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On appeal, the Court of Appeal found that the
risk which materialised and caused the Plaintif f ’s
injury was an “obvious risk” for the purposes of
Section 5F of the Civil Liability Act 2002 (NSW). The
Court noted that the activity of descending stairs
carried an “ever present ” risk of falling because
of overstepping or a loss of balance. The Court
further noted that it would have been apparent to
a person in the Plaintif f ’s position that the risk of
falling when descending the stairs was signif icantly
heightened by the fact he was wearing skating
boots as his only contact with the stair treads was
the skate blade, making it more dif f icult for him to
maintain his balance.
As the risk which caused the Plaintif f ’s injury was
an obvious one, the Club did not owe a duty to warn
the Plaintif f of the risk.
Although the Court of Appeal accepted that the risk
which caused the Plaintif f ’s injury was an obvious
risk, the Court rejected the Club’s argument that
the Plaintif f sustained his injury while undertaking
a dangerous recreational activity. The Court held
that the activity of descending the stairs in ice
skating boots was separate from the “recreational
activity” of ice skating.
Although it did not af fect the outcome of the
appeal, the Court found that the risk warning at
the Club’s premises was insuf f icient to provide a
defence to the claim under Section 5M of the Civil
Liability Act as the reference to “activities” would
reasonably be understood to being conf ined to
sporting or other recreational activities rather than
preparatory activities such as descending stairs in
skates.
Even though the Club escaped liability on appeal,
the Court ’s observations regarding the risk warning
illustrate that while carefully worded warnings
may provide a defence to claims arising from
the recreational activity, such protection may not
extend to ancillary activities such as accessing
a skating rink. Consequently, facility operators
must give consideration to the nature of activities
being undertaken on their premises and whether
participants are able to access those areas in
reasonable safety, particularly where the activities
require participants to use equipment which may
af fect their mobility, such as ice skates or roller
skates.
Ellery v. Sunsail (Australia)
Pty Ltd [2014] QDC 285
The recent Queensland District Court decision of
Ellery illustrates the importance of recreational
activity providers, par ticularly those operating
watercraft, where stairways may be steeper and
potentially more dangerous, to give consideration
to the timing of safety brief ings, applying warning
markings and barriers to stairways.
Ms Ellery suf fered neck and back injuries when she
stepped backwards and fell down a short but steep
f light of steps on the catamaran operated by the
Defendant. The incident occurred shortly after the
Plaintif f and her family had boarded the vessel for
a one day cruise.
The incident occurred when, in the course of
greeting other passengers, the Plaintif f stepped
back and fell backwards down the stairway. She
stated that she had not seen the steps as they
were the same colour as the surrounding wooden
cupboards and f loor.
The Court heard evidence that the fall occurred
prior to a safety brief ing, although the content of
this brief ing was conf ined to the location of life
jackets rather than any potential hazard posed by
the stairway.
Devereaux SC DCJ noted that whilst the uniform
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