By Cindy Ting, Special Counsel and Bronwyn Ackland, Partner

In 2024, in Warren v District Council of the Lower Eyre Peninsula (No 3) [2024] SADC 37, the District Court of South Australia affirmed the reasonableness of a local council’s risk assessment of the relative likelihood of danger sought to be avoided against the burden and cost of proposed preventative action, making a finding of no breach of duty owed to the visitor upon council land.  In August 2025, in Warren v District Court of Lower Eyre Peninsula [2025] SASCA 93, the South Australian Court of Appeal confirmed the District Court decision.

Factual Background

The Applicant was seriously injured on 18 December 2013 when he fell 10 metres off a steep cliff onto the beach below.  He had been with a group of young people in 3 motor vehicles who had travelled to and parked at the top of the cliffs. The Applicant was descending an escarpment and walking to the beach below but stumbled and tripped before falling over the cliff onto the beach.  He was with another person who managed to appreciate the vertical cliff drop about 10 metres before the end of the escarpment and accordingly stopped his descent.

Evidence was led that the Applicant was attempting a descend to the beach not along the usual route which was located about 90 metres north of his entry to the escarpment.

In addition, the evidence at trial suggested that the area at the top of the cliffs was an area of flat rubble which could be used by vehicles as a turnaround or for parking, and which was free of any barriers or warning signage.  The Applicant described this area as a car park whereas the Council described it as a turnaround.

The Council knew or ought to have known that some surfers, fisherman and swimmers used the beach near this area with increasing frequency, but nonetheless, the Trial Judge found that the accident site could not be described as a tourist attraction at the time of the Incident, but rather was “wilderness coastline”.

Case At First Instance

The Applicant alleged that the Council was negligent in failing to erect warning signs and barriers warning of the dangers of the cliffs in this area, knowing that the area was frequented by visitors and particularly as the Council had encouraged visitors to attend by creating and maintaining a road to the top of the cliffs and creating and maintaining a car park at the top of the cliffs.

The Council defended the claim on the following bases:

• The risk of falling was obvious
• The area was remote and part of a vast coastline making signage impractical
• There was no reason to erect signage in this location as opposed to any other location along the cliff-face
• It had not encouraged descent from the top of the cliffs to the beach below
• It was protected under Section 244(1) of the Local Government Act 1999 (SA)

At first instance, the Trial Court dismissed the Applicant’s claim, finding no breach of duty:

• Consistent with the authority of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 337, when determining whether a risk was an obvious risk, the risk must be specifically, and not generally described
• The particular risk of harm in the Applicant’s case was the risk that the Applicant would descend the escarpment, believing it to be a path to the beach and be unable to stop when encountering the cliff and would fall over the cliff and injure himself
• This risk was not an obvious risk
• Nevertheless, the specific warning or signage necessary to prevent the risk was unclear or likely would not have prevented the fall unless specifically erected at the point of the Applicant’s entry to the escarpment
• The cost of erecting a single sign at the accident site was insignificant
• However, it was appropriate to consider the possibility of multiple signs or barriers at multiple similar sites following a site inspection at each multiple similar site, potentially carrying a significant cost, and for the Council to allocate resources where the risk was the greatest and therefore to areas such as heavily used roads first
• It was beyond the resources of the Council to conduct risk assessments of all areas along the coast
• Whether the Council created and maintained the road/car park is not relevant to the question of whether the Council owed a duty of care but rather goes to questions of standard of care and breach of duty
• Citing Vairy v Wyong Shire Council (2005) 223 CLR 422, the Trial Judge quoted:

“Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten.  The obviousness of a danger can be important in deciding whether a warning is required.  Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. … If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective”.

In drawing these conclusions, the Trial Judge made the following findings of fact:

• The area at the top of the cliffs functioned as both a car park and a turnaround area
• The Council had created and maintained the road leading to the carpark
• However, the Council had not invited the public into the area or more specifically to descend to the beach below the cliffs
• There was no impression of a path down the escarpment or from the car park to the Applicant’s point of descent
• The point of descent at the escarpment was very steep and appeared to be very steep
• From the point of descent, a clear path to the beach could not be seen

Further, in obiter, the Trial Court considered that if the Applicant had proved a breach of duty of care:

• Causation would only be established if the scope of the duty of care extended to the placing of a sign or barrier specifically at the point of the Applicant’s descent (as opposed to at any other point along the cliff-face)
• The Council would not have been shielded against liability by Section 244(1) particularly as wrongful acts as defined by that Section also included omissions
• The defence of voluntary assumption of risk would have been rejected
• The Applicant’s damages would have been reduced by 40% for contributory negligence

Appeal

In upholding the original trial decision and confirming that the Council was not negligent and had not breached its’ duty of care, the Court of Appeal affirmed almost in their entirety the Trial Judge’s findings.

In addition, the Court of Appeal accepted that consideration should have been given to the utility of installing some form of barrier around the car park area, but the Court of Appeal ultimately concluded that any such measures may have prevented a motor vehicle from driving off the cliff but would not have prevented the Applicant from descending the escarpment.  Furthermore, the placement of barriers would have been similarly challenging as when considering the placement of any signage.

Accordingly, the Court of Appeal affirmed the trial judgment that there was no evidence the Council had breached its duty of care by failing to erect appropriate signage or barriers.

Relevance

This case underscores the importance of precisely identifying the specific risk in question when determining whether local councils have breached their duty of care.  Careful consideration of both the content and placement of any warning signage as well as its likely effectiveness in preventing the particular harm in issue, is also critical in determining a breach of duty of care.