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legal focus
4 | Touchline issue 22 | November 2015
T
he recent New South Wales Court of Appeal
decision in Sharp v Parramatta City Council
[2015] NSWCA 260 demonstrates that even
a simply worded risk warning can be effective in
providing recreational facility operators with a
statutory defence to claims made by persons injured
at their premises.
In Sharp the claimant suffered injuries when she
jumped from the 10 metre diving platform at the
defendant's swimming centre and struck the water
surface awkwardly.
There was evidence that, at the first flight of stairs to
the 10 metre diving platform a warning sign had been
fixed which read 'Persons using the platforms and
springboards do so at their own risk'.
In her evidence at trial, the plaintiff conceded that
when she reached the 10 metre platform and looked
over the side of the platform she was 'anxious and
nervous' and wanted to refrain from jumping. The
Court of Appeal noted that a reasonable inference
arising from the plaintiff's answer was that the reason
she did not want to jump at that point was that she
recognised there was a risk or danger in her doing so
from such a height.
Risk warning under Section 5M of the Civil Liability
Act 2002 (NSW).
Importantly, the Court of Appeal found that the
defendant's warning sign was an effective 'risk
warning' for the purposes of the statutory defence
provided by section 5M as the sign was directed to
jumping and diving from the tower's platforms into
the pool below and this was the intended purpose of
the platforms and springboards. Although brief, this
was sufficient to warn patrons that there was a risk
of injury when undertaking the activity of diving or
jumping into the pool below. The Court noted that
the sign had been located at the entrance to the tower
at eye level and had been printed in large and clear
letters and upheld the Trial Judge's finding that the
sign was placed in a manner reasonably likely to result
in the plaintiff being warned of the risk.
Obvious Risk of a Dangerous Recreational Activity.
The Court also considered whether the plaintiff's
injuries had arisen as a result of the materialisation
of an obvious risk of a dangerous recreational activity
for the purposes of section 5L of the Civil Liability
Act. The Court found that the risk of injury from an
impact with the water surface would have been clearly
apparent to and understood by a reasonable person
in the plaintiff's position. In particular, the Court
noted the plaintiff's evidence at trial regarding her
concerns about injuring herself when jumping from
the 10 metre platform. The Court was satisfied that
jumping into water from a height of 10 metres carried
a probability of harm that was real and present which,
when viewed prospectively, would have been obvious
to a reasonable person in the plaintiff's position.
Accordingly, in addition to the Defence provided
by section 5M, the Statutory Defence provided by a
section 5L was also available to the defendant.
Accordingly, the plaintiff's appeal was dismissed.
Implications.
The decision will be welcomed by aquatic centre
operators as it demonstrates that Courts are prepared
to find that injuries sustained from impact with the
water surface are an obvious risk of using diving
towers. Further, the decision illustrates that even a
simply worded warning, if appropriately positioned,
can be sufficient for the facility operator to rely upon
the risk warning defence provided by section 5M of
the Civil Liability Act 2002 (NSW).
James McIntyre
is a Special Counsel with HWL
Ebsworth, lawyers
Level 23, Riverside Centre,
123 Eagle Street | Brisbane QLD 4000
Phone +61 7 3020 2840
jtmcintyre@hwle.com.au | www.hwlebsworth.com.au
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