The failure of the Lorne Foreshore Committee to fence a steep embankment connecting a road with the beach in Lorne was held to breach its duty of care. A young woman (SG) descended the embankment and struck her head on a concrete drain cover at the bottom of the embankment. She died in hospital the following day.

Family members of SG claimed damages relating to nervous shock from the Committee. At the trial, the Committee successfully argued that the obviousness of the risk of the steep embankment was such that the Committee's lack of action to reduce the risk was reasonable.

The family members of SG appealed this decision. Central to their argument was that the trial judge erroneously identified the risk as simply the steep embankment. Rather, the risk included the steep embankment, an almost vertical drop at the bottom of the embankment and the concrete drain cover at the bottom of the embankment.

The Council argued that because the embankment had been extensively used as a passage between the road and the beach without reports of injury, it had not breached its duty of care.

The Court disagreed and said that the frequency with which an activity is undertaken may increase the possibility that a risk associated with the activity may occur.

The Court of Appeal accepted the family members' argument and held that this was not a case where it could be said that SG chose to take a risk that was obviously present. Gosling v Lorne Foreshore Committee of Management Inc & Anor [2009] VSCA 228

In considering whether a risk is 'obvious', the whole of the risk must first be identified.