The plaintiff was a young Irish tourist who travelled with friends to Fraser Island in 2007. Prior to arriving on the island the plaintiff was shown a video that included a warning about the dangers of entering shallow lakes and streams. The video did not, however, contain a specific warning about the dangers of Lake Wabby.
Lake Wabby is a small freshwater lake that had previously been the scene of multiple serious injuries to visitors. After he had witnessed many other visitors running down the sand dunes into the waters of Lake Wabby, the plaintiff engaged in this activity himself on approximately ten occasions without incident. However, on the final occasion the sand gave way beneath him, causing him to plunge head first into the lake. The plaintiff suffered serious spinal injuries that rendered him a partial tetraplegic.
At the beginning of the path to the lake is a sign containing the following warning:
“Serious injury or death is likely to occur from running, jumping or diving into the lake. Because the sand dune is steep, running or rolling down the sand dune towards the lake is dangerous.”
Notwithstanding the fact that the plaintiff vaguely recalled seeing a warning sign, the trial judge concluded that the risk of injury was not ‘obvious.’ In reaching this conclusion the trial judge took into account the plaintiff’s youth and inexperience with sand dunes and the fact that the plaintiff had witnessed multiple other people running down the dunes without incident and had, in fact, done this himself on numerous occasions. In finding that the State of Queensland breached its duty of care, the trial judge criticised the lack of warning specifically highlighting the history of serious injuries to visitors at Lake Wabby and the failure of the existing signs to clearly communicate the specific risk of the activity engaged in by the plaintiff.
The State of Queensland appealed the decision. However, the Queensland Court of Appeal agreed that the warning signs did not adequately communicate the significant risk of running down the dunes. It agreed that the signs conveyed that serious injury or death might result from “running and diving” rather than “running or diving.”
The Court of Appeal also agreed that a reasonable person in the plaintiff’s position would not have appreciated the gravity of the risk of injury.
State of Queensland v Kelly
An ‘obvious risk’ of injury defence is not readily applied by the courts. Where a risk of serious injury is known to a party, generic warning signs may not be sufficient. Warning signs should precisely communicate specific hazards and the possible consequences.