Making the assessment of obvious risk more obvious Making the assessment of obvious risk more obvious

Making the assessment of obvious risk more obvious

28 October 2015 | Public & Product Liability

The various decisions dealing with obvious risk can cause you to wonder whether the obviousness of any particular risk can be accurately assessed in advance of an appellate decision. 

An example of this tension can be found in a comparison of the cases of Stradler v Albury City Council [2013] NSWCA 348 and Stewart & Ors v Ackland [2015] ACTCA 1.

Both cases involved teenaged boys who suffered catastrophic spinal injuries attempting to perform backflips.  In Stradler it was from a rope swing into a river while in Ackland it was on a jumping pillow at a privately managed fun park.

The plaintiff in Stradler was an accomplished diver including from 7.5 and 10m platforms.  He gave evidence that he also had extensive experience diving into rivers, including from rope swings.   The plaintiff also conceded that he was aware that the depth of the river could change and that when using other rope swings he had waded around in the area he intended to land in to check the depth prior to jumping.   On that basis the court held that the risk of injury from diving or landing headfirst in water which may be too shallow was an obvious one and the plaintiff’s claim was defeated.

In Ackland the claimant was three years older (19) and at university.  He similarly gave evidence that he had experience at home on a trampoline on which he would perform various maneuvers, including backflips.  The plaintiff conceded that he recognized there was a risk of injuring his neck on the trampoline and that he had considered the risk of injuring himself in some way on the jumping pillow.  Despite this however, the Court held that the risk was not obvious – relying on technical evidence as to the different properties of a jumping pillow and a trampoline.

It is difficult to reconcile these and other decisions which can make it difficult to assess whether the particular risk you are considering will be found to be obvious or not.

The recent decision of the NSW Court of Appeal in Collins v Clarence Valley Council [2015] NSWCA 263 however has provided further clarity.

Dr Collins (the plaintiff/appellant) was participating in an organized charity ride.  She had significant experience riding pushbikes having ridden in excess of 150km per week for the previous 15 years.  The plaintiff was injured when her bike wheel became trapped in a gap between planks in a wooden road bridge, causing her to fall to the side, over the railing and into the rocky ravine below.

The plaintiff conceded that she had identified the gaps in the bridge surface as she approached it and, to avoid her wheel becoming stuck in the gaps, had ridden across the gaps at an angle.  As she approached the far end of the bridge however, the plaintiff was looking forward rather than down (in case of traffic coming the other way) when her wheel became stuck. 

The Council had performed an inspection of the bridge earlier in the year.  The Court of Appeal held that this inspection was deficient as the Council had only considered whether the bridge was safe for motor vehicles, not cyclists.  This was in the context of the Council’s knowledge that a local Club contacted its annual and sometimes monthly cycling races across the bridge. 

The Court of Appeal held that a young child or a person participating in a race at high speed may not appreciate the existence of, or potential to become stuck in the gaps in the bridge deck.  On that basis, the Court held that a warning sign should have been erected before the bridge, warning of the gaps and instructing cyclists to dismount. 

Those findings did not assist the plaintiff though.  As the relevant test is whether a reasonable person in the position of the plaintiff would have appreciated the risk to be an obvious one, it is necessary to consider who that reasonable person is in each case, and that is why the plaintiff failed, whereas a club cyclist participating in a race over the same bridge may not have. 

The reasonable person test is not so restrictive as to require a person in the precise circumstances in which the plaintiff found herself.  However, it does have to take into account the plaintiff’s age, experience and other general attributes of the factual situation.  The Court of Appeal found here that the relevant reasonable person was an adult cyclist with approximately 15 years experience, riding >150km per week, riding at a pace that enabled her time to observe the state of the bridge as she approached it and to make a decision whether to dismount or to weave over the gaps as she did.

Looking at the distinction the Court of Appeal has drawn between a reasonable person with the plaintiff’s qualities (to whom the risk was obvious and no warning was required) and other classes of cyclists such as children, inexperienced cyclists or those involved in a race at speed (to whom a duty was owed) helps to explain why a risk that is obvious from your own perspective, is not deemed to be obvious to someone else.  


Fiona Sennett

Fiona Sennett