Australia: Risk warnings, recreational activity and personal harm

In brief – Action Paintball successfully appeals award of damages

The Court of Appeal has given guidance as to the scope of risk warnings under the Civil Liability Act 2002 (NSW) to exclude a duty of care. The decision assists the providers of recreational services as to the nature of the warnings to be given to patrons of the risks of an activity.

Child injured participating in bushland laser tag game

In the case Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128, Action Paintball Games Pty Ltd (in liquidation) appealed a decision of the District Court of NSW awarding the infant plaintiff $280,000 in damages for injury.

Action Paintball operated a business providing "action paintball" and "laser tag" in a bush setting, which included rough tracks through the bush, fallen branches and debris. The plaintiff was a participant in the laser tag game and just under ten years old at the time of the accident. She was running along a bush track when she tripped and fell. Her evidence was that she tripped on a huge tree root.

Advice and risk warnings given prior to commencement of activity

The plaintiff gave evidence that she understood the general risks associated with running through bushland. In addition, prior to the commencement of the activity a staff member provided certain advice and warnings in regard to the conduct of the activity and the risks associated with it.

The plaintiff was spoken to in the presence of her father. The plaintiff was warned there were lots of "sticks and obstacles in the way so as not to run full out because you might fall over and hurt yourself".

Plaintiff argues that tree root should have been removed

In the District Court the plaintiff argued that Action Paintball owed her a duty of care and the scope of the duty required that the tree root should have been removed from the track to avoid the tripping incident. It was argued the risk of harm of the plaintiff tripping was a foreseeable risk and that it was within Action's responsibility and ability to prevent.

Possible defences under the Civil Liability Act

Various defences under the Civil Liability Act 2002 (NSW) (CLA) were considered for the purpose of this appeal. This was not a case where there was any dispute that a recreational activity within the meaning of the legislation was involved. But the question of whether it was a "dangerous recreational activity", which if found, would result in Action Paintball not being found negligent at all pursuant to the operation of section 5L, was not argued.

Rather, the question of what is an obvious risk under section 5F, the presumption that persons are presumed to be aware of obvious risks under section 5G, no duty to warn of obvious risks under section 5H and the scope of a risk warning under section 5M were.

No duty to warn of obvious risk

The trial judge found that tripping on a tree root on the pathway was not an obvious risk because the site where the activity was conducted was not ordinary or natural bushland, the plaintiff had never been there before and she had not played laser tag before.

The Court of Appeal thought that the fact that the plaintiff admitted that she was aware twigs and branches in the bush can cause one to trip and fall meant the risk was indeed obvious and understood by the plaintiff and therefore under section 5H, there was no duty to warn.

Whilst the trial judge dealt the question of whether Action Paintball could not be liable if the harm suffered was as a result of a materialisation of an inherent risk pursuant to section 5I, the Court of Appeal chose not to discuss this issue because the appeal could be disposed of on other grounds.

Risk warnings provide significant protection to recreational activity businesses in NSW

Under section 5M(1) a person engaged in a recreational activity is not owed a duty of care by another if a risk warning is given and if that risk that was warned about gave rise to an injury.

Section 5M seeks to provide general guidance in regard to the provision of a risk warning, and in our opinion makes that obligation far less onerous for operators than may have been required in the past under traditional contract principles.

For example, the risk warning can be given orally or in writing (section 5M(4)). The risk warning need not be specific to a particular risk and a general warning is sufficient, so long as the risk warning warns of the general nature of the particular risk (section 5M(5)).

A defendant is not required to establish that the person understood the warning or was capable of receiving or understanding the warning (section 5M(3)). If the person involved is an infant, described in the legislation as an "incapable person", the defendant can still rely on the risk warning if the risk warning was given to the parent or guardian (section 5M(2)).

Plaintiff understood risk warning and general risk of activity

The Court of Appeal disposed of the matter on the basis that Action Paintball had given a risk warning to the plaintiff within the meaning of section 5M(1) of the CLA and therefore no duty of care was owed to her.

The plaintiff sought to argue that the risk warning given was not sufficient under section 5M because the specific hazard should be identified, whereas only a general warning had been given. The Court of Appeal held that a general warning about the risks involved was sufficient, without the need to describe each separate or specific risk or hazard.

The evidence was that the plaintiff, whilst an infant, was accompanied by her father and the risk warning had been given in his presence satisfying section 5M(2). In any event, the evidence established that the plaintiff understood the warning and the general risk of the activity.

Duty to remove obstacles on bush track not practical or reasonable

On the assumption that the trial judge had primarily found in favour of the plaintiff on the basis that Action Paintball had a duty to remove the tree root, the Court of Appeal considered that on the facts, removing the tree root was not a step a reasonable defendant in Action Paintball's position should have taken.

The court warned against considering the issue of the scope of the duty in hindsight. The question was to be viewed from the perspective of a reasonable person in the shoes of the defendant, considering the matter before the harm arose. An obligation to remove obstacles and hazards presented in an actual bush setting on regularly used pathways would be impractical and unreasonable.

Attraction of bushland setting to participants in activity

Factors that influenced the court decision included that there was an absence of evidence of previous or similar injuries and that the general risk of tripping was presented to all persons throughout daily life. The court suggested that children running through the bush could be expected to avoid such hazards, even whilst distracted by participating in the game they were engaged in.

The court noted there was a social utility in providing physical activity for children in a natural environment, that the bushland provided an attraction to participants and this was a fact to be taken into account when determining the scope of the duty. In such circumstances, removing the tree root was not a precaution Action Paintball was required to take.

Risk warnings do not need to identify every specific risk

Operators of recreational activities can take some guidance from this decision to determine the nature and scope of a risk warning to be given to participants for the purpose of the CLA. The risk warning must identify in a general way the risks that may eventuate, but not specifically identify every risk that falls within that general description.

It remains to be seen how this will apply in practice, because most recreational activities carry with them a multitude of risks, some that are obvious, some difficult to foresee. They often only come about from a combination of an individual's personal characteristics, the involvement of other participants and the environmental conditions on the day.

Facts may not always be so easy to establish

This was a case where the facts were well established. Those facts provided Action Paintball with a good basis to enliven section 5M. Whilst the plaintiff did not have a recollection of the risk warning, it was not disputed a risk warning had been given in the presence of her father and that the risk warning had contained, in substance, a general warning of the hazard that eventuated. It is not always the case that these keys facts are so clearly established.

Risks must be carefully identified and effectively communicated in risk warnings

Plaintiffs will seek to avoid the application of section 5M by arguing the risk warning was not sufficient for the activity in question and the risk that eventuated. Section 5M(5) and the Action Paintball decision suggest that general warnings will suffice, but there is obvious opportunity to argue the contrary on a case by case basis.

Properly identifying the general risks to be contemplated by the warning as best as possible and ensuring the warning is communicated in the appropriate fashion will be the key to ensuring operators may be successful in invoking the protection of the CLA.

Recreational activity and risk warnings under Victorian law

In Victoria, Part X of the Wrongs Act 1958 contains relevant provisions in respect of "obvious risk", the "materialisation of an inherent risk", voluntary assumption of risk and the ability of parties to contract out of their liability in respect of personal harm claims. But there is no equivalent section 5M of the CLA regarding risk warnings. Similarly, there is no concept of "dangerous recreational activity" which, if found, may also exclude the liability of a defendant.

However, a general risk warning given by an operator of recreation services should bring into consideration the question of whether the risk could be considered obvious within the meaning of the Victorian legislation and whether the plaintiff consented to that risk when participating in the activity.

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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