[co-authors: DLA Piper Solicitor, Hannah Gassman and Special Counsel Jo-Anne Keller]
The much awaited appeal of the Queensland Supreme Court decision in this matter was handed down last week. In State of Queensland v Kelly  QCA 27, the Queensland Court of Appeal upheld the original judgement that the State of Queensland was liable to Mr Kelly for catastrophic injuries he suffered in an accident at Lake Wabby on Fraser Island. Mr Kelly ran down a sand dune but lost his footing. He fell headfirst on to a shallow sand ledge on the edge of the lake. The Queensland National Park and Wildlife Service (QNPWS) had, amongst other things, erected a sign “Because the sand dune is steep, running or rolling down the sand towards the lake is dangerous.”
Commentators could be forgiven for describing the decision as harsh on QNPWS. The sign certainly warned against the very activity that injured Kelly. He either forgot what it said or decided the danger was actually not great, because the water seemed deep and many others were engaging in the activity around him without mishap. The critical factor however was QNPWS’s superior knowledge that there was a special and hidden problem here that ordinary tourists would far too often come to grief with. Something much more explicit was required to bring home to tourists that what seemed like a fun and harmless activity had caused catastrophic injury again and again over the years.
This decision highlights the perils of generic warning signs not clearly conveying the relevant risks to entrants. It may not be enough to warn against an activity without getting across what hazards and possible consequences are linked to it.
Appeal to the High Court remains open and may yet be pursued in this very finally balanced decision.