Warning signs at beaches, boat ramps and wharfs have become an art-form, full of yellow diamonds and red circles with red lines.
But how effective are these warning signs to protect against claims for personal injury when a person slips and falls? The Supreme Court of NSW recently provided an answer for warning signs on boat ramps.
The boat ramp case – Bowman v Nambucca Shire Council [2020] NSWSC 1121
It was mid-afternoon on a hot February day. After enjoying afternoon tea in the picnic area at Forster Beach, Scotts Head in the mid-north coast of NSW, Mr Colin Bowman decided to go down to the water via the boat ramp.
The boat launching ramp consisted of concrete slabs which extended down to the water. Shortly after stepping on the ramp, Mr Bowman slipped. He fell backwards. The back of his head hit the ramp and he suffered severe concussion. He sued the Nambucca Shire Council for negligence.
The Council relied upon a large sign which was positioned next to the entrance to the boat ramp to warn against the danger of slipping on the ramp. The sign is illustrated.
At the top left of the sign is the word “WARNING” in red and large print, and at the top right are the words “This beach may be dangerous. Look out for hazards to yourself and people in your care.”
One yellow diamond has a picture of a boat ramp with the words “Boat ramp” beneath it. Another has an icon of slippery ground with squiggles and a person slipping over onto their back, with the words “Slippery area” below it.
The sign is significant as a risk warning to protect against legal liability. It also serves to emphasise obvious risks. But was it effective?
The sign as a risk warning
Justice Walton had to decide was whether the warning sign was a risk warning which conferred protection under 5M of the Civil Liability Act 2002 (NSW), which is:
s 5M No duty of care for recreational activity where risk warning
(1) A person … does not owe a duty of care to another person who engages in a recreational activity … to take care … if the risk [of the activity] was the subject of a risk warning …
(3) [a person must be] warned of the risk before engaging in the recreational activity … [but] The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned …
s 5K recreational activity includes –
- any sport (whether or not the sport is an organised activity), and
- any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
- any pursuit or activity engaged in at a place (such as a beach, park or other open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
Both parties accepted that Mr Bowman was engaged in a recreational activity, being an activity for leisure (a walk) and which was at a public place (a park or beach).
Mr Bowman submitted that the sign was not an adequate risk warning because it was too general – it was not specific about the slippery nature of the ramp.
Justice Walton rejected that submission, citing s 5M(5) and saying that:
the only surface that could logically have posed a risk of slipping was the boat ramp, which was directly behind the warning sign.
In any event, any lack of specificity in the warning does not negate its applicability to the boat ramp. Rather, it implies that all surfaces will or may be slippery, including the boat ramp, which is specifically referred to in the sign.
according to Mr McNally, who gave evidence in the plaintiff’s case, there should have been a separate sign to warn of the risk of slipping on the ramp. Logically, lest any particular risk warning be overlooked as being of lesser importance, each of the slippery surfaces would then need to be the subject of a separate sign; and each of the 15 other warnings on the warning sign would need to be the subject of a separate sign. Not only would this lead to an absurd outcome … it is plainly contrary to the legislative intent behind s 5M. It would also be contrary to RMS’s [Roads & Maritime Services Authority] advice that there should be a single signage board.
[judgment, paragraphs 243 & 244]
The risk was obvious – no duty to warn
The Council submitted that if Mr Bowman was not engaged in a recreational activity, then the Council would not be liable because the risk of slipping and falling was an obvious risk. Therefore there was an “Assumption of risk” by Mr Bowman and the Council had no duty to warn.
Note: The legal maxim is volenti non fit injuria: if a person has knowledge of a risk and accepts it, they cannot claim that a party failed to give warning or is liable for negligence.
Sections 5F, 5G and 5H of the Civil Liability Act 2002 (NSW) apply, which are:
5F Meaning of “obvious risk”
- … an obvious risk to a person who suffers harm is a risk that … would have been obvious to a reasonable person in the position of that person.
- Obvious risks include risks that are patent or a matter of common knowledge.
5G Injured persons presumed to be aware of obvious risks
- … a person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5H No proactive duty to warn of obvious risk
- A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
Justice Walton said that:
the relevant risk of harm was the risk that a pedestrian might slip on the boat ramp.
The risk of slipping whilst walking on a marine surface such as the boat ramp due to wetness or marine growth is a matter of common knowledge.
He had an unobstructed view of the boat ramp in daylight.
the “failure to warn” parts of the plaintiff’s case must fail [including] the allegations that the defendant should have installed different or better warning signs.
[judgment, paragraphs 289, 290, 291 & 299]
Justice Walton rejected Mr Bowman’s submission under s 5B(2) that a reasonable person in the position of the Council would have placed the sign in a different position, to make it more likely to be seen:
The plaintiff has not proven that a reasonable person in the defendant’s position would have placed the sign in a different position. Nor has he proved what that position would have been or that it would have made any difference to the course of events, particularly having regard to the facts that the plaintiff knew of its existence, that it was a warning and of the nature of the risks to which the sign referred.
[judgment, paragraph 303]
There was no causation
Justice Walton concluded:
The plaintiff has failed to establish factual causation for the purposes of s 5D [that the negligence was a necessary condition of the occurrence of the harm] for the following reasons:
1. In relation to the signage, the plaintiff was aware of the warning sign having previously seen it. He was also aware that it provided warnings. He already had experience of boat ramps being slippery, and agreed that he would approach any boat ramp on the basis that it could be slippery. In those circumstances, a separate sign warning only of a slippery ramp could not, on the evidence, have changed the outcome, particularly as there was no evidence as to where such a sign would have been placed so as to make it more noticeable or more visible to the plaintiff.
Note: the other reasons addressed alleged failures to pressure clean, to cut grooves, an excessive gradient and failure to install rubber matting which are not relevant to the warning sign.
[judgment, paragraph 376]
Conclusion
The warning sign at the boat ramp at Forster Beach was effective to protect the Council against liability for negligence.