Written by Peter CarterMay 27, 2015
A long weekend beach getaway to celebrate the 40th birthdays of two of the merrymakers ended in tragedy at Stradbroke Island’s Point Lookout.
The group arrived on Friday afternoon and collected the keys to the Mooloomba Road bungalow from the local Ray White office.
Barbie underway, Andrew Morris and two others left the house at about 9pm in search of steps to the beach below the headland, in preparation for their planned fishing expedition early in the morning.
The trio either misunderstood their directions or had been given misinformation as to the beach stairs’ location.
Had they proceeded further along the cliff-top road, signs indicating their position – illuminated by a streetlight at the Midjimberry St intersection – would have been obvious.
They took instead, what they thought was a “well-worn track,” leading off from a boardwalk, towards Frenchman’s Beach.
It was along that “track” that – guided only by a headlamp and a hand-held flashlight – they plodded until Morris came to the edge of the cliff and took a handhold on a tree that immediately collapsed sending him plummeting 20 m to a painful landing on his back.
Morris sued Redland Council for his resulting paraplegia, for failing to post signs warning of the proximity of the precipice and the danger of attempting to walk through the cliff-top vegetation.
More so – he argued – it should not have permitted a “well worn track” to develop as it was foreseeable that it might lure unsuspecting explorers like himself, towards danger.
Morris also sued the local Ray White franchisee for failing to give clear directions to the walkway. That argument was abandoned before the start of the 3 day Brisbane trial and the agency was awarded its costs on an indemnity basis.
Turning to the council’s responsibility, evidence form others among the party was that – just weeks later – the “struggled” to locate it. Council rangers swore there had never been any sign of any trodden path or anything of the like in the vicinity.
Justice Glenn Martin found that the “well worn track” simply did not exist.
“There was no path,” ruled the judge. “There was nothing on the headland that suggested the steps or any other entry to the beach could be found by walking through the bush”.
Hence there was no duty to warn of the risks such a path might pose.
In any event the risk of proximity to a cliff top was “obvious” in the context of Civil Liability Act s 13 – to any reasonable person in the plaintiff’s position. It was therefore a risk in respect of which the council was by s 15, immune to all compensation liability.
Those grounds were enough to sink the claim. There remains the possibility of an appeal. Given that ‘quantum’ was agreed between the parties prior to trial, no damages assessment was necessary and neither do we know the extent of any (substantial) award the victim might have received had he been successful.
But the court was – because of the prospect of an appeal – also tasked to determine whether Morris was “intoxicated” and whether he should be shackled by a mandatory 25% reduction in damages that an appeal court might allow.
Morris agreed to drink “four Coronas and four mid-strengths” up to set out on the expedition.
Expert evidence arrived at a range for his resulting blood alcohol concentration – based on the time of its consumption – of between 0.54% and 0.65%, which the court considered proved intoxication and entitled the council to the benefit of a rebuttable presumption of contributory negligence.
According to forensic pharmacologist Dr Judith Perl, an alcohol concentration of that order “would have impaired Mr Morris’s judgement, vision and vigilance”. Her evidence was preferred to that of colleague Dr Irvin who subscribed to the view that such alcohol level would not have impaired the performance of unchallenging tasks, like wandering through the scrub.
In Judge Martin’s view, “searching for steps in place unknown to him in the dark on uneven land with no path to follow and only the illumination from his head torch,” was indeed a demanding role, such that – for the purposes of Civil Liability Act s 47(3) – the contributory negligence presumption could not be refuted. Were his honour mindful of awarding damages, the reduction apportionable to the plaintiff’s own fault was not the minimum 25% under s 47(4), but a full 50%.