Australia: Civil liability for personal harm - dangerous recreational activity and obvious risk

In brief - Court decision gives recreational and adventure operators more guidance

A student learning to fly a light aircraft is engaging in a "dangerous recreational activity". A crash landing is an "obvious risk" of that activity in the context of civil liability legislative provisions.

Legislative reform provides more protection to recreational and adventure businesses

A body of law continues to develop to define and exclude from recovery from damages persons who are injured when participating in certain recreational or adventure activities.

This has been the consequence of legislative reform seeking to provide more protection to operators of those recreational and adventure businesses.

Emergency landing of light aircraft causes harm to student pilot

In the District Court of NSW ( Campbell v Hay [2013] NSWDC 11), the plaintiff, Noel Campbell, a student pilot, sued Rodney Hay, a pilot instructor, arising out of injuries he sustained when participating in a flying lesson. During the course of the lesson, the aircraft engine stopped and Hay took over its controls and undertook a forced landing, resulting in Campbell sustaining injury.

Briefly the background of this incident is that about 45 minutes into the flight engine vibrations were encountered. On increasing the aircraft's revolutions, the vibrations apparently disappeared. A short time after this it was said vibrations returned but the engine commenced to run well for about a minute.

Hay took control of the aircraft, applied full power and took other steps, but the engine subsequently failed. Hay put the aircraft into a gliding mode, allegedly attempting to restart the engine and undertook an emergency landing into a bush gully. Hay was an experienced pilot who had had been involved in a number of emergency landings over his career.

Student pilot claims that instructor's management of aircraft was negligent

Hay's negligent conduct alleged by Campbell focused on his management of the aircraft, leading up to and including the engine failure, and his decision in regard to managing and landing the aircraft in this period. The aircraft engine experienced roughness shortly before it failed.

Expert evidence was led in favour of Campbell to suggest that on encountering engine difficulties, a decision should have been made to seek the nearest available landing area, rather than proceed with his original course and then having to deal with the consequences of the engine ultimately failing.

Pilot instructor found negligent but argues that risk of injury was obvious

The trial judge found that Hay had not exercised reasonable care by not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started and by his decision to continue to fly towards Katoomba.

Hay was found negligent as the pilot instructor, but he argued that the activity was a dangerous recreational activity, the risk of injury was an obvious risk and Campbell was precluded from recovering.

Civil liability provisions provide some protection

In NSW, pursuant to the Civil Liability Act (NSW) 2002 (the Act), a person injured whilst participating in a dangerous recreational activity and as a result of the injury arising from a risk that is an obvious risk is barred from recovering damages from another person, notwithstanding that other person may have been negligent. Those provisions offer powerful protection to operators of businesses which offer such activities. (For more information please see our earlier article A user's guide to the Civil Liability Act 2002 (NSW).)

The public policy behind this legislation is to prevent placing the burden of civil claims on operators of such activities, when society perceives that these activities are inherently dangerous and bring with them an obvious risk of injury or death.

Risk that would have been obvious to a reasonable person

Section 5L of the Act requires a number of steps to be determined before a bar operates to exclude recovery. Those steps must be that the court finds that the activity is a dangerous recreational activity, which under Section 5K means a recreational activity that involves a significant risk of physical harm and that the harm suffered is an obvious risk as defined by Section 5F, being "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person".

Section 5F provides that an obvious risk includes a risk that is patent or a matter of common knowledge and can be a risk even if it has a low probability of occurring.

Obvious risk as defined under Victorian law

In Victoria, there is no equivalent of Section 5L of the Act. That is, there is no statutory bar to a claim in negligence if it is established that the activity involves an obvious risk, but the statutory provisions in Part X of the Wrongs Act (1958) seek to codify some of the common law as it relates to claims in negligence, including the awareness of the risk.

For example, sections 53 -55 require a court to assume the claimant had knowledge of an obvious risk, if a defence of voluntary assumption of risk is pleaded (reversing the onus of proof on this issue). Obvious risk is similarly defined as in the NSW legislation. A claimant cannot recover if the injury arises from the materialisation of an inherent risk of an activity. An inherent risk is defined to be something that cannot be avoided by the exercise of reasonable care.

Sporting clubs and adventure activity businesses need liability insurance

These provisions are the product of the tort reform following the so-called insurance crisis after the collapse of HIH Insurance. It was perceived that there was an inability of sporting clubs and operators of more risky activities to obtain liability insurance.

The definition of a "recreational" activity or services in the context of claims for damages for personal harm has also gained importance by virtue of the Australian Consumer Law and state fair trading legislation which permits operators to exclude certain terms, implied by legislation into a contract for the supply of recreational services, if certain express warnings are given to a participant.

What is a dangerous recreational activity?

In Campbell v Hay the Court had no difficulty finding that flying lessons in a light aircraft is a recreational activity. The question was whether this was a dangerous recreational activity within the meaning of the legislation. It must involve a significant risk of physical harm ( Section 5K).

The trial judge took guidance from enunciation of relevant principles by the NSW Court of Appeal decision of Jaber v Rockdale City Council [2008] NSWCA 98 to answer this question. Jaber involved a person injured from diving into shallow water.

The standard to be applied lies somewhere between identifying a trivial risk and one that is likely to occur, with reference to both the risk and the physical harm likely. An activity involving a significant risk of sustaining insignificant physical harm (described as a sprained ankle or a minor scratch to the leg) could not necessarily be regarded as a dangerous recreational activity.

The risk of physical harm must be significant, while the risk of it occurring may be low or unlikely, but not trivial. A significant risk must be somewhere between the likelihood being trivial and one that is likely to occur.

