Mt Gower Walking Track
Risk Assessment
May2013
Table of Contents
1.Introduction
2.Objectives
3.Description of the Mt Gower Walking Track
4.Civil liability
5.Risk management
6.Risk Treatment Plans
Risk 1. Dangerous trees or falling limbs causing injury or death or damage to equipment
Risk 2. Rock fall, cliff and slope instability causing injury or death or damage to equipment
Risk 3. Slips, trips or falls due to unstable ground, exposed roots, creek crossing etc.
Risk 4. Walkers becoming lost in a remote location
Risk 5. Failure of rope and anchor system
Risk 6. Failure of communications
Risk 7. Risk of injury or illness to walkers due to their skill, experience or health/fitness levels
Risk 8. Exposure of walkers to elements resulting in heat stroke, heat exhaustion, dehydration or hypothermia
7.Discussion
Capacity to respond to incidents
Commercial tour operator licensing
Implementation
Monitoring, evaluation, review and implementation
8.References
Appendix A
1.Introduction
The Lord Howe Island Board (LHIB) has a legal duty to address the safety of peopleon Lord HoweIsland (the Island), and is required to take steps to ensure that risks are appropriately managed. This requirement relates to LHIB’s role as a land manager and its obligations to visitors and to LHIB staff and contractors.
The LHIB will aim to protect human life and provide for an injury-free visit to the Island. However, the natural environment will always present risks to visitors—these risks can be managed, but never eliminated.
Where risks are present the LHIB has a legal duty of care to take precautions against a risk of harm in the following circumstances:
- where the risk is foreseeable (that is, it is a risk that LHIB knew of or ought to have known of)
- where the risk is not insignificant
- where a reasonable person in LHIB’s position would have taken those precautions in the same circumstances.
This ‘Mount Gower Walking Track Risk Assessment’has been undertaken in accordance with the ‘LHIB Risk Management Policy’(LHIB 2010b) and the ‘LHIB Risk Management Procedures’(LHIB 2010c) to manage risks to people using the Mt Gower Walking Track.The risk management framework referred to above overlaps with workhealth and safety (WHS) requirements. The main law dealing with WHS in NSW is the WorkHealth and Safety Act 2011(WHS Act). Under the WHS Act, the LHIB has obligations to ensure the health, safety and welfare of persons other than employees at a place of work. Other legislation, standards and policies relevant to this risk assessment are listed in Appendix A.
Risk management involves a systematic process of:
- identifying the risk
- assessing the level of risk—dependent on the frequency of exposure, probability and consequence
- managing the risk—eliminate risk, reduce risk possibility, reduce risk impact, accept risk or finance risk
- monitoring and review.
The document has been prepared by LHIB staff in conjunction with emergency service organisations (i.e. NSW Police, NSW Ambulance Service, and State Emergency Control Service), licensed commercial Island tour operators and independent specialists.
2.Objectives
The objectives of the risk assessment are to:
- identify risks associated with the use of the Mt Gower Walking Track
- analyse these risks to determine the level of risk
- where necessary,treat risks according to set policies and procedures.
3.Description of the Mt Gower Walking Track
Introduction
The Mt Gower Walking Track is located on the southern part of Lord Howe Island within the Permanent Park Preserve (the Park). For the purposes of this risk assessment the walking track has been divided into five sections as show on Figure 1.
The walking track commences at Little Island (at sea level) and climbs the steep foothills of Mt Lidgbird before traversing the Lower Road, a narrow ledge on a western buttress of the mountainwhere ropes are provided for assistance. The track then turns east into Erskine Valley and over a small crossingofErskine Creek. The track continues to the saddle between Mt Lidgbird and Mt Gower to Getup Place, the final, steepest and most challenging section of the climb which requires walkers to use ropes to attain the summit, 873 metres above sea level (Figure 1).
