In Morris v Redland City Council  QCS 135, the Supreme Court of Queensland dismissed the plaintiff’s claim for damages after he fell from a cliff onto the beach at North Stradbroke Island.
In this Alert, Special Counsel Brooke Jacobs and Solicitor Elizabeth Harvey discuss the various implications of the case for actions based on a “failure to warn”, particularly in relation to unforeseeable and obvious risks.
The plaintiff was holidaying on North Stradbroke Island. At about 10pm on 5 February 2010, after consuming a considerable amount of alcohol, he fell approximately 20 metres from the top of a cliff onto Frenchman’s Beach at Point Lookout. The plaintiff fell after detouring off the main boardwalk onto a “well worn track/path” which he said led off from the boardwalk and in the direction of the cliff.
The plaintiff was rendered paraplegic as a result of the incident.
He commenced proceedings against Redland City Council (Council), the local authority responsible for the headland, and Ray White North Stradbroke Island (Ray White), the rental agent who secured his holiday accommodation, seeking damages for negligence.
The plaintiff had consumed, on his own evidence, about eight beers before falling off the cliff.
The court rejected the plaintiff’s evidence that there was a path, man-made or otherwise, leading from the boardwalk through the headland and to the cliff.
Rather, the court concluded that, in darkness and under the influence of alcohol, the plaintiff wandered through an area about which he knew nothing, which was mostly covered by thick natural vegetation and became steeper as he approached the cliff.
The court found that the risk of injury was not reasonably foreseeable to Council. This was particularly the case in the absence of prior incidents or observations of people traversing the area. Furthermore, there was nothing on the headland (an area of thick, natural vegetation) that suggested it led to the beach, and the stairs that did lead to the beach could be easily found at night, because the directional sign was illuminated by a street light. The plaintiff’s claim, therefore, failed.
The court further noted that despite the plaintiff’s allegations that Council breached their duty of care by failing to erect warning signs, the plaintiff gave no evidence about the number and placement of signs and the content of any warning that he alleged would have prevented his accident. The court noted, with approval, Gleeson CJ and Kirby J’s finding in Vairy v Wyong Shire Council:
“Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority...ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning”.
The court was not persuaded that signs would have stopped the plaintiff in his state of mind from looking for an entry to the beach at the site of the incident. The court otherwise noted it was impracticable for Council to erect warning signs about the innumerable and obvious risks of entering the heavily vegetated headland.
The court also considered section 15 of the Civil Liability Act 2003 (CLA) and agreed with Council that the risk of injury would have been obvious to any reasonable person in the position of the plaintiff.
Given the claimant’s alcohol consumption prior to the incident, the court was required to consider section 47 of the CLA and found that the plaintiff was not able to rebut the presumption of contributory negligence due to intoxication. Section 47 prescribed a minimum reduction of 25% “or a greater percentage decided by the court to be appropriate in the circumstances of the case.” The court held that, had Council been found negligent, the plaintiff’s damages should be reduced by 50% on account of his contributory negligence.
Indemnity costs awarded to Ray White
The plaintiff alleged in his statement of claim that Ray White breached their duty of care by failing to give a more expansive description of where the stairs to the beach were situated and for failing to warn of the risks associated with the cliff, which was a long distance away from the rental property.
At trial, the plaintiff elected not to proceed against Ray White and judgment for that defendant was entered by consent.
The court awarded indemnity costs to Ray White, on the basis that the claim brought by the plaintiff had no chances of success and Ray White had clearly elucidated the shortcomings of the plaintiff’s case as early as October 2011.
The court gave less regard to Ray White’s Calderbank offer to walk away bearing its own costs because it was not straightforward and was dependent on the plaintiff indemnifying Ray White in respect of Council’s claim for contribution.
Key Take Away Points
- Local authorities are under no obligation to warn of remote or obvious risks;
- Plaintiffs seeking to advance cases on the basis of a “failure to warn” must adduce evidence of the content of any warning signs and placement and will also need to demonstrate that a failure to warn was causally relevant to the occurrence of their incident;
- If a plaintiff’s level of intoxication impairs judgment, vision and/or vigilance and materially contributes to the occurrence of the incident, the plaintiff will be unable to rebut the presumption of contributory negligence contained in section 47 of the CLA; and
- When making Calderbank offers to provide costs protection, parties should make them as “straightforward” (or free of conditions and easy to accept) as possible.