Coombe v Shire of Gingin
[2007] WADC 180
•12 OCTOBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : KEEN DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : BRADLEY MILTON COOMBE |
Plaintiff
AND
SHIRE OF GINGIN
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Torts - Negligence - Occupier's liability - Liability of local authority having control and occupation of off-road vehicle area for injury sustained while plaintiff engaged in recreational activity - Contributory negligence
Legislation:
Control of Vehicles (Off Road Areas) Act 1978
Occupiers Liability Act 1985
[2007] WADC 180
Result:
Plaintiff succeeds in part - damages to be assessed
Representation:
Counsel:
| Plaintiff | : | Mr T H Offer |
| First Defendant | : | Mr J Eller |
| Second Defendant | : | No Appearance |
Solicitors:
| Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| First Defendant | : | John Eller |
| Second Defendant | : | State Solicitors Office |
Case(s) referred to in judgment(s):
Agar v Hyde (2000) 201 CLR 552
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chappel v Hart (1998) 195 CLR 232
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Jones v Bartlett (2000) 205 CLR 166
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Prast v Town of Cottesloe (2000) 22 WAR 474
Roads & Traffic Authority of NSW v Dederer [2007] HCA 42
Swain v Waverley Municipal Council [2005] HCA 4
Teubner v Humble (1963) 108 CLR 491
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Tomlinson v Congleton Borough Council (2004) 1 AC 46
Town of Mosman Park v Tait [2005] WASCA 124
Vairy v Wyong Shire Council [2005] HCA 62
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
[2007] WADC 180
KEEN DCJ
KEEN DCJ: Plaintiff claims damages arising out of an accident on 19 April 2003. On that date the plaintiff was riding his off road motorcycle at the Lancelin Off Road Vehicle Area (ORVA) which is predominantly sand hills or dunes and is occupied by and under the control of the first defendant.
2 The plaintiff rode his motorcycle over the top of a sand dune which
had a steep descent side. He crashed to the bottom of the dune and
sustained severe injuries.3 The only issue before me is in respect of the liability of the first
defendant. There was no dispute by the defendant that to the extent that damage is an essential element of the tort of negligence, the plaintiff suffered an injury. The extent and consequence of that injury is not for determination at this time.
Pleadings
Matters of liability are dealt with in pars 3-8 of the statement of
claim. In par 3 it is alleged:
5
"The first defendant at all material times occupied and controlled the ORVA which are sand hills pursuant to the Control of Vehicles (Off Road Areas) Act 1978 ("the sand hills")."
This allegation is admitted by the first defendant.
Paragraph 4 of the statement of claim reads:
"The first defendant was at all material times an occupier of premises within the meaning of s 5 of the Occupiers Liability Act 1985 as amended and had a duty by reason of the occupation or control of the sand hills to exercise reasonable care to ensure that persons entering, riding and driving their vehicles within the vicinity of the sand hills would not suffer injury or damage by reason of any danger due to the state of the sand hills or anything done or omitted to be done at the sand hills."
8 The first defendant admits that it was the occupier of the premises
within the meaning of s 5 of the Occupiers Liability Act but otherwise
denied the allegations.
[2007] WADC 180
KEEN DCJ
The statement of claim continued:
"5. There was danger of the sand hills in that:
(a) the sand hills were a popular recreational area for riders and drivers of off road vehicles; (b) the First Defendant supplied the area for off road vehicle enthusiasts to jump over sand hills; (c) the sand hills were susceptible to change due to the high velocity of the winds which draws out the sand and leaves the hard surface of the ground for vehicles to land on; (d) there were no warning signs or barriers provided and/or constructed which demarcated the clear and apparent danger existing at the sand hills as a result of terrain changes caused by the wind; (e) there was no regular system of checks made by the officials appointed by the First Defendant to ensure that there were no dangers lurking for off road enthusiasts who were using the area; (f) at the material time there were no signs prohibiting the jumping off or otherwise warning riders and drivers of off road vehicles of the steep decline beyond the sand hills which remained barren and not cushioned by the sand."
10 The first defendant denied these allegations and went on to allege in
its defence that at all material times there was a significant sign at the
entrance of the premises providing detailed warnings to entrants.
The statement of claim continues:
"6. On or about 19 April 2003 at about 1.20 pm the Plaintiff rode his off road vehicle (a Honda XR400 motorcycle) up a sand hill and fell to the ground sustaining severe injuries as particularised hereunder ("the accident"). 7. The accident was caused by the negligence of the First Defendant in that the First Defendant, its servants or agents:
[2007] WADC 180
KEEN DCJ
(a) failed to ensure that at all material times there were warning signs placed clearly at the sand hills warning/advising participants of the dangers of jumping off sand hills; (b) failed to provide warning signs to ensure that riders/drivers using the sand hills were aware of the imminent danger lurking from the change of terrain conditions at the sand hills; (c) failed to provide any or any adequate warning that the sand hills from which the Plaintiff jumped from was dangerous; (d) failed to take any or any adequate steps to barricade off and prevent riders/drivers of off road vehicles to jump off the sand hill that the Plaintiff jumped from; (e) failing to level the sand hill thus obviating the inducement to members of the public to jump from it; (not pursued at trial) (f) failing to take any or any reasonable care to prevent injury or damage to the Plaintiff from unusual dangers at the sand hills of which it knew or ought to have known; (g) failed to exclude the public from the sand hills in the circumstances where it knew or ought to have known that the public frequented the sand hills and jumped off the sand hills when it was unsafe and dangerous to do so in the circumstances. 8. Further and in the alternative, the accident was caused by the First Defendant's breach of duty under the Occupiers Liability Act 1985.
PARTICULARS OF BREACH
The Plaintiff repeats the particulars of the preceding paragraph as evidencing the breach of duty of the First Defendant, its servants or agents."
[2007] WADC 180
KEEN DCJ
12 By its defence the first defendant, whilst admitting that the plaintiff
rode his motorcycle in the sand hills and fell sustaining severe injuries, otherwise denied the matters pleaded in pars 7 and 8 and repeated its claim that there was a significant sign at the entrance of the premises providing detailed warnings to entrants and further that the plaintiff's injury and loss were caused by or contributed to by the plaintiff's own negligence.
The locus
Before coming to the evidence it is appropriate to say something about the state of the land where the accident occurred.
14 Exhibit 1 herein was a book of documents tendered by consent.
That book contained at Part 5 a number of photographs. Those at 5.1, it is agreed, were taken on the day of the accident, 19 April 2003.
15 The photographs depict what appeared to be a fine day with clear
blue skies. They depict the motorcycle ridden by the plaintiff. They show a sand dune or hill taken from the bottom where the plaintiff ended up. They show a sand hill of what appears to be some size. The face of the hill appears relatively steep but it is difficult to gain a proper perspective of the steepness from the photos as they are taken front-on. At the foot of the hill there appears to be some small rocks – apparently limestone – scattered around. There does not appear to be a uniform covering of the ground with those rocks. There is also vegetation in the nature of low growing scrub. Again, it is not a uniform covering of the ground but sparse.
