Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Streller v Albury City Council [2013] NSWCA 348 Hearing dates: 2 July 2013 Decision date: 23 October 2013 Before: Meagher JA at [1]; Ward JA at [70]; Emmett JA at [71] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - public authority - appellant suffered spinal injury jumping into river using rope swing - accident occurred on Australia Day near events organised by Council - Council aware of presence of rope - whether Council breached duty of care in failing to remove rope or to prevent use of it TORTS - negligence - personal injury - whether risk of harm that materialised an "obvious risk" within Civil Liability Act 2002, s 5F(1) - whether appellant engaged in a "dangerous recreational activity" within s 5K - whether Council not liable by reason of s 5L(1) Legislation Cited: Civil Liability Act 2002, ss 5, 5B, 5C, 5F, 5H, 5K, 5L Cases Cited: Bathurst Regional Council as trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340 Berrigan Shire Council v Ballerini [2005] VSCA 159 Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 Delaney v Staples [1992] 1 AC 687 Doubleday v Kelly [2005] NSWCA 151 Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 Falvo v Australian Oztag Sports Association [2006] NSWCA 17 Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Tort Reports 81-952 Laoulach v Ibrahim [2011] NSWCA 402 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394 Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 Rennie Golledge Pty Ltd v Ballard [2012] NSWCA 376; 82 NSWLR 231 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Category: Principal judgment Parties: Dylan Streller (Appellant) Albury City Council (Respondent) Representation: Counsel: A J Bartley SC, F Tuscano (Appellant) J E Sexton SC, G Donnellan (Respondent) Solicitors: Santone Lawyers (Appellant) DLA Piper (Respondent) File Number(s): 2012/196554 Decision under appeal Jurisdiction: 9111 Citation: Streller v Albury City Council [2012] NSWSC 729 Date of Decision: 2012-05-28 00:00:00 Before: Latham J File Number(s): 2010/346079 Judgment 1MEAGHER JA: On 26 January 2008 the appellant attempted a back flip using a rope attached to a tree branch overhanging the Murray River. The tree to which the rope swing was attached was adjacent to Oddies Creek Park which is on the banks of the river, downstream (and north) of the Union Bridge on the outskirts of Albury City. Also on the river and immediately downstream of Oddies Creek Park is an area known as Noreuil Park foreshore, which includes Noreuil Park and an area inside a bend in the river between Noreuil Park and the riverbank. The respondent Council had organised Australia Day events in the Noreuil Park foreshore area on that day. 2That manoeuvre involved the appellant swinging in an arc over the river whilst facing the riverbank, releasing his grip from the rope towards the top of that arc whilst still facing the riverbank, and then performing a 360 degree back flip in the air so as to land feet first in the water. The point of release was likely to have been more than six metres above the surface of the water. Tragically, in attempting to do so the appellant suffered a C7 quadriplegia injury as a result of his landing awkwardly and striking the riverbed. 3The question in this appeal is whether the primary judge (Latham J) erred in holding that the respondent Council was not liable to the appellant in negligence for the injuries he sustained. That question raises issues as to the content of the Council's duty of care, whether that duty was breached, and whether, in any event, the Council had a complete defence to the appellant's claim because of the application of s 5L of the Civil Liability Act 2002 (the Act). That section provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an "obvious risk" of a "dangerous recreational activity" engaged in by that person. The primary judge decided each of these liability issues in favour of the respondent: Streller v Albury City Council [2012] NSWSC 729. Relevant facts 4The outcome of each of these issues depended upon a consideration of the particular facts and circumstances in which the appellant's accident happened. Those facts and circumstances were not in issue in any significant respect. The park areas and the Australia Day event 5On the day of the accident the appellant was attending an Australia Day event at the Noreuil Park foreshore area. That event had been organised by the respondent Council. It included live music, children's activities, community exhibitions and a novelty boat race known as the "Mad Hatter Regatta". A large number of people (said to be "in the thousands certainly"), including children, were expected to attend and did attend that event. Other than the "Mad Hatter Regatta", which was to commence upstream of the Union Bridge, none of the activities or entertainment arranged by the Council took place outside Noreuil Park and the foreshore area. 6The appellant alleged that the Council was the occupier, and had the care, control and management of Oddies Creek Park and Noreuil Park. The precise statutory basis upon which the Council had responsibility for the management and control of those areas was not explored before the primary judge or in this Court: cf Berrigan Shire Council v Ballerini [2005] VSCA 159 at [17]; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [111]-[112] (Hayne J), [172]-[176] (Callinan and Heydon JJ); and Bathurst Regional Council as trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340 at [43]-[45]. Whilst the evidence did not establish that the tree containing the rope swing was within Oddies Creek Park or otherwise on land for which the Council was responsible, access to it and the riverbank was gained from that park. That being the position, the primary judge proceeded on the basis that the Council's duty of care to persons gaining access to the tree via land for which the Council was responsible was the same, irrespective of whether the tree also was on land under its management or control: [46], [47]. The correctness of that reasoning and conclusion is not contested on appeal. 7The Council engaged a security firm to assist with crowd control for the Australia Day event. Arrangements were made for ten security guards to be present. Those guards were instructed to patrol the Noreuil Park foreshore area from a point northeast of that area to the Oddies Creek Park footbridge. That footbridge provided access from Noreuil Park to the northern corner of Oddies Creek Park. Two of the security guards were instructed to attend at the Union Bridge from about 3.00pm, when it was anticipated that regatta craft would navigate under the bridge. Their task was to prevent people jumping off the bridge and onto the craft below. At 3.30pm two further security guards were requested to attend the bridge to assist in that task. Arrangements were also made for four police officers to attend for the whole of the day. However, no officers attended until late in the afternoon. 