseeable risk.
In issue
- Whether the Council owed a duty to visitors to take reasonable care to protect those persons from physical injury, and what was required to discharge that duty.
- Whether the Council owed a duty to warn of dangers and hazards
- Whether the risk of harm (i.e a visitor falling from the cliff) was clear and obvious for the purposes of s36 and s38 of the Civil Liability Act 1936 (SA)
- Alternatively, whether the risk of harm was foreseeable for the purposes of s20(2)(e) and s32(1) of the Civil Liability Act 1936 (SA)
- Whether the Council had acted negligently by failing to take precautions against the risk of harm
The background
The Applicant (Mr Gregory Warren), 17 years old at the time, suffered severe injuries (including brain injury) when he fell 10 metres from a cliff onto rocks at a beach on Eyre Peninsula. The Applicant had parked on the top of the cliffs. After leaving his vehicle, he descended down an escarpment towards the beach. Unfortunately, the escarpment ended in a vertical cliff which was not visible from the top of the escarpment. The Applicant fell over that vertical cliff and onto the rocks below.
The Applicant claimed that the Council as occupier of the land was negligent in failing to erect signs and barriers warning of the dangers of the cliffs. In particular, the Applicant claimed that the Council had encouraged visitors to the beach by creating and maintaining the road to the accident site and having created and maintained the car park near the top of the escarpment. There was argument at the trial as to whether it was truly a car park, or a simple turnaround area, and the scope of management required. There were no facilities in the area.
The Council argued that the risk of harm was obvious in that the escarpment was obviously steep and dangerous and the route to the beach was not visible. It argued that the injuries sustained by the Applicant were not a direct consequence of a wrongful act of the Council and that s244(1) of the Local Government Act 1999 (SA) ought to apply to relieve it of any liability.
The Council also argued that in the circumstances it had acted reasonably, and it had not breached its duty of care.
The decision at trial
The Court dismissed the Applicant’s claim, finding that although the Council owed a duty of care to the Applicant to take reasonable care to protect them from physical injury, it was not negligent for failing to erect warning signs or barriers.
The Court held that there was no general duty to warn against possible danger and what was to be assessed was whether the standard of care required a warning in the specific circumstances to discharge the duty. The identified risk was the applicant would descend the escarpment, believing it to be an accessible path and through inadvertence, speed or accident would be unable to stop when he came to the vertical cliff. The Court did not agree that such a risk was ‘obvious’.
The Court determined the Council could only be considered negligent if it failed to take precautions against a risk of harm that a reasonable person in its position would have taken. The focus was on reasonableness of actions against the risk. The risk of harm was foreseeable and not insignificant. However, the area in question was remote, natural coastline with visible cliffs to the north of the area. The Court accepted the area could be described as ‘a wilderness coastline although it was beginning to change because the numbers of visitors were increasing’. The probability of the risk materialising, although foreseeable, was low. The burden of taking precautions was significant, particularly taking into account the size of the Council area (over 700km). There was no justification why a sign or barrier would be placed at that particular point of the escarpment as opposed to any other places on the edge of the car park or other points of the escarpment.
The Court only had to consider the issue of breach of duty to determine the claim, and as such, did not determine questions of causation, contributory negligence, voluntary assumption of risk and s 244 of the Local Government Act 1999 (SA). Of interest, the Court nevertheless commented that: it was not possible to determine if factual causation had been established, that contributory negligence would be 40%, voluntary assumption of risk was not made out, and that wrongful act for the purposes of s244 LGA included omission and as such the statutory defence of s244 could have only been relied upon for indirect loss if an alternate finding had been made by the Court.
Implications for you
For occupiers, insurers and respondent lawyers this decision reinforces the importance of properly identifying the risk so as to appropriately assess the precautions required against that risk and against the parameters of your duty and standard of care. What may be considered a prudent and necessary precaution against a risk in one situation may not be required in another. Conversely, an action that may seem unnecessary or otherwise unrealistic may actually be the bare minimum step that a prudent occupier could take to avoid liability risks.