A further set of photos at 5.2 were taken in December 2003. They show a sign welcoming visitors to the ORVA. I will come back to that sign shortly. Those photos show sand and sand hills. Photos Q 12 and Q 13 are a side-on view of a sand hill showing some rocks at the bottom. Q 14, 15 and 16 appear to show a view from the top of a hill looking down to a rocky area below. Q 17 and 18 are side-on views showing the hill and the rocky area below. Q 19 is a view from below looking back at the face of the hill. Q 20 is a view of the rocks at the base of the hill. In a number of the photos there are people depicted from which something of the scale can be assessed.
[2007] WADC 180
KEEN DCJ
Returning to the sign (Photo Q 9); this is headed with the following:
"GINGIN SHIRE
Welcome to
LANCELIN OFF ROAD VEHICLE (ORV) AREA
Control of Vehicles (Of Road Areas) Act 1978."
18 Below this is depicted, pictorially, in a blue rectangular area, the area
where the ORVA is situated (shown in red) and its position relative to the Lancelin town site and the Indian Ocean. That blue area is overlaid with wording as follows:
"THE OFF ROAD AREA IS A HAZARDOUS
ENVIRONMENT MANY SERIOUS INJURIES OCCUR
EACH YEAR.
BEWARE (shown in red)
SUDDEN STEEP DESCENT,
COLLISIONS WITH
VEHICLES/PEDESTRIANS."
Below that and outside of the blue area the following wording
appears:
"REGULATIONS
1. In accordance with the Act O.R.V.s may only use the area shown (there is shown the area shape as depicted pictorially in red). This area is defined by orange coloured markers.
2. ORVs must be registered and display the appropriate registration plate. These are obtained from the Gingin Shire Office or any Police Licensing Centre.
3. Helmets/Seatbelts must be worn at all times whilst riding/driving ORVs.
IN THE INTERESTS OF PUBLIC SAFETY, THESE REGULATIONS WILL BE ENFORCED RIGOROUSLY BY
[2007] WADC 180
KEEN DCJ
COUNCIL RANGERS AND POLICE. ALL BREACHES OF THESE REGULATIONS CARRY A MAXIMUM PENALTY OF $500.00."
The evidence
The plaintiff
20 The plaintiff was born on 6 August 1978. He gave evidence that he
has no recall of the accident. In Exhibit 1 there were medical reports on the plaintiff but counsel for the defendant accepted that the plaintiff has no recall of the accident and so it is not necessary for me to go to those reports which were tendered for this purpose. The plaintiff's evidence was that his last recollection is of asking at the bottle shop in the Lancelin town site for directions to the dunes.
21 He said that motorcycling was his hobby and he had been riding a
dirt bike since he was 8 years old. He rode around the firebreaks in the bush. He had not ridden in the dunes before. In cross-examination he said that he had not been involved in jumping on his motorcycle. That required a motocross bike and his was a farm bike.
22 He described himself as a confident and good driver. He agreed that
a very good rider would not ride where he could not see where he was
going.
He said that he did not have a licence.
Bradley Errington
24 Mr Errington was at the dunes on the day of the accident with a party
of friends, including Carl and Paul Bramley. He parked his vehicle in an area where he could see a fair distance around. He said that once in the dunes it was "just up and down sand".
25 They had motorcycles with them. Carl Bramley rode off on a
motorcycle for about five minutes and then returned. His brother Paul then went for a ride. He saw Paul disappearing around a dune and then cartwheeling in the air – he had gone over the handlebars.
26 Mr Errington went in his utility to where Paul was to see if he was
okay. He had had a bad accident. He was in an area where there was a steep cliff and he had gone off it. He described there being a lot of limestone and some vegetation at the base and, as he recalled, a tree.
[2007] WADC 180
KEEN DCJ
27 Mr Errington was taken to Exhibit 1, Photos Q 12 to 20 but said that
he did not recognise what was shown, it having been a long time. He said that the limestone was similar to that shown in the photos but he could not say that that was the exact spot. He recalled the vegetation as being bigger and more of it than shown in Photos Q 15, 16, 17, 19 and 20.
28 He described the "cliff" face as being 10 to 15 metres straight up.
He saw no sign warning of it and said that he did not expect anything like that. As he put it "It was a sand dune with nothing on the other side of it".
29 While he was tending to his friend (who died of his injuries), and
about ½ hour later he said that he saw another motorcycle come off the edge. He said that the police were there. This other motorcycle landed about 10 metres from them. The rider (the plaintiff) came off the bike and landed closer to the cliff face than Paul. In cross-examination he was asked if the rider dropped off the face of the dune or came over at speed. He responded that he came as fast as one can go on sand but he did not know how fast, but did not think he was going "that fast". He said that the rider appeared to jump off a couple of metres before hitting the ground.
30 He agreed that one has to be careful in an area such as this.
He agreed that there was a risk of collisions. He said that he thought it a safe place to be.
31 He was asked whether he saw or heard people at the top of the hill
before the plaintiff's accident and he said that he did not. He was focused
on his friend Paul until he saw the plaintiff coming off the edge.32 He was shown the photo of the sign and asked if he had seen this.
He said that he had not. He described himself as a cautious person and had he seen the sign he would have read it.
Chantelle Anne Jeffrey
33 Ms Jeffrey is acting manager Wheatbelt Public Health Unit which is
involved in injury prevention in an area which includes Lancelin. She gave evidence that the Unit collected data from the Lancelin Nursing Post as to off road injuries and compiled reports of the same. The plaintiff sought to tender a number of such reports in the face of objection from the defendant. I ruled against the admissibility of such evidence and gave reasons for so doing in Court and it is not necessary for me to repeat those reasons here. The reports were later tendered through another witness.
[2007] WADC 180
KEEN DCJ
Susan Murray
34 Ms Murray is a registered nurse who has lived at Lancelin and
worked there for Silver Chain (on a casual, not permanent basis) for the
last 10 years.35 She was called out to the accident in the dunes involving
Mr Bramley and attended with an ambulance driver. Mr Bramley was declared deceased. She said that after covering Mr Bramley she was facing the dune and heard a motorcycle in the distance. She saw four people on the top of the dune. Two of them, who appeared to be teenagers, were to one side and the other two, who appeared to be younger, were off towards another side. She said that initially they were facing Ms Murray but turned around and started waving at someone. The next thing that happened was that another motorcycle came between these people and landed about 5 to 6 metres from where Ms Murray was on the limestone base. When questioned about when the motorcycle came over the top she said that it was "a minute or two" after she saw the people waving.
36 She described the face of the hill as a "razor-back". As a further
description she said it was a cliff – the wind having cut it like a cliff. In cross-examination she described the base as limestone and said that it was typical for the area – there was a lot of limestone. She described the other side of the dune as typical rolling sand dune and not steep.
