A local authority has successfully defended a claim involving a slip and fall on a boat ramp on the basis that the plaintiff was engaged in a recreational activity, the risk of that activity was the subject of a risk warning, and that the risk of slipping on the boat ramp was an obvious risk (such that there was no duty to warn of that risk).
In Issue
- Whether the plaintiff was engaged in a recreational activity and, if so, whether the risk of that activity was the subject of a risk warning by the Council
- Whether the risk of slipping on the boat ramp was an obvious risk and, if so, whether the Council owed a duty to warn of that risk.
The background
On 22 February 2015 the plaintiff (Colin Bowman) attended the Scotts Head Marine Boat Ramp with his family for a picnic. It had been raining earlier that day. Mr Bowman was a fisherman and boat owner. He had visited Scotts Head previously but had not used the boat ramp prior to the incident.
The boat ramp had been refurbished by the Nambucca Shire Council (the Council) in 2012. On one side of the boat ramp was signage which had been installed by the Council sometime prior to February 2013. It was clearly visible and featured the words “WARNING” in large red letters. At the top right of the sign were the words “This beach may be dangerous. Look out for hazards to yourself and people in your care.” There was also a picture of a boat ramp with the words “Boat ramp” beneath it. The sign also depicted slippery ground, a person slipping over onto their back, and the words “Slippery Area” below it.
Mr Bowman alleged that he accessed the boat ramp via a dirt track, which passed behind the warning sign, and then took a few steps at a slow pace on the boat ramp at which time he slipped and fell to the ground.
The decision at trial
Walton J found that the boat ramp was slippery at the incident location due to the presence of water but it was not slippery due to the presence of vegetation growth and/or moss or a coverage of sea water.
His Honour considered it to be uncontroversial that Mr Bowman’s activity at the time of the incident (walking towards the beach after having a picnic) met the definition of recreational activity pursuant to section 5K of the Civil Liability Act 2002 (NSW) (the CLA). Pursuant to section 5M of the CLA, the Council does not owe a duty of care to another person who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning. His Honour considered the relevant test to be whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity. The Council was not required to establish that Mr Bowman in fact received or understood the warning, or was capable of receiving or understanding the warning. His Honour found that the risk of slipping when walking down the ramp was the subject of a risk warning to Mr Bowman, namely the warning sign. His Honour found that the warning sign was clearly visible: it was large, colourful and depicted a number of different hazards and people approaching the picnic area had an opportunity to see the sign when driving past it to park their cars, and again when walking back towards the entrance of the boat ramp. In these circumstances His Honour found that the Council did not owe a duty of care to Mr Bowman to take care in respect of the risk of slipping when walking down the boat ramp.
His Honour then considered the obvious risk provisions under the CLA. His Honour noted that the test of what is an obvious risk requires identification of the risk which actually materialised and caused the injury to Mr Bowman and then determining, prospectively, whether such a risk would have been clearly apparent to and understood by a reasonable person in Mr Bowman’s position. His Honour characterised the relevant risk of harm as the risk that a pedestrian might slip on the boat ramp and suffer physical injury. His Honour considered that the risk of slipping whilst walking on a marine surface such as the boat ramp due to wetness or marine growth was a matter of common knowledge. Additionally, Mr Bowman had conceded during cross-examination that any or all boat ramps could be slippery to walk on. His Honour considered that the slow pace by which Mr Bowman descended the boat ramp did not diminish the objective obviousness of the risk. Further, the obvious nature of the risk was not diminished by the fact that hundreds of people take the risk with some slipping. His Honour found that the risk of slipping whilst walking down the boat ramp was an obvious risk, in that the risk would have been obvious to a reasonable person in the position of Mr Bowman as he walked down the boat ramp. In these circumstances His Honour found that the Council did not owe a duty of care to Mr Bowman to warn him of that risk.
His Honour then discussed whether Mr Bowman had been contributorily negligent (if required to be determined). His Honour noted that Mr Bowman was aware of the presence of the sign and that it provided warnings, had experience of boat ramps being slippery and agreed that he would approach any boat ramp on the basis it could be slippery. However, Mr Bowman still chose to walk down the ramp even though he knew the ramp may be slippery in the weather conditions. His Honour found that if he was required to determine contributory negligence, he would find the loss should be apportioned 10% to the Council and 90% to Mr Bowman.
Implications for you
This decision is a useful example of how a local authority can successfully rely on the defences under the CLA (that no duty of care is owed to the injured person on the basis that an adequate risk warning was provided and/or there was no duty to warn of an obvious risk).