8The Council events manager, responsible for planning the Australia Day celebrations, 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. She regarded that park as outside the boundaries of the events arranged by the Council. Another officer of the Council was on board a Maritime Authority of NSW vessel which was participating in the direction and control of on-water safety activities. That officer saw a number of teenagers jumping from the bridge. She was also on that vessel when it was called to assist the appellant in getting ashore after he had been injured. That occurred some time after 3.30pm. The appellant and the circumstances of the accident 9In January 2008 the appellant was 16 years of age and an accomplished schoolboy diver. He had competed since Year 7 in one metre and three metre springboard diving events and regularly practised from five metre and 7.5 metre platforms. He could also dive from a 10 metre platform without difficulty. He had visited Noreuil Park on at least 10 occasions before the day in question and had swum and dived in the Murray River at that and other places, including from trees and using rope swings. In his evidence he agreed that from an early age he knew that serious injuries could result from diving into shallow water. He was aware that the depth of the water in the river varied from place to place and that at any particular location the depth could change over time. He also was aware that there could be obstacles, such as logs, under the surface of the water. 10In cross-examination the appellant agreed that the risk of suffering an impact injury from diving or jumping into shallow water also varied depending upon whether a person dived rather than jumped and the height and angle at which that occurred. He accepted that someone jumping or diving into the river from a tree could land in a number of different places, and that using a rope swing to do so increased the possible area in which a person could land. He agreed that this meant that any observation of other people jumping or landing would "have to be brought back to what you are proposing to do in terms of what use you could make of that as an indicator of depth". The appellant also accepted that one of the reasons for his jumping or diving from trees or using rope swings was the thrill in doing so, and that the degree of thrill experienced depended upon whether it was "more or less risky". 11In the afternoon of the day in question, the appellant and two friends had walked in a southerly direction along the bank of the river through Oddies Creek Park to the Union Bridge. When doing so they saw the tree rope and a queue of children waiting to use it. At the bridge they saw a security guard stopping people from jumping into the water. They entered the water near the bridge and swam or floated downstream. As the appellant floated past the rope swing he could see children jumping from the tree and swinging from the rope. At that point, which was "in the vicinity of the tree and tree rope", the appellant could not touch the bottom and the river appeared to be fairly deep. He observed that the children jumping or diving from the tree or using the rope became fully submerged when doing so. He saw some people using the rope to swing to the end of its arc before letting go, and noted that they had "a very steep drop" before they entered the water. The appellant also saw people standing at various points in the river, including towards the middle of the river. 12After spending time at the concert stage in the Noreuil Park foreshore area, the appellant and his friends returned to Oddies Creek Park to use the rope swing. Because there was still a queue, the appellant climbed to a high branch in the tree and did three or four "tricks, like back flips", on each occasion entering the water feet first. At no time did his feet touch the bottom of the river. The appellant then attempted the manoeuvre which resulted in his injury. 13The appellant agreed that on some previous occasions, before jumping from a tree or rope or bridge into water, he had waded into the water to see what the depth was like and whether there were any submerged obstacles. He agreed that this was the "best way" of finding out how deep the water was. He did not do it on this occasion. In cross-examination the appellant was shown a video of the activities on the river on Australia Day 2008, which included footage of boys jumping or performing back flips into the river from the tree, some using the rope. He agreed that those boys had landed in different places in the river, and that those places were some metres apart. At the time he attempted his jump the appellant said that he appreciated that if he did not get it right he might hurt himself, irrespective of the depth of the water. In describing what happened he said that in the course of attempting the back flip he miscalculated his body position in the air. When he realised this he attempted to spin to his left so as to enter the water face first and in a tuck position. Council inspection procedure and discovery of the rope swing 14From before December 2000 the Council implemented a system of routine inspections for "rope swings and structures" in some of the recreational areas which provided access by the public to the riverbank. Those inspections were usually weekly and on a Friday. The areas inspected included Noreuil Park and Oddies Creek Park. The instruction to those undertaking these inspections was, if possible, to remove any rope swings immediately and otherwise to arrange for their removal. 15In January 2008 Ms Hunichen, employed as a senior gardener and arborist, was the Council officer whose responsibilities included the supervision of those inspections. She gave evidence that they were usually carried out by at least two members of the Council's horticultural staff who would either walk or drive along the riverbank. Rope swings which could not safely be accessed and removed by Council staff were reported to Ms Hunichen so that she could arrange for an approved contractor to do so. The vehicle used to carry out the inspections had an extension pole saw and a "cherry picker". However, because of its weight it could not gain access to Oddies Creek Park. 16The Council's policy for the engagement of third party contractors required that they first have been approved and placed upon the Council's list of registered contractors. One reason for this was to ensure that the contractors were assessed as complying with any relevant Occupational Health and Safety legislation before being placed on that register. As at Australia Day 2008, to Ms Hunichen's knowledge, there were only two contractors who had previously been engaged by Council to remove rope swings from trees. One was registered. The other was not. 17On the afternoon of Friday 25 January 2008 the rope swing in the tree in Oddies Creek Park was detected during a routine inspection. Ms Hunichen was advised. She contacted the registered contractor and asked if someone was available to remove it. She was told that no one was available until Tuesday of the following week. That contractor was then asked to do that job as soon as possible. Ms Hunichen also contacted the other contractor, believing that it was also on the Council's register, and was told that it also had no one available to do the job until the following week. Decision of the primary judge and issues in the appeal 18The appellant's pleaded case was that the Council breached its duty to exercise reasonable care in four respects - failing to remove the rope swing, failing properly to supervise the rope swing having not removed it, failing to ensure that the water near the rope swing was sufficiently deep, and failing to warn that it was dangerous to dive into the water or to use the rope swing. It was also alleged that the Council was negligent in representing implicitly that it was safe for the appellant and others to use the rope swing for the purpose of jumping or diving into the water. 