The Civil Liability Act (CLA) provides a defence to a claim in negligence where the injury arises while the injured person is engaged in a dangerous recreational activity, and the harm is the result of something that is an obvious risk of that activity.
The meaning of both these terms was considered by the New South Wales Court of Appeal in the case of Jaber v Rockdale City Council.
Bilal Jaber, who was aged 19 at the time of the accident, dived off a bollard located on a wharf at Dolls Point that was under the care, control and management of the respondent, Rockdale City Council (the Council). He sustained serious injuries as a result of striking his head on the seabed.
Jaber sued the Council for negligence, alleging that there was a breach of duty of care by failing to adequately warn him of the dangers from diving off the wharf.
The Council relied on the provisions of the CLA to defend the claim.
The primary judge noted that, for the statutory defence to apply, firstly Jaber's activity must involve an obvious risk, being a risk of harm that in the circumstances would have been obvious to a reasonable person in his position.
Jaber knew that there was potential for danger and understood that if the water was too shallow this could result in significant injuries. His awareness of the potential danger was demonstrated by him treading water to check the depth in the area in which he intended to dive. It was found that a reasonable person in the position of Jaber would not regard this particular method as a reasonable substitute for testing the depth by a more reliable means of duck diving or jumping in feet first.
The Court of Appeal agreed with the primary judge and found that the relevant risk of the harm to which Jaber was exposed was an obvious risk.
The Act provides that a person does not owe a duty of care to another person to warn of an obvious risk. Accordingly, there was no duty of care owed by the Council to warn Jaber of the obvious risk.
For an activity to be a dangerous recreational activity, it must be an activity that involves significant risk of physical harm.
The Court of Appeal held that a significant risk is one that is somewhere between a trivial risk and a risk that is likely to occur. Where there is a real chance of the risk materialising, the risk is considered significant. The notion of 'significant' applies both to the likelihood of the risk materialising, and the seriousness of the potential outcome. In this case, it could not be said that the risk was trivial. Jaber understood that the physical harm that could be sustained if the risk materialised would be extremely serious and catastrophic.
The Court of Appeal agreed with the primary judge's finding that the appellant's injures were a result of the materialisation of an obvious risk of a dangerous recreational activity and that therefore the Council was not liable in negligence for the appellant's injuries.
Need more information or have any queries? Please contact Geoff Bourhill on (08) 9288 6752 or Trinh Le on (08) 9288 6938.
