Fisher v Shire of Denmark  WADC 1
- Visitors to public recreational areas are expected to exercise appropriate and reasonable care for their own safety
- A defendant, as an occupier, is able to rely on s 5O of the Civil Liability Act 2002 (WA) (CLA) as a defence to any ‘obvious risks’
- Failure to take precautionary steps to prevent the risk of harm occurring does not mean a defendant has breached their duty of care
On 26 October 2019, the plaintiff, Ms Christa Fisher, sustained a right ankle dislocation and fracture, after visiting Black Hole Rock (the site) near Denmark, Western Australia.
The site is both controlled and managed by the defendant, The Shire of Denmark.
The plaintiff and her husband were on an extended holiday in Western Australia, having started from Broome and then eventually into the Great Southern Region of Western Australia. The plaintiff and her husband had decided they would visit the tourist attraction of Black Hole Rock.
To reach the site, the plaintiff, as well as any other visitors, needed to walk down to the beach via a small set of limestone steps.
The court heard that, at the foot of the last step, there were a significant amount of small, loose gravel stones present on the ground (the landing), as the plaintiff descended the steps.
As the plaintiff lifted and placed her foot onto the landing, her foot slid forward and she fell onto her right side, causing herself injury.
The plaintiff had claimed that the defendant was liable pursuant to the Occupiers Liability Act (WA) (the OLA). The plaintiff needed to prove on the balance of probabilities that her injury was caused by the defendant’s negligence or breach of duty of care, owed as an occupier under the OLA.
The only issue to be determined at trial was liability.
The defendant admitted that it owed the plaintiff a duty of care as a visitor, and as an occupier of the site, pursuant to the OLA. However, the defendant denied that it was negligent in causing the plaintiff’s injury because there was an ‘obvious risk’ when it came to the plaintiff slipping on the loose gravel.
The trial Judge found the following:
- There was an obvious risk of harm because of the loose gravel, pursuant to the meaning of s 5F of the CLA.
- The operation of s 5O CLA means the defendant did not owe a duty of care to the plaintiff to warn her of the obvious risk at the site.
- It was not reasonable or practicable for the defendant to take precautions against the risk of the plaintiff slipping on the loose gravel, when considering the s 5(4) factors in the OLA.
- The risk of slipping on the loose gravel was foreseeable and not insignificant.
- The defendant is discharged of liability, because it did not breach its duty of care, by not being required to either warn or take precautionary steps to eliminate the risk of harm.
Russel DCJ noted that had there been something unusual about the gravel’s surface or if the plaintiff had been rushing down the steps, the risk of harm would still be foreseeable and not insignificant. This included the type of footwear worn when walking on loose gravel. However, Her Honour made it clear that persons attending these natural areas should be exercising appropriate care for themselves. Her Honour accepted loose gravel can cause unsteadiness, which she noted was common knowledge for any reasonable person.
The plaintiff’s claim was dismissed.
This recent case shows how occupiers, as defendants, can utilise the defence of ‘Obvious Risk’ and limit their liability, by easing their duty to warn a plaintiff of a potential hazard.
Lawful visitors attending such areas must be more vigilant when it comes to ‘obvious risks’, particularly around natural land sites, that are the victims of erosion or natural change, often posing risks of harm.
We address similar issues in the Case Note | Gravel is slippery – isn’t that obvious? 01 July 2022