19It was not in issue before the primary judge or in this Court that the Council owed to members of the public who entered the park areas under its care and control a duty to exercise reasonable care against the risk of physical injury: [46]. The position of a statutory authority responsible for the control and management of premises or a recreational area is broadly analogous to that of an occupier of private land: see, for example, Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 at [152]. However, that analogy is not perfect. When determining the content of the relevant duty, and what its performance requires in the circumstances of a particular case, it is necessary to take account of the specific statutory context, including the nature and extent of the authority's other responsibilities: Vairy v Wyong Shire Council at [81] (Gummow J), [116], [117] (Hayne J), [218] (Callinan and Heydon JJ). The circumstances of this case were said by the appellant to include that the Council had encouraged a large number of people, and particularly children, to use the area adjacent to Oddies Creek Park on Australia Day knowing that the rope swing was there and that it would attract and be used by them in larger numbers than might otherwise be the case. 20The primary judge held that the Council did not owe the appellant a duty of care "of the nature alleged": [48], [52]. That holding was directed to the four respects in which it was alleged that the Council breached its duty. In addressing s 5B(1)(c) of the Act, the primary judge also held that a reasonable person in the Council's position would not have taken any of those four precautions: [64], [73]. The primary judge rejected the appellant's argument that there was an implied representation by the Council that it was safe to use the rope to jump or dive into the water: [71], [72]. As the risk of harm from his doing so was an "obvious risk" within s 5F(1), her Honour held that by reason of s 5H(1) there was no duty to warn the appellant that it was dangerous to dive or jump into the water using the rope swing: [89]. Finally, the primary judge held that the appellant's injury was the result of the materialisation of an obvious risk of a dangerous recreational activity. Accordingly, by s 5L(1), the Council was not liable in negligence for that injury: [97]. 21The 23 grounds of appeal raise three broad topics. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 18 and 19 challenge the primary judge's rejection of the appellant's argument that the scope of the Council's duty of care extended to taking steps to guard against the risk of injury which the existence of the rope swing represented, particularly to children. The appellant contends that in circumstances where its existence was known of on the Friday afternoon and the Australia Day event was to take place on the Saturday, the Council's duty to exercise reasonable care required either that it remove the rope swing or by supervision prevent its use on the Saturday. 22Ground 17 challenges the finding that there was no representation that it was safe to use the swing. In oral argument the appellant said that his challenge to this conclusion was germane only to whether the relevant risk of harm from jumping into shallow water was "obvious" within the meaning of s 5F(1). It was submitted that a reasonable person in the appellant's position would have regarded the fact that the rope had not been removed, as an indication that it was safe to use it. That and other factors meant that the relevant risk of injury was not "obvious". 23By grounds 9, 10, 11, 12, 13, 14, 15, 16 and 20, the appellant challenges the primary judge's finding that the Council was not in breach of that duty of care by failing either to remove the rope or to prevent its use by supervision. As will become apparent, the evidence did not support a finding that there were other steps which Ms Hunichen and the Council could reasonably have taken to have the rope swing removed on the Friday evening or Saturday morning. That being the position, the appellant's principal case on appeal (made by grounds 14, 15 and 16) was that, in the circumstances, the exercise of reasonable care required that the Council eliminate the risk of injury from use of the rope swing by posting a security guard at the tree on the Saturday to prevent any use of the rope. 24No ground of appeal or argument was addressed to the primary judge's finding that there was no breach based upon any failure of the Council to ensure that the water near the rope swing was sufficiently deep: [68]. Although ground 21 was directed to the breach of a duty to warn, in oral argument it was accepted on behalf of the appellant that his case based on a failure to warn could not succeed because of his evidence, to the effect that "he was going to do what he was going to do anyway". 25Grounds 21, 22 and 23 challenge the primary judge's holding that the Council was not liable in negligence for the appellant's injuries because of the application of s 5L. That holding provides a complete defence to the appellant's claim against the Council. That being the position, I propose to address these grounds of appeal first. Was the appellant's injury suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity? Relevant statutory provisions 26Section 5L(1) of the Act provides: "(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff." 27Section 5K defines a "recreational activity" as including "any pursuit or activity engaged in for enjoyment, relaxation or leisure" and a "dangerous recreational activity" as a recreational activity that involves a "significant risk of physical harm". 28It was not in issue that the appellant's act of swinging from the rope and jumping into the river was a "recreational activity" for the purposes of s 5L(1). The appellant challenges the primary judge's finding that the risk of harm involved in that activity was "obvious" (grounds 21 and 22) and that the appellant's injury was the result of the materialisation of an obvious risk of a "dangerous recreational activity" (ground 23). 