Termination of permission for abseiling and rock climbing at Diamond Bay Reserve (2-1-20)

Report dated 4 February 2002 from the Director, Beach Park & Recreation Services on the termination of issuing permits for abseiling and rock climbing at Diamond Bay Reserve.

Recommended:

That Council:

(a) Receive and note the information contained in this report;

(b) Cease issuing permits for abseiling and rock climbing in and around Rosa Gully and Diamond Bay Reserve, with the exception of activities by the State Emergency Service, NSW Police Department, Australian Defence Force or similar organisations for purposes specifically approved by the Director, Beach Park & Recreation Services; and

(c) Approve the installation of appropriate fencing and signage in Diamond Bay Reserve and wherever deemed necessary.

Prefatory note

Primarily due to the complexity of the legal issues involved, the following discussion is necessarily detailed. A concise outline is given in the Conclusion, section 6.

1. Background

Diamond Bay Reserve has long been used for abseiling and rock climbing activities, though without official Council recognition or permission until late 1999. At that time Council began issuing short-term permits to commercial firms for such activities, on a trial basis.

Although the trial went well, it became apparent that the implementation of Council’s Cliff Walk proposal would create a conflict between abseilers’ access requirements and the need for more stringent risk management measures at cliffside locations, especially at Diamond Bay Reserve where a fence was to be (and is now being) installed. In July 2001 Council therefore advised existing permit-holders that no permits would be issued after 30 September 2001. Given the apparent similarity of risk management issues at other sites, a report to the Planning, Environment, Housing & Public Works Committee meeting of 12 August 2001 also proposed banning such activities throughout Council’s area.

Objections to this proposal were received from both commercial permit-holders and recreational climbers and climbing organisations. Consequently Council agreed to defer a decision until objectors’ submissions could be received and considered. About 40 submissions were received, mostly from recreational climbers, all opposing a blanket ban and many drawing a distinction between recreational and commercial climbing groups in terms of their impact on the site and their associated level of risk.

While distinguishing usefully between commercial climbing groups (which typically consist of inexperienced, untrained tourists under the supervision of company guides) and recreational climbers (typically experienced enthusiasts operating in 2-person teams), the submissions did not persuasively allay risk concerns, and a report to the abovementioned committee on 18 September 2001 again recommended that no more permits be issued, and that signs be erected where appropriate at Diamond Bay Reserve to warn of the danger associated with the location.

At this meeting the Committee resolved to ‘further investigate the issue of commercial activities covering matters raised by Council and the public… including questions of liability, plans of management, costs of additional insurance premiums and local resident views on the commercial use of a passive reserve’. The purpose of this report is to present information on these matters, which are addressed below.

(Until this matter is resolved, previous permit-holders have been given renewed permission to conduct abseiling and rock climbing at Diamond Bay Reserve.)

2. Liability issues

Abseiling and rock climbing present a complex liability problem to approving authorities. On the one hand, without draconian measures it is almost impossible to render any typical climbing site (such as a cliff) completely safe: most fences can be crossed, while warning signs of whatever size and location can be vandalised, stolen, misunderstood or ignored. On the other hand (so it is commonly thought), authorities failing to take adequate safety measures while knowing of such activities in their jurisdictions risk being found liable on the basis of negligence.

One approach to this dilemma, which Waverley Council adopted until late 1999, is to ‘benignly ignore’ the situation by not officially recognising that such activities go on and refusing to issue permission when approached. It is not clear, however, either that ignorance about activities is a valid legal excuse, or that councils are exposed to liability simply by not being ignorant, or even by admitting to not being ignorant, of activities in their reserves.

The following discussion is based on material in recent documents which appear to represent current thinking on these issues. (Paraphrases and quotations from these documents are numbered according to the source list in the Appendix.) It should be noted, however, that exhaustive knowledge of this complex area of law is not claimed here.

2.1 Liability

Liability is incurred by negligence, specifically by failure to exercise duty of care where such duty exists.

2.2 Duty of care

Assessing whether such a duty exists depends on:

What counts as ‘reasonable’ foreseeability partly depends on decisions about the ‘foresight and caution of an ordinary or average and prudent person’ (5).

A land manager’s proximity of relationship to a trespasser, for example, would be very low, while proximity to a legally contracted tenant would be high.

