Gravel & stones may break bones, but warnings are not required

This decision provides a clear indication to local governments and occupiers that they are not expected to warn patrons of every risk of harm. Rather, local governments and occupiers can expect that invitees will exercise appropriate care for their own safety when faced with obvious risks.

It also serves as a timely reminder to occupiers of the importance of having a robust system in place to inspect and maintain premises, and respond to complaints. As well as having good record keeping practices to evidence that system if required.

The facts

The facts of the case are as follows:

• The plaintiff and her husband visited Black Hole Rock as part of their travels around Western Australia. Black Hole Rock is located in the Ocean Beach Reserve which is controlled and managed by the Shire of Denmark (Shire).
• The plaintiff walked down the steps from the car park towards Black Hole Rock, looking down the steps as she did so.
• At the base of the steps was a landing area which had a vertical slope, combined with small stones.
• As the plaintiff stepped off the last step onto the landing area with her right foot, she slipped and fell on the small, round gravel stones which were present at the landing of the steps. The plaintiff sustained a right ankle fracture and dislocation which required surgery.

This case proceeded to trial on the question of liability only.

The plaintiff’s case

The plaintiff alleged that her injury was caused by the Shire’s negligence. Specifically, that the Shire had breached its duty of care by:

1. Allowing gravel stones to be present on the landing area thereby exposing the plaintiff to a slipping hazard.
2. Failing to take adequate precautions to inspect and maintain the stairs, include installing a handrail support.
3. Failing to warn visitors to Black Hole Rock of the slipping hazard.
4. Exposing the plaintiff to a reasonably foreseeable risk of danger.

Issues for determination

The parties agreed the following issues for determination at trial:?

1. Did the area at the base of the stairs constitute an “obvious risk” as defined in the Civil Liability Act 2002 (WA) (CLA)?
2. Taking account of the factors in s. 5(4) of the Occupiers’ Liability Act 1985 (WA), and viewed prospectively, was the risk created by the area at the base of the stairs such that required the defendant to take steps to remove it?
3. If the Shire should have foreseen the likelihood of the risk causing injury, what steps should it have taken to remove that risk?
4. If those steps had been taken, would the injury have been avoided?

The Shire’s case at trial

The Shire did not dispute that it owed a duty of care to the plaintiff, including a duty as an occupier, to prevent, as far as was reasonably practicable the foreseeable risk of injury and harm to the plaintiff. However, the Shire relied on s. 5N and s. 5O of the CLA to argue that it did not owe a duty to warn the plaintiff of the obvious risk to someone using the steps that the landing area was covered in loose gravel stones and that walking on the landing area posed a risk of slipping.

Although the Shire did not lead any documentary evidence at trial regarding the system, it was also the Shire’s case that it had an adequate system in place to identify hazards associated with its coastal infrastructure, including the steps and the landing area. Further, that no hazards had been identified and no injuries or incidents relating to the steps or the landing had been reported by members of the public to the Shire. Therefore, in all of the circumstances, a reasonable person in the Shire’s position would not have taken precautions against the risk that a person might slip on the gravel stones.

Conclusion

Her Honour District Court Judge Russell (as she then was) accepted that the risk of injury from slipping on the gravel stones when stepping onto the landing was foreseeable and not insignificant. However, Russell DCJ was ultimately persuaded that it would have been obvious to the plaintiff, when she looked at the landing area before she stepped onto it that the area was sloping and had loose gravel on it. Therefore, the Shire did not owe a duty of care to warn the plaintiff of that obvious risk.

Russell DCJ then turned her mind to the issue of what precautions, if any, the Shire was required to take against the risk of harm. Russell DCJ had regard to the location of the steps in a rugged, natural environment and the fact that it was a risk which a person should reasonably be able to anticipate and take appropriate care for their own safety.

As the risk was an obvious one, her Honour was not persuaded that a warning sign was required. Further, that it would have been entirely unreasonable, and inconsistent with the natural beauty of the area, for the Shire to have installed a handrail or non-slip materials on the steps. Russell DCJ therefore concluded that the Shire was not required to take any precautions to protect against the risk of harm.

Russell DCJ was not convinced that the plaintiff’s accident was caused by the Shire’s breach of its duty of care. The plaintiff’s claim was dismissed.

To read the full decision please click here.