29Section 5K provides that the meaning of the expression "obvious risk", as used in s 5L(1), is as defined in s 5F(1), namely: "... an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person." In this context "risk" refers to the chance or possibility of an occurrence which results in "harm", which is defined in s 5 to include "personal injury or death". Obvious risks include risks that are patent, or a matter of common knowledge, and can include a risk of something occurring even though it has a low probability of occurring: s 5F(2), (3). Obvious risk 30In its ordinary use, the adjective "obvious" describes something which is clearly apparent or easily recognised or understood, and that is the meaning which this Court has held it has when used in s 5F(1): see Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Tort Reports 81-952 at [35], [38], [39] (Tobias JA, Campbell JA and Handley AJA agreeing); and Laoulach v Ibrahim [2011] NSWCA 402 at [79]-[80] (Tobias AJA, Giles JA and Macfarlan JA agreeing). 31Part 1A of the Act applies to claims for damages for harm resulting from negligence. Section 5F(1) requires, for the purposes of Divisions 4 and 5 of that Part, that the question whether a risk of harm is "obvious" is to be determined by reference to the circumstances of the claim to which the provisions of the Part apply. Such a risk is one which "in the circumstances would have been obvious to a reasonable person in the position of that person", being a reference to the person "who suffers harm". Thus, the subject of the forward-looking inquiry called for by use of the language "would have been obvious" is the risk of harm suffered by the particular plaintiff to whose claim the Part applies. The reference to the "reasonable person" posits an objective standard, namely the hypothetical reasonable person. That person is assumed to be in the circumstances in which the harm was in fact suffered and to have the knowledge and experience of the person who suffered it. An example of the assumptions which may be made in such an inquiry is provided by Doubleday v Kelly [2005] NSWCA 151. In that case the plaintiff suffered injury while using a trampoline wearing roller skates. The characteristics which were attributed to the hypothetical reasonable person for the purpose of addressing whether the risk was "obvious" included "being a child of seven with no previous experience in the use of trampolines or roller skates": at [28]. 32Jumping or diving into the river involved risks of harm, which were not limited to impact with the riverbed. There were other risks of impact - with someone in the water, the surface of the water or some object below the surface of the water - associated with that activity which also might have resulted in injury to the appellant. However, those risks were not relevant to the inquiries called for by ss 5H and 5L in this case because the appellant's injuries did not result from the materialisation of any of those risks. Accordingly, the forward-looking question posed in this case was whether at the time the appellant proposed to use the rope swing to do the back flip manoeuvre, the risk or chance of his being injured from impact with the riverbed "would have been obvious" to a reasonable 16 year old in his position. 33The risk of injury from diving or landing head first in water which is or could be too shallow would certainly be an obvious one to an adult exercising ordinary commonsense and judgment. If confirmation was needed for the correctness of that proposition, it may be found in the observations in Vairy v Wyong Shire Council at [5], [10] (Gleeson CJ and Kirby J), [41], [43] (McHugh J), [80], [107] (Gummow J), [133], [159] (Hayne J) and [209], [216] (Callinan and Heydon JJ). It would also be obvious to an optimistic, but not foolhardy, and athletic 16 year old with the life experience of the appellant. That experience included swimming and diving in pools and rivers from a relatively young age. The appellant conceded as much in his evidence and did not contend otherwise before the primary judge or in this Court. His case, which was rejected by the primary judge, was that taking into account that knowledge and experience and the particular circumstances as they presented to him, a reasonable person of his age would have concluded that the water was deep enough to attempt the back flip manoeuvre using the rope swing without there being any risk of injury from impact with the riverbed. 34In relation to this argument, the appellant relied before the primary judge on the following specific matters: that on previous occasions he had dived and jumped into the Murray River safely from the same and other trees, including using rope swings; that he was an accomplished diver; that the manoeuvre he was attempting was for him a "relatively simple dive"; that the area of the river adjacent to the tree and rope swing was "known for being deep"; that when he had floated down the river earlier that day the water in that area had appeared to be fairly deep; that he had observed that when children had jumped or dived from the tree or using the rope, they had become fully submerged; that none of the other boys jumping or performing back flips into the river had appeared to suffer any injury; that he completed three feet first jumps into the river from the top branch of the tree without touching the riverbed. 35I am conscious that these circumstances must be addressed through the eyes of a reasonable 16 year old. Viewed from that perspective they may have justified a conclusion that in a particular area, where others of similar weight had jumped from a position in the tree, the water was deep enough to jump in the same way and from the same position. However, they did not justify any conclusion as to the depth of the water in other areas or as to whether the water in any area was deep enough to avoid impact with the riverbed if one was heavier, jumping or diving from a different position or height or entering the water in a different way. From the appellant's perspective, the critical matter was, as he acknowledged in his evidence, that the use of the rope swing increased the possible area in which he could land compared with someone jumping or diving from a fixed point in the tree. The water was muddy and it was not possible by looking to judge how deep or shallow it was. The appellant had not checked the depth of the water by wading in the areas where he might possibly land. There were people standing in the river, including near the middle and adjacent to the position of the tree and rope swing. This confirmed that there were variations in its depth due to sand bars, mud banks and the like and that it got shallower towards the middle. Looking at the matter prospectively, the chance that the appellant could land in water which was too shallow and impact with the riverbed was not excluded by what he had seen or done either on that day or previously. 36The same considerations led the primary judge to conclude that this risk of harm was present and would have been "obvious" to a reasonable person in the appellant's position. In doing so the primary judge took into account some matters of "common knowledge". Her Honour's findings as to these matters are not challenged on appeal and accord with the appellant's evidence as to his appreciation of them: "[87] ... The fact that the depths of rivers may vary according to the drift of sand banks and mud banks, the fact that the landing point of a person using a rope swing varies depending upon the trajectory and the point of release, the fact that the depth of penetration into the water by a diver depends upon the diver's weight and method of entry, and the fact that the consequences of diving headfirst into shallow water are potentially catastrophic are all commonly known and appreciated." 