Written by Peter CarterMarch 13, 2011
The Supreme Court has ruled on the claim of a 17-year-old student who sustained quadriplegia in September 2002 when his head struck the river bed during after-school play resulting in $5 million agreed damages.
Timothy Felhaber had been swinging on an improvised rope swing from the bough of a tree in a popular area of the river in the centre of Rockhampton, something he had done up to a thousand times before. The council had established the area known as the Ski Gardens, as a playground, picnic area and boat ramp and manicured its lawns, removed rubbish and pruned its trees. It did not remove the rope swing from the tree from which Felhaber was diving.
The council was aware of the risk of a particular type of injury. Rope swings were common in the district – hundreds of others had been removed under the Parks Director’s orders. Its risk manager rated the risk of injury as “high”. It subsequently removed the rope and erected a comprehensive warning sign. The sign also specified in words and pictograms that diving was prohibited there.
A great case for our plaintiff, you may think. Read on.
Felhaber – represented by Maurice Blackburn – knew of the risks of diving into shallow areas. He also knew the variable depth of the riverbed because every time he dived in, he had to wade back to the bank.
His case was, therefore, that he did not appreciate that a small error in his swing could carry his dive to the shallow area near the river bank and that he had been led to believe by the council that diving there carried no risk: the council had allowed swing ropes to remain there for long periods, lots of other people used the particular swing and the council maintained the area as an inviting place to go.
The council defended by asserting no breach duty and the plaintiff had voluntarily accepted all risks of injury.
His Honour accepted what he considered to be a compelling view of the evidence in favour of the council – judgment* was entered for the council.
Firstly, there had been no previous reports of injury at that location or from other rope swings ever: There was a low probability of serious injury occurring, as in Bolton v Stone itself.
Secondly, the council had wide responsibilities that demanded safety responses of differing priorities: It was not required to act immediately upon the mere notice to it of the presence of a rope swing. Rather, it was only required to respond reasonably.
Thirdly, the mere maintenance of the area – that was used for many other purposes – was not an encouragement of visitors to use the swing.
Fourthly, the risk was obvious: It was not a hidden danger that only those in the council knew of or appreciated.
Fifthly, regardless of whether the plaintiff appreciated all the risks of using the swing, the “average user would be likely to have a keen appreciation of the risk of injury” that resulted.
Sixthly, allowing the use of the rope swing by others, including adults, could not be taken as any holding out by the council that the area was risk-free.
The council owed a duty, so held the court, but that duty did not extend to the extent alleged by the plaintiff.
Rather the resulting injury to the plaintiff “was a risk he courted with every dive”.
Vairy v Wyong Shire Council where the plaintiff sustained similar injuries from diving from a rock ledge into the ocean on to the sandy sea bottom, was distinguished on two grounds. In that case, the council had already been aware of a similarly devastating injury in the same area some years before. Also, the “depth of seawater can vary significantly over time with the shifting of sands caused by wind and tide”, unlike in a normally flowing river.
It is also worth observing that His Honour also upheld the defence of voluntary assumption of risk and was of the view that the extent of contributory negligence was 50%. Neither of these findings were ultimately relevant given the initial finding of no breach of duty.
* Felhaber v Rockhampton City Council  QSC 023 (05/0448), McMeekin J 24/02/2011