Sand dunes and a lake – an obvious risk?*
June 4, 2013
Mr Kelly, the plaintiff, suffered serious personal injuries on Fraser Island when he toppled down a sand dune and then fell head first into Lake Wabby. Was this a dangerous recreational activity? Were the associated risks obvious? What was the nature and extent of the State’s duties owed to tourists?
This case is a reminder that when sufficient statistical or historical information is available regarding significant dangers surrounding an activity at a particular location, then reasonable steps must be taken to specifically warn of these dangers.
In July 2007, Mr Kelly arrived in Australia from Ireland for a three month holiday with three friends. He and his friends decided to visit Fraser Island. Prior to arriving on Fraser Island, they watched a video produced by the Queensland National Parks and Wildlife Service that addressed rules and dangers on Fraser Island and, for seven seconds, issued warnings about entering shallow lakes and streams.
On Mr Kelly’s second day on Fraser Island he and his friends visited Lake Wabby. There is a history of numerous serious injuries occurring at Lake Wabby, including injuries suffered by persons descending the sand dunes and diving into the lake.
When they arrived at the lake, other people were swimming, sun bathing, or running up and down the sand dunes. Mr Kelly ran up and down the sand dunes ten or so times. On his final effort down the sand dunes, as he neared the water’s edge, he gathered speed and fell head first into the lake. As a consequence, Mr Kelly became a partial tetraplegic. He commenced proceedings against the State of Queensland, as the manager of Fraser Island.
Obvious risk and dangerous recreational activity
The principal focus of Mr Kelly’s case was that the State should have provided more and better warnings of the risks of injury arising from running up and down the sand dunes.
He had a vague recollection of a warning sign being present along the walking track leading to the lake, though he could not remember its location or content, which in fact was:
‘Lake Wabby is often more shallow than it looks. 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’.
The State pleaded that there was no duty to warn, as the risk was obvious within the meaning of s13 of the Civil Liability Act 2003 QLD (‘CLA’). Additionally, the State relied on s19 of the CLA and pleaded that it was not liable for Mr Kelly’s injuries as they were the ‘result of the materialisation of an obvious risk of a dangerous recreational activity’.
The Supreme Court of Queensland held that the risk of the injury suffered by Mr Kelly from running down the sand dunes was not obvious to a reasonable person, having regard for:
- Mr Kelly was relatively young, had no experience with sand dunes, and had not previously been to Lake Wabby
- Other people were also running up and down the sand dunes without incident
- There was no sign or warning in Mr Kelly’s immediate vicinity which indicated that running down the sand dunes involved a risk of serious injury
- There was no reference in the video which alerted Mr Kelly to any dangers associated with running down the sand dunes and jumping into a lake
- There was no warning contained in the video, any nearby signage, or any brochures about the number or nature of serious injuries which had previously occurred at Lake Wabby.
Breach of duty of care
The State did not dispute that it owed a duty of care, which it formulated as a duty ‘to take reasonable care of visitors to Fraser Island who were exercising reasonable care for their own safety’.
The court rejected this and held that as the State had the care, control and management of Fraser Island, it owed a duty to entrants to take reasonable care to protect them from risk of physical harm.
The State argued that the information contained within the video and in the warnings signs were sufficient responses to the risk of injury.
The court disagreed. It held that many visitors to Lake Wabby had no appreciation of the ‘hidden risks’ involved in running down the sand dunes and into the water. The State should have ensured that the video contained a warning dealing with ‘one of the most significant risks on the island’. That warning needed to make clear that the risk of injury arose not only in diving into shallow water but also running down the sand dunes; the video should have contained an explicit prohibition on that activity. The video could also have made reference to the large number of catastrophic injuries at Lake Wabby.
The court held that the warning signs were inadequate to convey the relevant danger. It found the signs were not effective at deterring visitors from running down the sand dunes, whether because of their wording or location or a combination of the two. The ineffectiveness of the signs meant there was a greater need for the video to convey a clear warning of the risk.
The court held that had the video contained adequate warnings, then Mr Kelly would have seen and appreciated the dangers of running down the sand dunes.
Authored by Amanda Musumeci, Lawyer, Brisbane.
*Kelly v State of Queensland  QSC 106
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