The track is approximately 3.3 kilometers in length (one-way). The return trip (starting atLittle Island) takes 8 to 10 hourson average, depending on the fitness of the group/individual. Distances and average durations for each track section are shown in Table 1.
Table 1: Distances and duration for each section of the Mt Gower Walking Track
Figures shown are average times taken to complete the walk and may vary depending on the fitness of the group/individual.
Section / Location / Distance(m) / Duration
(mins)
1 / Little Island to Lower Rd / 1,050 / 45
2 / Lower Rd to Erskine Valley / 875 / 25
3 / Erskine Valley to Gower Saddle / 860 / 60
4 / Gower Saddle to Getup Place / 300 / 45
5 / Getup Place to Gower Summit / 470 / 45
Total / 3,555 / Approx. 4 hours each way
Construction standard
The Mt Gower Walking Track is classified as Class 5 (Marked Route) under Australian Standard AS 2156.1—2001 Walking tracks Part 1: Classification and signage (Standards Australia 2001a; referred to here as AS 2156.1—2001).
The track is generally a natural surface, with minor modifications madein some areas for steps, foot holds, ropes and anchors.
The trackis maintained in accordance with AS 2156.1—2001 and Australian Standard 2156.2—2001 Walking tracks Part 2: Infrastructure design (Standards Australia 2001b; referred to here as AS 2156.2—2001). Priorities for maintenanceare based on safety and environmental issues.
The Mt Gower Walking Track has been recommended for listing on the State Heritage Register by MUSEcape as part of the Draft ‘LHI Community-based Heritage Study’ (MUSEcape 2012).The listing is unlikely to affect routine maintenance or minor re-routing of the track for safety reasons. Maintenance works will continue to be undertaken in accordance with the LHI ‘Permanent Park Preserve Plan of Management 2010’. Should the track require re-routing, a review of environmental factors will be undertaken to ensure all environmental considerations are assessed.
Access to Mt Gower
The earliest description of the Mt Gower track was written by botanist/surveyor, RD Fitzgerald, who provided a firsthand account of his attempt to ascend Mt Gower in 1869. Guided tours to the summit of Mt Gower commenced in 1958, following the original track (MUSEcape 2012).
The ‘LHI Permanent Park Preserve Plan of Management’(LHIB 2010a) places restrictions on visitor access to Mt Gower—all visitors to the Island must be accompanied by a licensed guide on walks to the mountain. These restrictions are primarily due to the fact that licensed guides mitigate potential risks and the Board and Island residents have limited capacity to carry out search and rescue operations. As there are no helicopters permanently stationed on the Island, transporting injured walkers from the remote areas of the Island can involve carrying them considerable distances over rugged terrain (LHIB 2010).
In the 2009–10 financial year, the Board approved three commercial operators to conduct guided walks to Mt Gower: Dean Hiscox (LHI Environmental Tours), Jack Shick (Sea to Summit Expeditions),and Ian Hutton (LHI Nature Tours). These licences have now expired and licences for each of the existing operators will be renewed subject to this risk assessment.
Permanent Island residents may access Mt Gower without a licensed guideat their own risk. Unguided access to Mt Gower represents a considerable risk and is discussed below.
Figure 1: Mt Gower Walking Track
Estimated number of track users
The Mt Gower walk has been identified as one of the top 18walks in Australia (Australian Geographic 2010) and is a popular walk with visitors and Island residents.
In the past, tours were conducted twice a week during peak seasons. However, due to increased demand in recent years group walking tours are now conducted 2–4 times a week (depending on the weather) during the peak tourist season (December to May), generally on Mondays, Wednesdays, Thursdaysand Fridays. Private tours may be undertaken on other days, although only about six such tours are undertaken each year.During the winter months, guided walks generally occur once a week due to lower demand and poor weather, and because licensed guides close their businesses over this period.
Under the current licence conditions, theguide-to-participant ratio is 1:15. A maximum of 20 participantsare allowed on any walking tour, provided that two approved guides are used. The walks are restricted to the existing designated system of walking tracks.
