When does risk become too obvious to claim for?  Western Australia draws a line in the sand. Fisher v Shire of Denmark

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By Rebecca Roberts Partner and Ryan Sheehan Summer Clerk

In the first published judgment of the District Court of Western Australia for 2024, Russell DCJ delivered a definitive judgment that local governments and occupiers are not obligated to safeguard individuals who fail to recognise risks that are clearly obvious to them.  As a result, her Honour curtailed the duty that occupiers owe to their entrants to mitigate easily recognisable risks and imposed a more stringent duty on entrants to exercise reasonable care for their own safety.

Background

Ms Fisher claimed damages against the Shire of Denmark for personal injury sustained when she slipped and fell while descending a flight of stairs from the car park to the Black Hole Rock coastal area near Denmark.

The plaintiff was a 62-year-old Victorian resident who travelled with her husband to Western Australia for a holiday.  She was described as an avid walker who wanted to explore the undiscovered coastal area near the Black Hole Rock.  When the plaintiff and her husband reached the premises, the plaintiff descended the stairway with relative ease, looking down at each step as she went down.  However, upon stepping off the final step, the plaintiff slipped on lose gravel stones in a sloping area of the stairway’s landing and resultantly sustained a right ankle fracture and dislocation which required surgery.  The plaintiff claimed damages against the defendant for common law negligence and under the Occupiers’ Liability Act 1985 (WA) (OLA).

Whilst the defendant admitted that it had control and management of the Black Hole Rock coastal area, it was responsible for the maintenance of the stairway, and that the plaintiff suffered the described injury when she slipped on the stairway; it denied that the plaintiff’s injury was caused by its negligence.  Instead, the defendant submitted that the risk of slipping was a risk that should have been obvious to the plaintiff given the rugged nature of the coastline and its uneven surfaces covered in gravel.  In essence, the plaintiff’s injury was caused by her own failure to keep a proper lookout and take care for her own safety.

Russell DCJ held at [143]:

It is a matter of common knowledge and experience that loose gravel can be unstable underfoot.  It would be apparent and easily understood that stepping down onto such a surface carries a risk of slipping.  I find that the risk of slipping on the gravel on the landing area would have been obvious to a reasonable person in the position of the plaintiff, of the plaintiff’s age and experience exercising ordinary perception, intelligence and judgment, and given the presence of gravel on and around the steps and on the landing area.

Her Honour accepted that in the plaintiff’s circumstances, common knowledge and experience would dictate that stepping onto a sloping surface that was covered in gravel carries with it a significant risk of slipping and sustaining harm.  Therefore, it was found to be an obvious risk of harm that fit within the ambit of section 5F of the Civil Liability Act.

Russell DCJ then turned her mind to what precautions, if any, would a reasonable person in the defendant’s position have taken by way of response to the obvious risk of slipping.

Russell DCJ stated at [169]:

It would not, in my view, be reasonable or practicable for steps or a landing area in such a location to be maintained or constructed to the same standards as, for example at or in a dwelling, a commercial or other building.  Nor would it have been reasonable in the circumstances and given the nature of the steps for the defendant to have installed handrails to the steps at Black Hole Rock or at the landing area.  It would not have been reasonable, practicable or desirable to have constructed a level or more level landing area, or introduce non-slip material such as blue metal or similar materials…  That would have been entirely inconsistent with the natural beauty of the area and the purpose of which access to Black Hole Rock had been provided.”

Russell DCJ ultimately concluded at [170]

  • There is no definitive evidence as to what would be involved in taking such precautions, the cost and resources of the defendant required to do so. However, the burden of taking such measures would, in my view, outweigh the relatively low risk of harm to a person taking reasonable care for their own safety in stepping down from the last step onto the gravel stones on the landing area.

Conclusion

The plaintiff’s claim was dismissed with the judgment providing guidance how occupiers as defendants can limit their liability when it comes to “obvious risks’ particularly in remote natural sites.

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