37Having referred at [81] to several of the factors relied upon by the appellant which I have set out above, her Honour observed: "[82] The selective nature of these factors ignores the fact that the plaintiff himself acknowledged that there was a range of entry points into the water that were possible from the use of the rope swing. The fact that those persons who had previously jumped or dived using the rope swing had not been injured said nothing about the risk of injury to someone using the rope swing to enter the water from a higher point of the arc." 38I agree with the primary judge's conclusion that the risk would have been "obvious" to a reasonable person in the appellant's position. The circumstances as they presented themselves did not exclude the risk of the appellant landing in an area where other jumpers or divers had not landed which was closer to the middle of the river where there was shallow water. Nor did those circumstances exclude the risk of his landing in an area where others had landed but in such a manner that he went deeper into the water because of his weight, the height of his jump or his method of entry. Each of these matters would have been clearly apparent to a person in the appellant's position exercising ordinary commonsense and judgment. 39As the appellant conceded, there was a chance that he might not get the manoeuvre he was attempting "right". This carried with it the risk that he would not land where he intended to land or in an area where he had seen others safely enter the water or in the way he intended to enter the water. A reasonable person in his position would not have concluded that the risk of his landing in water which was not deep enough to avoid impact with the riverbed had been eliminated or made fanciful by the particular matters upon which the appellant relies. 40One of the matters said by the appellant to be relevant to whether the risk of injury was "obvious" is his contention that a reasonable person in his position would have assumed that the rope had been deliberately placed in the tree as part of the recreational activities organised by the Council and that it was safe to use it. I have not taken this matter into account because there is no support for it in the evidence or by reference to any standard of reasonable behaviour. There was no evidence of any conduct on the part of the Council which indicated to members of the public that the Council had placed the rope there, or knew of its presence, or that it had otherwise encouraged the rope's use. The rope was not a permanent feature of a specific area which the Council promoted as a venue for swimming, jumping or diving: cf Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 430; Berrigan Shire Council v Ballerini at [26]. The evidence was that rope swings "came and went" from different places on the riverbank. I would not infer, in the absence of any supporting evidence, that someone in the appellant's position would reasonably assume that adults or an authority like the Council might deliberately place a rope swing in a tree as part of a recreational activity without making that fact expressly known in some way. 41The primary judge's findings to that effect are not challenged on appeal: "[72] ... The effect of the evidence given by the plaintiff and his witnesses was that it was their own past experiences of jumping and/or diving from that location, together with their own observation of a number of other boys jumping or diving from the tree and from the rope, that informed their impression that it was safe for them to do so. The presence of the rope itself and the absence of any security guards at that location were not relevant to their decision to undertake that activity." I conclude that a reasonable person of the appellant's age and experience would not have made an assumption of the kind relied upon. 42That conclusion makes it unnecessary to consider the appellant's further argument, made only faintly, that the relevant risk of harm was that such a representation might be wrong; and that such a risk was not obvious. That argument is not available because the representation was not made and because the risk that the representation may be wrong is not, where the relevant harm is personal injury, the risk which materialised and resulted in the appellant's injury. Dangerous recreational activity 43A "dangerous" recreational activity is one that involves a "significant risk of physical harm". In Falvo v Australian Oztag Sports Association [2006] NSWCA 17, this Court held that the ordinary meaning of the defined term ("dangerous recreational activity") could be taken into account when considering what is a "significant risk of physical harm": at [28], [30] (Ipp JA, Hunt AJA and Adams J agreeing); the relevant principle being that where a statutory definition is of a word or words which have an ordinary English meaning, that meaning can influence the construction of the language of the definition: see Delaney v Staples [1992] 1 AC 687 at 692; Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; 61 NSWLR 394 at [8]-[9]; Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 at [17]; and Rennie Golledge Pty Ltd v Ballard [2012] NSWCA 376; 82 NSWLR 231 at [129]-[130]. The reason why it is permissible to do so is referred to by Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 at [17], albeit in the context of construing a definition in a commercial agreement: "The words used as labels are seldom arbitrary. They are usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition. In such cases the language of the defined expression may help to elucidate ambiguities in the definition ... ." 44Whether a risk of physical harm is "significant" requires an objective assessment of the relevant activity which takes account of the probability of that harm coming to pass and the seriousness of the harm which would or might then result: Falvo v Australian Oztag Sports Association at [28]-[31]; Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [12]-[18] (Ipp JA), [91] (Tobias JA), [131], [136] (Basten JA); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] (Mason P, McColl JA and Hunt AJA agreeing); and Jaber v Rockdale City Council at [46]-[47] (Tobias JA, Campbell JA and Handley AJA agreeing). 45The primary judge described, at [87] and [95], the physical harm which might result from the activity in which the appellant proposed to engage as "potentially catastrophic" and "serious". Her Honour also described the probability of the occurrence of such harm as something which "could not be regarded as trivial": [95]. She concluded that the activity involved a "significant" risk of physical harm. The appellant criticises that conclusion on the basis that for a risk to be "significant" within s 5K it must have a "real chance of materialising". The appellant also says that in assessing the probability of the occurrence of such harm, the primary judge did not have sufficient regard to the circumstances which are also relied upon as justifying a conclusion that the risk of an impact injury was not "obvious". 