In brief - Courts may reduce damages due to contributory negligence
While most Australian jurisdictions limit the liability and duty of care of a person in circumstances where there is obvious risk, the courts will determine each case on its facts.
Voluntary assumption of risk
At common law, a duty of care does not exist in circumstances where a person has voluntarily assumed a risk which then materialises. This position has now been codified in most Australian jurisdictions including NSW where divisions 4 and 5 of Part 1A of the Civil Liability Act 2002 (NSW) (CLA) limit the liability and duty of care of a person in circumstances where a risk is obvious.
What is an obvious risk?
An "obvious risk" is defined in section 5F of the CLA as "...a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person." Obvious risks include matters which are common knowledge. An obvious risk can be something which:
- has a low probability of occurring, or
- is not prominent, conspicuous or physically observable.
The courts have defined risks as being obvious in circumstances where "... both the condition and the risk are... apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence, and judgment." (Cited in Wyong Shire Council v Vairy  NSWCA 247.)
Circumstances will determine whether risk is obvious
The circumstances of the claim are very important in determining whether a risk is obvious. In Carey v Lake Macquarie City Council  NSWCA 4, the court found that the risk of hitting a bollard while riding a bicycle in daylight was obvious. However, the risk at night time, where reflective tape on the bollard had been peeled off, was not considered obvious.
Similarly, in the case of Streller v Albury City Council  NSWCA 348, the court considered that the risk of injury from diving into a river of unknown depth was obvious to the plaintiff who was an experienced diver and was familiar with the undulation of the river level.
In the recent decision of Liverpool Catholic Club Ltd v Moor  NSWCA 394, the plaintiff slipped down some stairs leading to an ice skating ring while wearing ice skates. The primary judge identified that the relevant risk was the risk of falling while walking down stairs when wearing ice skates. However, when determining whether that risk was obvious, the primary judge also took into account the fact that the stairs were wet and of varying dimensions. Nevertheless, both parties' experts agreed that the variations in stair dimensions did not cause the fall and that the wetness of the stairs played no part in the actual cause of the fall which was the plaintiff overstepping. The Court of Appeal unanimously overturned the trial judge's decision finding that the risk of the plaintiff falling was obvious in the circumstances. (See our more detailed note on this case entitled "Obvious risk" involved in walking down stairs while wearing ice skates: club's appeal upheld.)
Defendants may reduce liability due to presumption of obvious risk and contributory negligence
Section 5G of the CLA sets up a presumption that a person is aware of an obvious risk, even if they are not aware of the precise nature or extent of the risk or how it occurs. Coupled with the contributory negligence provisions in division 8 of Part 1A of the CLA, this enables a defendant to claim a reduction in their liability on the basis that the plaintiff knew of the risk and failed to exercise reasonable care in avoiding it.
Further, section 5H of the CLA provides that a person does not owe a duty of care to warn of an obvious risk except where:
- the person has been asked to give advice or information about the risk
- law requires the person to warn of the risk, or
- the person is a professional and there is a risk of death or personal injury in relation to the services being provided.
Therefore, if a defendant can establish there was an obvious risk, they can avoid any liability for failing to warn the plaintiff of the risk. Still, it is a rare case where the plaintiff's sole allegation in negligence is based on a duty to warn.
Courts may not find that risks are obvious
In casualty claims, the courts are becoming increasingly reluctant to find that the risks are obvious, even in circumstances where the plaintiff was clearly aware of the source of the risk.
For example, in the case of Glad Retail Cleaning v Alvarenga  NSWCA 482, the plaintiff slipped on a travelator immediately after walking through a puddle of water on the floor which was being cleaned. Despite the plaintiff remarking "Oh, it's wet", the court found that understanding the risk of slipping on the travelator required an appreciation of slipperiness of the travelator, the lubricating effect moisture would have on her shoes and that the inclination of the travelator would exacerbate the risk. As a result, it refused to overturn the primary judge's finding that the risk was not obvious.
