QUEENSLAND v KELLY ? BC201400777Supreme Court of Queensland ? Court of AppealFraser JA and Philippides and Henry JJAppeal No 4753 of 2013, SC No 8050 of 201117 September 2013, 25 February 2014State of Queensland v Kelly [2014] QCA 27TORTS ? Negligence ? Essentials of action for negligence ? Generally ? Where the respondent suffered injuries when he ran down a sand dune and fell into Lake Wabby on Fraser Island ? Where the respondent was shown an orientation video about Fraser Island by his tour company ? Where serious injuries had occurred at the lake in the past ? Where the respondent passed two signs warning of dangers associated with the lake and sand dunes ? Where the trial judge found the appellant negligent ? Where the appellant argued the risk of injury was an ?obvious risk? within the meaning of s 13 of the Civil Liability Act 2003 (Qld) ? Whether the risk of serious injury which materialised was an ?obvious risk? ? Whether and in what way the warning signs should be considered in determining whether the risk was an obvious risk.TORTS ? Negligence ? Contributory negligence ? Generally ? Where the respondent was an Irish tourist ? Where the respondent failed to study the warning signs closely ? Where the respondent had previously and repeatedly engaged in the activity without injury ? Whether the trial judge erred by making an insufficient reduction of damages to account for contributory negligence.(QLD) Civil Liability Act 2003 ss 13, 14, 15(1), 19(1), 23Brodie v Singleton Shire Council (2001) 206 CLR 512 ; [2001] HCA 29; Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Council of the City of Greater Taree v Wells (2010) 174 LGERA 208 ; [2010] NSWCA 147; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; Great Lakes Shire Council v Dederer; Roads & Traffic Authority of New South Wales v Dederer [2006] NSWCA 101; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 ; [1985] HCA 34; Wyong Shire Council v Vairy [2004] NSWCA 247, citedChotiputhsilpa v Waterhouse [2005] NSWCA 295, distinguishedJaber v Rockdale City Council [2008] NSWCA 98, consideredFraser JA.[1] The respondent was rendered a partial tetraplegic by injuries he suffered when he ran down a sand dune and fell into Lake Wabby on Fraser Island in September 2007. He sued the appellant for damages for negligence. The appellant conceded that it had the care, control and management of the public land on Fraser Island and owed a duty of care to lawful entrants on that land, including the respondent. There were disputes about the content of the duty and other matters.[2] After a three day trial upon the issue of liability only, the trial judge held that:(a) The content of the appellant?s duty of care was to take reasonable care to protect lawful entrants from risk of physical harm.(b) The respondent?s injuries were caused by the appellant?s breach of its duty of care in failing to provide adequate warning of the dangers inherent in the visit to Lake Wabby in a video which was shown to the respondent and others who were brought to Fraser Island by a commercial operator.(c) The damages recoverable by the respondent for the appellant?s negligence should be reduced by 15% because the respondent was guilty of contributory negligence in failing to closely read and obey signs which warned against running down dunes at Lake Wabby.[3] The trial judge therefore gave judgment for the respondent against the appellant for 85% of the respondent?s damages to be assessed.[4] The appellant has appealed against that judgment on the following grounds:1. His Honour erred in finding that the risk of serious injury inherent in the activity that the Plaintiff was engaging in at the time he sustained his injury was not an ?obvious risk? within the meaning of s 13 of the Civil Liability Act 2003.2. His Honour ought to have found that the risk involved in the said activity was ?an obvious risk.3. His Honour erred by finding that the two ?danger? signs erected on or about the walking track into Lake Wabby were not effective communications of the risk inherent in the said activity.4. In the premises, his Honour ought to have found:(a) the Appellant did not by operation of s 15 of the Civil Liability Act 2003 owe a duty to the Plaintiff to warn of the risk by inclusion of further information in the video viewed by the Plaintiff on or about the 25th of September 2007; and/or(b) the activity being engaged in by the Plaintiff was a ?dangerous recreational activity? within the meaning of ss 18 and 19 of the Civil Liability Act 2003; and(c) by s 19(1) of the Civil Liability Act 2003, the Appellant was not liable in negligence for harm suffered by the Plaintiff as a result of the materialisation of an obvious risk, being the said risk inherent in the activity engaged in by the Plaintiff.5. Alternatively, his Honour erred by reducing the damages for contributory negligence by 15% in that his Honour ought to have, in the premises, assessed the contributory negligence at 65%.?