This depends on many factors including the degree of control the land manager has over use of the site, the manager’s awareness of risks, the obviousness of such risks to users, the skill level that users can reasonably be assumed to have and the degree to which risk is inherent in the activities undertaken.

Land managers might therefore escape liability if they can escape duty of care. This strategy is unlikely to succeed for councils for the following reasons. First, sites attractive to rock climbers and abseilers, usually cliffs, inherently pose a foreseeable risk of injury. Second, councils necessarily have a reasonable degree of proximity to members of the public using community land under their management. Third, it is so difficult to prove that land users knew the dangers inherent in their activities, or were aware of on-site risks, that this defence has generally failed in court (1).

Duty of care is even less escapable either where Council has introduced foreseeable risks such as uncovered pits, potential trip hazards or, in the abseiling and climbing context, anchor points or bolts (including those that Council has not installed but ‘adopted’ through maintenance), or ‘certainly where members of the public are encouraged to visit by provision of facilities such as carparks, lookouts and picnic spots’ (3), as is the case at Diamond Bay Reserve.

It should be noted that duty of care is created not by the land manager’s awareness of risky activities but by the existence of foreseeable risk, which has more to do with the nature of a site. Ignorance about particular activities is therefore not a reliable defence.

2.3 Discharging duty of care

Given that duty of care is unavoidable, the question is how it can be discharged sufficiently to avoid liability. This is the heart of any negligence case and may be worth treating at length.

Negligence law is deliberately flexible and each case is decided on its details rather than on the basis of precedent. Nevertheless, the 1998 High Court case of Romeo v. Northern Territory Conservation Commission appears to have broad implications. This concerned someone who while visiting a familiar reserve at night under the influence of alcohol, ventured beyond a cliff fence and fell. Arguing that the land manager had a duty to warn her of the dangers of crossing the fence, she lost the case and appealed to the High Court which, however, upheld the verdict (2). One justice stated that ‘where a risk is obvious… the notion that the occupier must warn the entrant about the risk is neither reasonable nor just’, and another that ‘there is no statutory duty to take positive action to protect entrants against risks of their own making which the authority has done nothing to create or increase…’ (1).

Generally it was found that ‘it is quite wrong to [interpret the law as requiring] that any foreseeable risk, however, remote, must in every case be guarded against’, and that ‘the duty is a duty to take reasonable care, not a duty to prevent any and all reasonably foreseeable injuries’.

The climbing community believes that this means land managers can discharge their duty of care without banning or otherwise unduly interfering with climbing activities, and therefore should not do so. A lawyer and climber says the case

confirms that occupiers [ie land owners or managers] are inherently unlikely to be made liable for adventure activity accidents taking place on their land… The main judicial message in the context of public recreation is that participants need to look after themselves, and that occupiers owe little in the nature of a duty of care where the risks are obvious and the sites for running those risks are actively sought out for that very reason… [and] there is no legal duty on a park authority to provide risk-free recreational opportunities on [its] land… The major factors in any ‘standard of care’ assessment will be the obviousness of the danger…, [the fact] that the site chosen… was actively sought out to engage in such an inherently dangerous activity, and the fact that occupiers are entitled to assume that most entrants (particularly those who come equipped for the task) will take reasonable care for their own safety. (1)

 

That is, where it can be reasonably argued that the risks are both inherent in the activity and obvious to the land user – as they arguably are with respect to abseiling and rock climbing at all Waverley Council coastal cliffs - a land manager who has taken ‘reasonable care’ to prevent accident should be on fairly safe ground. Indeed, it is claimed that ‘cases decided since Romeo v Conservation Commission show a clear trend against imposition of liability on occupiers of land’ (1), and that henceforth, land managers will have little obligation to warn people of obvious risks ‘unless they [the managers] somehow interfere with the activity, they promote it or they regulate it in some tangible way’ (2).

2.4 ‘Reasonable care’

Australian legal case history gives few specifics about measures that might demonstrate reasonable care. Even in the Romeo case the judges disagreed, some believing that neither fencing, lighting or signage were required where the risk was so obvious, and others regarding failure to install fencing as negligent, especially at specific locations where it was foreseeable that people would approach the cliff.