37 She said that the rider separated from his motorcycle. She had no
idea of the speed of the motorcycle as she did not see it before it came over the hill. It was in the air as it came over. It landed about 20 feet from the "razor-back". In cross-examination she said that it landed further away from the dune than where they were and both the bike and rider "bounced back" towards the dune. She said that the rider did not separate from the motorcycle but "hovered" in the air and was still on the motorcycle when it hit the ground.
38 In cross-examination she said that she was called out quite regularly
to the dunes – about five or six times over the last eight to 10 years. She said that most of the time the ambulance officers brought injured people out and to the nursing post. Sometimes that may be four or five in a day and the injuries varied in severity. Some were sent to hospital but she could not say how often. She said that statistics were kept and questionnaires completed about accidents. They were sent off to the Health Department.
[2007] WADC 180
KEEN DCJ
Clifford Thomas Howe
39 In 2003 Mr Howe was a police officer attached to Lancelin Police
and was on duty on 19 April 2003. At about 1 pm he received a message that there had been an accident and he went to the dune area. At the base of a dune he found two people trying to resuscitate another. This continued for 10 to 15 minutes before the injured person was declared deceased.
40 He spent time talking to the other people there when he heard what
he described as a "large explosion". He looked toward the dune and saw that a motorcycle and rider had hit the ground. The motorcycle had broken into pieces. He said that the rider tumbled to the ground and came to rest 5 to 6 metres from where the motorcycle came to a standstill. He said that the motorcycle was closer to the base of the dune than the rider. In cross-examination he did not agree that the motorcycle and rider bounced back toward the dune. He said that the rider was 5 metres from the dune. He was taken to photographs taken by him on the day (Exhibit 1, 5.1) and in particular Photo 1 at p 17 and he noted that the motorcycle shown was the position of the motorcycle and that the towels in the foreground was where the rider was. He said that the motorcycle was about 4 to 5 metres from the base of the dune – the base being where the sand meets the limestone.
He said that his memory is of hearing the noise of impact. He did not recall hearing the motorcycle beforehand.
42 Mr Howe had been at Lancelin for about five years and had been to
the dunes numerous times to similar incidents. He said that he had been
to a dozen callouts.43 He described the dunes (in examination-in-chief and cross-examination) as forever changing and of soft sand which moves all the time and the dunes were never the same. He said that they could change in a day or throughout the day. There were areas of limestone everywhere which were covered and uncovered by sand. In cross-examination it was put to him that the area was undulating sand but not steep. He responded that it was very steep in places. He said that the dune in question had a drop-off, as did many, almost at an angle of 70-90 degrees
44 He said that at the entry to the dunes there was a sign which he
described as showing the boundaries of the ORVA and "saying various things", but he could not say what. He was shown a photo of a sign
[2007] WADC 180
KEEN DCJ
(Exhibit 3.1) and said that there was a sign in April 2003 but could not say if that was the one but it had similar information. In cross-examination he said that it contained a warning "ride at own risk".
Rosemary Helen Clarke
Ms Clarke is a remote area nurse who at material times was based at Lancelin Silver Chain.
46 She gave evidence that injured persons would come to the
Silver Chain for treatment. They would obtain injury statistics in respect of off road injuries by collecting data in order to ascertain trends and to see what increases, if any, there were. The injured party was given a form to complete or it would be completed on his/her behalf or by the Silver Chain nurses on the direction of the injured party. A form of the Off Road Injury Survey is to be found at p 133 of Exhibit 4. That form of survey asks questions such as what the injured person was doing at the time he/she was injured and what happened at the time of injury. There are a number of boxes to be ticked or crossed. In relation to what happened at the time of injury one such box was "Dropped off dune".
47 She said that once the information was obtained the forms were kept
for about three months and then sent to the Health Department for collation. Thereafter reports would be received from the Health Department. The format of such reports is contained in Exhibit 4.
48 Ms Clarke said that she was a member of the local Emergency
Action Committee and when those reports were obtained she would look for trends in accidents, observe what safety equipment was being used and attend to any follow-up necessary to prevent injuries increasing.
49 She said that when these reports were obtained she would distribute
them to a number of people, including the Shire of Gingin. In cross-examination she said that she personally handed over the documents that are set out in Exhibit 4 to the Shire but she could not say whether that was to a Michael Pimm or to the Chief Executive Officer.
50 She said in cross-examination that since the year 2000 there was only
herself and one other person involved at the Silver Chain at Lancelin on a job share. She said that information was collected by her and this other nurse or, if there was relief staff due to holidays, by those persons. She accepted that a number of people had been involved over the last years in collecting this information.
[2007] WADC 180
KEEN DCJ
After having given the information to the Shire she said there was follow-up if there was something that needed attention.
Simon Fraser
52 Mr Fraser is the CEO of the Shire of Gingin and has held that
position since 1997. He is very familiar with the ORVA at Lancelin and has been involved in the management of it. He gave a good deal of evidence about the location of the area and management meetings to establish a management plan for the same and gave evidence that the size of the ORVA had been reduced.
53 He gave evidence about the entry to the ORVA and produced a series
of photos taken by him on 17 May 2007 of the area which became
Exhibit 3.1 to Exhibit 3.6.54 Exhibit 3.1 is a photo of a sign containing the information which I
have described before. He said that a sign had been in place since 30 June 2000 but had been replaced from time to time after vandalism. He said that the present sign is the same as that which was there in April 2003. There were poles tipped with orange to delineate the boundaries of the ORVA. Consideration had been given to other signs within the ORVA but dismissed on safety grounds. Such signs might have been difficult to see and be hazards in their own right. Accordingly, signs were limited to the carpark area.
55 He said that the sign is to the left of the access road into the dunes
and can be seen in Photo Exhibit 3.5. Photo 3.6 is the same but taken
from further back.56 As to the dunes themselves, Mr Fraser said that they would change
by the day or hour depending on the wind. In the summer there is a "howling sea breeze" which is one of the reasons for Lancelin being a popular destination for windsurfers.
57 Mr Fraser said that in 2003 the defendant had "2.5" rangers whose
duties were not just to monitor the ORVA but also to deal with animals, illegal camping and litter in the Shire. They would carry out enforcement duties from the base of the dunes.
In relation to the reports in Exhibit 4 Mr Fraser said he did not recall personally having those delivered to him.
59 When cross-examined in relation to the reports of accidents he said
that the Shire did not have the ability to determine the statistics.
[2007] WADC 180
KEEN DCJ
Further, he denied that reference was made to the number and severity of injuries when considering the distribution of the first defendant's funds. He agreed that it may well be dangerous in the ORVA and that injuries happened, sometimes severe. He had even heard of quadriplegia and broken bones occurring. He knew that tour buses used the area and accepted that there was potential for catastrophic results if a bus were to become involved in an accident.
60 Mr Fraser accepted that the Shire was not in a position to collect its
own statistics and would have to rely on outside information, namely that coming from Silver Chain. He accepted that the reports were a part of the decision-making process in relation to the expenditure of the first defendant's funds but an important part.
