In Streller v Albury City Council  NSWCA 348, the NSW Court of Appeal dismissed a young quadriplegic’s appeal from a judgment of the Supreme Court. The issues on appeal concerned duty of care, breach, obvious risk and dangerous recreational activity within the framework of the Civil Liability Act 2002 (NSW)(CLA).
The Plaintiff, Dylan Streller, was injured on Australia Day 2008, when he struck his head on the bottom of the Murray River attempting to perform a back-flip from a rope swing attached to a tree. The rope swing was accessible by entering a park.
The Plaintiff alleged that Albury City Council, the Defendant, breached its duty of care when it failed to remove the rope swing, which had been installed by a third party. The Defendant had a weekly policy of inspecting and removing rope swings along the Murray River. In the case of this particular rope, the Defendant had detected it the day prior to the accident however it could not arrange for either of its two contracted arborists to take the rope down until the following week.
The Defendant argued that even if it had breached its duty of care, which was denied, it was not liable to the Plaintiff by reason of section 5L of the CLA. That section provides there is no liability for harm suffered by a person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that person.
The trial judge found in favour of the Defendant on all issues- duty, breach, obvious risk and dangerous recreational activity. All findings were upheld by the Court of Appeal.
Regarding duty, the Court of Appeal agreed with the trial judge that the Defendant did not owe the Plaintiff a duty of care in the circumstances of the case. Rather, the Defendant owed a duty to take reasonable care to those exercising reasonable care for their own safety, as opposed to ensuring no harm comes to any entrant of the park. Of significance was that the Defendant had not encouraged recreational use of the subject tree or any tree emanating from the riverbank. To the contrary, the Defendant attempted to discourage persons from swimming in the river by signage, and removed rope swings, or caused them to be removed, as soon as practicable. Furthermore, the Defendant did not have exclusive use of the river on the relevant day.
Regarding breach, the Court of Appeal analysed sections 5B and 5C of the CLA and agreed with the findings of the trial judge that the Defendant had exercised reasonable care in relation to the risk of harm arising out of the use of the rope swing from the subject tree. In doing so the Court of Appeal provided a reminder that in determining breach, the precautions taken by a defendant must be viewed prospectively.
In terms of obvious risk, pursuant to sections 5F, 5G and 5H of the CLA, the trial judge’s determination that the risk was obvious and, accordingly, there was no duty on the part of the Defendant to warn, was upheld. The trial judge had found that the fact that others had previously jumped or dived using the swing had not been injured said nothing about the risk of injury to someone using the swing to enter the water from a higher point of the swing’s arc. That the Plaintiff was an experienced and accomplished diver was relevant in determining whether the risk was obvious, as were matters of common knowledge.
Finally, and with respect to dangerous recreational activity, the Court Appeal confirmed that the Defendant had established a defence under section 5L of the CLA. It held that the harm suffered by the Plaintiff was the result of the materialisation of an obvious risk of a dangerous recreational activity. Accordingly, the Defendant was not liable regardless of whether there was a duty of care and breach.