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Injured – Sand dunes Fraser Island

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The State Government was found liable for insufficiently warning of dangers (Kelly v State of Qld [2013] QSC 106)

Evan Kelly was a 22 year old Irish tourist who was seriously injured after running down a sand dune, losing his footing and landing head first into shallow water at Lake Wabby on Fraser Island. He broke a vertebra in his neck, damaged his spinal cord and was rendered a partial tetraplegic. He alleged negligence against the government entity which managed the Island and sought compensation for his injury.

Breach of Duty of Care

The Supreme Court determined that the defendant owed the plaintiff a duty of care which had subsequently been breached. On that point, it considered the following factors:

  1. A long history of serious injury. There were 18 incidents in the 17 year period prior to the plaintiff’s injury; many involving serious spinal injuries. His Honour found it patently apparent that the warning signs and information provided to tourists did not bring home to them the risks involved in the activities likely to be enjoyed at Lake Wabby.
  2. Inadequate warnings in video. Visitors were shown a video before they arrived at the Island. There was no reference which would have alerted the plaintiff to any problem with running down sand dunes and jumping into the lake. Nor was there any mention of the number of serious injuries which had previously occurred.
  3. Inadequate warnings in signage. A warning sign was erected at the entrance of a track (2.5 km from the Lake) and at the entrance of the Lake. The Court held that the positioning of the signs was adequate but that they failed to convey the real danger at the Lake. The dangers should have been more definitively defined by reference to the number of catastrophic injuries in association with running down sand dunes and diving into shallow water.

Obvious Risk and Dangerous Recreational Activity.

The Court held that the risk of serious injury was not obvious but rather a trap for the unwary. Accordingly, it could not be argued that he engaged in a dangerous recreational activity.

Contributory Negligence.

The Court determined that the plaintiff failed to study the warning signs closely which expressly warned against running down dunes (but did not go further to convey any real risk of serious injury). Had he read the signs and obeyed their message the accident would have been averted. The difficulty was that the information given suggested there was no significant danger. Accordingly, the plaintiff was found to have contributed to his injury by 15%. Judgement was given to the plaintiff against the defendant for 85% of the damages (which were to be assessed at a later date).

Injuries sustained by the Public

This case highlights that injuries sustained as a result of a controlling entity providing inadequate warnings of danger will be compensable. For more information please contact McColm Matsinger Lawyers.