The absence of fencing was also a crucial factor in Cheowiry v. Waverley Council, a post-Romeo case that goes against the benign trend supposedly established by Romeo. This involved an unskilled, unequipped person who set out to climb down an obvious cliff and was injured in a fall. Although Council argued that there was an inherent risk in the plaintiff’s actions, the judge found Council 50% liable, as it had recognised the risk by having once installed a fence and breached its duty of care by later removing it.

However, as Romeo shows, fencing alone does not necessarily constitute a warning of the dangers of crossing it, so signage may have a role to play. While on the one hand ‘courts in Australia… increasingly recognise that the presence of warning signs may make no difference to the conduct of recreational users’, on the other hand liability in many cases hinged on the absence of warning signage (1). In Cheowiry, for example, the judge found that by failing to install a sign Council had ‘removed the opportunity for the plaintiff to stop and consider’ his actions, while in other cases the absence of signage was considered negligent given the presence of known but non-obvious dangers such as underwater rock shelves. It might be argued that the dangers at Diamond Bay Reserve are similarly non-obvious from the fence line.

 

Lastly, signage is of little use, and the obviousness of risks is reduced, in darkness, so the installation of lighting might be called for at some locations. On the other hand, the installation of lighting itself attracts the public, thus contributing to its exposure to whatever risk exists.

 

2.5 Strategies for reducing exposure to liability

 

One way for councils to reduce exposure to liability is to reduce the existence of a duty of care. This might be done by:

 

 

As managers of community land some proximity is inevitable, but this increases with any contract entered into or, presumably, any permit issued. Such contracts or permits should therefore be avoided.

 

 

New bolts or anchors should not be installed or approved, and existing ones should not be maintained.

 

 

If avoidance of any possible exposure to liability were the sole criterion of park management, the installation of carparks, picnic areas and formalised walkways near cliff edges would be undesirable.

 

However, as discussed above, the duty of care cannot be entirely avoided, and the Cheowiry case, where Council argued on the basis of inherent risk, emphasizes the dangers of reliance on the alleged benign consequences of the Romeo case. It is therefore advisable that councils also employ the strategy of demonstrating reasonable care wherever appropriate. It seems this can be done by:

 

 

Diamond Bay Reserve clearly fits this profile. (The risks there may be very obvious to climbers familiar with the site or its reputation, but not obvious to a first-time picnicker.) Appropriate fencing and icon-based signage should therefore be installed as a minimum. Given that the reserve is not designed to attract night use and that lighting would increase such attraction, it seems reasonable not to view lighting as a top priority.

 

 

Climbers like to point out that statistically theirs is not a dangerous activity, posting only 2 injuries per 1000 activity days compared to 55 injuries for professional rugby league (4). However, risk is assessed in terms of both site risk and user skill levels. Low-skill users at low-risk sites and high-skill users at high-risk sites may enjoy what is termed ‘peak adventure’, but low-skill users at high-risk sites may have a category of experience referred to as ‘devastation and disaster’ (4). According to the website Sydneyclimbing.com, which details local climbing sites, the various sites at Diamond Bay are categorised at grades of between 16 and 27 on a standard scale of 10 to 35; that is, they include fairly high-risk sites. The presence of low-skilled users at Diamond Bay therefore constitutes a high-risk situation.

 

2.6 Implications of liability-reduction strategies for commercial and recreational climbers

 

The tactic of not issuing permits would not impact on recreational climbers, as to my knowledge no applications have ever been received from or issued to such customers. The main parties requesting permission have been commercial adventure or team-building companies. Four such companies received permits in late 1999; one has faded out of the scene, leaving three who would be immediately affected by denial of permission.

 

It is envisaged that the Defence Forces, the NSW Police, the State Emergency Service and similar bodies, which take advantage of local cliffs for training purposes, will continue to receive occasional permission for such activities. There may also be other one-off cases where approval is merited.

 

The tactic of avoiding the presence of low-skilled people at risky sites also impacts differently on recreational and commercial climbers. Low-skilled recreational climbers generally work their way up from beginners’ sites to more difficult ones, and from a legal perspective demonstrate awareness of inherent risk by selecting their own sites and bringing their own equipment, thus mitigating the risk posed by their skill level.

 

Commercial adventure-tourism companies, on the other hand, commonly take completely unskilled clients to completely unfamiliar sites. It might be argued that companies offset this by having qualified staff and requiring clients to sign acceptance-of-risk forms, thus arguably offering land managers better proof of acceptance of risk than do recreational users. However, relying on this would subjugate council liability to individual company procedures.