61 As to whether or not he had seen these reports he said that he had
seen one, perhaps more, of the reports. He said that they went to Ranger Services to deal with as they saw fit. He said that they managed the budget for the ORVA. If a submission was made for more moneys, funds would be allocated. Until then he would not become involved.
62 Mr Fraser accepted that over the years the use of the ORVA had
increased. At a meeting of the Off Road Vehicle Area Management Committee on 5 October 2001 (Exhibit 5) it was noted that an estimated 70,000 visitors came to the sand dunes per annum. Whilst not being able to agree or disagree with that figure, Mr Fraser agreed that the figures were of significant magnitude.
63 Mr Fraser attended that meeting and the minutes (Exhibit 5) show
that safety was considered at that meeting and reference was made to the statistics obtained from the data collected by the Silver Chain Nursing Centre and that that data was available. In considering how to proceed a number of matters were considered, including:
"Explore all signage options, including advisory signage and develop educational signage and techniques. Consider the use of 'shock figures' and alerting people to the dangers."
64 In cross-examination Mr Fraser could not say that any further
signage was put in place following this meeting. He said that the sign as depicted in Exhibit 3.1 had been there a number of years before the accident. He said that a similar sign had been in place since 1997, but the current sign had been in place since part of the area had been degazetted. That was in 2001. He was not aware of any other signs.
[2007] WADC 180
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65 Mr Fraser accepted that Exhibit 5, in its recommendations to explore
signage, was a recognition that the signage needed improvement. He said that he took the issue of signage to the Committee. By letter dated 20 November 2001 (Exhibit 6) he wrote to the chairman of the advisory committee. Relevantly, that letter said:
"As a result of our earlier discussion I wish to confirm that we have explored signage options, including advisory signage, and developed educational signage to assist in modifying user behaviour.
It was agreed that this signage would need to remain simplistic in its form, but at the same time, alert visitors and users to the dangers associated with the area, whilst simultaneously educating them with respect to their responsibilities and obligations.
It is estimated that the costs of the signage, both educational and advisory, will be in the vicinity of $5,000, and council seeks financial assistance for the amount indicated."
66 In relation to the sign that was in place (Exhibit 3.1) Mr Fraser
acknowledged that that was on the road on the way to the carpark and not in the carpark, there was no parking immediately adjacent to it but sufficient room for someone to stop, and that the sign's primary pictorial content was to delineate the area. He agreed that the sign had a notation about steep descents but that it would have been better to have placed it where people had the time to read it and accepted that there was nothing requesting people to stop to read the sign or nothing to alert people, apart from the sign itself, that it was giving any important safety information. He acknowledged that one would have to stop to read it first and it would have been better had it been in the carpark.
Mr Fraser acknowledged that it was important to let people know of the risks in the dunes.
68 In relation to the funding of better signage, he said he was not sure if
he would get funds but the placing of signage was not dependent upon funding. The first defendant could budget for it and there was no reluctance by the first defendant to fund it.
69 Mr Fraser was cross-examined about pamphlets that had been used to
provide information to persons attending the dunes. There were two such pamphlets (Exhibits 7.1 and 7.2). He said that these were handed out by
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Rangers at the foot of the dunes. Exhibit 7.2 is a small pamphlet which he said was in operation at the time of the accident. That form depicted an earlier sign which had been at the dunes. It was not there in 2003 when this accident occurred. That sign, apart from depicting the area designated for use by off road vehicles and setting out what the restrictions and requirements were, contained in large lettering at the foot of the sign the following words:
DANGER SAND DUNES COULD
BE FATAL – TAKE CARE
The sign in the brochure was in the same location as the sign shown in Photograph 3.1.
71 In relation to the dunes themselves, Mr Fraser said that the primary
dunes, being the ones closest to the ocean, could change their shape very quickly but that the others at the back of the dunes hold their shape for longer periods of time. He said that a distance of 1 kilometre back into the dunes would be into the rolling country with gentler dunes. He said that the dune depicted at p 17 of Exhibit 1 appeared to look like a primary dune.
Other evidence
72 Within Exhibit 1 there were other documents that I was invited to
accept as evidence under s 79C Evidence Act and which relevantly
comprised:
a WA Police Service Report on the plaintiff's accident prepared by Senior Constable Howe. That report describes the accident in the following terms: "Police were at the scene on hard limestone surface at base of sand dune approx 10-15 metres high on an 80o angle in Lancelin Off Road Area.
V 1 has come over top of dune at speed and landed awkwardly throwing him from his bike. The front wheel has snapped of (sic) & driver landed heavily on limestone. He was unconscious & suffered broken right leg, left wrist, head and neck injuries. Conveyed to hospital in critical condition."
[2007] WADC 180
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The report shows the time of the crash to be 13.40 and the weather clear. There is also a diagram showing the sand dune and the progress of the plaintiff's vehicle over the top of it:
b A Police Report detailing the accident to Paul Bramley
with similar information and diagram.c A Police occurrence book which has the entry (after the
entries about attending on Mr Bramley):"13.40 S/C Howe called for more medical assistance as another motor cyclist had just come over the same dune and given himself serious injuries."
d A Briefing Note from Lancelin Police Station containing
a summary of incident in the following (relevant) terms:"At about 1.40pm on Saturday, April 19th, 2003 Coombe was riding a 400cc Honda trail motorcycle in the designated off road vehicle area at Lancelin. Police were attending to a fatal accident at the same location when Coombe came over the same sand dune and landed awkwardly … Coombe landed approximately 6 meteres (sic) from where his motorcycle came to rest…
The sand dune was approximately 15 metres high, with an extremely steep incline. The surface at the bottom of the sand dune consisted of a hard rocky limestone, which is a completely different surface to the majority of the rest of the sand dune area which consists of soft sand. It appears that Coombe has gone over the sand dune at speed without having any knowledge of the terrain on the other side. After having attempted the jump over the sand dune the deceased (sic) has landed awkwardly, causing the accident."
I note that this last part contains speculation as to what
occurred.
[2007] WADC 180
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e A Memorandum from Senior Constable Howe dated 22 May 2003 which requests further action but in which he describes the plaintiff landing about 10 metres from the deceased, Bramley. f A statement from Carl Ashton Bramley dated 27 July 2003. Carl Bramley is the brother of the deceased. In that statement he describes the events of the day in question as it related to his party and his brother's accident. His only description of the plaintiff’s accident is at par 33 in terms: "Also while we were with Paul at the bottom of the sand dune, with the Police, another motorcycle rider came over the same sand dune and landed about ten metres from us. I noticed he was in a pretty bad way."
g
A statement from Michael Terence Burgess dated 30 July 2003. Mr Burgess was a police officer and was part of the Bramley party. He also described the events of the day for his party leading to and including Paul Bramley's accident. He went to his friend's aid and said:
"80 I then paced and looked at the ground.
81
I walked to the front of the Police car and stood there for a short period.
82
I heard the noise of a motorcycle coming towards us from the top of the dune.
83
As the noise got louder I saw a motorcycle come over the dune from above, I saw the rider look towards me as he fell about 12 metres from the top of the dune, still on the motorcycle pitched downwards.
