A child who suffered serious injury when he fell from a cliff has unsuccessfully appealed the dismissal of his negligence claim against the local council. The Court of Appeal confirmed that there was no breach of duty of care by the council despite its failure to conduct a risk assessment or erect a warning sign or barrier.
This is a reminder that when assessing whether a respondent has breached its duty of care a court will consider the overall burden of taking steps to avoid the risk of harm in all similar places/situations not just the particular location/situation giving rise to the claim.
In issue
- A critical issue arising in this appeal was whether the trial judge correctly found there was no breach of duty of care by the council notwithstanding its failure to perform a risk assessment or erect any danger warning signs or barriers at the site of the incident.
The background
The incident occurred as the appellant (who was only 17 years old at the time) walked towards a beach using a gap in vegetation at the edge of a car park. Unknown to the appellant, the gap in vegetation led to a steep escarpment rather than the beach. The appellant stumbled and tripped over a ledge near the bottom of the escarpment causing him to fall over a vertical cliff and land on the rocks below.
The council (the occupier of the land) had not conducted risk assessments or installed warning signs or barriers at the site. The accident occurred in a remote location accessed by dirt roads which gave some level of encouragement to visitors but it was not deemed a ‘destination car park’ and the number of visitors to the site was small.
A negligence claim against the council failed. The trial judge found the council did not breach its duty of care notwithstanding that the cost of erecting a sign or barrier at the particular car park was insignificant and there was no evidence it was beyond the financial capacity of the council to erect signs or barriers at the car park. Importantly, it was determined that a sign or barrier would need to be placed at the point of descent or all along the edge of the interface between the car park and the escarpment in order to be effective. Considering the total cost that would have to be incurred to prevent equivalent accidents at other sites in the council area (along with undertaking necessary investigations, assessment of results, recommendations and allocation of resources) the burden of taking precautions to avoid the risk of harm was assessed as being significant. This significant burden weighed against a finding that a reasonable council would have conducted a risk assessment or erected warning signs or barriers.
The decision on appeal
The appeal was dismissed.
The trial judge’s finding that the local council did not breach its duty by failing to conduct a risk assessment or erect a warning sign or barrier was upheld. Effectively, the Court of Appeal found no error in the trial judge’s determination that there would be a significant burden on the local council if it were required to conduct risk assessments or erect warning signs or barriers at all similar locations throughout the council area.
The Court of Appeal also did not disturb the trial judge’s conclusion that:
Implications for you
This decision is a reminder that when considering the various factors relevant to assessing breach of duty of care a court will consider the total burden imposed upon the respondent if required to take steps to avoid harm in all analogous places or situations (e.g. the total cost of taking precautions at all similar locations, not just at a single particular location where an incident occurred).
A respondent hoping to demonstrate that a significant burden would exist should produce evidence of the total cost and/or detrimental consequences of taking precautions in all similar locations or situations.
Warren v District Council of the Lower Eyre Peninsula [2025] SASCA 93