 

 

3. Effects on insurance premiums

 

Public liability insurance premiums have recently risen dramatically in Australia, due to (a) reduced insurance company income due to reduced interest rates (b) reduced competitiveness following the collapse of HIH and other, overseas insurance companies, (c) 11 September 2001, and (d) increasing claim numbers (6). Premiums have risen by 300% or more, forcing organisations to reconsider the services they offer or in some cases to cease operating.

 

Council’s own public liability premiums have not risen, thanks to a three-year contract with its insurers. However, this expires in October 2002, at which time Council’s former Risk Manager, Richard Cordwell, expected ‘a doubling of the premium plus a very large increase in the deductible that council has to pay’.

 

At the time of writing the Federal Government is looking at ways of addressing this issue, including a cap on compensation or a no-blame government-run system. The no-blame system is unlikely to be adopted as similar experiments elsewhere are proving almost as unsustainable as commercial schemes. A legislative cap would reduce payouts but probably not premiums; the American experience is that insurers do not pass the benefits on to consumers (6).

 

Councils should therefore look to other ways of at least decreasing, if not premiums themselves, then the likelihood of their rising. Premiums generally reflect a customer’s claim history, but also the extent to which risk is knowingly incurred. Paul Krix of Wyatt Gallagher Bassett, Waverley Council’s brokers for public liability insurance, has advised that issuing permits for abseiling or rock climbing, commercial or recreational, would have a significant, ie detrimental, impact on premiums.

 

4. Plans of management

 

Plans of management applying to Diamond Bay Reserve are the Waverley Council Plan of Management 2001-2004 and the Coastal Reserves Plan of Management (1995). Neither refers specifically to abseiling or rock climbing.

 

4.1 Waverley Council Plan of Management 2001-2004

 

Relevant stated objectives in the Parks area are:

 

 

Council has thus undertaken on the one hand to ‘provide’ for recreational opportunities, arguably including rock climbing and abseiling, and on the other hand to protect and improve safety, amenity and the environment, with considerably more emphasis on the latter.

 

4.2 Coastal Reserves Plan of Management (1995)

 

Section 3.8 allows licences and leases to be established for use of this reserve ‘providing that they are consistent with the major objectives’ of the plan. A similar principle would seem applicable regarding simple occasional-use permits.

 

Relevant major objectives of the plan are:

 

 

Other values indicated are as follows.

 

Section 3.3 notes the potential hazards inherent in clifftop reserves. Section 5.3 states that

 

areas will be assessed and rated according to their potential hazard and secured where necessary, so that users may be encouraged to fully utilise the Coastal Reserves. Areas of highest identified risk will be addressed as a priority. Assessment may require the involvement of Council’s risk management [officers] to identify Council’s responsibilities and liabilities.

 

The high risk nature of the reserve especially in relation to low-skilled users has been addressed in part 2.5 of this report, and as mentioned in my report to the Planning Environment Housing & Public Works Committee in August 2001, Council’s Risk Manager has advised that Council ‘not permit abseiling on any property where other people are’ – such as Diamond Bay Reserve. It is clearly necessary to secure this area as the above clause requires.

 

Section 3.4 notes the environmental significance of remnant vegetation, in the form of coastal heath, at Diamond Bay Reserve. This ‘provides a unique gene pool’ and resource for seed collection for native plant species. In addition, native bush regeneration is currently taking place at various locations in the reserve under Council supervision.

 

Section 5.5 stipulates that in areas of identified hazard, ‘a fence with infill panels and a mimumum height of 1200 [mm] would be appropriate’. The fencing currently being installed is considered equivalent in performance terms. This section also notes the advantages of graphic, ie icon- rather than text-based signage.

 

In sum, while there is, again, some undertaking to provide for recreation of various types, the greater emphasis is on safety and the protection of amenity and environment.

 

4.3 A new plan of management

 

As a result of recent amendments to the Local Government Act 1993, aspects of the Coastal Reserves Plan of Management have been void since the end of 2000, and a new plan needs to be written specifically for Diamond Bay Reserve. (In the interim, most of the existing plan remains in force.) Under the LGA changes, community land must now be classified in new standard categories, each incurring mandatory management plan objectives. Diamond Bay Reserve will come under three categories, Park, Natural Area and Escarpment, and incur three sets of objectives.

