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Recreational Risk Takers
This material was heard on the ABC Law report programme on 3 March 1998 and is reproduced here for the benefit of NPA members.
Susanna Lobez: A few weeks back you may remember we did a story on who's liable if someone is injured on public land, and whether land managers must warn people of every possible danger: ticks in the trees, holes in the ground, snakes in the grass.
Gordon Brysland, avid rockclimber and solicitor with Mallesons Stephen Jacques in Canberra, explains a recent and significant High Court decision against a young woman who fell and was injured when she climbed past a barrier onto cliffs in the Northern Territory.
Gordon Brysland: The big message that comes from the decision is that people need to take more care for their own safety. And I think this accords generally with I suppose prevailing community attitudes. I think people were feeling when they were reading some of the other recent cases that the pendulum had perhaps swung too far in favour of creating the cotton-wool environment and protecting everybody from everything. So the land manager was a virtual insurer, and I think the Court's given a strong message that this really isn't the way the law should develop.
A couple of the judges had very relevant things to say. Mr Justice Kirby says 'Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion of the occupier, that is the land manager, must warn the entrant about the risk is neither reasonable nor just.'
Now the Chief Justice said something similar. He said: 'There is no statutory duty to take positive action to protect entrants against risk of their own making which the authority has done nothing to create or increase even if the possibility of the entrant's careless conduct be foreseeable.' This effectively means that where recreational users go onto public land, seeking out sites which are obviously dangerous, and they're dangerous because they want to practice activities that these people know to be dangerous, it'll seldom be that they'll have a cause of action against the land manager, unless the land manager creates some sort of additional danger, or gets involved in the activity in question.
Damien Carrick: And ironically I suppose, that now that the duty of care on the land manager has been reduced or minimised, that will be that they will be more likely to allow people to undertake dangerous sports on Crown Land.
Gordon Brysland: Well one of the reasons that most public land in Australia is dedicated as public land, is for public recreation. And public recreation involves or includes activities which are inherently dangerous. In fact it's hard to think of an activity in a national park which doesn't have an element of danger to a greater or lesser degree.
I think we can say it's good news for both land managers in their management of public land, and also good news for recreational users of public land.
Susanna Lobez: So it's a case of hiker, climber, swimmer, camper, beware out there in the great Aussie outdoors.
We hoped this week to look at preventing armed robbery, but we'll save that for next week's Law Report, including the four types of armed robbers and why it isn't like in the movies.
Thanks to Damien Carrick and Paul Penton, and to you for joining us. I'm Susanna Lobez, see you next week with more law.
return to index of transcripts of the Law Report
The Law Report is broadcast at 8.30am and repeated at 8.00pm every Tuesday on Radio National, the Australian Broadcasting Corporation's national radio network of ideas.
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ACCESS ISSUES IN THE BLUE MOUNTAINS. This essay giving a climber's perspective was also found on the aus.bushwalking news group.
Access for climbers, abseilers and canyoners in the Blue Mountains, west of Sydney, Australia, has become a topical issue recently as attempts are made by local authorities to balance the sometimes conflicting interests of recreation and conservation. Following email correspondence with John Davis in New Zealand, I compiled some of my impressions about the current situation, hoping that it might encourage discussion on this issue. My information has been obtained from a variety of sources and I am not sure if all of it is accurate or up-to-date, so any corrections or clarifications would be most welcome.
Most of the climbing areas in New South Wales are on public land, either in National Parks or on local council land. Access to crags and canyons in the Blue Mountains is mostly controlled by the National Parks and Wildlife Service of New South Wales (NPWS) and the Blue Mountains City Council (BMCC). A few areas are on private land; for example the driveway used to gain access to Logan Brae in the Blue Mountains is privately owned and, to ensure access to this crag, climbers have been requested to park elsewhere.
At the moment it looks as if only a few crags in the Blue Mountains are likely to be subjected to regulations that could interfere with recreational climbers, most being crags that receive particularly heavy use and which are also readily accessible to the nonclimbing public, for example the Three Sisters and Mt York. There are still plenty of other crags that are likely to remain open, as the Blue Mountains covers an extensive area.
A year or so ago the NPWS indicated that they were bringing to the surface (although not necessarily enforcing) an existing regulation that people wishing to climb or participate in other "dangerous" activities, such as caving, abseiling or canyoning, in National Parks had to obtain permission to do so from the NPWS. A permit system already exists for gaining entry to caves in National Parks in New South Wales (many cave entrances are gated and locked). The additional requirement for climbing, abseiling and canyoning was that people would have to register with a NPWS office before participating in these activities. The reason why the NPWS brought this issue to public attention was probably in response to concerns about liability for injury should an accident occur in a National Park while someone was engaged in a "dangerous" activity. By having an (unenforced) rule that permission is required, the Service can absolve itself of responsibility in the event of an accident. Despite publicity about the "new regulations", I suspect that very few climbers, canyoners or abseilers currently notify the NPWS before heading out to engage in their respective activities, so the regulation hasn't really had much of an impact on these outdoor activities. For example, the guidebook for the granite outcrop Tarana (Evan's Crown) (near Lithgow west of the Blue Mountains) states that it is necessary for climbers to notify the local NPWS office before visiting the area, but upon telephoning last year I was told by a NPWS officer that notification was only necessary for groups of more than a few people.
