Court of Appeal finds in favour of Councils in recent civil liability decisions
In two recent decisions the NSW Court of Appeal has dismissed claims against Councils. The decisions are important as they affirm the significance of provisions in the Civil Liability Act 2002 insofar as they affect councils.
In Rankin v Gosford City Council  NSWCA 249 the Court of Appeal considered the liability of a council where a motorist suffered injury as a consequence of the unlawful action of a third party.
Gosford City Council was undertaking roadwork on a section of road in July 2008. It had closed one northbound lane by use of a string of plastic barriers. All but the first couple of barriers were filled with water as ballast. The first two barriers facing oncoming traffic were empty and turned to form a taper at the end of the road work. They had been left deliberately empty to lessen the impact if hit by an oncoming vehicle but would not have compromised one of the objectives of the barrier, that being to protect workers undertaking the road works.
At some point in the early hours of Sunday 20 July 2008 persons unknown moved a section of the barriers so that they blocked both lanes of the roadway. At 5.30 am, Mr Rankin was riding his motorbike, did not see the barriers across the roadway, collided with them and suffered injury.
At trial a judge in the Supreme Court dismissed the proceedings, primarily on the basis that Council did not owe the plaintiff a duty of care which extended to protecting him from the criminal conduct of third parties. The plaintiff challenged this decision in the Court of Appeal.
Duty of care
At a general level Council had a duty of care for the safety of road users when undertaking repairs or maintenance. But the plaintiff could only base his claim on a breach of a duty to take precautions against a risk of harm that actually materialised. In this case the risk which materialised was of a third party unlawfully moving barriers in the middle of the night.
The Court of Appeal had regard to the question whether Council could have controlled the actions of the third party. Clearly it could not. The Court of Appeal had no difficulty in finding that Council’s duty did not extend to the taking of steps to avoid the creation of risks by the unlawful acts of third parties.
The Court of Appeal also looked at the principle of non-feasance protection for roads authorities, specifically section 45 of the Civil Liability Act which provides that a roads authority is not liable for harm which arises from a failure to carry out road work, or to consider carrying out road work, unless it has actual knowledge of the particular risk which caused the harm.
The trial judge had decided that this protection was not engaged because the Council was actually undertaking road work. This finding of the trial judge wasn’t challenged in the appeal but the Court considered it would have been a “nice question” whether failing to utilise concrete barriers (rather than the plastic barriers) would have represented a failure and engaged section 45, because the definition of “carry out road work” is broad and includes any activity in connection with the repair of a road work.
In Sharp v Parramatta City Council  NSWCA 260 the Court of Appeal considered the liability of Council where a patron suffered injury jumping from a 10m diving tower. The decision revolved around the provisions of the Civil Liability Act governing obvious risk and recreational activities, and risk warnings.
The plaintiff suffered injury when jumping off the 10m platform at the Parramatta War Memorial Pool in January 2009. Although she jumped feet first, she landed at an angle of about 45° and suffered a compression fracture of her thoracic spine.
There was a factual dispute as to the instruction provided by a lifeguard stationed at the top of the diving platform, although the trial judge accepted that the lifeguard had probably instructed patrons to fall vertically, feet first into the pool.
Affixed to a supporting pillar alongside stairs used to climb up the tower was a sign warning that patrons using the platforms and springboards “do so at their own risk”.
At trial a judge in the District Court dismissed the plaintiff’s claim on the ground that the warning sign provided a defence to Council under section 5M of the Civil Liability Act because (1) the plaintiff was engaged in a recreational activity; and (2) a risk warning had been provided to the plaintiff. Section 5M(3) provides that a “risk warning” is to be given in a manner that is reasonably likely to warn a person of risk before they engage in the recreational activity. The trial judge was satisfied that the warning sign met the test of a risk warning.
On appeal the Court of Appeal considered key provisions of the Civil Liability Act.
Obvious risk – section 5L
Section 5L provides that a person is not liable in negligence for harm suffered by another as a result of the materialisation of an obvious risk of a dangerous recreational activity. Section 5K defines a “dangerous recreational activity” as one that involves a significant risk of physical harm. An “obvious risk” is defined in section 5F as one which would be obvious to a reasonable person.
The plaintiff disputed that she had been engaged in a dangerous recreational activity. The Court of Appeal said that the question as to whether there was a significant risk of injury to satisfy the definition of a dangerous recreational activity called for an objective assessment of the riskiness of the activity, taking into account the probability of physical harm and the seriousness of the harm which might result.
Here the activity of jumping from a 10m platform carried a probability of harm that was real and present, the consequences of which included serious injury upon impact with the water. Accordingly the Court was satisfied that the plaintiff had been engaged in a dangerous recreational activity.
The Court was also satisfied that the risk which materialised was obvious such that section 5L provided a defence to Council.
Risk warning – section 5M
The plaintiff argued that the warning sign was general and did not warn patrons of the particular risk concerned, notwithstanding that section 5M(5) provides that a warning sign can be general so long as it includes the particular risk concerned. The Court said that a “risk warning” is a warning with respect to the existence of risk. It does not need to instruct as to all the steps necessary to avoid the risk.
Use of the diving platform carried a general risk of injury and the warning sign affixed to the pillar directed patrons to the risk of using the platform to jump or dive into the pool. The Court was also satisfied that the warning sign was reasonably likely to result in patrons being warned. It wasn’t relevant whether the plaintiff received or understood the warning.
The Civil Liability Act introduced a range of provisions intended to give defendants protection against public liability claims, particularly when the risk of injury could not be foreseen or the plaintiff was engaged in recreational activity giving rise to an obvious risk of injury. These two recent decisions highlight the difficulty facing plaintiffs in succeeding with claims, particularly (as in the Sharp claim) when a council provides a warning as to the risk of injury.
Author: Gary Forster