84
The engine noise stopped before the motorcycle hit the ground.
85
I watched in disbelief the motorcycle and rider slam into the ground with a thud and a crunch at the same time."
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The Submissions of the party
73 The plaintiff's submission is that these dunes were a major tourist
attraction, attracting in excess of 70,000 people per annum. There were a large number of injuries and some of them were serious. The reports (Exhibit 4) at p 21 and p 43 refer to accidents occurring due to "Drop off from dune" as representing 17 per cent and 22 per cent of the accidents in the period October 1994 to December 2000 and in the year December 2001 respectively. In relation to the latter report, it is noted (p 31) that whilst the report is primarily based on data collected in 2001 it also includes some data from October 1994 to December 2001 "to give continuity by year". I will have some more to say about the probative value of this Exhibit later.
74 The plaintiff's case is that all that the defence can rely upon is the
sign that is there in its attempt to discharge its duty of care to visitors to the dunes. The plaintiff points out that there is no evidence of the pamphlets being handed out and it was certainly a hit and miss arrangement.
75 The plaintiff argued that the position of the sign (Exhibit 3.1) was
not an ideal position, it being on an access track. It begs the question as to why people would stop to read the same unless exercising a higher degree of caution than reasonable people.
76 Further, on that sign the warning commencing with the word
"Beware" is unlikely to alert people who are driving past. The most visible part of the sign is that part which deals with the regulations at the foot of the sign and the delineation of the ORVA shown in red.
The plaintiff points to the evidence of Mr Errington. He described himself as a cautious person and that he had not seen the sign.
78 The plaintiff argues that warning signs should not only stand out, but
should be appropriately placed and give an appropriate warning. The plaintiff noted that the earlier sign (as shown on the pamphlet, Exhibit 7.2) graphically included the word "Danger".
79 In view of the numbers of accidents at the dunes there was a high
obligation upon the first defendant to ensure that there were sufficient warning signs. Despite being warned and having requested funding, nothing further was done by the first defendant.
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80 The plaintiff points to the need for better signs (acknowledged by the
first defendant in Exhibits 5 and 6), better placement where they can be
properly observed and better content.81 The plaintiff acknowledged that the first defendant had to consider
the competing dangers of the warning signs themselves within the dunes, but noted that razor-back dunes were common in this area. It is said that this particular razor-back hazard had been there for some time and was ascertainable.
82 It was said that the potential for injury in these dunes was great.
There had been a number of accidents with people falling off dunes. Also tour buses entered the area and there was potential for a catastrophic incident.
The alternative to proper warning signs is to close off the area all
together.
84 In matters personal to the plaintiff it was said that this was the
plaintiff's first time in the sand dunes. There was no evidence of travelling at excessive speed. As to the people who had been seen on the top of the dune waving, it was debatable what that would mean to the plaintiff or to a reasonable man. The plaintiff acknowledged there must be some degree of contributory negligence, but there had to be a balance. On the one hand there was the plaintiff on his first visit to the dunes and on the other hand there is the Shire with knowledge of razor-back dunes and accidents at the sand dunes and being in a better position to do something about it.
85 The defence position is that the first defendant as a local authority
can accept that people will take care for their own safety. This was a recreational activity and a dangerous activity and the plaintiff should take extra care.
86 The defendant says that there was a sign in place which gave
appropriate warning. In addition, visitors were seen waving, presumably at the plaintiff. The defence position is that a person should not ride ahead without knowing what is on the other side of a dune and without reconnoitring.
87 The defence case is that the sign was adequate and there was no
pleading against it as to a failure to have an appropriate system of maintenance so that the defendant could answer this pleading within budgetary constraints.
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The first defendant's argument is that the danger must have been reasonably apparent.
Legal principles
It seems quite clear, and it was not argued otherwise, that the first defendant owed the plaintiff a duty of care.
90 The first defendant accepts that it is the occupier of the ORVA
within the meaning of s 5 of the Occupiers Liability Act which relevantly
provides:
"5. Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. (2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property. (3) …. (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
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(a) the gravity and likelihood of the probably injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
The case is put on the basis of negligence and, or in the alternative, a breach of the Occupiers Liability Act.
92 What is in issue in the current case is the scope of that duty of care.
It was not contended that there was any material difference between the general law and the statutory claim.
93 In Roads & Traffic Authority of NSW v Dederer [2007] HCA 42 at [18], Gummow J, in dealing with the legal principles relevant to negligence said:
"These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively.
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Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt."
94 As was noted by McLure JA in Town of Mosman Park v Tait [2005] WASCA 124 at 43, the duty of a person in the position of the first defendant was to take reasonable steps to ascertain the existence of dangers which might reasonably be suspected to exist (Brodie v Singleton Shire Council (2001) 206 CLR 512) and dangers of which it knew or ought reasonably to have known (Jones v Bartlett (2000) 205 CLR 166 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540).
In relation to the scope of the duty of care Gummow J in Vairy v Wyong Shire Council [2005] HCA 62 at [59] noted:
"In Graham Barclay Oysters Pty Ltd v Ryan, Gleeson CJ observed that, if it is not possible to identify the content of an asserted duty of care, this may cast doubt upon the existence of the duty. An example is provided by Agar v Hyde. In Romeo v Conservation Commission (NT), Kirby J remarked:
'It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion'."
96 In Vairy at [79] His Honour in relation to determining the scope of the duty of care referred to the dissenting judgment of Brennan J in Nagle v Rottnest Island Authority (1993) 177 CLR 423 as to the starting point being:
"… looking to the nature of the danger, assessed prior to the accident, with reference to such matters as the functions of the public authority, the obviousness of the danger, and the care ordinarily exercised by members of the public."
97 His Honour went on to consider at [80] land used for public
enjoyment and the distinction between the duty in respect of public roads and the like. He noted the observation of Callinan J in Agar v Hyde (2000) 201 CLR 552 that the site from which the appellant dived as a recreational pursuit was of a different character from the workplace, the roads, the marketplace, and other areas into which people must venture.
98 In considering the scope of the duty of care and the reference by
Brennan J in Nagle to looking at the nature of the danger assessed prior to
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the accident, in Vairy at [105], Hayne J in considering the "Shirt calculus" and the question of a breach of duty of care said that that was not to be undertaken by looking back at what has in fact happened but by looking forward from a time before the occurrence of the injury giving rise to the claim.
99 In Dederer (at [49]) Gummow J noted that the duties of care may vary in content or scope, but they are all to be discharged by the exercise of reasonable care and referred to Vairy in which McHugh J explained (at [25]):
"[T]he duty of care in negligence is generally described as a duty to take reasonable care. In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms… In negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care. As Prosser and Keeton have pointed out, 'the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk'."
