In Stewart v Ackland 2015(ACTCA)1 the ACT Court of Appeal recently considered the application of the provisions in the Civil Liability Act 2002 (NSW) (CLA) relating to dangerous recreational activity.
On 10 October 2009, the Respondent, Mr Ackland, broke his neck causing permanent tetraplegia when performing a backwards somersault or back flip on an amusement device called a jumping pillow. The jumping pillow was situated on a farm in rural New South Wales where the Appellants conducted an amusement park.
In the District Court there was a judgment in favour of the Plaintiff for about $4.6 million. The main issue in the trial was whether the activity engaged in by Mr Ackland at the time he was injured was a dangerous recreational activity within the meaning of that expression in Section 5L(1) of the CLA, and secondly whether the risk which eventuated had been an obvious risk as defined by Section 5K.
To make out a defence under section 5(L) the Appellants had to establish 4 elements:
- The Respondent was engaged in a "recreational activity" (s 5 L(1));
- The activity was a "dangerous" one in that it 'involved a significant risk of physical harm" (s 5K);
- There was a risk of that dangerous recreational activity which was an "obvious risk" that is, "a risk that in the circumstances would have been obvious to a reasonable person in the Respondent's position" (s5F); and
- The harm suffered was the materialisation of that "obvious risk".
At the trial the appellants proved (1)and (2) but not (3) or (4).
The trial judge found:
- The recreational activity was defined as performing a back somersault on a jumping pillow. The recreational activity engaged in was characterised as a dangerous recreational activity.
- He was not persuaded that it would have been obvious to a reasonable person in the position of the plaintiff that there was a risk of serious neck injury in attempting to perform a back somersault on the jumping pillow. A reasonable person would have acknowledged that there was a risk of some minor harm if they failed to perform the manoeuvre properly. But perception of risk of minor harm is not the equivalent of perception of risk of a serous neck injury.
The Appellants appealed the liability findings. At the appeal there was no challenge to the definition of recreational activity. There was no appeal on the quantum of damages. The appeal was dismissed unanimously by the Court.
Justice Penfold refers to NSW authorities repeatedly referring to the test for a dangerous recreational activity being both an objective and prospective test. Justice Penfold commented that a reference to a prospective test would seem to require an assessment of whether, before the injury was caused, an observer would have regarded the recreational activity as dangerous, as distinct from whether, after the injury has occurred, an expert witness can be found to explain a non-obvious basis on which the activity carried a significant risk of physical harm.
Justice Penfold considered that the trial judge had fallen into error as a result of his focus on the potentially catastrophic nature of the possible injuries and his failure to consider the risk prospectively. The trial judge found that the activity was dangerous based on the expert's report provided after the harm was caused in circumstances where, in the absence of that report and before the harm was caused, it seems likely that the activity would not have been identified as fitting the description of a dangerous recreational activity.
Further the Appellants submitted that the risk that materialised was an obvious risk of using the jumping pillow and therefore because of Section 5H the trial judge should not have found that the Appellants had a duty to warn the Respondent of that risk. The Court could not see any error in the process by which the trial judge concluded that the risk of serious neck injury was not an obvious risk of the activity engaged in by the Respondent.
In making their findings the Court had regard to the following:
- The Respondent was never warned of any dangers of the jumping pillow.
- The Respondent was not instructed not to do back flips.
- There was no person or sign at the park prohibiting use of the jumping pillow for back flips.
- At the time the Respondent was injured there were children performing back flips on the jumping pillow in the Respondent's presence and in view of at least one of the Appellants' employees.
In summary the appeal was dismissed and the Court made the following findings (for varying reasons):
- The activity in which the Plaintiff was engaged in when injured was a dangerous recreational activity.
- They agreed that the risk that the Respondent would fall badly was a small but not trivial risk.
- They agreed with the trial Judge's finding that the risk, that is attempting a backward somersault on the jumping pillow, had not been obvious.
The Court of Appeal was not persuaded that there was any inconsistency in the trial judge's finding that the activity was one which was a dangerous recreational activity while also finding the risk had not been obvious. They are two quite distinct concepts or elements of the Section 5L defence and must be considered separately. The Court of Appeal acknowledged that there will of course be some overlap in the concepts. This decision shows that it may be more difficult for the defence under section 5(L) to be made out.
Accordingly, it is important for Defendants to be mindful of the two elements and ensure that the evidence and submissions address both of the following:
- the activity was one which was a dangerous recreational activity; and
- the injuries arose from an obvious risk.
The court will undertake the following approach in reaching its findings:
- What was the scope of the relevant activity?
- At the time of injury was the plaintiff engaged in a recreational activity?
- Was it a dangerous recreational activity? May require expert evidence for example here the Respondent qualified an expert to classify the size of the risk (ie trivial, significant, catastrophic);
- Whether the harm suffered by the plaintiff was the result of the materialisation of an obvious risk.
The Court will assess the last 2 elements separately and from the perspective of the reasonable person in the plaintiff's position.
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.