[5] As the appeal was argued, ground 3, like grounds 1 and 2, related to the question whether the risk of serious injury which materialised was an ?obvious risk?. Section 13 of the Civil Liability Act 2003 (Qld) provides:Meaning of obvious risk(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.(2) Obvious risks include risks that are patent or a matter of common knowledge.(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.Examples for subsection (5) ?1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer?s recommendation.[6] Section 15(1) provides that ?[a] person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff? and s 19(1) provides that ?[a] person is not liable in negligence for harm suffered by anoth-er person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.? The respondent succeeded in his claim only upon the ground that the appellant failed to warn him of the risk of injury which materialised. Accordingly, if this risk was an ?obvious risk? then the appellant must succeed in the appeal by virtue of s 15. On the other hand, if the risk was not an ?obvious risk?, neither s 15 nor s 19 is applicable.[7] It follows that the ultimate issues in the appeal are:(a) Did the trial judge err in finding that the risk of injury which materialised was not an ?obvious risk? within the meaning of s 13 of the Civil Liability Act 2003 (Qld)?(b) Alternatively, did the trial judge err by making an insufficient reduction of the damages on account of the respondent?s contributory negligence?Facts[8] The following facts found by the trial judge are not in issue.[9] The respondent was a 22 year old Irish tourist in Australia on a three month holiday which had commenced in July 2007. He had completed an apprenticeship as an electrician and worked as a tradesman for two to three years. In Ireland he had exposure to waterways and the ocean. He had not been exposed to sand dunes until he came to Australia. He visited Fraser Island after seeing advertisements at a hostel where he was staying with two friends. The owners of the hostel were licensed as commercial operators to bring tourists onto Fraser Island in four wheel drive vehicles. It was a condition of the licence that they ensure the persons coming to the island watch a video prepared by the appellant (by the Queensland National Parks and Wildlife Service). The respondent and his friends watched that video. The video showed some rules applicable on the island and some dangers the island presented to visitors. The video gave a number to individual points. At point 24, which was well into the video, there were warnings about entering shallow lakes and streams which occupied some seven seconds. The video showed an extremely shallow stream with an obvious bed and grassy reeds protruding the water?s surface. No reference was made to Lake Wabby, to steep sand dunes, or to the dangers of running down steep sand dunes.[10] The day after the video was shown to the respondent and his friends they were driven by the licensed commercial operators to Fraser Island. On the following day they were driven to the southern entrance to Lake Wabby, arriving at about 3.00 pm. They then walked for about 2.5 km, on a hot day, along that ?tough old track through the wood?1 to the lake. The lake presented as an attractive enticement to hot walkers. The respondent and his friends were hot and keen to get to it as quickly as they could.[11] Since at least 1999 this sign was present at the commencement of the track and at the entrance to the lake:The top pictogram depicts what appears to be a man diving, perhaps into shallow water, and hitting his head on a peak of a jagged surface. The lower pictogram depicts what appears to be a man diving into water.[12] The trial judge found that the respondent had a vague recollection of a sign on the path to the lake but that he was unclear about its location and content and he did not recall any warning or prohibition upon people running down the dunes or running into the water. Neither of the respondent?s friends had any recollection of any sign.[13] There were numerous other persons present at the lake, some swimming, some sunbathing, and quite a number of them running up and down the sand dunes. The respondent thought that there were about 30 people doing that at one stage. His friend Mr Heafey thought there were 50 to 60 on the dunes of the 100 people present at the lake. The respon-dent?s friend Mr Alan Kelly thought there were some 50 people present and about 10 or 15 running down the dunes. He spoke of tour buses and day tours in groups of 10 or 15 people in each group. These people were walking up the steep sand dune and running back down it and into the water. Mr Alan Kelly saw a few people diving but the respondent and Mr Heafey did not see any diving. The respondent did not relate the activity he saw to any of the warnings in the video which he had seen two days earlier.