Felhaber v Rockhampton City Council - [2011] QSC 23

SUPREME COURT OF QUEENSLAND

CITATION:

Felhaber v Rockhampton City Council [2011] QSC 023

PARTIES:

Timothy Felhaber

Plaintiff

v

Rockhampton City Council

Defendant

FILE NO/S:

SC 448 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

24 February 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

1 - 4 February 2011. Final submissions received 11 February 2011.

JUDGE:

McMeekin J

ORDER:

Judgment for the Defendant with costs

CATCHWORDS:

TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY — CAUSATION — CONTRIBUTORY NEGLIGENCE - Local authority — Power of care, control and management of natural reserve — Person suffered injury when diving into a body of water — Whether a reasonable local authority would have erected signs warning against the dangers of diving — Relevance of obviousness of risk to questions of duty and breach

Edson v Roads and Traffic Authority (2006) 65 NSWLR 453

Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Great Lakes Shire Council v Dederer [2006] NSWCA 101

Imbree v McNeilly and Another (2008) 236 CLR 510

Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; (2005) 80 ALJR 43; [2005] HCA 63

Nagle v Rottnest Island Authority (1993) 177 CLR 423

Podrebersek v Australian Iron & Steel (1985) 59 ALR 529

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42

Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; 151 ALR 263

Swain v Waverley Municipal Council (2005) 213 ALR 249; 213 ALR 249; 79 ALJR 565; [2005] HCA 4

Thompson v Woolworths (Queensland) Pty Ltd(2005) 221 CLR 234 at [37]

Vairy v Wyong Shire Council [2005] HCA 62

Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145

Wyong Shire Council v Shirt (1980) 147 CLR 40

COUNSEL:

G. Mullins for the Plaintiff

M. Stewart SC and D. Schneidewin for the Defendant

SOLICITORS:

Maurice Blackburn Cashman Solicitors for the Plaintiff

Barry & Nilsson Lawyers for the Defendant

McMEEKIN J: Mr Timothy Felhaber was rendered quadriplegic when he fractured a cervical vertebra on 17 September 2002. He was just 17 years of age.[1] He had been swinging on an improvised rope swing from the bough of a tree into the Fitzroy River, in the company of some friends. On his last swing he dived head first into the water, struck his head on the river bed and, effectively, broke his neck.
[1]Born 16 July 1985

The incident happened in a recreational area not far from the centre of Rockhampton known as the Ski Gardens.

Mr Felhaber says that the local Council is responsible, at least in part, for his injury and claims damages. The Council denies that it is responsible. The Council also pleads voluntary assumption of risk and contributory negligence.

Quantum of damages has been agreed at $5,000,000. Thus only liability remains to be determined.

It is common ground that the defendant had the control of the Ski Gardens and, as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QSC 23
Decision Date: 24 February 2011

CaseChat Overview and Summary

The case of Felhaber v Rockhampton City Council involved the plaintiff, Mr Felhaber, who sued the council for negligence after suffering injuries while diving into a body of water at a local reserve. The central dispute was whether the council owed a duty of care to warn visitors of the risks associated with diving in the area. The case was heard in the District Court of Queensland. The plaintiff argued that the council had failed to take reasonable steps to warn against the dangers of diving, while the council contended that the risks were obvious and no such duty existed.

The court had to determine whether the council had a duty of care to place warning signs about the dangers of diving, and if so, whether this duty was breached. It also needed to consider whether the plaintiff's own actions contributed to the injury. The court examined whether a reasonable local authority would have recognised the risk and taken steps to warn visitors. The obviousness of the risk was also scrutinised to understand its impact on the duty of care and potential breach.

In its judgment, the court concluded that the risks associated with diving in the area were sufficiently obvious that a reasonable local authority would not have felt compelled to erect warning signs. The court found that the council did not owe a duty of care to warn against the obvious dangers of diving, and thus, there was no breach of duty. Furthermore, the court held that the plaintiff's contributory negligence in diving into the water without assessing the risks absolved the council of liability. The plaintiff's claim was dismissed, and the defendant was awarded costs.

Orders

Orders of the court

Judgment for the Defendant with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Felhaber v Rockhampton City Council [2011] QSC 023
PARTIES:	Timothy Felhaber Plaintiff v Rockhampton City Council Defendant
FILE NO/S:	SC 448 of 2005
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	24 February 2011
DELIVERED AT:	Rockhampton
HEARING DATE:	1 - 4 February 2011. Final submissions received 11 February 2011.
JUDGE:	McMeekin J
ORDER:	Judgment for the Defendant with costs
CATCHWORDS:	TORTS — NEGLIGENCE — DUTY OF CARE — BREACH OF DUTY — CAUSATION — CONTRIBUTORY NEGLIGENCE - Local authority — Power of care, control and management of natural reserve — Person suffered injury when diving into a body of water — Whether a reasonable local authority would have erected signs warning against the dangers of diving — Relevance of obviousness of risk to questions of duty and breach Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Great Lakes Shire Council v Dederer [2006] NSWCA 101 Imbree v McNeilly and Another (2008) 236 CLR 510 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; (2005) 80 ALJR 43; [2005] HCA 63 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Podrebersek v Australian Iron & Steel (1985) 59 ALR 529 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; 151 ALR 263 Swain v Waverley Municipal Council (2005) 213 ALR 249; 213 ALR 249; 79 ALJR 565; [2005] HCA 4 Thompson v Woolworths (Queensland) Pty Ltd(2005) 221 CLR 234 at [37] Vairy v Wyong Shire Council [2005] HCA 62 Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 Wyong Shire Council v Shirt (1980) 147 CLR 40
COUNSEL:	G. Mullins for the Plaintiff M. Stewart SC and D. Schneidewin for the Defendant
SOLICITORS:	Maurice Blackburn Cashman Solicitors for the Plaintiff Barry & Nilsson Lawyers for the Defendant