A recent media report in a Sydney newspaper highlighted the issue of fencing along one of Sydney’s most notorious suicide spots: ‘The Gap’. The Woollahra Council is erecting a 1.3 metre-high fence as part of a $2.2 million project to deter people from jumping off the 40m sandstone cliffs. The article in the Sun Herald (26 June, 2011), quoted concerns raised by the public about the inadequacy of the fence to deter people contemplating suicide. According to Sydney mother Dianne Gaddin, whose daughter Tracy took her life at The Gap in November 2005, the fence is too low to effectively provide a physical barrier. A spokeswoman for Woollahra Council, however, suggested that the purpose of the fence is to serve as a psychological deterrent. The spokeswoman said that:

“We know it is not impossible to climb it, but it's about buying time by making it difficult so that those considering suicide may stop to reconsider.”

Given the prevalence of such steep cliffs along Sydney’s coastline, this issue raises questions about the expected standard of care required for councils to consider when erecting fencing along popular coastal areas.

In order to discharge the duty of care owed to land users, public land owners are under a number of legal obligations, including to implement reasonable risk management strategies. Under the law of negligence, liability arises if a failure to exercise that duty of care causes a person to whom that duty was owed to suffer a reasonably foreseeable injury or fatality. The standard of care required is the objective standard to which a reasonable person in the land owner’s position would adhere, given all the factual circumstances.

The following case law can give some guidance  in clarifying what the duty of care encompasses in relation to publicly accessible, cliff-side locations. Of course, this is not legal advice and readers need to seek their own legal advice on matters such as this.

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 [1998]

In a 1998 case: Romeo v the Commission of the Northern Territory, a young woman became a paraplegic after falling six and a half metres from the top of a cliff onto a beach in a nature reserve while intoxicated. The reserve was under the management of the Northern Territory’s Conservation Commission.

Three metres from the edge of the cliff was a car park enclosed by low log fence. Beyond this point, however, there was an open space covered merely with vegetation. No additional barrier was installed at the cliff edge. The court held that the Commission owed a duty of care to any person who enters the reserve, to avoid reasonably foreseeable risks of injury. It was also held that that the risk of a person falling off the cliff was reasonably foreseeable.

However, the court decided that the duty of care did not extend to ensuring the installation of an 8km fence along the entire length of the cliff.  Given the obviousness of the cliff edge and the sparsely populated and remote nature of the reserve, constructing a fence of this extent was not considered to be a reasonable measure.

In the case of Sydney’s coastline, the risk to a person of falling from cliffs is obvious and not dissimilar to this case.  However the number of people exposed to the risk would be far higher due to the large numbers of visitors to these popular vantage points.

Shire of Gingin v Coombe (2009) WASCA 92

The expected level of care imposed by such duties not only applies to the need for fencing, but also to the level of signage required.

In another case: Shire of Gingin v Coombe, the issue of fulfilment of a duty to provide warning or information is discussed. In this case the plaintiff was injured while riding an all-terrain vehicle on a site owned and occupied by the Shire of Gingin Council in Western Australia. He brought a negligence action against the Council in respect of those injuries, alleging that the Council had breached its duty of care by failing to warn him of the risks inherent in that activity.

The Council had erected warning signage; its adequacy in providing reasonable notice to the public of potential dangers was debated by the court. A number of issues raised in the discussion of the adequacy of the signage include:

  • The location of the signage. It needed to be positioned in an area where people are likely to stop and read it.
  • Its pictorial denotation of the area designated for the recreational purposes and the clarity with which it provided direction to regulations which applied  to the area’s recreational use
  • The layout of the signage and visibility of specific warning messages
  • The accessibility of the warning messages. Simple language and visual representations were suggested to ensure that the signage is easily interpretable.

Ah Tong v Wingecarribee Council [2003] NSWCA 381

A six year old child in this case died from a cliff fall. The cliff was formed by an abandoned quarry on the Mt Gibraltar Reserve, near Bowral. An action was brought in negligence by the child’s parents against the Wingecarribee Council, which was held to owe a duty of care to all visitors to the reserve as its owner and manager. The plaintiffs argued that the Council had breached its duty by neglecting to implement the following risk controls:

  • Installing safety fences along the cliffs; and
  • Erecting signage in the picnic area to warn of the proximity and direction of the cliffs

It was held that there was insufficient evidence to conclude that it was reasonably necessary to ensure the installation of fencing. The precise extent of the cliff's perimeter and the nature, likely effectiveness and cost of fencing required and its aesthetic implications were held to be relevant considerations in the assessment of reasonableness, and information regarding these factors was unavailable to the court. The Council was not therefore held to be negligent on the grounds of failing to install fencing.

The court did however consider that it was objectively reasonable to expect that signs would be erected within the picnic area to warn of the existence and proximity of formed cliffs. In particular it was held that the placement of such signage at entry points to pathways which lead towards or pass alongside the abandoned quarries would provide a prominent, yet aesthetically unobjectionable warning. Given that the picnic area and walking tracks are the most frequented locations, it was held that the placement of a considerable number of signs ‘at various (other) points along or corresponding with the length of the cliff face’  (Appeal Court) would, by contrast, be an unreasonable measure. In failing to erect any appropriate warning signage Council was held to have fallen short of its duty of care and was liable in negligence because this shortfall was proved to have been the cause of the child’s accident.

This case illustrates the need for risk warning signage where obvious hazards are located, however the placement of excessive numbers of signs along cliff edges may be unreasonable.  The challenge for land owners is achieving the objectives of adequate risk warning without overly compromising the natural beauty of the area.

The Civil Liability Act 2002 (NSW) – Obvious and Inherent Risk

In NSW, further clarity regarding the obvious nature of risks was raised under the Civil Liability Amendment (Personal Responsibility) Act 2002. It provides that a person is not liable in negligence in respect of injury sustained as the result of an obvious or inherent risk.

  • The act defines ‘obvious risk’ as ‘a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the person injured.’

The law does not impose a duty of care to provide warning of an obvious risk as the injured person is presumed to have been aware of it, unless they have made a specific request for information about that risk.

An inherent risk is defined in the act as a ‘risk that cannot be avoided by the exercise of reasonable care and skill’.