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Written by Peter Carter

February 25, 2014

Queensland’s Court of Appeal has today dismissed a government appeal against an April 2013 ruling that holds it mostly at fault for the injuries sustained by Evan Kelly – a 22-year-old electrician from county Kilkenny and in Australia for a three-month working holiday – running down the dunes and jumping into the waters of Lake Wabby.
Kelly lost his footing when the sand gave way underneath him towards the bottom of the steep dune he had run down, causing him to inadvertently plunge into the water too close to the water’s edge.

He sustained a C6 burst fracture from his head striking heavily the sandy bottom below the water’s surface, resulting in tetraplegia.  The sand giving way “converted what was intended to be a jump into the water in perfect safety into an inadvertent headfirst plunge with the potential for catastrophic results”.

He alleged the Queensland National Parks and Wildlife Service failed to sufficiently warn of known risks in participating in such activity that resulted in an “alarming” history of 18 incidents involving serious spinal injuries in the 17 years prior at the very same location. The park general manager addressed the risks be addressed as long ago as 1992 and in 2002 a risk assessment reached the same conclusion that urgent steps were required.

Kelly wasa person who observed safety messages during their holiday up Australia’s east coast – according to his three travel companions – and had no history as a risk-taker. Although he watched the QNPWS safety video with his companions as required by the tour operator who provided them with island accommodation, the video contained a short seven-second warning about entering shallow lakes and streams but no reference was made to Lake Wabby or the danger posed by running down steep sand dunes into bodies of water with unstable foreshores.

And although signs warning of the danger posed by shallow water were erected at the lake, the court considered them to be insufficiently frequent and explicit. “The true nature and extent of the risk of injury had not been brought home to Kelly but it was well known to QNPWS”.

The problems with the signs were that first “after the first sign there was a 2.5-kilometre arduous trek to the lake and the sign at the entrance to the lake competed for attention with the attraction of the lake”. Second, the focus of the pictograms, “if comprehensible at all, was diving and striking one‘s head on a hard surface below the surface of the water, suggesting that the problem was ‘running and diving’ rather than ‘running or diving'”.

The risk was not “obvious” but was instead “a trap for the unwary”. The State thus failed in its claim that it should be immune to any liability for the injury under the Civil Liability Act because the injury was “obvious”. The apportionment of fault 85% to the QNPWS and 15% to Kelly was upheld. The trial was in respect of liability only and if the judgement is upheld on appeal, damages will ultimately be assessed in a separate hearing.

State of Queensland v Kelly [2014] QCA 027 Brisbane Fraser JA and Philippides and Henry JJ 25/02/2014

Categories: Personal Injury , Litigation & Law Practice

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