EVENTS LEADING UP TO AND ON THE GOLDEN SANDS CITY COUNCIL COMMUNITY

PICNIC DAY

Agreed:

- The reserve on which the picnic was held was owned and managed by the
council
- Leonard admitted that he noticed the rope was frayed but believed it to be
safe
- Raj noticed the rope in passing and rang Amy
- Leonard made three jumps into the river
- The council had the means, by way of a special extension pole, to eradicate
the rope and the risk it posed
- No specialist arborist or contractor was needed to remove the rope
- That Raj did contact Amy to come and remove the rope and she stated it was
not worth her while to do so
- On the day of the picnic, people were jumping and dicing into the river all
along the bank
- Security guards noticed that people had started using the rope swing and
informed Raj
- Raj did not allocate any guards to the rope site
- There were signs along the river

Disputed:

- That the rope was obviously frayed towards the top
- That the rope did pose a foreseeable risk
- The validity of Amy stating that it was not worth her while to come and
remove the rope because she would be at the reserve on Sunday after the
picnic
- That the signs allegedly located up and down the river to deter people from
jumping and diving were located reasonably and obviously

DISPUTED FACTS BETWEEN THE JUDGES OF COURT OF APPEAL

Penny and Howard in dismissal of the appeal:

Admit that the council owed Leonard a duty of Care
Applying the reasonable standard of care of the ordinary and reasonable
occupier of the land and specifically the requirements of s 9 Civil Liability Act
2003 (QLD), they did not consider that the Council had breached its duty of
care
Raj noticed the rope only in passing and did not know it was frayed
Risk of rope was foreseeable but was not such a high risk that it required the
council to take extra steps beyond routine clean-ups and inspections to
remove it
It was unreasonable to require the Council to deploy security staff to the site
of the rope since people were jumping and diving along the full length of the
riverbank and no number of guards could have prevented that
There was no reason to allocate guards near the tree with the rope
The council could assume that people would look after their own safety if
engaging in high risk activities
Even if the council breached its duty of care, Leonard still chose to engage in
dangerous recreational activity of diving and jumping into water of unknown
depth
Leonard does not dispute that the activity was dangerous but argues that the
rope breaking was not an obvious risk
It does not matter how one falls into the river, the risk in question is
falling into water of insufficient depth and that is obvious to anyone
Risk was the rope breaking was also obvious
Would reach the same conclusion as Streller v Albury City Council [2013]
NSWCA 348

Dissenting Judge Sheldon in allowing the appeal:

The Council was negligent because the risks posed by the rope were
forseeable and serious
Reasonable council would have removed the rope once aware of it since
many more people than usual would be using the reserve
Immediate removal required time and effort but this was justified given the
heightened risk
Failing removal, a reasonable council would have deployed a security guard
at the tree with the rope
The defence is not valid for the risk of diving into water of unknown depth
was obvious, but that is not what occurred- Leonard fell due to the rope
breaking
A fifteen year old boy would be unable to assess the likely risk of the rope
breaking especially since it was being used without incident by others

The Process of the Case

1. Leonard commenced action in the District Court of Queensland against the
Council
a. Alleging negligence
b. Seeking damages of $4 000 000

Leonard lost his claim in the District Court and appealed

2. Leonard continued his case in the Court of appeal and his appeal was
dismissed for the following reasons:
a. Council has not breached its duty of care, specifically under s 9 Civil
Liability Act 2003 (Qld)
b. Leonard engaged in a dangerous recreational activity but does not
believe the breaking of the rope to be an obvious and foreseeable risk
c. The risk of the rope breaking and consequently falling at a shallower
spot was obvious

3. Leonard appeals to the High Court from the decision of the Queensland
Court of Appeal. The grounds for his appeal are as follows:
a. The court of appeal erred in finding the council did not breach its
duty of care
b. The Court of Appeal erred in finding that even if the Council breached
its duty, that Leonards injury was the result of an obvious risk of a
dangerous recreational activity

Relevant Legislation

Civil Liability Act 2003 (QLD)
The most relevant sections pertaining to this case are as follow:
Section 9 General Principles
Section 13 Meaning of Obvious Risk
Section 19 No Liability for personal injury suffered from obvious
risks of dangerous recreational activities

Case Law




Agreed/similar facts between cases

- Appellant was attending the Australia day festivities organised by the
respondent council
- A large number of people in the thousands were expected to attend the
event
- A security firm was engaged to assist with crowd control
- Appellant sixteen years of age
- Other people queuing to use the rope swing
- Appellant conceded that there was some risk in the jump



Differences in Facts between cases

- Appellant was an accomplished diver having competed in one metre and
three metre springboard diving events and regularly practised from five
metre and 7.5 metre platforms, could also dive comfortably from a ten metre
platform
- Appellant attempted a back flip using a rope attached to a tree branch
overhanging a river, Leonard was not attempting tricks of any sort
- Ten security guards were engaged, Golden Sands city council only engaged
four guards, the guards were instructed to patrol the Noreuil Park Foreshore
area from a point northeast of that area to the Oddies Creek Park footbrid
- The council events manager did not receive any report prior to or in the
course of the day as to the existence of the rope or that people were jumping
into the river from a rope which could be accessed via Oddies Creek Park, Raj
the events manager found the rope himself, thus, the council can be
considered duly notified
- Appellant admitted to noticing a security guard near the bridge stopping
people from jumping into the water
- Appellant took observatory precautions before attempting to jump from the
rope himself
At a point which he observed to be in the vicinity of the tree and
the rope, the appellant could not touch the bottom and the river
appeared to be fairly deep
The appellant observed that the other children jumping or diving
from the rope or using the rope became fully submerged upon
landing
The appellant also noticed that some people were able to stand at
various points in the river, including towards the middle
Appellant chose to jump from the tree to which the rope was attached three
or four times before actually using the rope himself, he did back-flip like
tricks on these previous jumps also
Appellants injury was due to a miscalculation on his behalf and not as a
result of the rope breaking