In Kelly v State of Queensland [2013] QSC 106 McMeekin J held the Queensland Government failed in its duty to tourists and visitors to a lake on Fraser Island. It was found they failed to warn of the risks of running down sand dunes, particularly in the vicinity of lakes.

Facts

The Plaintiff is a native of Ireland and was 22 years old at the time of his accident. He arrived in Australia with three friends in July 2007. The accident occurred on 27 September 2007. The Plaintiff had never seen sand dunes prior to arriving in Australia.

Prior to arriving at Lake Wabby, Fraser Island on the day of his accident, he had never run down sand dunes.

After arriving at the lake, he went for a swim with his friends. They were then running up and down sand dunes.

After running down a sand dune, the Plaintiff entered the water, hit his head and became a tetraplegic.

The court accepted the Plaintiff and his friends ran up and down the dunes on approximately 10 occasions prior to the accident without incident. There was a sign along a path leading up to the lake. It stated:

“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 towards the lake is DANGEROUS.”

Before entering the site the Plaintiff was also shown a video which included a warning of the risks associated with diving into water. The video did not include a warning of risks associated with sand dunes. An internal government document compiled to assess the commercial worth of Fraser Island showed that as at May 2008, 356,000 tourists per year visited Fraser Island. Of those visitors, approximately 189,000 attended as a member of a commercial tour. Those tourists that attended the site as part of a commercial tour were shown videos prior to attending.

There were 18 serious incidents resulting in significant injuries in the 17 years prior to the claimant’s accident. Some of these incidents included injuries sustained when descending the sand dunes. There was evidence that many of those injured saw the signs but ignored the dangers. Further, McMeekin J indicated the signs may not have been effective at drawing attention to the risks in the area.

In April 1993 a “manager” employed by the State Government (who was not further identified), indicated an assessment of the safety precautions at Lake Wabby was required due to the serious injuries being suffered by tourists visiting the site. A further assessment of the health and safety risks of the site was undertaken in 2002. That assessment recommended educating commercial tour operates of the risks associated with diving into the lake, and possibly requiring commercial operators to further highlight the risks associated with the site to the tourists.

Issues

The issues in dispute were:

  • How the claimant entered the water – did he dive or lose his footing at the waters edge;
  • The duty of the government, as the body that advertises the location as a tourist attraction, to warn of dangers associated with the area;
  • Whether the risk of sand giving way was an “obvious risk” in circumstances where there is no duty to warn of obvious risks under the s 15 of the Civil Liability Act 2003 (Qld) (“the Act”), and a Defendant will not be liable for the materialization of an obvious risk in a dangerous recreational activity under s 19 of the Act;
  • Whether further warnings would have prevented the claimant from running down the sand dunes, and the fall; and
  • Whether the Plaintiff was liable in contributory negligence.

Findings

McMeekin J accepted the claimant lost his footing near the edge of the water and “stumbled head first into the water.” The argument by the Defendant that the plaintiff must have dived into the water to sustain the severe damage to the neck and spine was rejected. The court found the forceful impact required to bring about such an injury could feasibly have been sustained from a “fall”, rather than “dive”, into the water.

It was found the Plaintiff was running down the sand dunes when he lost his footing either because of the sand shifting or his legs being unable to keep up with the momentum he had gathered running down hill.

In relation to the duty owed by the state government, it was found the Defendant had the “care, control and management of Fraser Island”. It therefore owed entrants a duty to take reasonable care to protect them from injury.

It was found a reasonable response to the risk did not include fencing off the lake, stationing a ranger at the site, regulating times of entry, or using the state’s coercive powers to prohibit entry, running down the dunes or diving. However, the duty did include an obligation to provide warnings.

McMeekin J found the video shown to the Plaintiff should have contained “an explicit prohibition on running down the dunes” in addition to warning of the dangers of diving into shallow water. The court indicated that between 44 and 55% of visitors to the island would view the footage before attending the site.

Further, the signs in place were found to be deficient in that they did not contain a specific warning about serious injuries resulting from running, sliding or rolling down sand dunes by itself. The sign stated that running down the sand dunes was “dangerous”, but did not specifically contain a warning of the risk of “serious injury” when running down the sand dune.

In relation to the placement of the signs, it was found the placement was not ideal (it was more appropriate for the signs to be closer to the water’s edge). However, the court found there was no breach of duty on that point. In relation to causation, McMeekin J found if further warnings had been included in the video, the Plaintiff would have refrained from running down the dunes. It was found if these further warnings concerning running down sand dunes were included, the claimant’s accident would not have occurred.

In relation to better warnings on signs, it was found improving the location of the signs and making the signs more eye-catching would not have prevented the claimant’s accident and therefore improvements to the signs were not causally related to the accident.

In summary, McMeekin J held the Queensland government was liable for:

“failing to provide adequate warning of the dangers inherent in a visit to Lake Wabby by appropriate adaptation of the video, mentioning not only diving but running down the steep dunes with express reference to the long list of catastrophic and serious injuries sustained there over the preceding years.”

It was also found the Plaintiff was liable in contributory negligence for failing to pay greater attention to the signage. However, there was no contributory negligence in the act of running down the dunes itself. The Plaintiff was held 15% responsible for his accident.

Conclusion and Implications

It appears the judgment places greater responsibility on government in relation to their warnings at potentially hazardous tourist locations. The decision indicates that at similar locations, warnings merely relating to running and diving are not sufficient. Occupiers of similar sites are under an obligation to make specific reference to the risk of “serious injury” when providing the warnings. Further, tourists should be advised of serious injuries previously sustained at the particular site.

It appears in the circumstances of this case, the court found the following factors particularly relevant to whether there had been a breach of duty:

  • The high percentage of tourists attending the site that would view the video (somewhere between 44 and 55%).
  • The significant risk of injury, including the evidence of 18 significant injuries in the 17 years prior, which had been documented by the Defendant.
  • The recommendation in 2002 that further warnings be included in the video shown to tourists by commercial tour operates, which was not implemented.
  • Lake Wabby was the most dangerous part of Fraser Island in terms of the past record of injuries.

The decision has been appealed to the Court of Appeal. If the decision is to be overturned, it is likely findings of fact will need to be overturned. Appellate Courts have indicated on numerous occasions an appeal based on particular findings of fact will generally have fewer prospects of success.