46In her consideration of whether the risk was "significant" the primary judge referred at [94] to the observations of Ipp JA at [18] and Tobias JA at [91] in Fallas v Mourlas. In the first of these paragraphs, having noted that whether a risk is "significant" is to be informed by the probability of its occurrence as well as the nature of the harm which might result, Ipp JA said in relation to the former that it was not practicable or desirable to impose any further definition other than to say that the risk of its occurrence should be "somewhere between a trivial risk and a risk likely to materialise". In the latter paragraph, having referred to this statement and noted that a risk having "a real chance of materialising" lay somewhere between the two points referred to, Tobias JA said that as a "general guide" "the risk should have a real chance of materialising for it to qualify as significant". 47The appellant relies upon Tobias JA's statement as laying down what must be established in every case for there to be a "significant risk". That reliance is misplaced. That is not the effect of what Tobias JA decided. Nor does it reflect what later decisions of this Court have held to be the relevant principle. Tobias JA was not seeking to lay down any more than "a general guide" to assessing what is a "significant" risk. He accepted that in each case the characterisation of a risk as such must depend upon the particular facts and circumstances. In Lormine Pty Ltd v Xuereb, this Court (Mason P, McColl JA and Hunt AJA agreeing), after referring to earlier decisions, including Fallas v Mourlas, summarised in the following terms what the statutory provisions required when determining whether a recreational activity is "dangerous": "[31] ... The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm." 48In Jaber v Rockdale City Council, having referred to this statement, Tobias JA (Campbell JA and Handley AJA agreeing) said that "the relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm". The primary judge applied that construction of the relevant statutory provisions and, contrary to the appellant's submissions, did not err in doing so. 49Her Honour was satisfied that the chance or probability of the appellant suffering serious injury in attempting the back flip manoeuvre was more than trivial. In being so satisfied, she did not fail to take account of the particular circumstances to which the appellant refers. As the analysis above in relation to "obvious risk" shows, those circumstances did not exclude the real possibility that the appellant might land in water which was too shallow and make contact with the riverbed. 50In some cases, this being one, it may not be possible to assess on a prospective basis, and by reference to the circumstances of the activity engaged in, the probability of a risk of harm coming to pass other than by saying that it lies in a range between not fanciful or of no significance and high. That is the case here because the depth of the water in all of the areas where the appellant might land was not known and depending upon where and how he landed the probability of his hitting the riverbed could be high. The risk or chance of that happening was "real" and "present" and the consequences of its occurring were potentially catastrophic. In my view that risk of physical harm was a "significant" one and the activity which involved that risk was "dangerous" in the sense of being unsafe because it was accompanied by a real risk of serious injury. 51The appellant also relied upon the observation of Tobias AJA in Laoulach v Ibrahim at [123] that for a risk to be "significant there must be a finding not only that it was more than trivial or very slight but also, generally speaking, that there was a real chance of the risk materialising". In that case this Court overturned the conclusion of the primary judge that the risk of harm in diving from the bow of a vessel moored in Botany Bay was "significant". It did so on the basis of his unchallenged finding that the "probability of the risk of harm materialising was low" (at [123]). That is not this case. Here the probability of the risk of harm materialising was more than trivial and could have been high. 52The obvious risk, which resulted in the appellant's injury, was one which made the activity in which he was engaged "dangerous". For that reason it is not necessary to address whether the "obvious risk" which materialises and results in the relevant physical harm has to be the or a "significant risk" of the relevant recreational activity so as to constitute it as a "dangerous" one: cf the differing views expressed in Fallas v Mourlas by Ipp JA at [29] and Basten JA at [151]. The primary judge correctly concluded that s 5L(1) applied with the result that the Council was not liable to the appellant. That conclusion means that the appeal must be dismissed. The remaining issues in the appeal 53In view of this conclusion it is possible to deal fairly briefly with the remaining liability issues. They turn on whether the Council's duty to exercise reasonable care owed to persons using the park on the Saturday of the Australia Day events required, in circumstances where it was aware of the existence of the rope swing and could not remove it before the commencement of the following week, that it take the precaution of positioning a security guard at the tree to prevent anyone from using the rope. 54Consideration of this question did not necessitate a finding that the Council's duty to exercise reasonable care required that it undertake the routine inspections for rope swings which it was undertaking before and at the time of the accident. The primary judge did, however, have to consider whether a reasonable authority in its position would have removed the rope before or on the Saturday of the Australia Day event and concluded that it would not have done so: [65], [66], [73]. Her Honour found that a qualified climbing arborist was required to remove the rope from the tree in Oddies Creek Park because of the lack of vehicle access to the riverbank via that park: [21], [58]; that neither of the contractors who had previously been engaged by the Council was available to remove the rope at any time before the following week: [23], [24]; and that there was no evidence as to the availability of any other suitably qualified arborist to remove the rope over the weekend: [65]. 