In brief - Courts not attributing high level of common sense to plaintiffs

Three recent decisions in different states of Australia have highlighted the difficulties in establishing "obvious risk" defences for defendants, despite on the face of it, accidents involving the materialisation of what is at least arguably, on a common sense approach, an obvious risk.

NSW - Wet shoes cause plaintiff to slip on moving travelator

In simple terms, the NSW case Glad Cleaning v Alvarenga [2013] NSWCA 482 involved a Woolworths employee who was injured when she slipped on a downward moving travelator at a shopping centre. She had just walked through a wet area directly in front of the entrance to the travelator and the fall was a result of her wet shoes coming into contact with the moving sloped metal surface of the travelator.

The plaintiff was aware that the floor was wet, having seen a cleaner mopping the area and remarking: "Oh, it's wet".

What would a reasonable person need to appreciate for the risk to be obvious?

Nevertheless, noting that obvious risk "incorporates an objective test but one that is to be applied by reference to the position of the person concerned", the NSW Court of Appeal found that for the risk to be obvious, the reasonable person in the plaintiff's position would need to appreciate at least that [at 64]:

  • an accumulation of moisture on shoes is capable of creating what the experts described as a "tribological" [lubricating]effect;
  • the surface of the pallets [sections of the travelator] was what the experts described as hydrophilic rather than hydrophobic;
  • the plaintiff had accumulated sufficient moisture on the undersides of her shoes to create the tribological effect when she came in contact with the moving pallet; and
  • the risk was exacerbated because of the travelator's degree of inclination.

In conclusion, it was also stated that "common sense" did not provide a sound basis for overturning the primary judge's finding that the risk was not obvious.

QLD - Tourist rendered partial tetraplegic after running down sand dune into lake

State of Queensland v Kelly [2014] QCA 27 is a well known and tragic Queensland case involving a young Irish tourist who was rendered a partial tetraplegic when running down a sand dune into Lake Wabby, a popular tourist destination on Fraser Island.

The subject area had been the site of numerous serious injuries and was a well known danger to the Queensland government.

In response, the government had erected two warning signs, one at the start of a track leading to the lake (2.5km away) and another at the entrance to the lake, although there was not a sign on the dune itself (as pictured):

Click here to view picture.

The plaintiff had a vague recollection of a sign on the path but "did not recall any warning or prohibition upon people running down the dunes or running into the water".

The Queensland government did not seek to argue that absent the signs, the risk of serious injury resulting from a fall when running down the sand dune into the lake would have been obvious to a reasonable person in the plaintiff's position.

Signs found to be ineffective and risk found not to be obvious

The question therefore was, with the signs in the form and location that they were and taking into account all of the relevant circumstances of the plaintiff's position, was the risk "obvious" to a reasonable person?

In essence, the Queensland Court of Appeal found that due to the signs conveying the risk of "running and diving" rather than "running or diving", they were ineffective - i.e. they "did not communicate that running down the dune into the lake involved the risk of serious injury" [at 43], at least in part due to the inaccurate pictograms.

This is despite the sign expressly stating: "SERIOUS INJURY OR DEATH is likely to occur from running, jumping or diving into the lake" and "Because the sand dune is steep, running or rolling down the sand dune towards the lake is DANGEROUS."

This finding at least in part informed the court's decision that the risk was not an obvious one.

ACT - Student rendered quadriplegic while performing backflip on jumping pillow

The recent ACT case Ackland v Stewart, Vickery and Stewart [2014] ACTSC 18 involved a 21 year old student who sustained quadriplegia as the result of landing on his neck whilst performing a backflip on a "jumping pillow" (as pictured):

Click here to view picture.

The ACT Supreme Court found that performing a backflip on a jumping pillow was a "dangerous recreational activity", noting the "risk of catastrophic physical harm if they fail to execute the manoeuvre perfectly" [at 296].

However, the court found "the risk that a person might suffer a serious neck injury if an inverted manoeuvre was not properly performed" was not an "obvious risk". Rather, a reasonable person in the position of the plaintiff would have appreciated the risk of "some minor harm" [at 304], noting [at 301]:

  • younger children were performing similar manoeuvres... without warning;
  • the surface of the jumping pillow was yielding;
  • the jumping pillow was full of air;
  • he had extensive experience in performing back somersaults and other inverted manoeuvres in the past, albeit not for the past 5 years;
  • although somewhat firmer than the surface of a trampoline to walk on, the jumping pillow performs very much like a trampoline;
  • in determining the significance of the fact that the surface of the jumping pillow was somewhat firmer than that of a trampoline... he used the jumping pillow to perform manoeuvres involving lying on his stomach and back, without any injury or apparent discomfort;
  • the equipment on which you propose performing the manoeuvre is called a "pillow", suggesting something soft or supportive. I accept that, by itself, this circumstance would not carry great weight;
  • he had previously landed awkwardly... after attempting a back somersault and had sustained no injury or discomfort.

Courts inclined to drill down into detail rather than rely on common sense

These decisions highlight that the level of common sense that the Australian courts currently appear willing to attribute to a reasonable person in the circumstances of an injured party is not particularly high.

On the face of it, the facts in these three cases are simple and the risks of the three activities in question would appear to be obvious, i.e:

  • falling and sustaining serious injury from walking down a metal travelator with wet shoes
  • falling and sustaining serious injury from running down a steep sand dune into a lake (despite warning signs)
  • sustaining serious injury from performing a backflip on a "jumping pillow"

Nevertheless, the courts are instead generally focused on drilling down into the detail as required by the various civil liability legislation (where applicable).

Unfortunately the current trend is eroding the notion of personal responsibility and in the words of Mark Webber (retired F1 driver), reinforcing Australia's status as a "bloody nanny state".

The question remains, will the High Court have something else to say?