The Board has proposed the introduction of a new Commercial Tour Operator Licensing System (Appendix B), which may place limits on the frequency and number of walkers on the track at any given time.
The Mt Gower walk is also a popular walk for Island residents.Although there is no record of the number of residents who climb Mt Gower, it is estimated that an average 10 people per month use the walking track.
Recordedinjuries and fatalities
Since 2001, fourreported serious incidents requiring medical response have occurred on the Mt Gower WalkingTrack:
- a fatality due to cardiac arrestbetween Erskines Creek and the Saddle (September 2001)
- a walker suffered a compound fracture to her lower leg after falling on a steep section of the track below the Saddle (November 2008)
- a walkerbroke their ribsbelow the Getup Place(September 2010)
- awalkerbroke their left ankle just above the GetupPlace (May 2011).
In October 2011, a walker required stitches after laceratingtheir arm near Little Island, but this incident was not formally reported.
4.Civil liability
The general position under common law is that the LHIB owes a duty of care to take care of the safety of those who enter on land that it manages.
Under the Civil Liability Act 2002 (CLAct), the LHIB is not negligent in failing to take precautions against a risk of harm unless:
- the risk was foreseeable (that is, it is a risk of which the LHIB knew or ought to have known)
- the risk was not insignificant
- in the circumstances, a reasonable person in the LHIB’s position would have taken additional precautions to limit or remove the risk (s.5B).
When determining what precautions a reasonable person in LHIB’s position would take in the circumstances, the CLAct provides guidance. Section 5B (2) provides that when determining whether a reasonable person would have taken certain precautions, you should consider:
(a)the probability of the harm occurring
(b)the likely seriousness of the harm
(c)the burden of taking the precautions
(d)the social utility of the activity that creates the risk of harm.
The LHIB does not owe a duty for recreational activities where it has given warnings about the risks involved.
Recreational activities
Section 5M(1) of the CLAct provides that ‘a person does not owe a duty of care to another person (the plaintiff) who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning’.
The term ‘recreational activity’ is defined broadly and is likely to include many activities in national parks. Section 5K provides that 'recreational activity' includes:
‘(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.’
Risk warnings
In order to receive the benefit of this protection from liability for injuries arising out of recreational activities, the following must be observed:
- Risk warnings must be given in a manner that is reasonably likelyto result in people being warned of the risk before engagingin the recreational activity. It is not necessary to show that a particular person actually received or understood the risk warning (s.5M (3)).
- Risk warnings may be given orally or in writing (s.5M (4)). Clearly, risk warnings can be given by way of warning signs. They may also be given in brochures, maps and entry passes etc. (as long as the person is reasonably likely to be warned of the risk in this way). Also, when LHIB staff are in the Park they can give oral warnings to anyone they observe on the track or approaching the track. It is recommended thata record is made of any oral warning given by staff as soon as possible after the warning was given. It is preferable to restrict use of oral warnings to emergency situations only.
- Risk warnings must be given by or on behalf of the LHIB(that is, LHIB cannot rely on risk warnings given by other persons) (s.5M (6)). It is recommended that the LHIB logo be included on any signs or written materials handed out which warn of a risk.
Also note that the LHIB cannot rely on a risk warning for protection from liability for negligence if:
- LHIB has failed to comply with any New South Wales or Commonwealth laws providing specific practices or procedures for the protection of personal safety (s.5M (7))
- a risk warning has been contradicted by an oral or written representation as to risk made by or on behalf of the LHIB to the injured person (s.5M (8)). For example, if the map at the entry to a national park shows a track as closed because of danger, but a ranger subsequently tells walkers it is safe to use, this would be a contradictory representation. In particular, LHIBshould not to provide written materials to the public which contradict current risk warnings without simultaneously making the public aware of the new risk situation
- the person who suffers harm is an 'incapable person' (i.e. a child or person suffering from a physical or mental disability), except if they are under the control of or accompanied by a capable adult who has been warned of the risk, or if a parent (whether accompanying the child or not) has received the risk warning (s.5M (2)).