55Those findings were supported by the evidence of Ms Hunichen and Mr Gribble, a parks maintenance operator employed by the Council. Each said that the rope swing could not safely be accessed or removed by Council staff. That evidence was not challenged and it was not suggested to either witness that there were no significant safety reasons which prevented either Council officers or non-approved arborists from being used to remove the rope (cf grounds 9, 10 and 11). The appellant argues that the fact that children were climbing in the tree and using the rope swing indicated that it was able safely to be accessed and removed by Council staff or others. That argument was not pursued in cross-examination of any of the respondent's witnesses. It does not take account of their evidence as to the existence of safety problems. Nor does it consider the obvious differences between using the rope and seeking to remove it from the higher point where it was attached to the tree. The appellant also says that the rope could have been removed by one of the contractors after hours on the Friday or early on the Saturday morning. That argument also was not pursued in the cross-examination of Ms Hunichen. Her evidence was that neither of the contractors she contacted was able to remove the rope before the Tuesday of the following week. That evidence was not challenged and the possibility that she had not sufficiently pressed those contractors to make themselves available outside their ordinary working hours was not raised. 56In the absence of any of these arguments being available, the primary judge did not err in concluding at [65]: "There was no evidence of the availability of any suitably qualified arborist over the Australia Day long weekend. Any resort by the defendant to a non-approved arborist in the short period of time between the discovery of the rope swing and the Australia Day celebrations (including the removal of the rope swing at night) would expose the contractors or the defendant's employees to the risk of injury arising out of potentially unsafe work practices." 57The primary judge then addressed the question whether there was a breach of duty by the respondent in failing to supervise the rope swing so as to prevent its use. She did so by reference to the provisions of s 5B of the Act. That section requires that in determining whether a reasonable person in the position of the defendant would have taken a precaution against a risk of harm, the Court balance the probability of that harm occurring, and its likely consequences, against the burden of taking that precaution to avoid that risk: s 5B(2). It is also necessary, when considering that burden, to have regard to the burden of taking precautions to avoid other similar risks of harm for which the defendant may be responsible: s 5C(a). 58The primary judge identified the risk of harm which the rope swing presented on the Saturday of the Australia Day event as being the risk associated with its use as opposed to jumping or diving from the tree to which it was attached or from some other tree along the riverbank in that area or from the Union Bridge: [54]. The appellant submits that when addressing issues as to content of duty and breach with respect to the risk of harm, the primary judge failed to have sufficient regard to the fact that the Council was aware of the presence of the rope on a day when the park areas under its control (which enabled access to the rope) would be attended by a much larger number of people, including children, than would ordinarily be the case. It is also said that these issues fall to be considered in circumstances where the Council had encouraged the use of the rope swing by not removing it or preventing access to it, knowing that children in particular would be attracted to it. 59The primary judge rejected the factual basis for this second argument. She concluded that the Council had not encouraged the recreational use of the tree or of any tree on the riverbank to which access could be obtained via areas it controlled: [49]. She also found that the invitation to members of the public to swim on the day in question was limited to the Noreuil park foreshore area: [51]; and that none of the events organised by the Council were to take place in Oddies Creek Park, although part of the Park was nominated as an area for "overflow parking": [41]. Each of these findings was justified on the evidence. Her Honour's conclusion that the Council had not in any sense encouraged the use of the rope also finds support in the evidence that rope swings "came and went" from different places on the riverbank and that the Council sought to remove them; and also in the absence of evidence of any conduct on the part of the Council which indicated to members of the public that it had placed the rope there, or knew of its presence, or that it otherwise encouraged the rope's use. 60Turning then to the appellant's main argument, the evidence did suggest that it was likely that more people, mostly children, would use the rope swing on that Saturday than on any other day in the summer holiday period. The appellant's evidence was that on other occasions, presumably in that school holiday period or on summer weekends, when there were rope swings in trees there were often eight or more boys lined up to take turns to use the rope. 61The system which the Council had adopted recognised that overall there may be an increased risk of harm associated with the use of rope swings. That system provided for the inspection of some of the parks and recreational areas under the Council's control and the removal of ropes in those areas on an "as soon as practicable" basis. It did not however ensure that there were never periods when there were ropes in those areas. Once discovered the ropes were there until removed and once removed they "regularly reappeared in the same spot or elsewhere": [62]. 62As the primary judge noted, the question whether a reasonable authority in the position of the Council would have taken the precaution of posting a security guard at the tree on the Saturday has to be determined prospectively taking into account that there may have been other similar risks which equally would have had to have been addressed: [55]. In considering that question the primary judge also took into account, correctly in my view, that there was no evidence of any previous jumping or diving accident involving trees or rope swings having occurred in any of the recreational areas patrolled by the Council's officers: [62]. No doubt that might be said to have been due in part to the fact that those inspections were taking place. 63The primary judge observed that there were many places along the riverbank to which the public had access via recreational areas under the Council's management and control, where a risk of injury arose from diving or jumping into the river from trees or using one of the "many rope swings that came and went": [56]. She assessed the increased risk of harm from using a rope as distinct from a tree as "moderate" rather than low: [63]; taking into account that it included the risk of impact with the surface of the water or some object below the surface of the water as well as with the riverbed: [63]; and observed that this increased risk was likely to vary from rope swing to rope swing depending upon the shape and position of the tree and any rope tied to it, as well as the depth of the river at that point. This meant that the risk of injury from jumping or diving in one place using a rope may not always be greater than that of jumping or diving at another without using a rope: [59]. 