Problems with access in the Blue Mountains seem to have emerged in tandem with the burgeoning of commercial abseiling and climbing companies. Groups of abseilers and climbers are taken mainly to the Three Sisters, Mt Boyce and Mt York, which as a consequence have been experiencing degradation through overuse. The trigger for regulation appears to have been excessive modification of cliff faces by these companies to facilitate their commercial activities. The abseiling "launch pad" at Mt Boyce apparently had large numbers of bolts placed and concrete was used to reinforce the edges. The bolts have been removed from this site (by the NPWS?) and it is my understanding that the use of Mt Boyce by commercial groups is currently under scrutiny by BMCC, since their activities are regarded as for commercial benefit from a public resource. Ladders in a gully at Mt Boyce were also removed, but have been replaced recently, apparently by a commercial organisation.
Use of the Three Sisters for abseiling by commercial groups has also been banned recently and it is possible that this ban will be extended to all climbing and abseiling at this location. This results from concerns of the BMCC and NPWS over the number of people using the Three Sisters for climbing and abseiling, which has lead to erosion (visible from tourist viewpoints) and concerns about falls of rock onto the walking track on the east side.
I have heard that a gate has been placed at the start of the track at Mt Piddington, which would prevent four wheel drive vehicles reaching the immediate top of the crag (I have not visited the crag recently to confirm this). Access by people who normally walk to the crag would not be affected.
Numerous commercial companies also take groups of people canyoning in the Blue Mountains, Claustral Canyon probably being the most popular. Bolts or other anchors have been placed at abseil points and on exit routes in several of these canyons. Action has been taken to remove these bolts. I understand that, several months ago, the NPWS declared several canyons to be off-limits to commercial groups and restricted the size of commercial groups that could be taken through other canyons. Some of these restrictions may also apply to large noncommercial groups, such as those from church and scouting or other youth organisations. Despite this, I have seen several groups flaunting the "regulations". For example, a group I met in Wollangambe Canyon said that they were pretending to be two groups rather than one in order to keep their official numbers below the maximum limit. I also know that commercial organisations have been continuing to take climbing parties up the the West Wall of the Three Sisters.
A management plan for the Wollemi National Park being developed by the NPWS includes proposals to declare the Park a wilderness area. Of relevance to rock climbing, if the current proposal goes ahead placement of bolts or anchors will not be permitted in the Park, existing bolts will be removed, rock climbing will not be permitted close to lookouts or walking tracks and the sizes of climbing parties will be restricted. These restrictions will cover the Wolgan Valley, which is an established climbing area in the Wollemi National Park. The adjoining Gardens of Stone National Park has experienced a flurry of bolting activity in the past year and a moratorium on further development is currently in place. Canyoning is also likely to be affected.
It is not just commercial organisations or organised noncommercial groups that are at fault in giving the NPWS and BMCC reason to regulate outdoor activities in the Blue Mountains. The Blue Mountains are heavily used for climbing, abseiling and canyoning by recreational users, who must also take some of the blame for the degradation of the Mountains environment. Many recreational climbers are also placing bolts; the push to develop climbing areas in the Gardens of Stone National Park and at Logan Brae, The Dam Cliff and Crag X are recent examples. A few examples of retrobolting climbs that are readily protectable with self-placed gear have come to light, for example at Mt Boyce. Chipping has been a feature of many routes at Centennial Glen and Cosmic County. Despite these contraindications, at the moment recreational climbers are viewed by the NPWS and BMCC as having less impact on the cliff environment than commercial organisations and may be exempted from heavy-handed regulation.
A question in my mind is whether commercial adventure organisations have been unfairly targeted in the move towards regulation of outdoor activities in the Blue Mountains. Their enterprise is a legitimate usage of the cliff environment; many other organisations also use public resources for commercial benefit. I think it is good for people to have the opportunity to experience rock climbing, abseiling and canyoning under experienced guidance, when otherwise they would not have the opportunity. At the same time, I am very concerned about reports of excessive bolting, placement of fixtures and modification of cliffs by these organisations. I am also concerned about interference with the activities of other users of cliffs by such groups, having experienced such interference at Mt York, for example.
