June 27, 2013

A spinal injury compensation victory for an Irish tourist arising from an excursion to an inland Fraser Island lake in September 2007 is a subject of an appeal lodged by the state of Queensland against the April ruling that sees it 85% at fault for the accident. 

The Supreme Court at Rockhampton ruled that the injury was caused, in the main, by the state’s negligent failure to warn of the risk posed to visitors by the inviting, but steep, dunes on the lake’s western shore.

Evan Kelly – a 22-year-old electrician from county Kilkenny and in Australia for a three-month working holiday – did what at least 30 other holidaymakers were engaged in at the time: running down the dunes and diving headfirst into Lake Wabby.

Kelly had repeated his frolic on about 10 occasions before the accident that resulted in a C6 burst fracture from his head striking heavily the sandy bottom a few feet below the water’s surface. He staked his claim upon the failure by the Queensland National Parks and Wildlife Service warning of known risks in participating in such activity.

The court considered, in particular, the QNPWS safety video that he and his three friends were made to watch by the tour operator who provided them with island accommodation and who conducted the tour to the lake. It was, in fact, a condition of the tour operator’s licence that all visitors to whom they provided services be required to view the video.

Although the video contained a short seven-second warning about entering shallow lakes and streams, no reference was made to Lake Wabby or the danger posed by running down steep sand dunes into bodies of water of uncertain depth.

And although signs warning of the danger posed by shallow water were erected at the lake, the court had to consider whether such warnings were sufficiently frequent and explicit. That there were about 30 other holidaymakers at the lake doing exactly the same thing that afternoon was evidence that the signs did not adequately convey the serious risk posed by the activity.

Also compelling was the “alarming” history of 18 incidents involving serious spinal injuries in the 17 year period prior to this particular incident caused by running down the very same dunes into the very same lake.

Against such evidence, the court was of the view that the warning signs and video – while adequate enough to warn of danger from jumping from the shore into the water  -“did not bring home to visitors the risks involved in activities likely to be enjoyed at Lake Wabby”, namely from the speed and momentum gained from a rapid descent down the dunes.

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.

Kelly v State of Queensland [2013] QSC 106 Brisbane McMeekin J 30/04/2013

Categories: Personal Injury , Litigation & Law Practice , Holiday & Travel Law

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