 

The objectives for a Park are:

 

 

While there is some requirement to promote recreational pastimes, arguably including climbing and abseiling, the simultaneous requirement to provide for passive recreation and to improve the land accordingly confirms the importance of protecting passive, casual park users from injury.

 

The relevant objectives for a Natural Area are:

 

 

Conservation of the natural cliff and gully features, as well as bush regeneration (already underway) are therefore required by statute to be management objectives. The objective of promoting recreational activities in Parks (above) notwithstanding, there is no similar obligation to allow installation of climbing anchors or bolts, access to climbing sites or even the activities of abseiling and climbing themselves. Indeed, such activities may well interfere with achievement of the above objectives.

 

The objectives for an Escarpment are:

 

 

These objectives further reinforce the need to address safety issues and protect the natural features of the reserve.

 

4.4 Summary

 

The various safety and conservation objectives which Council has undertaken or must undertake sometimes conflict with, but in number and specificity outweigh, objectives about permitting or encouraging recreational activities. Council appears to be not only committed by its existing management plans, but also obliged by statute, to regard the rights and needs of specific recreational users, such as climbers and abseilers, as secondary to issues of safety, amenity and environment.

 

 

5. Local resident views

 

The Diamond Bay Precinct Committee was asked to consider this issue at their meeting of 20 November 2001. The meeting was attended by 22 local residents (some with proxy votes for other residents) and minuted as follows:

 

There was strong and overwhelming opposition to Council renewing commercial licences for group abseiling at the Diamond Bay Reserve. Locals told of groups setting up portaloos making lots of noise, and leaving portaloos for days on end sometimes to be knocked over. However the precinct also feels strongly that council would be making a mistake to block all access because of the cliff walk. Residents welcome individual enthusiasts and community organisations. The following motion was moved by Gerald Camber and passed with proxies by 24 to nil.

This precinct opposes commercial organisations operating abseiling, rock climbing, high rope exercises at the Diamond Bay precinct reserve, it has no objection to recreational climbers, private individuals and emergency service groups provided there is no disruption to local amenities.

 

6. Conclusion

The above discussion may be summarised as follows.

Having regard to the above, I would consider it prudent to take the following steps:

 

7. Recommendation

That Council:

 

(a) Receive and note the information contained in this report;

 

(b) Cease issuing permits for abseiling and rock climbing in and around Rosa Gully and Diamond Bay Reserve, with the exception of activities by the State Emergency Service, NSW Police Department, Australian Defence Force or similar organisations for purposes specifically approved by the Director, Beach Park & Recreation Services; and

 

(c) Approve the installation of appropriate fencing and signage in Diamond Bay Reserve and wherever deemed necessary.

 

Geoff Reinhard

Director, Beach Park & Recreation Services

Author: D Midalia

Appendix: Source documents

  1. ‘Windows to the legal future’ by Gordon Brysland.
  2. Brysland, a lawyer and climber, is the Australian representative on the Legal Experts Panel of the International Union of Climbing Associations (UIAA). This paper was presented to the Sport and Recreation Industry Conference, WA, in September 2001, and gives a detailed discussion of liability issues surrounding rock climbing from a legal history point of view.

  3. ‘Research and reforms in the legal process, and injuries in the Great Outdoors’.
  4. Transcript of an interview with Gordon Brysland, The Law Report, ABC Radio National, 16 December 1997.

  5. ‘Liability/negligence: Falling off a cliff: Who is to blame?’ by Peter Kozera.
  6. This article appeared in the Law Society Journal in May 1998, and focuses on the outcome and implications of the landmark High Court case of Romeo v. Northern Territory Conservation Commission.

  7. ‘Is Outdoor Recreation a Risky Business?’ by Ian Heath.
  8. A paper presented to the Queensland Outdoor Recreation Federation Insurance Workshop in 2001, giving an overview of the risks associated with outdoor recreation, with some specific reference to rock climbing.

  9. ‘The Recreational User and the Occupier’s Liability’ by Thomas John.
  10. A paper presented to the Queensland Outdoor Recreation Federation Insurance Workshop in 2001, giving a summary of research into various types of relevant legislation.

  11. ‘Public Liability Disaster Looms’

The Business Report, ABC Radio National, 26 January 2002.