Risk of accident when flying a light aircraft not trivial or remote

The court held flying lessons were a dangerous recreational activity. The risk of something going wrong in an aircraft, off the ground with a single engine was obvious. An aircraft in difficulty needed to be landed.

The aircraft could get into difficulty for a number of reasons: pilot incapacity, pilot error, engine failure, and other mechanical problems. The likelihood of risk of injury was not trivial.

In assessing whether this was a dangerous recreational activity, the court was inclined to inform itself and make its own assessment based on its own knowledge and experience. However, Hay did lead evidence, including statistical evidence of the number of accidents involving light aircraft, including injuries and fatalities.

It is obvious, as common experience would suggest, that the risk of accident when flying a light aircraft was not trivial or remote.

Crash landing is an obvious risk of flying

In regard to whether the injury had an obvious risk, the court considered that as a matter of knowledge and common sense there is a risk of injury if Hay was negligent. A failure to manage or operate the aircraft in a reasonable manner could eventuate in a forced landing or a crash. This was sufficient to satisfy the definition of "obvious risk" in Section 5F of the Act, notwithstanding the low probability of the risk of harm occurring.

Despite a finding of the instructor's negligence, Hay was barred from recovering damages.

An obvious risk is not always obvious, despite the activity being dangerous

Showing that a dangerous recreational activity has an obvious risk is not as easy as it might seem. A decision of the District Court of NSW in Harris v Perisher Blue Pty Limited [2011] NSWDC 172 illustrates the point. The trial judge had no difficulty concluding that snow skiing at the Perisher ski resort in the Snowy Mountains was a "dangerous recreational activity", but the circumstances giving rise to the injury were not caused by an "obvious" risk.

In that case Harris sued the operator of the resort as a result of injuries he sustained when participating in a beginners' lesson. He failed to negotiate a ditch located towards the bottom of the beginners' slope. The ditch was not considered simply a product of the normal undulation and unevenness of a ski slope, but constituted something more significant and unexpected.

The court found that the risk of harm, i.e. skiing into this ditch was not "a result of a materialisation of an obvious risk of a dangerous recreational activity". Harris was not barred from recovering pursuant to Section 5L(1) of the Act. That finding was not interfered with on appeal, although the appeal focused on more fundamental, breach of duty and causation issues (see Perisher Blue Pty Limited v Harris [2013] NSWCA 38). Of course, having overcome that threshold, Harris was still required to prove that the resort operator acted negligently to recover damages. (For more information about this case please see our earlier article District Court finds non-delegable duty of school during skiing excursion.)

Recreational and adventure activity operators are getting the protection they need

The decision in Campbell v Hay adds to the body of law regarding the civil liability of operators of recreational and adventure activities to customers who suffer injury or death. Operators and their insurers can take some comfort (and perhaps protection) with the court adopting a broad interpretation of the legislation. Injuries to be expected of such activities should not be compensable.

At first glance one might think that embarking upon a course of flying lessons, an activity involving sophisticated and well maintained machines operated by highly trained people, would not constitute a dangerous recreational activity, but the court's reasoning is sound. Yet there will continue to be argument in future as to whether these statutory provisions will apply to many novel activities.

Participants in adventure activities cannot expect to be protected from all harm

In the field of recreational and adventure activities and the liability of operators, and prior to these more modern legislative reforms, the courts have grappled with the need to recognise that there must be a trade-off between the experience a recreational or adventure activity offers, (excitement, exertion, exhilaration, fear, challenge), as against the risk that an injury may be sustained.

Participants cannot expect to have these experiences (which are as much emotional as they are physical) yet be "wrapped in cotton wool" and protected from all injury. A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. (Most people participate in organised sport on that understanding.)

Alternatively, operators can provide a very risky activity but with full disclosure and acknowledgment of those risks with accompanying waivers and exclusions - for example, perhaps, in the case of parachuting and motor racing.

Even a low risk of significant harm makes a recreational activity dangerous

Where the recreational or adventure activity may cause an injury that is not trivial, even if there is a low probability of it occurring, it can be considered a dangerous recreational activity.

Similar findings have been made about diverse activities including snow skiing and shooting kangaroos by spotlight, although participating in touch rugby was found not to be and an organised gym class, or whale watching from a boat were held not to involve the supply of recreational services.

Providers of dangerous recreational activities failing to exercise reasonable care

Injured persons remain permitted to recover loss and damage involving dangerous recreational activities where the eventuality of the risk of harm is not obvious, and the operator has failed to exercise reasonable care. Examples of the application of these principles for recreational operators could include a horse trail ride operator providing a defective saddle strap which breaks and a patron falls, or a scuba dive operator placing divers in a powerful current, having failed to interpret the tide charts properly.

In these examples, a reasonable person may not have expected the eventuality of the harm, and but for the operator's negligence, the injury would not have occurred.

Content and scope of risk warnings considered in Action Paintball case

On the 13 May 2013 the NSW Court of Appeal delivered a judgment in Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 which included a consideration of the content and scope of risk warnings to be given to participants of recreational activities. Under section 5M of the Act no duty of care is owed if a risk warning was given regarding a recreational activity. The plaintiff was 10 years old at the time when she participated in a laser tag game in open bushland occupied by Action Paintball. The plaintiff tripped on a tree root and suffered injury.

She was awarded damages in the District Court. The Court of Appeal found that a general warning given by Action Paintball that there were a lot of sticks and obstacles in the way and to not run at full speed was a sufficient warning of the risk to engage section 5M, and the plaintiff could not recover damages. Operators of recreational activities can take some comfort in the court adopting a pragmatic, rather than restrictive approach to the requirements of section 5M.

Ross Donaldson
General liability
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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