In addition, users of LHIB land may sometimes be children who are unaccompanied by an adult, in which case warning signs may not always be sufficient to protect LHIB from liability.
Dangerous recreational activities
The CLAct states that a land manager will not be liable for harm resulting from an obvious risk of a dangerous recreational activity (s.5L). A ‘dangerous recreational activity’ is defined as a recreational activity that involves a significant risk of physical harm (s.5K). However, where a risk of a dangerous recreational activity is not obvious (as understood above), LHIB may still be liable.
Waivers
Under s. 5N of the CLAct, contracts for the supply of recreational services can include a clause which excludes, restricts or modifies liability for risks associated with recreational activities.
Commercial recreation and tour operators have a higher duty of care to their clients/participants than an individual undertaking a similar activity. They also must respond to higher expectations from their participants. Consequently, it is appropriate to have requirements in relation to safety, competency and risk management that do not apply to individuals to the same degree that they apply to commercial operators.
Work Health Safety Act
Civil liability obligations often overlap with workhealth and safety (WHS) obligations. The main statute dealing with WHS in New South Wales is the WorkHealth and Safety Act 2011(WHS Act).Under the WHS Act, the LHIBhas obligations to:
- ensure the health, safety and welfare of employees
- ensure the health, safety and welfare of persons other than employees at a place of work (e.g. members of the public who are on premises of LHIB).
5.Risk management
This risk assessment has been undertaken in accordance with the LHIB ‘Risk Management Policy’ and ‘Risk Management Procedures’ (LHIB 2010b, c) to record and identify visitor safety risks that are not yet adequately and reliably controlled.
Step 1: Establishing the context
In accordance with the LHIB Risk Management Procedures, for any risk rated extreme or high, the management response will be documented in a Risk Treatment Plan (RTP), including certification of its implementation. Where resources permit, a RTP may also be prepared for risks rated as medium where such risks are not well controlled and/or require ongoing monitoring.
AnRTP sets out actions selected to manage the risk, the resource requirements, the proposed schedule for implementation, and who is responsible for its implementation.
LHIB accepts that not all risks can be controlled, and that resource constraints can limit our capacity to control risks. However, LHIB will seek, over time, to minimise risks to the achievement of our strategic, management and operational objectives. In doing this, our approach will be informed by the following principles:
- Priority will always be given to the protection of life and property, consistent as far as possible with the protection of environmental values, both natural and cultural.
- Risks will be treated in accordance with their rating, with risks rated as extreme being addressed first, followed as resources permit by those rated high, then medium and lastly low.
- Action to reduce or control risks rated as extreme will commence as soon as management becomes aware of the assessed risk level, while action to address risks rated as high will commence as soon as practicable.
- In managing risk, LHIB seeks to ensure that any reasonably foreseeable risk of the type which could give rise to a claim for civil liability is actively assessed and managed.
This risk assessment follows these principles.
Step 2: Identifying the risks
The risk assessment has been prepared by LHIB staff in conjunction with emergency service organisations (NSW Police, NSW Ambulance Service and the NSW State Emergency Control Service), licensed commercial Island tour operators and independent specialists. The following risks have been identified for the Mt Gower Walking Track:
- dangerous trees/limbs falling
- rock fall, cliff and slope instability
- slips, trips or falls due to unstable ground, exposed roots, creek crossing etc.
- walkers becoming lost in a remote location
- failure of the rope and anchor system
- failure of communications
- risk of injury or illness to walkers due to their skill, experience and health/fitness levels
- exposure of walkers to elements resulting in heat stroke, heat exhaustion, dehydration or hypothermia.
Steps 3 & 4: Risk analysis and risk evaluation
The risk has been assessedin accordance with the LHIB ‘Risk Management Procedures’ and is documented in AppendixC.