64In undertaking the balancing exercise required by s 5B(2) the primary judge also took into account that the presence of a security guard would not always prevent access to the tree or rope and that it might also encourage those who wished to dive or jump to move to some other location where they would not be prevented from doing so. The appellant argues that the primary judge erred in taking each of these matters into account. As to the first, he says that there was no evidence for the primary judge's observation that the security guards posted to the Union Bridge were sometimes ignored. That is not correct. The evidence of Ms Griese, an events officer employed by the Council, was that a "number of teenagers" jumped off the bridge, notwithstanding that there were security guards trying to prevent that from occurring. As to the second matter, the appellant submits that it is irrelevant that he and others may have dived or jumped in other locations if there was a security guard posted to the rope swing. I do not agree. Any consideration as to the precautions a reasonable authority would have taken should include an assessment of the consequences of the taking of those precautions; and specifically as to whether they were likely to be futile or to themselves involve further risks of harm to those to whom the duty of care is owed. The primary judge did not err in taking this second matter into account. 65The primary judge concluded that a reasonable authority would not have taken the precaution of placing a security guard at the tree. She considered that if in the circumstances the taking of that precaution was justified, it would equally have been necessary to take the same precaution against similar risks at any other locations where there were known to be rope swings: [67]. She observed: "[69] Having regard to the fact that the burden of taking precautions to avoid risk of harm includes the burden of taking precautions to avoid similar risks of harm, the burden upon the defendant extends to an obligation to monitor and supervise every rope swing, all trees and all bridges in the Council area which potentially provided launching points into the river, or continuous monitoring of the water levels beneath each of them, if those rope swings and overhang branches could not be removed. It has already been noted at [67] that there was a certain futility in posting security guards at Union Bridge. It is reasonable to infer that the attempt to supervise all these places would be similarly futile." 66The appellant says that this conclusion does not take into account that the circumstances of the Saturday were sufficiently unique to justify there being supervision preventing use of the rope in Oddies Creek Park on that day. The essence of this argument is that the number of people likely to use the rope on the Saturday was such as to increase the probability of the occurrence of the risk of serious injury to a point where the Council was required to eliminate it: see the similar analysis of McHugh J in Vairy v Wyong Shire Council esp at [38], [46]. That made it necessary for the respondent to single out the rope swing and to prevent its use on the day in question. 67This argument seeks to set the risk of harm from use of the rope apart from the more general risk of using rope swings or from diving or jumping from trees and bridges. In my view that is not justified when looking at the matter prospectively and from the perspective of an authority having responsibility for a number of parks and recreational areas providing access to the riverbank and considering what precautions reasonably would have been taken. The evidence did not show that there were known to be, or ought have been expected to be, particular or greater hazards associated with the rope swing on the tree in question. Nor did the evidence suggest that the Council had created that risk, or encouraged the use of the rope swing. Whilst it showed that the number of persons using the rope on the Saturday was likely to be higher than would have been the case on any other week day or weekend, the evidence also suggested that the frequency of use of ropes in that and other places could be similar on other days in the summer holiday period or on weekends. That being the case, in my view a local authority acting reasonably would have been justified in treating the risk of harm from use of the rope on the day in question as similar to the risk of harm from the use of other ropes in that and other park areas during the summer. The primary judge undertook the required balancing exercise on that basis. In my view she is not shown to have erred in doing so. Nor is she shown to have erred in her factual assessment that a reasonable person in the Council's position would not have taken the precaution of posting a guard so as to prevent the use of the rope on the Saturday of the Australia Day events. 68It follows that the appeal against the primary judge's conclusion that the respondent breached its duty of care also fails. Proposed orders 69The appeal should be dismissed with costs. 70WARD JA: I agree with Meagher JA. 71EMMETT JA: This appeal arises out of a tragic injury suffered by the appellant when he attempted a back flip into the Murray River from a rope attached to a tree overhanging the river. As a result of an apparent misjudgement on his part, he landed awkwardly, struck the riverbed and suffered severe spinal injury. He sued the respondent, Albury City Council (the Council), on the basis that the Council was negligent and that its negligence led to his injury. 72The Council relied on the provisions of s 5L of the Civil Liability Act 2002 as affording a complete defence to Mr Streller's claim. A judge of the Court found in favour of the Council. Mr Streller now appeals from the orders of the primary judge. 73Section 5L provides that a defendant is not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Under s 5K, recreational activity includes any pursuit or activity engaged in for enjoyment, relaxation or leisure. A dangerous recreational activity is one that involves a significant risk of physical harm. Under s 5F, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Risk refers to the chance or possibility of an occurrence that results in harm. Harm includes personal injury. Obvious risks include risks that are patent, or a matter of common knowledge, including a risk of something occurring even though it has a low probability of occurring. 74It was common ground that Mr Streller's act of swinging from the rope and jumping into the river was a recreational activity for the purposes of s 5L. He challenged the finding by the primary judge that the risk of harm involved in that activity was obvious and that his injury was the result of the materialisation of an obvious risk of a dangerous recreational activity. 75I have had the advantage of reading in draft form the proposed reasons of Meagher JA. I agree with his Honour's conclusion that the risk of injury to Mr Streller would have been obvious to a reasonable person in the position of Mr Streller. I also agree that the obvious risk that resulted in his injury was one that made the activity dangerous. The primary judge did not err in concluding that s 5L applied, affording the Council a defence to Mr Streller's claim. 76I agree with Meagher JA that the appeal should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2013