The recent New South Wales Supreme Court case of Bowman v Nambucca Shire Council  NSWSC 1121 demonstrates that a well-positioned and unambiguous warning sign can provide an effective defence against liability claims arising from recreational activities. The Court dismissed a claim against a local authority by the plaintiff who had slipped while walking down a boat ramp under its care control and management.
Although the case involved a local authority, the Court’s discussion of the role of warning signs and systems of inspection are also relevant to operators of marinas and commercial boat ramps.
The plaintiff (who had previously used boat ramps at other locations to launch his boat) slipped and suffered personal injuries at the boat ramp at Scotts Beach, New South Wales in February 2015. He had been using the ramp to access the beach for a walk with his family.
The plaintiff alleged that the defendant was under a duty to take precautions against the risk of harm and had breached this duty by failing to:
- Cut grooves in the ramp to increase its slip resistance;
- Regularly inspect the boat ramp and arrange cleaning if it was contaminated by vegetation or materials causing it to become slippery;
- Regularly pressure-clean the boat ramp;
- Ensure the boat ramp had a slip resistant surface;
- Place large rubber mats on the ramp to reduce the risk of slipping; and
- Investigate means of reducing the risk of slipping due to moss or algae.
The Council pleaded that:
- The risk of slipping on algae on a wet boat ramp was an obvious risk within the meaning of section 5F of the Civil Liability Act 2002 (NSW) (CLA);
- The plaintiff was presumed to have been aware of this obvious risk;
- It did not owe a duty to warn the plaintiff of this obvious risk (Section 5H of the CLA);
- The risk of slipping on algae was not concealed and typical of a boat ramp in a marine environment; and
- It provided a warning of the risk of the area being slippery by way of a pictogram and words.
The judgment contains a detailed discussion of the statutory defences provided by the CLA with regard to risk warnings and obvious risk as well as causation.
The plaintiff was engaged in a “recreational activity” for the purposes of section 5K of the CLA because he was engaged in an activity for a recreational purpose, namely walking towards the beach for enjoyment, relaxation or leisure.
The Council had had a erected a warning sign at the entrance to the ramp. At the top of the sign “WARNING” was printed in red. The sign also contained a picture of a boat ramp (with the words “Boat ramp” beneath it and an icon depicting slippery ground, a person slipping over and the words “Slippery Area”. The plaintiff conceded that he was aware of the existence of the sign.
The Court was satisfied that the sign was an effective “risk warning” for the purposes of section 5M of the CLA, which provides that if a ‘risk warning’ is given there is no duty to persons participating in a recreational activity. Consequently, the Council did not owe the plaintiff a duty of care in respect of the risk of slipping when walking down the boat ramp and therefore the Council was not liable.
The effective risk warning was sufficient to give judgment for the Council. However, the Court also considered the case in negligence.
The Court noted that the “obvious risk” provisions of the CLA (section 5F) required consideration of whether the risk which resulted in the harm would have been obvious to a reasonable person in the plaintiff’s position. Importantly, the plaintiff had conceded that he was aware that boat ramps could be slippery to walk on.
Justice Walton noted that the risk of slipping whilst walking on marine surface such as a boat ramp was a matter of common knowledge. The risk of slipping was obvious for the purposes of section 5F as it would have been obvious to a reasonable person in the position of the plaintiff at that time.
The Court concluded that the plaintiff had failed to establish a causal relationship between the alleged negligence and the harm which resulted for the following reasons:
- In the half year period prior to the accident, the ramp was inspected every month and usually pressure cleaned within a fortnight of those inspections. It was difficult to see how additional pressure cleaning would have made any difference to be slip resistance of the ramp;
- The gradient of the ramp was not excessive at the plaintiff’s location complied with the relevant Australian Standard. As an alternative to the ramp, there was access to the beach by a pathway which did not require walking on a gradient exceeding the Australian standard. There was no evidence that changing the gradient would have made any difference to the outcome; and
- There was no evidence that a reasonable person would have installed rubber mats on the ramp and this measure may itself have created additional risks.
Accordingly, the plaintiff’s claim against the Council failed.
Potential slipping claimants against marinas and occupiers of publically accessible places will likely have some familiarity with the slippery nature of boat ramps and marine environments. Also, the Court in Bowman noted that the risk of slipping whilst walking on marine surfaces such as a boat ramp was a matter of common knowledge. Consequently, there is some prospect that marina operators can successfully mount an “obvious risk” defence to a claim arising from a slipping accident.
Although Bowman involved a local authority, the circumstances of the case, namely a slipping accident on a boat ramp, and the factors in the Court’s decision make it particularly relevant for operators of marinas and commercial boat ramps and occupiers of publically accessible places who might be facing claims by recreational boat users and also for owners and occupiers of places accessible to the public seeking to resist slip and fall claims.
The decision also illustrates the importance of a regular system of inspection and cleaning of marine facilities and other areas accessible by the public in the defence of liability claims.
However, a risk warning can potentially provide the most effective defence against such claims, particularly in New South Wales (due to Section 5M of the CLA).
The critical element of the successful defence in Bowman was a well-positioned and unambiguous warning sign that would have alerted people to the nature of the potential hazard. This allowed the Court to find that the defendant did not owe the plaintiff a duty of care with regard to the risk of slipping. Marina operators and occupiers of publically accessible places should review the location and content of their warning signs to assess whether it provides sufficient warning of slipping risks on boat ramps or jetties.
This article was written by Anthony Highfield, Partner and James McIntyre, Special Counsel.