In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J posed the prospective question before the plaintiff was injured would "a reasonable man in the (first defendant's) position … have foreseen that his conduct involved a risk of injury to the (plaintiff) or to a class of persons including the (plaintiff)". If the answer was in the affirmative, His Honour went on to note:
"It is then for the tribunal of fact to determine what a reasonable
man would do by way of response to the risk."Mason J further pointed out:
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
In Swain v Waverley Municipal Council [2005] HCA 4 Gleeson CJ
at [5] noted:
"In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable
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risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk free environment. The measure of careful behaviour is reasonableness not elimination of risk. Where people are subject to a duty of care they are to some extent their neighbours' keepers, but they are not their neighbours' insurers."
In another expression of the same theme, Ipp J in Prast v Town of Cottesloe (2000) 22 WAR 474 at [44] said:
"In my opinion, a local authority charged with maintaining safety at a popular metropolitan beach is not required, in discharge of the duty of care it owes to those who come to swim on the beach, to warn about the risks of bodysurfing. Negligence at common law is still a fault-based system; see Perre v Apand Pty Ltd (1999) 189 CLR 180 at 230 per McHugh J. As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well-known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety; see Romeo v Conservation Commission (NT)."
See also Brodie at [160].
105 Continuing in that vein, where duty and breach are established, there
frequently remains an issue of contributory negligence. The plaintiff will be guilty of contributory negligence where he exposes himself to a risk of injury that might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he was exposed. It is a failure to take reasonable care for one's own safety as opposed to a breach of duty of care owed to another. The question is whether the plaintiff's conduct posed a significant risk of harm such that a reasonable person in the plaintiff's position would have taken precautions against the risk.
106 Where the plaintiff has so failed to take reasonable care for his safety
it then becomes necessary for the Court to make an apportionment as between the plaintiff and the defendant of their respective share in the
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responsibility for the damage which involves a comparison both of culpability, i.e., the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494.
Findings of fact
107 Consistent with the evidence I find that the plaintiff did sustain
injury when he fell from his motorcycle when coming over the dune depicted in Exhibit 1, p 17. That is supported by the evidence of Mr Errington, Ms Murray and Officer Howe.
108 I also accept that this particular dune was between 10 and 15 metres
high at an angle of about 80 degrees. The landing area was of limestone
or a mixture of limestone and sand.
I also accept that the plaintiff had little or no experience of riding in sand and was a first time visitor to these dunes.
110 The evidence of Susan Murray suggests that there were people on the
top of the dune after Mr Bramley had suffered his accident and they were waving at someone. Given that the next thing that seems to have occurred is the plaintiff on his motorcycle coming over the top of the dune, it is readily open to inference that these persons were waving at the plaintiff. I do not take account of the time gap of one minute or two that she referred to as the time between the people waving and the plaintiff's motorcycle coming over the dune. However, I am unable to make any findings as to whether or not the plaintiff would have seen that waving and what effect it would have had upon him.
In relation to the scene itself, I am satisfied that on the entrance road there was the sign depicted in Photograph 3.1.
112 I am also satisfied from a description given by the various witnesses
that the dune upon which the plaintiff sustained his accident was some distance into the sand dunes. It would not appear to be one of the primary dunes as described by Mr Fraser.
113 I am not satisfied that there was any other relevant signage to warn
participants in recreational activities undertaken at the site of any dangers
in the ORVA.114 I am also satisfied that there have been a number of accidents at the
dunes over the years and that information as to this has been collected
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from time to time by the Silver Chain Nursing Organisation. The evidence supports that this information was sent periodically to the Wheatbelt Public Health Unit. The evidence of Ms Jeffrey supports that the information was collated into the form of the reports (Exhibit 4) which were then, according to Ms Clarke, forwarded to the Lancelin Silver Chain Centre and distributed to various interested bodies, including the Shire.
115 Whilst I can be, and am, satisfied that there is this flow of
information, I cannot be satisfied that the statistics and the analysis set out in the reports is in fact correct. I received no evidence to suggest that anyone had considered the reports to ascertain whether or not those statistics reflect the data obtained by the Lancelin Silver Chain Centre, nor was the Court presented with any of the completed forms of the type set out at p 133 of that Exhibit. Accordingly, when considering, for example, p 21 which suggests that 17 per cent of injuries arise from a drop from dune, I cannot say that I am satisfied that it is indeed the percentage of injuries arising from a drop from dune or indeed what is meant by a "drop from dune". That could easily be somebody falling from a motorcycle when descending a dune, whether it be in the form of a razor-back or an undulating dune.
116 I do find that these reports were from time to time sent to the first
defendant. It seems to me immaterial whether or not they found their way to the desk of Mr Fraser, the Chief Executive Officer. Even if the information and statistics contained in those reports has not been satisfactorily proved, in this case the information (whether established or not) would at least alert, and did in fact alert, the first defendant to the fact that accidents were being reported in the dunes and alert the first defendant to give consideration to the same.
117 There is no evidence before me to suggest that the first defendant in
any way disbelieved or otherwise did not accept the information contained in those reports and I find that those reports were received by the first defendant without equivocation and were relied upon by the first defendant in its dealings with the Off Road Management Committee with a view to establishing safety in the dunes, particularly with regard to what signs were required.
118 The very nature of the activities carried on in the ORVA and the
nature of the terrain resulted in a situation where there was a serious or
significant risk of injury to those participating and I so find.
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119 I also find that the dunes were not uniform in shape or size (as could
be expected) and that the shape of a dune or dunes could change and
change quite rapidly due to weather conditions and wind action.120 I find that the first defendant did not have in place any system or any
reasonable system of inspection of the dunes to evaluate the state of the dunes from time to time. The evidence shows that the first defendant only had two or 2½ Rangers in their employ and their duties were not solely in relation to these dunes in the ORVA. However, due to the ever changing nature of the dunes, I find that it was not unreasonable that no such system of regular inspection was in place.
121 In relation to the sign depicted in Exhibit 3.1, I find that, to the extent
that a sign was necessary to warn entrants to the dunes of the dangers, such sign was inadequate. I accept the plaintiff's argument that that sign was more to denote the area for off road vehicles in a pictorial fashion and to direct persons to the regulations relating to such use. The warning sign under the heading "Beware" is perfunctory and easily lost within the scheme of the sign. Further, I find that the sign was inadequate in its placement. I accept the argument of the plaintiff that to place such a sign on an entrance track without requiring people to stop to read and observe the warnings and regulations is insufficient. It would be far more appropriate to place such a sign within the carpark where visitors had an opportunity to read the same.
Conclusions and disposition
122 I have found that accidents did occur in the ORVA and that reports
in relation to accidents and injuries were sent to the first defendant first defendant. Clearly, depending upon the way in which individuals conducted themselves in the dunes, there was a potential for dangerous activities to be carried on in the dunes. It is clear that those activities did result in injuries to persons from time to time. In respect of that type of activity I accept what was said by Callinan J in Agar v Hyde, the site and the pursuit was different in character to that of a workplace, a road etc and also what was said in Prast concerning such dangerous activities.
