Reading the recent West Australian Court of Appeal decision in Gingin -v- Coomb [2009] WASCA 92, handed down last month.  This was a case concerning a catastrophically injured young man who suffered injury when he lost control of his trail-bike when riding it in a designated off-road recreational area, near Lancelin, a beach side town an hour or so North of Perth.

Unfortunately for Mr Coomb, the Court of Appeal (2:1) reversed the trial judge’s finding that the Shire were in breach of the duty they owed him, in failing to more adequately warn him of the potential for such injury when riding in the dune area.

I have to say I am very surprised at the evidence at trial (which it does not seem was contradicted) that because the dunes in the designated area were "ever changing, depending on wind strength and direction" (Martin CJ @ R26), it was not feasible for the Shire to inspect the area and cordon off obviously dangerous areas, despite it being found the Shire encouraged use of such area (R20) and that a designated area was set aside for this activity (and was very popular).

It surprises me that it seems the dune face Mr Coombs fell down, which was 10 – 15m high at an angle of 80 degrees, with a hard rock bottom, would not have been an obvious hazard, had it been inspected even a month or 2 before the accident.  In fact very shortly prior to Mr Coombs’ accident (on the same day) another rider was fatally injured at the precise same location. This suggests the area was commonly crossed and again, in my view, indicates that inspection/identification of the particular and unusual hazard of the particular location ought to have been possible. The danger (or near inevitability of injuries) for someone riding at anything other than very low speed, over such a dune, and confronting such a face, seems absolutely clear as a matter of common sense.

The case is another example of the difficulty of demonstrating claims, based on an alleged failure to warn. See the contrasting factual conclusions by Martin CJ (in the majority) -v- McLure JA on this.

Once again, the case faced a fundamental evidentiary gap, because Mr Coombs was not asked (as he should have been) and so did not say, how a better sign warning of the particular risk of this sort of dune, would have changed the way he approached the relevant dune on his trail bike (appreciating the difficulty of this, because he had no recollection of the accident).

Although this is not a medical negligence case, it is relevant, given a ‘failure to warn‘ is a very common type of medical negligence or malpractice case investigated.  The key question of whether the person making claim can show that if warned, they would have acted differently (in a medical context, would not have had the surgery etc), remains the most substantial hurdle for claims.

image: GrahamKing