Climbers in Australia appear to be a long way behind New Zealand and the USA in organising lobby groups. Blue Mountains Cliffcare was formed last year to promote access to crags in the Blue Mountains and to take action to minimise the impact of climbers on the environment. Cliffcare has so far organised work days at Centennial Glen and Upper Shipley near Blackheath and a work day at Mt York is planned for later this year. Activities have included filling in chipped holds, demarcation of revegetation areas, repair of tracks, removal of markings at the bases of climbs and placement of lowering off rings. Liaison with the BMCC has been established and the current feeling is that some progress is being made in establishing credibility with the authorities. For example, BMCC provided the "Keep off" signs that Cliffcare erected on revegetation sites at Upper Shipley and Centennial Glen. The tendency is for Cliffcare to favour recreational climbers; it is supporting a ban on the use of the Three Sisters by commercial groups and a ban on all abseiling on the Three Sisters, unless necessary to retreat from a route.
The Australian Climbers Association was launched at the Escalade climbing festival at Mt Victoria in April this year. The Association will represent climbers at a national and state level, distribute information about access issues and negotiate access rights for climbers, as well as arranging insurance. I do not have any information about the effectiveness of this organisation to date. A forum on access was also held at Escalade.
The Sydney Rockclimbing Club is also becoming more active in addressing access issues and an Access Officer position has been created on the club's committee this year.
Climbers, cavers, abseilers and canyoners in the Blue Mountains should aim to minimise their impact on the environment. Access should not take precedence over conservation if uncontrolled usage of an area is likely to result in serious environmental damage. We should be prepared to sacrifice access to certain crags or canyons if our activities would result in irreplacable damage. In particular, I think that usage of areas of importance for the preservation of endangered species of plants or animals should be minimised. Examples include not visiting the canyon in the Wollemi National Park containing the unique grove of Wollemi Pines and refraining from climbing at Babylon near Nowra (on the south coast of New South Wales) where a remnant population of the brush-tailed rock wallaby (Petrogale penicillata) is under threat.
Adrian W Philbey (email@example.com)
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Main Range, Qld. This story has just been posted to the aus.bushwalking news group by J. Shera (20 July 1997). I thought it worth sharing.
"I would like to relate an interesting experience on our last Main Range walk. We planned to walk from Spicer's Gap to Teviot Gap in a leisurely four days from the 28/6 to the 1/7. We were dropped off at the Spicer's Gap road at 8.30 am on Saturday 28th June. The day was overcast as we walked up the north-west ridge of Spicer's Peak. By 11.30 we had traversed the long summit ridge of Spicer's, and we were descending through the rainforest south of Spicer's.
I saw a lone figure in front of us. I asked who he was with and he said he was by himself. He said he was out from England and had only been in Australia for three days. But why had he ended up in the rainforest of Spicer's Peak? Just chance he said. "I was browsing on the Internet and someone from the Brisbane Bushwalkers said this was a good four-day walk."
Apparently Ian (Skerratt) had got off the plane at Brisbane, took a bus to Boonah, then walked from Boonah to Spicer's Gap (8 hours). He had all his personal effects with him (even his running shoes) plus two week's supply of food. He was due to run in the Gold Coast marathon in two weeks. This was all in two packs: a small one strapped to the larger one. I estimated they weighed 30 kg. Ian was an experienced walker and was quite capable of completing the trip on his own, but when faced with the opportunity of "tagging along", he thought "why not?" and completed the walk with us.
That first afternoon it rained and the wind came up, so by the time he got to Swan Knoll to camp, we were all suffering to degrees of hypothermia. So the tents went up quickly and we all dived into the sleeping bags to warm up. Ian ended up cooking tea in his tent while still in his sleeping bag. No-one told him Queensland got this cold, or that gloves would be handy. It was 2° plus lots of wind chill that night.
Next day, was over the rainforest razorback for morning tea at the Huntley Saddle. Then up the Huntley cliff break to camp on top and enjoy the Mount Huntley sunset.
Next day, as we continued on past the Gendarme rocks and up Mount Asplenium, we learned that Ian was a 2:35 marathon runner. This explains why he could carry 30 kg and still keep up with us as we were only carrying 15-20 kg. Ian was surprised at the lack of formal sign posts on the walk and he said that no-one told him how much up and down to expect. (Or how big the mountains were.)
So on to Panorama Point, down to the saddle before the Davies Ridge Knoll, along the "mother of all shortcuts", to the east of Davies Ridge Knoll, up the "never-ending hill", and then we arrived at the Steamer's Saddle at 2 pm for a relaxing afternoon.
The wind came up that night, and we found it hard to sleep. The wind raged up the valley, and swirled through the trees above. At 2 am, a loud crack, followed by a loud thump was heard as a branch hit the ground. After that, it was even harder to sleep!
The following day, on to Lizard Point, then Mount Roberts where Ian had his first encounter with a Stinging Tree. Julie was worried about his hand, but I explained that marathon runners don't feel pain. We hit Teviot Gap at 3 pm, and while we waited for our lift we exchanged e-mail addresses, then we all piled into the car, and on the way home, we dropped Ian off at the Yellow Pinch campsite.
I wonder how he went in the marathon???"
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