Felhaber v Rockhampton City Council [2011] QSC 023

The Facts

The Plaintiff was unfortunately rendered a quadriplegic when he swung on an improvised rope swing from the bough of a tree into the Fitzroy River and struck his head on the river bed.

The Plaintiff sued the Rockhampton City Council alleging that they owed him a duty to take reasonable care to protect him from unnecessary risk of physical harm.

The Plaintiff argued the Defendant should have removed the rope swing altogether or erected a sign warning the public that the depth of the river may change and that diving was prohibited.

The defence maintained that the Plaintiff failed to establish the Defendant owed him a duty of care. The Defendant accepted it exercised control over the relevant area - it maintained same by mowing the grass, removing rubbish or litter and pruning trees. It also had erected and established a playground, picnic tables, BBQ, toilets and boat ramp there. Indeed, it was Plaintiff’s Counsel’s submission that the area, known as the “Ski Gardens” was a special case because of the park directors concession that they were the major area for organised recreational water activities in Rockhampton.

Importantly, the Plaintiff gave evidence that at the outset he had checked the depth of the water by wading out from the bank to the spot where the river bed dropped off and then submerging himself with his arms above his head. This was his usual because of the chance that something may have floated into the area as well as to generally check that the depth was safe.

It was not known who had put the rope swing in the area but it was a makeshift one with a handle tied to the rope being in the nature of a piece of wood or old handlebars. There was no suggestion that the Plaintiff was under the misapprehension that the swing had been erected by council.

The Decision

His Honour criticised the defence team for pleading on the one hand that the risk was obvious one yet on the other alleging that the risk was not foreseeable. This very risk had actually been foreseen by the director of the Defendant’s parks and gardens who had issued instruction to his workers to remove ropes within the council area wherever it was practicable for them to do so.

It was also noted there was evidence that council officers were well aware that the practise of swinging from a rope into the water went on in the relevant picnic area and from the subject tree. A witness had given evidence that he was in the habit of reporting the presence of the rope to council officers when it came to his attention and the council had removed ropes from the subject tree in the past.

It is implicit from his Honour’s judgement that he accepted the activities of the council described above were sufficient to render it an occupier of the area. The question playing on his Honour’s mind was the scope of the duty that was owed when he noted at paragraph 25 that “the defendant did not create the risk here. The river bed and bank have in no way been altered by the defendant. The tree is simply there unaffected by the defendant’s activities. The Plaintiff was not told by the defendant that he ought to swing from the tree and dive into the water and the defendant did not provide the rope swing. Whilst I will have more to say about the Council’s activities the most that might be said relevant at this point is that by cutting the grass, providing picnic tables, barbecues, toilet facilities and clearing the rubbish, the area was more inviting than it might otherwise have been…”

His Honour also noted the aesthetic appeal of a tree lined riverbank. His Honour said at paragraph 38 “any decision to seek permission of the State to remove trees or boughs of trees had to bring into account that a large part of the charm of the river bank lay in the continuing presence of trees providing shade, and that aesthetic appeal, so encouraging the recreational purposes for which the land had been placed into the defendant’s trust.”

His Honour quoted Justice Callinan in Roads and Traffic Authority of New South Wales v Dederer where his Honour said at paragraph 275 that decision involving a young person diving into shallow water from the rail of a bridge that “also to be balanced, are the interests of the community in being able to walk across the bridge, to enjoy the view, and to pause and lean in comfort on a flat surface on a top rail as they do so.”  

Having thus analysed the scope of the duty on that basis his Honour then went to consider the fundamental issue of breach.

Ultimately his Honour reached the view that the exercise of reasonable care did not require the council to take the steps the Plaintiff submitted it should have done on the basis that:

  1. the activity on which the Plaintiff was engaged was a voluntary recreational activity commonly enjoyed throughout Central Queensland and probably Australia – it was different to a place where people are required to go and pursue activities as part of their normal daily lives such as roads or workplaces;  
  2. the risk inherent in the activity was obvious and the exercise of care by members of the public could be expected to keep them safe;  
  3. there was no reason to think that the obvious risk had been forgotten or overlooked by council;  
  4. the council were not armed with any special knowledge relating to the risks inherent in carrying out the activity;  
  5. the council was responsible for a significant area of parkland and waterways abutting that area which was not physically different to any area of the Fitzroy River where such swings might be erected;  
  6. the council in no way required, invited or encouraged entrants to engage in the activity. His Honour noted that if there was any negligence it was said to be a sin of omission not commission and the law where appropriate took a more critical view of the latter;  
  7. the long history of no reported injury from such activities despite the widespread and frequent engagement in the activity provided strong grounds for thinking that no more significant response was required;  
  8. this was not the only risk or necessarily the most significant risk inherent in water sports carried out in the recreational area;  
  9. swimming in general and diving from swings erected on the branches of trees in particular were by no means the major activities carried on in the area;  
  10. the utility of the proposed measures looked at prospectively were not compelling. Obviously the removal of the tree would have removed the risk in that area but such measures did nothing to meet the risks presented by the other trees lining the banks of the  
  11. Fitzroy area. That of course prompted the question as to why that particular hazardous place should have been singled out. Plaintiff’s Counsel stressed the number of people going to that particular area but the judge found that submission unpersuasive.  

His Honour also noted evidence from council workers that swings would soon replaced sometimes very soon after their removal and noted the experience of the council was that the youth of the city seemed determined to pursue the thrill involved in leaping from swings into the river regardless of whether signs were in place or not.  

What to Take Away

Interestingly, his Honour also considered voluntary assumption of risk. Again his Honour was critical that the Defendant’s case on this issue consisted of mere assertion despite the onus resting on the Defendant.

Nevertheless his Honour considered the defence and said there were two things that must be established:-

  1. the Plaintiff must freely and voluntarily impliedly agree to incur the risk; and  
  2. he must do so with a full knowledge of the nature and extent of the risk.  

His Honour said that whilst presumably the Plaintiff did not believe immediately before his last dive that he was likely to strike his head on the riverbed and break his neck that was a different issue as to whether he had full knowledge of the nature and extent of the risk that he was running.  

Given his finding concerning the Plaintiff’s appreciation of the nature and extent of the risk, an open finding given the Plaintiff’s evidence as to wading out into the river before diving, his Honour found that the Plaintiff had full knowledge in the relevant sense. The next issue was then did he impliedly agree to incur the risk. As for this question his Honour noted that the difficulty was question was usually posed in terms that suggest an acceptance of an abrogation by the council of any duty owed to the Plaintiff. His Honour thought that the more appropriate question was to ask “whether there was any compulsion or obligation on the plaintiff to accept the risk, or no opportunity to avoid incurring it.” His Honour said the answer to that was clearly no and as such the defence was made out.