22 May 2015
The primary issue for consideration in this terribly tragic case was whether the defendants breached their duty of care in failing to adequately, or at all, warn the plaintiff of the existence of a cliff face, and its potential for risk of harm, nearby his holiday rental.
Briefly, the plaintiff, together with friends, had rented a house on Mooloomba Road at Point Lookout, North Stradbroke Island. . At about 9pm on the evening of 5 February 2010, whilst affected to at least some extent by alcohol, the plaintiff and two friends left the house to locate steps to the beach. . The plaintiff alleged that they travelled as far as a “well-worn track/path leading off from the boardwalk” , which they assumed was the path leading to steps to the beach. . Upon reconvening in that area, the plaintiff grabbed hold of a tree, which snapped, causing him to lose his balance. He fell over the cliff – and sustained significant injuries including fractures of the spine and ribs. He now has paraplegia. Quantum was settled prior to trial. .
The weight of the evidence at trial was strongly indicative that there was no path, man-made or otherwise, via the headland to the cliff. . As such, as succinctly put by his Honour, the accident occurred in circumstances where:
(a) wandered through an area about which he knew nothing,
(b) which was mostly covered by thick natural vegetation,
(c) which became steeper as he approached the top of the cliff,
(d) on a dark night.” .
In assessing whether the Council breached its duty owed to the Plaintiff, his Honour noted that the risk lying at the foundation of the plaintiff’s case is the risk “that a person might attempt to walk, at night, from the boardwalk and cross through the bushes on the headland, reach the top of the cliff, and fall from it”. . In circumstances where the natural vegetation was thick; there was no path; and the topography was not easy to traverse, the risk that someone might fall from the top of the cliff was regarded as too remote to be considered reasonably foreseeable. .
The Plaintiff contended that the Council should have installed warning signs or signs prohibiting entry to the area. . In this regard, his Honour endorsed the reasoning in Vairy v Wyong Shire Council  HCA 62, wherein the High Court observed that warning signs would be rendered ineffectual “if a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety”. His Honour relevantly noted that the plaintiff called no evidence regarding the type of signs which might have satisfied the duty the plaintiff said existed; and that non-illuminated signs would not have been visible at night in any event. . In the circumstances, the court found that it could not be accepted that, had there been signs, the plaintiff would necessarily have seen them and, “given the determination shown by each of the men in forcing their way through the bush, … the plaintiff would have stopped looking for the steps”. .
In short, his Honour expressed the view that, regrettably, the risk of injury to the plaintiff would have been apparent to any reasonable person in his position. .
Consumption of alcohol
The plaintiff estimated that he had consumed approximately 8 beers over a period prior to the incident.  Expert evidence estimated that as such, he would have had a range of .054 to .065 per cent blood alcohol concentration at the relevant time. Accordingly, his Honour held that had he found that the Council had indeed been negligent, then he would have held the plaintiff’s contributory negligence amounted to 50%. .
In the result, the court dismissed the claims against both defendants, ordering that the plaintiff pay the second defendant’s costs of the action on the indemnity basis. .