INSURANCE • COMMERCIAL • BANKING
Plaintiff on ‘thin ice’ - Court of Appeal considers
definition of ‘obvious risk’ and ‘recreational
activity’ under CLA
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Alexzandra Harvey & Casey Graham | March 2015 | Insurance & Financial Services
Summary
The NSW Court of Appeal has allowed
the appeal of an operator of an ice
skating rink from a decision of the
District Court which had found it liable
to a patron who fell down stairs at the
premises while wearing ice skates.
In reaching its decision, the Court of
Appeal outlined how the issue of what
constitutes an ‘obvious risk’ must be
approached by a Court and considered
whether preparatory steps to an activity
were part of a ‘dangerous recreational
activity’ under the Civil Liability Act 2002
(NSW) (CLA).
‘activities provided in this centre have a certain amount
of risk attached’ and ‘patrons release the Centre from any
responsibility and legal liability in an activity…’ engaged
in/on the premises. Mr Moor alleged that he did not
observe the warning sign prior to the incident.
Mr Moor brought a claim in negligence against the Club
as the occupier of the premises and was successful at first
instance. Damages were assessed at $148,343.
First instance decision
The primary judge, Levy DCJ, found that the Club had
breached its duty of care by failing to warn the plaintiff of
the risk of slipping or falling when descending wet stairs
in ice skates. Levy DCJ found that the defendant ought to
have provided warnings to the effect that patrons should:
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not put on their ice skating boots before descending
the stairs; and/or
adopt a ‘duck walk’ or splayed foot technique when
negotiating the stairs, and be aware that the stairs were
slippery when wet.
Facts
Civil Liability Act defences
Mr Moor sustained a fractured right ankle when he
slipped and fell while descending a flight of stairs leading
to an ice skating rink within a sporting complex occupied
by Liverpool Catholic Club Ltd (the Club).
The Club sought to rely on the defences of obvious risk
(s5H), inherent risk (s5I), dangerous recreational activity
(s5L) and risk warning (s5M) under the CLA but was
unsuccessful.
Mr Moor was wearing ice skates at the time of the fall
and the blades of his skates overhung the treads of the
steps. The treads and risers of the stairs were of variable
dimensions and the rubber surface was moist.
The Club argued that:
Located within the entrance to the sporting complex
was a sign headed ‘No Responsibility’, warning that
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the risk of injury that materialised was an ‘obvious risk’
and therefore the Club did not owe a duty to warn of
that risk;
the injury occurred whilst Mr Moor was engaged in a
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‘dangerous recreational activity’ and the Club owed no
duty of care in respect of harm from an obvious risk of a
dangerous recreational activity; and
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the ‘No Responsibility’ sign within the premises was
sufficient to act as a ‘risk warning’ of a recreational
activity.
The primary judge found that Mr Moor’s conduct in
descending the stairs was ‘not unreasonable’ and rejected
the obvious risk defence.
Levy DCJ also found the Club had failed to establish that
the act of walking down the stairs in skates fell within the
definition of a ‘recreational activity’ under the CLA but
was ‘merely preparatory’ to the recreational activity of ice
skating.
Appeal
The Club appealed from the decision on a number of
grounds. However, the primary issue considered by
the Court of Appeal was whether the risk of harm that
materialised constituted an ‘obvious risk’.
The Court of Appeal unanimously upheld the Appeal,
finding that the primary judge had erred in considering
a number of issues - including the existence of
‘actual or constructive knowledge’ of the risk and the
reasonableness of the plaintiff’s conduct - which were not
relevant to the question of whether the risk was ‘obvious’.
The Court of Appeal determined that the risk of injury
while descending the stairs wearing ice skates was in fact
an ‘obvious risk’ within the meaning of s5F. Accordingly,
the Club did not owe a duty of care to warn the plaintiff
of such a risk.
Meagher JA emphasised in his judgment that an
assessment of whether the relevant risk of harm was
obvious to a reasonable person in the position of the
plaintiff was a ‘forward-looking inquiry’.
Mr Moor’s size 13 skate boots significantly exceeded the
length of the stair treads.
Although the Court took into account that Mr Moor was
18 years old, was not familiar with the ice skating rink
and was a relatively inexperienced skater, it concluded
that it would have been readily apparent to a reasonable
person in Mr Moor’s position (including observing others
descending the stairs in skates) that the risk of falling on
the stairs was significantly increased by the fact that he
was wearing skate boots at the time.
Addressing the issue of ‘dangerous recreational activity’,
the Court of Appeal continued its tendency to apply
this term narrowly by agreeing with the finding of the
primary judge that the activity of descending the stairs
wearing ice skates was only preparatory to engaging in
the recreational activity of ice skating and did not, of itself,
constitute a ‘recreational activity’ under the CLA.
The Court also concluded that the Club’s sign was not
sufficiently specific to operate as a risk warning for the
purposes of s5M.
Implications
This decision:
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confirms that the test to be applied when determining
whether a risk constitutes an ‘obvious risk’ for the
purposes of s5F is both an objective and a prospective
one; and
highlights that the Court of Appeal is reluctant to extend
the scope of what is considered a ‘recreational activity’
under s5K to encompass acts that are ‘merely
preparatory’ to those activities; and
reassures defendants and their insurers that a defence of
‘obvious risk’ under the CLA is still available in
response to allegations of a duty to warn if the factual
circumstances are appropriate.
The Court of Appeal identified two circumstances giving
rise to the risk of injury:
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the act of descending stairs involves an ‘ever present’ risk
of falling due to overstepping or losing balance; and
wearing ice skating boots adversely affected Mr Moor’s
stability and balance, given the small surface area in
contact with the stairs and the fact that the blades of
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INSURANCE • COMMERCIAL • BANKING
For more information,
please contact:
Alexzandra Harvey
Senior Associate
T: 02 8257 5719
M: 0418 266 201
[email protected]
Casey Graham
Lawyer
www.turkslegal.com.au Sydney: 02 8257 5700 Melbourne: 03 8600 5000