123 All of the evidence points to the fact that there was a foreseeable risk
of injury in these dunes and that the risk was one that was of some magnitude and could lead to serious consequences. Mr Fraser said that he was aware of broken bones and at least one case of quadriplegia. I am satisfied that the risk that someone might ride over the edge of a razor-back dune was not far-fetched or fanciful.
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124 In considering the reasonable response to that risk I do not consider
that the claim that the first defendant failed to exclude the public from the sand hills was an act of negligence on its part. It seems to me that even if the first defendant were to close off this area it would then be required to police the exclusion of the public. Further, it seems to me that it is probably safer to have these activities being carried on in a specific area rather than being conducted by members of the public on an ad hoc basis wherever the public wanted to carry out such activities.
125 I have found that the dunes were of an ever changing nature and that
it was not reasonable to expect the first defendant to have in place a system of inspection so as to identify particular dunes at any particular time which may or may not be more hazardous than other dunes or become hazardous by reason of their changing in shape. This ORVA was, before some of the area was degazetted in 2001, an area of some 400 hectares (Exhibit 1 at p 45). Whilst it is not clear from the evidence as to the size of the piece of land that remained as the ORVA after part was degazetted, a simple scaling from the plans in Exhibit 1 would suggest that the remaining part represented approximately one-quarter of the total area or about 100 hectares. Given the findings, it seems to me the scope of the duty of care comes down to whether or not a reasonable response to the risk was to provide proper warnings.
126 In Vairy at [108] the appellant's case was said to depend upon a number of elements. A number of those elements are common to the present case:
a the first defendant had care, control and management of
the dunes and the land giving access to them;b the first defendant knew that people rode or drove off road
vehicles within the ORVA;c the first defendant had an access road and carpark giving
access to the dunes;d
the first defendant knew that persons had suffered injuries in the dunes and there had been a previous case of catastrophic injury;
e the first defendant knew that the shape of the dunes
changed by reason of weather action;f
a warning sign within the carpark would have cost very little. There was evidence from Mr Fraser that the cost of
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signage, both educational and advisory, would be in the
vicinity of $5,000;
g whether the plaintiff would have heeded a warning sign is
a matter which I will come to later in these reasons;h in the present case, like in Nagle, it may be reasonably considered to be foolhardy for a person to ride off the edge of a dune without first ascertaining the exact nature of the dune. Whether or not it is unlikely is another matter.
127 As in Vairy (at [137]) it could not be suggested, for the reasons expressed above, that the first defendant could have placed signs in and around the dune area to warn of specific dangers on specific dunes. The very changing nature of the terrain militates against that.
128 In the present case the dunes were a tourist attraction, bringing large
numbers of people to the local township within the Shire of Gingin. The first defendant provided the access road and carpark and it may be accepted that in doing so it encouraged persons to come to the ORVA. In encouraging people to come to the dune area that is not to say that the first defendant encouraged or intended those people to act in a foolhardy manner. The first defendant did have Rangers. I have noted that the handing out of pamphlets appeared to have been a hit and miss affair by those Rangers. They were clearly not in attendance at all hours and so they were not there from a point of view of patrolling the dunes. It seems that those Rangers would be stationed at the foot of the dunes and the probability is that they would be there to enforce the regulations that are set out on the noticeboard.
129 Nevertheless, this encouragement to attend the dunes is not
dissimilar to the encouragement of persons to come to Soldiers Beach, as was the case in Vairy (at [152]). I am conscious of what was said in Dederer about "allurements". In the present case it could not be said that the first defendant created the risks, i.e., razor-backs, or encouraged or enticed people into a dangerous situation.
130 In considering what response was reasonable to the risks that
presented themselves at the ORVA, the probability of risk must not be assessed by way of any mathematical and mechanical analysis. The question is what was reasonable (Vairy at [155]).
In Vairy at [158] the Court noted:
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"Every form of physical recreation carries some risk of physical injury. The more energetic the activity, the greater are those risks. Fatigue, lack of fitness, slowness of reaction, general ineptitude can all contribute to injury. The magnitude and probability of occurrence of those risks rise if the activity is one in which there may be a collision between participants and others, or between the participant and his or her surroundings. The risk of collision is evidently present in contact sports but the solitary bike rider peddling along a dedicated cycle track may fall from the bike and suffer serious injury."
132 Those dangers all exist and whether or not a reasonable defendant
should warn of those dangers does not depend upon the obviousness of the risk; Vairy at [162]. The first defendant itself saw the need for appropriate signage. In the words of Mr Fraser, that signage was to be both educational and advisory. The mere fact that the first defendant determined that appropriate signage was required and that in the past that signage had referred to "Danger" and at the time of the accident had carried a warning under the heading "Beware" is not determinative of the matter. However, in this case, given the nature of the terrain and its ever changing nature and the type of activity being carried on, a reasonable response by a reasonable defendant would be to place appropriate warning signage warning entrants to the ORVA of the dangers within when undertaking sporting activities in the ORVA.
133 I accept the argument of the plaintiff that to place such a sign on the
access road is inappropriate. It requires vehicles to stop and read the sign at a point shortly before the carpark. Human nature being what it is people are unlikely to stop and read the sign, preferring to stop once reaching the carpark. Accordingly, I am not satisfied that the placing of the sign was reasonable or satisfactory.
134 The next question is in relation to the content of the sign. In Swain at [40] McHugh J noted that it was the plaintiff who bears the burden of establishing the reasonable practicable precaution or alternative course of conduct that could have avoided or reduced the consequence of the injury to the plaintiff. I accept that. However, it is not a matter that depends, in this case, on the provision of evidence whether of an expert nature or otherwise.
135 The first sign that had been at the ORVA expressed danger.
The second sign warned entrants to beware of steep descents. However, that warning as to steep descents is not a warning that stands out against
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the other information contained on the sign. I have come to the conclusion that there should have been a sign to have warned entrants of the dangers of recreational activity in the area by virtue of, not just steep descents, but the fact that dunes could be eroded in such a way as to create a razor-back or cliff and result in hard rocky surfaces as well as soft dunes. In making these comments I recognise that those sorts of warnings would need to be put into short simple language, or pictorially so as to be readily digestible by visitors to the ORVA of average and reasonable intelligence.
136 Whilst having dealt with the issue of obviousness, this does have
some bearing upon appropriate warnings. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Gleeson CJ and Hayne J thought obviousness was decisive in relation to the recreational activity in which the appellant was there engaged, namely indoor cricket. Their Honours went on to describe the various risks involved and the obviousness of those risks after a few moments observation of the game. Translated to the present circumstances it may seem obvious that when riding a motorcycle in sand dunes one may fall off for a variety of reasons. However, what may not be quite so obvious on entering the ORVA is that within that area there are areas where there are virtual cliffs or razor-backs which one might suddenly encounter. Obviousness depends to a significant extent on the circumstances and the position of the perceiver; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [25].
