Prast v Town of Cottesloe

(2000) 22 WAR 474; [2000] WASCA 274

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Duty of care owed by local authority controlling public beach
5. › Extent of duty to warn of risks of recreational activity
6. › Whether risk of serious injury from body-surfing was a hidden danger
7. › Whether warning required where risk is obvious
8. › Occupiers Liability Act 1985 (WA)
1. Tort
2. › Negligence
3. › Breach of duty
4. › Obviousness of risk
5. › Whether occupier required to warn of obvious and inherent risks of recreational activity
6. › Whether risk of serious spinal injury from body-surfing is obvious
1. Tort
2. › Negligence
3. › Causation
4. › Subjective test for causation in failure-to-warn cases
5. › Whether plaintiff would have heeded warning signs
6. › Role of objective factors in assessing subjective evidence
7. › Reliability of hypothetical deductive evidence

Quick Take

A local authority controlling a public beach is not required to warn of the obvious and inherent risks of body-surfing, including the risk of serious spinal injury from being dumped by a wave. The risk of being dumped is inherent in body-surfing and is to be distinguished from hidden dangers such as submerged rocks in diving cases. Causation in failure-to-warn cases is determined by a subjective test — what would this plaintiff have done — but objective factors are critical to assessing the reliability of the plaintiff's hypothetical evidence.