This case assists in identifying the relevant principles that apply in determining whether a risk of harm is an ‘obvious risk’ within the meaning of s 5F of the Civil Liability Act 2002 (CLA).
Mr Christopher Moore (the respondent) attended an ice skating rink owned by Liverpool Catholic Club (the appellant) on 14 January 2009. The respondent put on ice skating boots that he hired from the appellant and while descending the steps in order to access the ice rink, slipped on one of the steps and suffered injury.
After hearing the case in the District Court of NSW Levy DCJ (the primary judge) delivered judgment in favour of the respondent. The appellant appealed the decision on a number of grounds and particular consideration was given to the primary judge’s finding that the risk of harm was not an ‘obvious risk’ within the meaning of s 5F of the CLA.
The decision of the primary judge
The primary judge defined the risk of harm as the risk of slipping and falling when descending the stairs while wearing ice skating boots and added that this risk was heightened where a person descending the stairs was aware that the treads and surfaces of the stairs were uneven and the stairs were wet.
The primary judge concluded that the risk was not an ‘obvious risk’ for the following reasons.
- The activity engaged in by the respondent at the time of the incident was not a ‘dangerous recreational activity’ within the meaning of s 5K of the CLA.
- The respondent’s conduct in descending the stairs did not demonstrate any unreasonableness on his part.
- The appellant failed to establish that the respondent did not have actual or constructive knowledge of the risk. In coming to this conclusion, the primary judge relied on the following four factors; (a) the respondent was not aware of the uneven dimensions of the stairs; (b) the respondent was not told that the stairs were wet; (c) the respondent was not warned of the risk posed by the stairs; and (d) the respondent was not made aware of any conditions that excluded liability based on the condition of the stairs.
In finding the appellant liable, the primary judge accepted the plaintiff’s claim that the appellant should have provided one or both of the following two warnings; (a) warm that patrons should not put ice skating boots on before descending the steps; and (b) provide a verbal or diagrammatic warning and instruct patrons to use a splayed foot technique to descend the stairs.
The decision of the Court of Appeal
Addressing each of the primary judge’s findings, the Court of Appeal determined as follows.
- The Court of Appeal found that whether an activity is a ‘dangerous recreational activity’ has no bearing on whether an obvious risk has materialised.
- While the Court of Appeal found that the reasonableness of the respondent’s conduct may be a relevant consideration concerning the appellant’s allegation of contributory negligence, it was not relevant to the question of obvious risk.
- The Court of made the following findings.
- The appellant was not required to establish that the respondent hadactual or constructive knowledge of the risk. The enquiry as to theactual knowledge of the respondent was therefore an irrelevantconsideration. For the primary judge to make such a finding, therespondent had to prove, on the balance of probabilities, that he wasnot aware of the risk. The primary judge made no finding in thisregard.
- The evidence did not establish that the unevenness of the steps or thefact that the steps were wet contributed to or caused the plaintiff to slipand fall.
Having decided that the primary judge erred in the application of the relevant principal, the Court of Appeal then considered the proper construction of ‘obvious risk’.
The Court identified the risk of harm as the risk of slipping and falling whilst descending the stairs in skate boots. Justice Meagher (with whom the majority agreed) identified two conditions that gave rise to the risk of harm. First; descending stairs carries with it an ever present risk of falling because of overstepping or losing balance and second; the wearing of ice skates meant that the only contact with the surface was a single blade. His Honour considered that these two elements were likely to adversely affect the respondent’s stability or balance.
The Court noted that the respondent was 18 years of age. He was not familiar with the ice rink and was a relatively inexperienced skater. He was wearing size 13 skate boots and the blade was significantly longer that the length of the steps. The Court found that it would have been apparent to a person in the plaintiff’s position that the risk of falling down the stairs was significantly heightened and concluded that the risk was ‘obvious’ within the meaning of s 5F of the CLA.
The Court of Appeal found that each warning that the primary judge identified directly addressed the risk of harm that the Court of Appeal considered to be an ‘obvious risk’. As section 5F of the CLA provides that it is not necessary to warn of an obvious risk of harm, the warnings were irrelevant.
This case reinforces that the test to be applied when determining whether a risk is obvious, is an objective test. It also reinforces that the duty owed by occupiers does not extend to warning about obvious risks. Additionally, this case illustrates that the definition of a dangerous recreational activity will not as a matter of course include activities undertaken incidental to the dangerous recreational activity.