The QCA found that the risk of serious injuries suffered by an Irish tourist caused by running down a dune into a lake was not an obvious risk to a reasonable person in the position of the tourist.
Kelly had exposure to waterways and the ocean when at home in Ireland. He had not been exposed to sand dunes until he came to Australia, where he visited Fraser Island in September 2007 after seeing advertisements at a hostel whose owners hostel were licensed as commercial operators to bring tourists onto Fraser Island. A condition of that licence was that the operators ensured people coming to the island watched a video prepared by the Queensland National Parks and Wildlife Service (the Qld state government) that highlighted rules and some dangers (presumably inc dingos), with very brief warnings about entering shallow lakes and streams. There were no warnings about Lake Wabby, steep sand dunes or the dangers of running down steep dunes.
Kelly and his friends watched that video. Once on the island the visitors apparently encountered a warning sign, potentially misread, at the beginning of the 2.5k hike to the lake, which "presented as an attractive enticement to hot walkers". It was "human nature to enjoy running down a dune and jump into cooling water on a hot day". Numerous people were in the water, diving, running or sunbathing. After running up and down the dunes and diving into the water several times Kelly became a partial tetraplegic through injuries suffered when he apparently lost his footing on the dune and as a result dived into shallow water. He sued Queensland for damages for negligence. The state conceded in Kelly v State of Queensland [2013] QSC 106 that it had the care, control and management of the public land on Fraser Island. It conceded that it owed a duty of care to lawful entrants on that land, including Kelly, but there were disputes about the content of the duty.
In the first instance the trial judge McMeekin J held that Kelly’s injuries were caused by the state's breach of its duty of care in failing to provide adequate warning of the dangers inherent in the visit to Lake Wabby in the video. The damages recoverable by Kelly for that negligence were reduced by 15 per cent because the tourist was guilty of contributory negligence in failing to closely read and obey signs that warned against running down dunes at the lake.
On appeal the Court stated, in effect, that the state should have tried harder -
There was a long history of serious injury to visitors at Lake Wabby. The incidents were summarised in exhibit 11, although it was not known whether that was a complete record and it was not certain that the cause of each injury had been recorded accurately.
In the 17 year period before the respondent was injured 18 incidents were recorded, many of which involved serious spinal injuries. Thirteen involved the back, neck or spine and others included references to injuries to feet, leg and shoulders. Many of the incidents refer to diving into the water or the shallow water of the lake. Some of the entries refer to the incident occurring when the injured person ran or walked down the Lake Wabby sand dune.
On 20 April 1993 the appellant’s “Manager (Great Sandy)” wrote a memorandum to the “Manager (Park Management)” expressing concern about a report of “yet another accident at Lake Wabby”, referring to advice by staff that at least two people had broken their necks at the lake in the previous two years and had become quadriplegic and that earlier in 1993 another person had seriously injured his spinal cord, and recorded that: “It appears that visitors injured generally read the warning signs at the lake but ignore the dangers. This area is clearly one of the most dangerous areas on park estate in Queensland by virtue of the number and seriousness of accidents there.” The manager thought that the lake “requires urgent evaluation and formulation of an action plan” and that the factors requiring consideration included adequacy of the existing signage and of other visitor information and of the desirability or need for fencing or other physical barriers to prevent visitors running down a dune.Henry J on appeal concluded
It warrants emphasis that while the determination of whether the risk was obvious fell to be determined objectively, it did not fall to be determined in the abstract. It is obvious that running down a sand dune into a lake involves a risk of some injury. However sandy slopes and water present as apparently forgiving surfaces on or in which to fall. Whether running down a sand dune into a lake involves an obvious risk of serious injury will very much depend upon the individual circumstances of the case. It is a question of degree, turning upon an appreciation of the whole of the evidence, including evidence about warning signs. The learned trial judge’s approach to the determination of the question, as explained by Fraser JA, was careful and well-reasoned. It involved no error and his Honour’s conclusion was reasonably open on the whole of the evidence.Fraser JA stated
The trial judge observed that the principle criticism which could be made of the respondent was that he failed to study the signs closely:
“… It was incumbent on him to read the signs. They plainly alerted him to a danger. They expressly warned against running down dunes. As I have said the problem is that the signs did not bring home the real risk in running down the dune – a reasonable reading of them could lead a visitor to think it was the act of running and diving that represented the risk of injury not running and jumping. Acting reasonably he may not have understood why the signs contained that message, but the message not to do so was nonetheless clear. The authorities advised against running down the dunes.
Had he read the signs and obeyed their message the accident would have been averted.
The difficulty is that all the other information that he received suggested there was no significant danger. Many others were doing precisely the same activity, without mishap. He had done so himself without mishap on numerous occasions as had his friends.
… In my view even though the signs did not adequately convey why visitors should not run down the dunes visitors enjoying a novel experience ought in their own interests exercise the caution that the authorities advise.” …
In holding that the risk which materialised was not an “obvious risk” the trial judge took into account his findings that: the risk of serious injury was not apparent to a significant percentage of the visitors to Lake Wabby; the respondent was relatively young, had no experience with sand dunes, and had not previously been to Lake Wabby; there was no apparent danger in jumping into the water, which was sufficiently deep for that activity; before the respondent was injured he saw numerous other people at the lake engaged in a similar activity without incident; the respondent himself engaged in that activity on about 10 occasions without incident; it was not suggested that the respondent had observed the sand to give way so as to cause him to lose his footing on any previous occasion or that it had such an effect on any other person; the video which the plaintiff had seen included warnings about dangers presented by the topography of and activities on the Island but it did not indicate any problem with running down the sand dunes and jumping into any lake or Lake Wabby in particular; and there was no warning or description in the video, signs, or any published brochures, of the number of serious injuries which had occurred over the years at Lake Wabby or any of those injuries being associated with running down the sand dunes.
The trial judge also took into account his finding that “[t]here was no sign or other warning in the plaintiff’s immediate vicinity that running down the sand dune involved a risk of serious injury such as a broken neck”
