Council found not liable for cliff fall that left plaintiff paralysed29 May 2015 | Public & Product Liability
In Morris v Redland City Council & Anor  QSC 135, Barry.Nilsson. Lawyers successfully defended a claim against Redland City Council (“Council”) by a man who suffered catastrophic injuries after falling from a cliff at night whilst trying to find the stairs to the beach at North Stradbroke Island. Council was able to defeat allegations of insufficient lighting and signage, causing a path to exist which led to a dangerous area and failing to undertake a risk assessment of the area.
The plaintiff rented a house on the Island from Ray White North Stradbroke Island but did not ultimately pursue that entity at trial.
The events of 5 February 2010
The plaintiff and friends rented a house on Mooloomba Road at Point Lookout, North Stradbroke Island, for the purpose of celebrating the plaintiff’s 40th birthday. The house overlooked the ocean and Frenchman’s beach. On the other side of the Mooloomba Road was the headland. The headland was approximately 80 metres wide and extended from Mooloomba Road to the cliff.
At approximately 9pm on the night of the incident, the plaintiff and two friends, Mr Jones and Mr Lewis, left the house to look for steps to Frenchman’s beach (as they planned to go fishing the next morning). None of them had any familiarity with the area.
Whilst the plaintiff alleged there was no street lighting in the area and no signs indicating where the stairs to the beach were located, the court accepted that there was street lighting at the intersection of Mooloomba Road and Midjimberry Road and had the men proceeded further they would have seen the street light and the entrance to the steps. Further, there were directional signs (to the beach) that would have been visible at night by virtue of the street lights.
The plaintiff also alleged that there was a “well worn path leading from the boardwalk (footpath)” into the vegetated headland. The existence of the “track/path” caused the three men to believe the path led to the steps to the beach. The plaintiff’s evidence was that after the group turned back along Mooloomba Road, he saw a “pathway that led into the bushes… that led down to the grassy area.” The group followed the path, stopped for a period and consumed a ‘stubbie’ of beer they had brought with them, and continued along the path. The plaintiff believed he saw stairs off to the distance. He got up to have a look and lent on a tree. As he did so, the tree snapped and he fell off the cliff.
Was there a track/path?
Council’s evidence was that there was no path and it had not created a path on the headland in the area traversed by the three men. The only work performed in the general area was weeding and brush cutting. A representative from Council attended the headland approximately 2 weeks after the incident and found no paths matching the description provided by the three men.
Mr James returned to the Island approximately 2 months after the incident. During cross-examination he conceded that although he looked for the path that he allegedly took on the night of the incident, he “struggled to find one”. Photographs tendered into evidence showed Mr James forcing his way through heavy bushland and vegetation. Martin J held that it could not, on any reasonable use of the term, be described as a “path”.
Council’s evidence about the density of the vegetation and that there was no path in the area was accepted over the evidence of the plaintiff, Mr Jones and Mr Lewis. The court held that there was no path, manmade or otherwise, through the headland to the cliff.
Did Council breach its duty to the plaintiff?
The plaintiff relied on 3 broad grounds – Council should have erected signs warning of the cliff edge, Council caused or allowed a grassy path to exist which led to a dangerous area and Council failed to conduct a formal risk assessment of the risk associated with persons entering the headland via the boardwalk/footpath and the “grassy path”.
There was no evidence that before the incident Council had knowledge of any prior incidents of people being injured after entering the headland, had observed people walking through the area traversed by the plaintiff or had otherwise encouraged people to enter the headland.
In the plaintiff’s submissions the risk was described as “… a person, such as the plaintiff, could be guided by paths and/or paths and/or open clearings to a point where, through ignorance, inadvertence, inattention, or mistake, he could fall over the 20 metre cliff.” His Honour noted this description relied on the plaintiff being “guided” by a path which did not exist, it referred to an “open clearing” which was not pleaded and overlooked the fact the incident occurred at night. There was nothing on the headland which suggested the steps or any other entry to the beach could be found by walking through the bush. The natural vegetation was thick, the topography was undulating and there was no path. A person wishing to access the beach could have found the steps at night because of the directional sign illuminated by the street light at the intersection of Mooloomba Road and Midjimberry Road. Martin J held the risk someone might fall from the top of the cliff was not reasonably foreseeable.
In the event the risk was foreseeable, his Honour briefly considered the reasonable response of Council. In relation to the allegation that Council failed to erect warning signs, the plaintiff called no evidence about what sort of signs might have satisfied Council’s duty. No evidence was led about the number of proposed signs, whether the sign/s should be illuminated, where the warning sign/s should be placed and what other warnings should be given. Put simply, the plaintiff did not demonstrate how Council might have complied with the duty it was said to owe.
The plaintiff made no submissions about the risk assessment/s Council should have undertaken.
The Civil Liability Act 2003
As the court found that Council did not breach any duty it owed to the plaintiff, the provisions of the CLA were only briefly dealt with by the court. His Honour found the risk of injury to the plaintiff would have been obvious to any reasonable person in his position and therefore, was an ‘obvious risk’ within the meaning of the CLA.
Evidence was led about the plaintiff’s alcohol consumption on the night of the incident. The experts determined that the plaintiff’s blood alcohol concentration at the time of the incident was between 0.054 to 0.065 per cent. His Honour concluded the plaintiff had not rebutted the presumption in s. 47(3) of the CLA and had Council negligent, he would have assessed the plaintiff’s contributory negligence at 50%.
The claim against Council was dismissed.
The evidence of the plaintiff and his witnesses was that they ‘thought’ a path existed in the headland. The witnesses called on behalf of Council were familiar with the headland (and maintained the area) and could provide direct evidence no paths existed in the headland. Council’s evidence was accepted and this illustrates that where possible, clear, concise evidence from witnesses with direct knowledge of circumstances surrounding the incident is preferred by the Court.
His Honour’s findings on contributory negligence (had Council been found negligent) are also worth noting. There was no evidence the plaintiff was seriously intoxicated at the time of the incident. At the low range of the experts’ range, the plaintiff exceeded the legal driving limit by 0.004. However, His Honour was satisfied that the plaintiff’s level of intoxication was sufficient to impair his judgment. This, combined with the fact he was walking through a dangerous and unfamiliar environment at night, resulted in a significant finding of contributory negligence.