[14] The respondent had read advertisements which described Lake Wabby as the deepest lake on the island. His visual assessment was that it looked very deep given its colour, and he understood that it was very deep. The respondent and his friends first had a swim and then repeatedly ran up and down the dunes, falling or jumping into the water, in the area in which they had observed other people engaging in that activity. The respondent discovered that the water became very deep very quickly after he ran into it. Neither the respondent nor either of his friends was conscious that this involved any danger. It was fun. The trial judge accepted evidence given by the respondent, his friends, and his father, that the respondent was not a risk taker and he was not inclined to ignore safety messages. He had complied with safety warnings and directions at various locations during his trip along the eastern coast in Australia, and his friends behaved in a similar way. The respondent had not seen anyone get into any difficulty in running down the dune and into the water. Neither he nor any member of his group got into such difficulties when they were running down the dune. The respondent repeated this activity about 10 times.[15] There was a substantial contest at the trial about the mechanism by which the respondent fell and was injured when he ran down the sand hill for the last time. The trial judge accepted the following account given by the respondent:Now, on the last run where you had your injury, can you recollect and tell the Court what you did? ? I just ran down and with the steepness of it you kind of ? I just ? I was gathering up speed and I kind of lost ? you know, you kind of can?t control your legs, you?ve got momentum and I kind of just went when I got nearer the edge then head first. I kind of didn?t get to run into the water. I just kind of fell before I got into the water.Do you know the reason why you fell? What happened with your feet? ? I just kind of slipped in the ? you know, with the sand and with the momentum, you kind of, just kind of loose sand, and then I just went over.Had you been doing anything on that last run differently to what you had been doing on the runs before? ? No. No.Were you doing anything differently than what you observed the others that were running up and down the sand dune? ? No.Do you know how far away from the water?s edge it was that you lost your footing? ? Maybe a metre, maybe something, kind of ? I know I was close to the edge, close enough to the edge, within a metre maybe.?2[16] The trial judge found that ?the [respondent] was running down a steep sand dune towards the bottom of which he lost his footing, probably because the sand gave way or shifted underneath him, causing him to inadvertently plunge into the water too close to the edge and so suffered injury ? it was the sudden giving way of the sand, or the losing of the footing in the sand, that converted what was intended to be a jump into the water in perfect safety into an inadvertent head first plunge into the water with the potential for catastrophic results.?3[17] There was a long history of serious injury to visitors at Lake Wabby. The incidents were summarised in exhibit 11, although it was not known whether that was a complete record and it was not certain that the cause of each injury had been recorded accurately. In the 17 year period before the respondent was injured 18 incidents were recorded, many of which involved serious spinal injuries. Thirteen involved the back, neck or spine and others included references to inju-ries to feet, leg and shoulders. Many of the incidents refer to diving into the water or the shallow water of the lake. Some of the entries refer to the incident occurring when the injured person ran or walked down the Lake Wabby sand dune.[18] On 20 April 1993 the appellant?s ?Manager (Great Sandy)? wrote a memorandum to the ?Manager (Park Manage-ment)? expressing concern about a report of ?yet another accident at Lake Wabby?, referring to advice by staff that at least two people had broken their necks at the lake in the previous two years and had become quadriplegic and that earlier in 1993 another person had seriously injured his spinal cord, and recorded that:It appears that visitors injured generally read the warning signs at the lake but ignore the dangers. This area is clearly one of the most dangerous areas on park estate in Queensland by virtue of the number and seriousness of accidents there.The manager thought that the lake ?requires urgent evaluation and formulation of an action plan? and that the factors requiring consideration included adequacy of the existing signage and of other visitor information and of the desirability or need for fencing or other physical barriers to prevent visitors running down a dune.