Verdict for the defendant – Council owed no duty of care to the plaintiff
December 5, 2012
Streller v Albury City Council  NSWSC 729
The Supreme Court of NSW has decided that Albury City Council did not owe a duty of care to remove a rope swing over a river.
Dylan Streller sustained injuries when he attempted to perform a back-flip from a rope swing tied to a tree overhanging the Murray River.
Although finding for the Council on the duty point Latham SCJ also considered breach of duty, in the event that she erred in deciding there was no duty, and Council’s defence that Streller’s conduct amounted to an obvious risk and a dangerous recreational activity for which the Council was protected by the Civil Liability Act 2002 (NSW).
On 26 January 2008, the Council organised for Australia Day celebrations to take place in theNoreuilPark.
Streller attended and witnessed individuals jumping into the River from a rope attached to a tree located on a riverbank bordering Oddies Creek Park, which was adjacent to Noreuil Park, and was being used as a car park.
Streller joined in, and on his third or fourth jump attempted to perform what he conceded to be a ‘risky’ manoeuvre, a back-flip into the water. As he landed he struck his head on the sandy bottom resulting in C7 quadriplegia.
During a weekly inspection of the foreshore on 25 January 2008, Council staff identified the rope. It was normal practice for Council employees to remove such ropes with a cherry picker, however, on this occasion, restricted access and safety procedures made it impossible to immediately attend to removal.
Enquiries were made immediately with Council’s registered contractors for the removal of the rope. Removal could not occur until the following week.
Negligence: duty of care
The plaintiff alleged that the Council owed him a duty of care as it had the exclusive use of the River. The following allegations of negligence were made against the Council:
- Failure to remove or supervise the rope swing
- Failure to ensure the water was sufficiently deep
- Failure to warn that it was dangerous to dive into the water or use the swing
- Council represented that the rope was safe for use.
Her Honour did not accept the plaintiff’s submission that the Council encouraged recreational use of the subject tree and rope, and to the contrary found that Council had ‘attempted, by the erection of signage, to discourage persons from swimming in the river and removed rope swings’. Her Honour also did not accept that the Council had exclusive use of the River, as it was necessary to obtain the co-operation and supervision of the Maritime Authority for the running of a boat regatta (part of the celebrations).
The circumstances of the present case were distinguished from that of Berrigan Shire Council and Ballerini and Nagle v Rottnest Island Authority at  where a duty of care was owed, because the defendants in those cases encouraged swimming, there was an absence of warning signs and because of the presence of one obvious launching pad into the water (being a log and rock platform respectively).
Her Honour consistent with Hayne J’s observations in Vairy v Wyong Shire Council, held that the Council’s duty to those who enter land under its care, control and management, is a duty to take reasonable care towards those who exercise reasonable care for their own safety. She noted that there were many places along the 14,905km of foreshore where the risk of injury arose, not just one specific location.
In the circumstances, Council did not owe the plaintiff a duty of care. Latham SCJ considered that the Council went beyond its obligations to remove foreseeable risks of harm by having weekly inspections and attempting to remove rope swings as they were identified together with the signage.
Breach – in the event there was a duty
Latham SCJ considered that even if the Council owed the plaintiff a duty, it would only be to take reasonable care towards those exercising reasonable care for his / her own safety.
In assessing what was reasonable in general it was appropriate to take into account the position of the Council, being a public authority with limited resources and large areas of land to manage. As regards the specific circumstances of this rope the court gave consideration to the capacity of the Council to remove the rope, which in this case was constrained by its obligations to abide by occupational health and safety standards.
Having regard to Council’s capabilities, limited resources and large areas of land to manage, its safety policies, lack of control over the river depth and underwater obstacles, and no history of prior incidents, Latham SCJ found that the Council had exercised reasonable care in relation to the risk of harm, and found it took reasonable precautions by instituting a system of weekly inspections of the riverbank and by organising for the removal of the rope swing as soon as practicable.
Obvious risk and dangerous recreational activity
The Council pleaded that Streller’s conduct presented an obvious risk and constituted a dangerous recreational activity, which provided the Council a complete defence via Part 1A, Division 5 of the CLA.
In considering the Council’s defence, Latham SCJ was required to determine whether Streller’s conduct involved a risk of harm which would have been obvious to a reasonable person in his position. Her Honour observed that ‘obvious means that both the condition and the risk are apparent to and would be recognised by a reasonable man in the position of the [plaintiff] exercising ordinary perception, intelligence, and judgement’.
In forming her decision that the plaintiff’s conduct constituted an obvious risk and required no warning from Council, Her Honour considered that the varying depths of the river, the fact that the landing point of a person using the rope swing varies depending on the trajectory and point of release, the fact that the depth of penetration into the water is dependant on the diver’s weight and method of entry, and the fact that diving headfirst into shallow water could all be potentially catastrophic, are all matters within common knowledge.
Latham SCJ also held that the plaintiff engaged in a dangerous recreational activity that involved a significant risk of physical harm. In deciding so, the risk of the plaintiff suffering serious injury/s by jumping from the rope swing into water of unknown depth could not be regarded as trivial, for the same reasons which resulted in Her Honour concluding that there was an obvious risk. Latham SCJ accepted the Council’s defence that the plaintiff engaged in a dangerous recreational activity and that the harm he suffered was the result of the materialisation of an obvious risk.
The case will be helpful to public authorities on defending cases of injury caused by risky activities.
Authored by a Paralegal in Sydney.
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