In brief - No duty owed by club to warn of obvious risk

In Liverpool Catholic Club v Moor, the NSW Court of Appeal has upheld an appeal by a club which was sued by a patron who fractured his ankle when he walked down a flight of stairs while wearing ice skates.

NSW Court of Appeal confirms principles of "obvious risk" and "dangerous recreational activity"

In Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394, the NSW Court of Appeal has confirmed the following principles.
  • Whether a risk is an "obvious risk" requires a "forward-looking" inquiry as to whether the risk of harm would have been obvious to a hypothetical reasonable person in the circumstances of the plaintiff. The plaintiff's actual knowledge is irrelevant.
  • Where a risk is obvious, there is no duty to warn of such a risk.
  • To determine what constitutes a "dangerous recreational activity", it is necessary to focus on the activity engaged in at a place, as distinct from any particular characteristics of that place which may differ from those in other places where the same activity is undertaken. 

Court of Appeal finds that plaintiff not engaged in dangerous recreational activity

On 18 November 2014, the NSW Court of Appeal handed down its most recent decision dealing with obvious risk and dangerous recreational activity. 
In Liverpool Catholic Club Ltd v Moor, the court (per Meagher JA, Emmett JA and Tobias AJA agreeing) upheld the club's appeal, finding that there was an "obvious risk" and no duty was owed to warn of such a risk. The court found that Moor was not engaged in a "dangerous recreational activity".
The decision in Moor is distinguishable from the Court of Appeal's decision earlier this year in Campbell v Hay [2014] NSWCA 129. (Please see our earlier article Flying lessons in a single engine light aircraft - a dangerous recreational activity.)
In Hay, the court found that there was an obvious risk and that there was a dangerous recreational activity whereas in Moor, while finding that an obvious risk existed, the court was willing to draw a distinction between engaging in a dangerous recreational activity and merely taking preparatory steps before engaging in such an activity. 

First instance decision - club found to be liable in negligence

In January 2009 Moor went to an ice rink operated by the Liverpool Catholic Club. He put on his skates and was descending a flight of stairs to start skating when he slipped, fell backwards and fractured his ankle. 
Moor was successful in establishing the club's liability in negligence before his Honour Judge Levy SC in the District Court of NSW, who found that the club had breached its duty of care as occupier. 
His Honour held that the club had been negligent in failing to take reasonable precautions against the risk of injury from slipping or falling when descending wet stairs whilst wearing skates and awarded damages of $148,343. 

Club appeals against District Court decision

The Club appealed the finding of liability and raised seven issues for determination, which were broadly concerned with the following:
  • Whether the risk of harm which materialised was an obvious risk within section 5F of the Civil Liability Act 2002 (NSW) (CLA)
  • Whether the duty of care was to warn Moor of an obvious risk within the meaning of section 5H(1) of the CLA
  • Whether the activity of walking down the stairs was part of the "dangerous recreational activity" of ice skating
  • Contributory negligence on the part of Moor

Risk of slipping and falling while descending stairs in ice skates held to be obvious

The Court of Appeal upheld the club's appeal and held that:
  • The primary judge erred in not finding that the risk of harm was "obvious" within the meaning of section 5F of the CLA, that risk being the risk of slipping and falling while descending stairs (which carries an ever-present risk because of overstepping or losing balance) while wearing skate boots. These risks would have been readily apparent to person in Moor's position.
  • The effect of section 5H(1) of the CLA is that the club did not owe Moor a duty of care to warn of an obvious risk.
  • If section 5H had not applied to provide that there as no duty to warn of an obvious risk, in the circumstances a reasonable person would not have given a warning of the risk.
  • The activity of descending stairs in skate boots was not ice-skating and was not therefore a dangerous recreational activity, nor was it a necessary aspect of ice skating.

Plaintiff's actual knowledge of condition of stairs found to be irrelevant

An obvious risk is one which would have been obvious to a reasonable person in the circumstances of the plaintiff - in this case, that a person could fall while walking down stairs wearing ice skates.
The Court of Appeal had several problems with the basis for the primary judge's reasoning that it was not obvious risk:
  • First, the primary judge addressed whether the risk was obvious by focusing on whether Moor had knowledge of the stairs' uneven dimensions or that the stairs were wet. Moor's knowledge was irrelevant except in relation to how he acquired that knowledge insofar as that related to whether the risk would have been obvious to a reasonable person in the circumstances of the plaintiff.
  • Second, the evidence did not justify a conclusion that the unevenness of the stairs or the fact that they were wet contributed to the incident.
  • Third, the primary judge's conclusion that it had not been shown that Moor ought to have been aware that the stairs were wet was not justified on the evidence. 
The Court of Appeal considered that there were two conditions which gave rise to an obvious risk; namely that Moor was walking down stairs and was wearing skate boots.

Is walking down stairs in ice skates a "dangerous recreational activity"?

The court also considered whether walking down stairs with skate boots on was a "dangerous recreational activity". 
In considering this, the court observed that the definition of a recreational activity focuses on the activity itself and not the characteristics of the place where the activity takes place (as compared to other places where the same activity may be undertaken) and did not encompass walking down the stairs while wearing ice skates.

Courts taking a pragmatic approach to personal responsibility and obvious risk

In allowing the club's appeal, the Court of Appeal:
  • Found that the primary judge erred in not finding that the risk was obvious within the meaning of section 5F of the CLA in respect of which there was no duty to warn under section 5H(1) of the CLA.
  • Upheld the primary judge's finding that descending the stairs was preparatory to engaging in the recreational activity of ice skating and that the preparatory activity was not in itself a dangerous recreational activity.
  • Considered that on the basis of its conclusion in relation to "obvious risk", the issue of contributory negligence (argued on the basis that Moor had not made adequate use of a central hand rail) did not strictly arise for determination. However, the court noted that the primary judge had not erred in making no allowance for contributory negligence.
This decision reflects the increasing willingness of the judiciary in NSW to apply the practical and wider public policy principles underpinning the introduction of the Civil Liability Act and is another example of the courts approaching cases involving personal responsibility and obvious risk in a pragmatic way.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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