[19] In 2002 an assessment entitled ?Risk Assessment on Diving Injuries at Lake Wabby? was carried out. The trial judge questioned whether the real risk of injury at the lake was from diving:Generally speaking, one can understand persons suffering injury from diving into waters of unknown depth. But it is difficult to believe that the waters of Lake Wabby fall into this category. Here it seems very evident where the shallows of the lake are located. They are only to be found in the area immediately adjacent to the water?s edge. The water deepens suddenly from there. That circumstance at least raises the question of why it is that visitors are entering the water head first close in to the edge. The [respondent?s] facts might supply the answer.?4[20] The trial judge referred to the evidence about the numbers of persons running into the lake on the day of the res-pondent?s accident and to a photograph of someone rolling down a sand blow into the lake in the 2002 assessment and found that it seemed almost certain that visitors ran or rolled down the steep dunes into the water as an everyday event, and the respondent was not the first to find himself in difficulty as a result (as seemed clear from Ex 11). It was unsurprising that the 2002 assessment concluded, as it did, that the risk of injury was ?high? notwithstanding that ?considerable effort and strategies were in place? (including the two warning signs) to control the level of risk.5 The 2002 assessment recommended a review of ?the possibility of amending conditions of commercial operators to highlight the danger of persons diving into Lake Wabby (including an induction style orientation of Lake Wabby)?; that recommendation was not acted upon.6 The trial judge found that the manager?s opinions expressed in 1993 were accurate and applied with equal force when the plaintiff was injured in September 2007.[21] Nowhere else on Fraser Island had anything like this record of injury. So far as the evidence showed, no other lake on Fraser Island had an incident of serious injury caused by the method by which visitors entered the waters of the lake.7 That finding was informed by the cross-examination of Mr Belcher, the Fraser Coast Area Manager for Queensland Parks and Wildlife Services. To his knowledge there had not been any paraplegic or quadriplegic injuries occasioned within the last 10 years in any of the other lakes on the island or, within the last five years, at Indian Head (a headland on the ocean beach).8 The video shown to the respondent had been altered to encompass perceived risk of injury at Indian Head.[22] Fraser Island is an extremely popular tourist destination, being visited by about 356,000 people in May 2008. Fif-ty-five per cent (189,000 of the estimated number of those visitors) were on commercial tours, predominantly day tours. Visitor numbers had increased dramatically over the decades, being estimated at 220,000 in 1993 and 314,000 by 1999-2000. A significant number of the visitors visited Lake Wabby; in May 2008 it was estimated that about 109,400 people visited the lake, the peak daily use was 600, the maximum number of visitors to the lake at any one time was about 210, and the maximum group size was 52. The video seen by the respondent and his friends was required to be shown to all visitors who came to the island through licensed commercial operators, so that about 55% of all visitors to the island were exposed to the video.The trial judge?s conclusions[23] After holding that, measured against the likelihood and magnitude of risk of injury, the activity in which the res-pondent was engaged when he was injured did not involve ?obvious risk? of injury within the meaning of that term as it was defined in s 13 of the Act, the trial judge applied the principles relating to breach of a duty to take care in ss 9 and 10 of the Act and held that:(a) there was no breach of duty by the appellant in the positioning of the signs, but the signs were not ade-quate to convey the real danger at Lake Wabby (not only diving, but running down the steep dunes to the water);(b) the appellant breached its duty of care by:(i) ?failing to provide adequate warning of the dangers inherent in a visit to Lake Wabby by appro-priate adaptation of the video, mentioning not only diving but running down the steep dunes with express reference to the long list of catastrophic and serious injuries sustained there over the pre-ceding years?; and(ii) ?by failing to ensure that the signs leading into the lake more definitively identified the dangers by reference to the numbers of catastrophic injuries suffered and by the provision of a message that emphasised that the risks were not merely in diving into shallow water but in the running down the dunes?.9[24] The trial judge applied the principles concerning causation in s 11 of the Act and found that:(a) The respondent failed to satisfy the onus upon him of proving that, if the signs had been suitably adapted to avoid the appellant being in breach of its duty of care, the respondent would have seen the signs and they would have been effective in deterring his conduct. ?Factual causation? in respect of the signs was therefore not shown, with the result that the respondent failed to prove that his injuries were caused by the appellant?s breach of duty relating to the signs.