The recent New South Wales Supreme Court case of Bowman v Nambucca Shire Council [2020] 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 and occupiers of publically accessible places.
The claim
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 had breached its duty to take precautions against the risk of slipping on the boat ramp.
A critical element in the Council’s successful defence of the claim was 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.
Key lessons
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. Relevantly, the Court in Bowman also said 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 and occupiers of publically accessible places 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 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.
Please click here if you wish to read our detailed case note on the decision.
This article was written by Anthony Highfield, Partner and James McIntyre, Special Counsel.