"Slip and trip" plaintiffs may be found to be contributorily negligent
The presence of warning signs around temporary hazards is often characteristic of shopping centre "slip and trip" claims. The recent decision in Jackson v McDonald's Australia Ltd  NSWCA 162 found the plaintiff 70% contributorily negligent when he slipped after walking through a clearly signposted wet floor. Still, McDonalds did not wholly escape liability and bore 30% of the liability for failing to mop up the spill immediately. (See our more detailed note on this case entitled Finding of negligence not just about establishing breach of duty of care.)
Likewise in Fitzsimmons v Coles Supermarkets  NSWCA 273, "wet floor" signs were stationed around a puddle of water on which the plaintiff slipped. The court reduced Coles' liability by 50% for the plaintiff's contributory negligence in failing to avoid an obvious risk. However, the court found that the low lying signs were outside the normal field of vision of persons shopping at the store and criticised Coles for failing to station an employee around the spill to warn customers.
Civil liability Act places limits on liability for recreational activities
Division 5 of the CLA further limits a person's liability for obvious risks in the context of recreational activities which are broadly defined as:
- pursuits or activities undertaken for enjoyment, relaxation or leisure
- any place where people ordinarily engage in those sports, pursuits or activities.
Section 5M of the CLA provides that if a person gives a risk warning in relation to a recreational activity, then they do not owe a duty of care in relation to that risk. Still, that risk is not automatically deemed to be an obvious risk under that section.
Further, section 5N of the CLA allows a person to "...exclude, restrict or modify..." their liability in relation to recreational activities under contract. However, the courts are very strict to limit the scope of these liability waiver provisions. It is, therefore, essential that the liability waiver expressly names and excludes all of the possible risks which might foreseeably arise in relation to the recreational activity.
Dangerous recreational activity determined by facts of case
If a recreational activity includes a "...significant risk of physical harm...", it is considered to be a dangerous recreational activity. The decision in Jaber v Rockdale City Council  NSWCA 98 established that a "significant" risk is one that is not trivial but that it need not be likely to occur. A person cannot be found liable in negligence for the materialisation of an obvious risk of a dangerous recreational activity under section 5L of the CLA.
In the case of Falvo v Australian Oztag Sports Associate & Anor  NSWCA 17, the plaintiff was injured while playing touch rugby. The defendant local council unsuccessfully argued that the sport of touch rugby was a dangerous recreational activity.
Conversely, in the case of Campbell v Hay  NSWDC 11, the plaintiff student pilot was injured during a crash landing of his aircraft. The plaintiff successfully argued that the instructing pilot's management of the aircraft in the lead up to the malfunction which caused the crash landing was negligent. However, the court agreed with the defendant instructor's submission that flying lessons were a dangerous recreational activity on the basis that the risk of injury was not trivial. Noting the student pilot's inexperience, the court considered the risk of a crash landing was obvious. Despite the court finding that the instructor was negligent, the plaintiff could not recover damages.
Fallas v Mourlas  NSWCA 32 demonstrates that not all risks associated with a dangerous recreational activity are obvious. The plaintiff was injured by his friend while shooting kangaroos at night time when the friend accidentally discharged a handgun into the plaintiff's leg when entering their vehicle. The Court of Appeal considered that shooting kangaroos at night was a dangerous recreational activity, but that the risk of being shot in the specific circumstances was not obvious. This was despite the evidence led by the defendant that the plaintiff had repeatedly asked him not to bring the gun into the vehicle.
Courts may balance contributory negligence with obvious risk
The varied outcomes in the cases illustrated above highlight that each case will turn on the detail of its facts. The decisions in Jackson v McDonalds and Fitzsimmons v Coles suggest that a court wishing to find in favour of a plaintiff may decline to find that the risk faced by the plaintiff was obvious in favour of penalising the plaintiff for failing to heed the risk by reducing damages due to contributory negligence.
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 2020.