(b) The respondent paid attention to the video when it was shown to them and, had the video contained the appropriate adaptations, the respondent would have seen, appreciated and heeded a warning against running down the steep dunes and thereby avoided that activity and the harm which resulted from it. ?Factual causation? and ?scope of liability? in respect of the video were established, with the result that the respondent proved that his injuries were caused by the appellant?s breach of duty relating to the video.[25] The appellant did not challenge any of these conclusions otherwise than by its quite narrow grounds of appeal to the effect that the risk was an ?obvious risk? so that the claim was defeated by s 15 or s 19 of the Act.[26] In relation to contributory negligence, the trial judge made the following findings. The true nature and extent of the risk of injury had not been brought home to the respondent but it was well known to the appellant. The respondent did not intentionally dive into the lake. He did know the depth of the water, having entered it on about nine or 10 previous occasions. He knew that the water was shallow immediately adjacent to the shore but he had not intended to enter the water head first at that point. He did not appreciate the risk of injury associated with the act of running down the dunes. There were not adequate signs warning of the risks. He was an Irish tourist unaccustomed to running down dunes but by the time of the subject event he had done so on nine or 10 occasions without hint of mishap and he had seen many others do the same.[27] The trial judge observed that the principle criticism which could be made of the respondent was that he failed to study the signs closely:? It was incumbent on him to read the signs. They plainly alerted him to a danger. They expressly warned against running down dunes. As I have said the problem is that the signs did not bring home the real risk in running down the dune ? a reasonable reading of them could lead a visitor to think it was the act of running and diving that represented the risk of injury not running and jumping. Acting reasonably he may not have understood why the signs contained that message, but the message not to do so was nonetheless clear. The authorities advised against running down the dunes.Had he read the signs and obeyed their message the accident would have been averted.The difficulty is that all the other information that he received suggested there was no significant danger. Many others were doing precisely the same activity, without mishap. He had done so himself without mishap on numerous occasions as had his friends.? In my view even though the signs did not adequately convey why visitors should not run down the dunes visitors enjoying a novel experience ought in their own interests exercise the caution that the authorities advise.?10[28] As I mentioned at the outset, the trial judge assessed the plaintiff?s contribution to his injury at 15%.Did the trial judge err in finding that the risk of serious injury which was inherent in the activity in which the respondent sustained his injury was not an ?obvious risk? within the meaning of s 13 of the Civil Liability Act 2003?[29] The trial judge held that all relevant circumstances must be brought into account and the test was objective. Ob-viousness of risk was ?merely a descriptive phrase that signifies the degree to which risk of harm may be apparent?: Consolidated Broken Hill Ltd v Edwards.11 The relevance of obviousness of risk was that ?persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards?: Brodie v Singleton Shire Council; Ghantous v Hawksbury City Council .12 In Wyong Shire Council v Vairy13 Tobias JA (Mason P agreeing) adopted the definition of ?obvious? in the commentary to [343A] of the Restatement (Second) of Torts (1965)14 as meaning ?that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment ??; in that definition ??condition? refers to the factual scenario facing the plaintiff ??. In Jaber v Rockdale City Council15 Tobias JA referred to Vairy and observed that the focus of the enquiry was not upon the putative tortfeasor but upon a reasonable person in the tortfeasor?s position and that whether or not a risk was ?obvious? ?may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff ??.