Tourist who broke spine running down dunes to get payout
THE risk of running down a sand dune at Lake Wabby was "not obvious" to a tourist who became a tetraplegic after an accident, the Court of Appeal has ruled.
The State Government has lost its appeal to reject or reduce the damages awarded to an Irish tourist who broke his neck at the Fraser Island site in September, 2007.
Evan Joseph Kelly will get a payout after suing the government when he fell while running into the water from the sand dunes at Lake Wabby, landing headfirst and breaking his spine.
The accident left Mr Kelly a tetraplegic.
In the original case, Justice Duncan McMeekin found the State Government breached its duty of care in not providing better warnings about dangers inherent to the lake although there had been 18 incidents there in 17 years.
Although there were two signs warning visitors not to run on the dunes or dive into the water, Justice McMeekin ruled the government had not done enough to avoid legal responsibility for the tourist's injuries.
Court of Appeal judge Justice Anthe Philippides agreed with the original finding that "the risk of serious injury from an accident caused by running down the sand dune into the lake, was not a risk that in the circumstances would have been obvious to a reasonable person in the position of the respondent".
Justice James Henry also found the original judgment was sound, saying "sandy slopes and water present as apparently forgiving surfaces on or in which to fall."
Justice McMeekin had awarded damages for contributory negligence at 85% of the financial damages, which was upheld.
The appeal was dismissed with costs.