137 The defendant relies on the observations of Gummow J in Dederer at 61, 62, 78 and 79. In dealing with the same it is only necessary for me to re-state the dangers of attempting to compare one factual situation with another (Teubner v Humble (1963) 108 CLR 491 per Windeyer J at 503) and further to note that in Dederer the bridge was not a diving platform whereas here the ORVA was set aside for off-road recreational activities. Further Dederer was a case dealing with the risks whereas the principal focus in the present case is the warning of the risks of the existence and formation of blowing out of the dunes resulting in a razor-back dune. Also in Dederer considerations was given to the "significant" expense required to make modifications of the bridge whereas here we are discussing the relatively modest expense of providing adequate warning signs. It is also noted in Dederer that the risk had a very low degree of probability of realisation (no-one was injured prior to Mr Dederer); contrast the present case.
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138 In all the circumstances I am of the view that the first defendant
failed to give appropriate warnings which were required in the
circumstances of this ORVA.139 I have noted that it was not contended that there was any material
difference between the general law and the claim under the Occupiers Liability Act. In coming to my conclusion on the scope of the duty of care and its breach I have had regard to the matters set out in s 5 and in particular subsection 5(4) of that Act. As such, without going further, the first defendant might be said to have breached its duty of care. However, the analysis does not stop there. In Chappel v Hart (1998) 195 CLR 232 the Court considered what the plaintiff would have done had he been warned of the risks, in that case inherent in the medical procedure.
140 The courts have been very wary of testimony from a plaintiff as to
what that plaintiff would have done had an appropriate warning been given, for obvious reasons. In the present case there was no evidence from the plaintiff as to what the plaintiff would have done. The plaintiff's evidence was that he went to the dunes specifically to ride his farm bike in the dunes. The plaintiff was an experienced off road motorcyclist, albeit inexperienced in sand dune country. Having made the journey to Lancelin it is more probable than not that even if an appropriate sign had been in place, the plaintiff would have proceeded to ride in the dunes. It is difficult to imagine that on reading such a sign he would have turned round and gone home.
141 So the issue is not whether the plaintiff would have proceeded to ride
in the dunes, but the manner in which he would have done so. An appropriate warning of the not so obvious cliffs or razor-backs might have caused the plaintiff to ride with more caution than he did. In Dederer at [57] Gummow J noted:
"As Ipp JA correctly pointed out, conclusions on questions of causation demand the drawing of sensible inferences, including on the basis of hypothetical facts that, by definition, have not occurred. Responding to such questions depends very much on the assessment of the character and personality of the plaintiff and what he or she would have done had other and different precautions been taken by the defendant: Rosenberg v Percival [2001] HCA 18; (2001) CLR 434 at 447 [36]."
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142 It is trite that the plaintiff bears the onus of proving causation.
Causation is a question of fact and is to be determined (in many cases) by commonsense notions of causation; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
143 In the present case I am left to try to draw inferences as to whether
the first defendant's failure to provide an adequate warning has caused the plaintiff's injury in the sense that I have described. There was no direct evidence to say how the plaintiff would have conducted himself in the dunes had he been warned of the existence of razor-back dunes and I am left to draw inferences from the facts established by the evidence. I have noted the evidence of his experience on motorcycles and lack of experience in sand dunes. He said that he was a confident and good driver. There was no evidence to suggest that the plaintiff was an extreme risk taker or would act in a manner less responsive to warnings than a reasonable person. He said that a very good rider would not ride where he could not see where he was going and I accept what he says. Warning or no warning, that is exactly what the plaintiff did. One must assume that the plaintiff did not think that he was launching himself off a cliff but from an undulating dune. He did so without reconnoitring. Would he have done so if he had been warned of the existence of razor-back dunes?
144 It is self-evidence that persons going to these dunes do so for the
exciting recreational activity that riding in the dunes provides. One cannot imagine that such persons would be doing so at slow speeds. Nevertheless, applying commonsense to that matter, if warned appropriately, it is unlikely that a person, of the plaintiff's experience, would ride at speed in areas where there is a sheer drop without first acquainting themselves with the terrain.
145 Accordingly, having regard to the limited evidence to which I have
referred and applying commonsense principles to the causation issue, I am satisfied that the plaintiff has discharged his onus of proving that had there been an appropriate sign he would not have ignored it and would have modified his riding in the dunes and exercised more care than he did.
146 In the circumstances I find that the first defendant was in breach of
its duty of care which breach was causative of the plaintiff's accident and
injury.147 All that remains to consider is the issue of contributory negligence.
The plaintiff did not resile from the fact that this is a case where there must be some contributory negligence.
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148 The defendant argued that the plaintiff ought to be found to be in
order of 60 per cent to blame for this accident. Counsel argued that this was a dangerous place and one had to take care of one's own safety. He cited what Lord Hoffmann had to say in Tomlinson v Congleton Borough Council (2004) 1 AC 46:
"If people want to climb mountains, go hand-gliding or swim or
dive in ponds or lakes, that is their affair."
That was said in the context of people taking risks which are inherent in the activities which they freely choose to undertake.
150 Counsel went on to suggest that one does not ride blindly into the
sky as this plaintiff did despite the warning of people to slow down. I have made my findings in relation to those people on the top of the dunes and cannot be satisfied as to what, if any, warning was conveyed to the plaintiff.
151 Counsel for the first defendant also argued that the plaintiff must
have been travelling at some considerable speed. He referred to witnesses referring to a loud roaring coming over the sand hills. He also relied upon Mr Errington who said that one has to be careful.
152 On the other hand, counsel for the plaintiff, in relation to
contributory negligence, said that one had to consider the balance between the position of the plaintiff and the first defendant. This was the plaintiff's first visit to the dunes. Counsel suggested that he had no knowledge of what to expect (there was no evidence to support this), whereas the first defendant did have the opportunity to take some steps to try to alleviate the risk and was in a better position to measure the risk by reason of its knowledge of the site.
153 I am satisfied in the circumstances of this case that the plaintiff did
not take reasonable precautions against the foreseeable risk of injury. The foreseeable risk of injury was that in proceeding over the edge of a dune where the other side could not be seen so that the terrain or indeed the existence of others could not be ascertained is foolhardy. In launching oneself off a sand dune without first ascertaining the nature of the descent one, self-evidently, exposes oneself to a significant risk of harm. A reasonable person, on his/her first visit to the dunes, would not act in such a way.
154 As I have noted, I cannot make any findings in relation to what
warning, if any, the people on top of the dune may have conveyed to the
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plaintiff, but the evidence does seem to suggest that the plaintiff was
travelling at some speed as he came over the top of the dune.155 Nevertheless, I come back to my earlier finding that had there been
an appropriate warning the plaintiff may well have acted with some greater degree of circumspection. In the circumstances I am of the view that when comparing the culpability of each side and the acts of the parties in causation there is little to choose between them. However, on balance I am of the view that the first defendant having the control and management of the area and having its duties at law and under the statute, it bears a greater share of responsibility.
In the circumstances I would apportion liability as to 60 per cent to the first defendant and 40 per cent to the plaintiff.
Accordingly, there will be judgment for the plaintiff for damages to be assessed with the first defendant to pay 60 per cent thereof.
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