[30] The trial judge considered that if the risk were defined as ?the risk of serious injury from entering the water head first too close into the shore? then the risk was obvious, but if the risk were defined as ?the risk of serious injury ? be-cause of the possibility of the sand giving way or tripping up at the crucial moment when running down the dune suffi-ciently to throw the person off balance and so converting an intended feet first jump into an unexpected and awkward head first entry into the water?, or merely as ?running down the sand dune into the water?, then the risk was not ?ob-vious? but was instead ?a trap for the unwary?.16 The trial judge observed that ?the depth of the water was known; the steepness of the dune evident; the firmness of the sand known ? or presumed to be known; the ability to reach deep water easily with a running jump demonstrated ? the risk here was not apparent to or would be recognised by a reason-able man in the position of the plaintiff exercising ordinary perception, intelligence and judgment ??.17[31] In holding that the risk which materialised was not an ?obvious risk? the trial judge took into account his findings that: the risk of serious injury was not apparent to a significant percentage of the visitors to Lake Wabby; the respondent was relatively young, had no experience with sand dunes, and had not previously been to Lake Wabby; there was no apparent danger in jumping into the water, which was sufficiently deep for that activity; before the respondent was injured he saw numerous other people at the lake engaged in a similar activity without incident; the respondent himself engaged in that activity on about 10 occasions without incident; it was not suggested that the respondent had observed the sand to give way so as to cause him to lose his footing on any previous occasion or that it had such an effect on any other person; the video which the plaintiff had seen included warnings about dangers presented by the topography of and activities on the Island but it did not indicate any problem with running down the sand dunes and jumping into any lake or Lake Wabby in particular; and there was no warning or description in the video, signs, or any published brochures, of the number of serious injuries which had occurred over the years at Lake Wabby or any of those injuries being associated with running down the sand dunes.[32] The trial judge also took into account his finding that ?[t]here was no sign or other warning in the plaintiff?s imme-diate vicinity that running down the sand dune involved a risk of serious injury such as a broken neck?.18 The trial judge observed that the effectiveness of the signs to warn of a risk of serious injury in running down the sand dunes must be seriously doubted because:(a) The 1993 assessment, the 2002 risk assessment, observations made by the respondent and his friends in 2007, and experience afterwards (there had been five more serious injuries since the respondent?s inci-dents, three of which appeared to involve running or rolling down the sand dune and one which recorded a neck injury suggested the dune may have been involved)19 consistently demonstrated that people ran down the dunes despite signs to much the same effect having been present for many years.(b) The numbers of people not complying with the sign (insofar as it warned of a risk of serious injury in running down the sand dunes) suggested that the message was not being communicated.(c) There were two problems with the signs:(i) After the first sign there was a 2.5 kilometre arduous trek to the lake and the sign at the entrance to the lake competed for attention with the attraction of the lake.(ii) The focus of the pictograms, if comprehensible at all, was diving and striking one?s head on a hard surface below the surface of the water, suggesting that the problem was ?running and di-ving? rather than ?running or diving?.20The arguments[33] It was not in issue that the decisions to which the trial judge referred accurately described the nature of the enquiry involved in deciding whether a risk was an ?obvious risk? for the purpose of the relevant division of the Act. The prin-ciples have since been restated in similar language in Laoulach v Ibrahim.21 The respondent referred also to the sum-mary by Beazley JA (McColl and Basten JJA agreeing) in Council of the City of Greater Taree v Wells:22Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that ?the position of the plaintiff? comprehended the particular circumstances in which the risk materialised and the harm was suffered.The question of obvious risk requires a determination of whether the appellant?s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101 ; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff?s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which ?the aspects of ?the position? of the plaintiff are to be ascribed to the reasonable person.?[34] Similarly, in Glad Retail Cleaning Pty Ltd v Alvarenga23 Sackville AJA (with whose reasons Barrett and Gleeson JJA agreed) quoted that passage, observed that what was determinative was not the plaintiff?s state of mind but what a reasonable person in the plaintiff?s position would regard as obvious, and held that the plaintiff?s evidence was relevant to the assessment of what a reasonable person would know about the risk.[35] The appellant argued that a reasonable person would have heeded the signs and not engaged in this activity at all, or engaged in it only with an awareness that it involved a risk of serious injury which the person chose to take. The tria

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