The Facts

Family quad bike session booked after visiting leisure park's website

The appellant was an 11-year-old child. Her mother phoned the leisure park to arrange a quad bike excursion on 20 May 2011.

The mother paid for the excursion over the phone after visiting the park's website, which stated that it provided quad bike sessions of one and a half hours in duration and that the minimum age for participants was 12 years.

Website description of quad biking activity

The website described quad bike riding as a "new and exciting way to explore the Australian bush". It also stated:

Quad biking on a four wheel ATV is awesome fun and surprisingly easy. In fact, no experience is necessary and anyone 12 years and above can do it. All our bikes are fully automatic making them easy to ride and use.
All riders receive a safety briefing, followed by individual instruction on how to control and manage their bike. We then do some practical training and assessments on our confidence building course, before we hit the open trails to Glenworth Valley's purpose built quad biking track...

Waiver on leisure park's application form

On arrival at the park, the appellant's sister signed an application form on her behalf, which falsely stated that she was over 12 years of age. At the time the appellant was two days away from her 12th birthday.

Under the Civil Liability Act (NSW), a person is not liable in negligence for harm suffered by another person if that other person is undertaking a "dangerous recreational activity" and the harm they suffer results from an "obvious risk". The application form included a statement that quad bike riding constituted a dangerous recreational activity under the Civil Liability Act and that the activity involved a significant risk of physical harm or personal injury.

The application form also contained a waiver, agreeing to release the officers, employees or agents of the leisure park from liability in contract, tort or under statute.

Written risk warning on sign in quad bike allocation area

There was also a sign situated in the area where quad bikes were allocated that stated:

Please be advised that quad bike riding is an inherently dangerous activity. You are required at all times to ride at a speed which is within your ability and that is suitable for the ground conditions you may experience.
If you decide to go quad bike riding you are advised that you do so entirely at your own risk. All riders need to pass our training assessments to qualify to go out on our rides.

Instructor gives verbal risk warning prior to quad bike riding session

An instructor who was an employee of the leisure park verbally highlighted the risk by stating words to the effect that "quad biking is a physical activity and there's always the potential for personal injury so always ride in a manner and at a speed that you feel comfortable, that you can control your bike".

Family receives instruction on quad bike use and performs test rides

The family was part of a group of eight riders who were all given instruction on how to use the quad bikes and given an opportunity to test ride them. The instructor was satisfied with their performance and led them along a trail from the administration centre to the "purpose built quad bike track" where they rode for some time.

Accident occurs when appellant accelerates quad bike

The group of eight then separated into two groups of four for the return trip to the administration centre. The appellant was part of the rear group. The group rode in single file with the instructor in the lead.

The group in front accelerated to get further away from the rear group, where the appellant was riding. This caused the instructor to accelerate his quad bike to catch up with them. The appellant accelerated to keep up with the instructor but lost control of her bike, falling off and injuring herself.

case a - The case for the leisure park

case b - The case for the child

  • Quad bike riding is a dangerous recreational activity because quad bikes are fundamentally unstable and highly susceptible to roll over.
  • The application form stated that quad bike riding is a dangerous recreational activity and the appellant signed the form.
  • A risk warning was provided on the sign where quad bikes were allocated and the instructor explained to the appellant that the activity was physically dangerous.
  • The appellant signed a waiver that excluded us from any liability.
  • Our website stated clearly that quad bike riding is suitable for anyone over 12 years of age. The appellant misrepresented her age and should not have been riding a quad bike on the day of the accident. We would have excluded her if we had known her true age.
  • There could have been a number of reasons why the appellant lost control of the bike, such as hitting an uneven surface, misjudgement in steering or simple inattention.
  • The court should find that we are not responsible for the appellant's injuries.
  • The leisure park's website said that quad bike riding was "awesome fun and surprisingly easy", "no experience is necessary" and "our bikes are fully automatic making them easy to ride and use".
  • There was no warning on the website that riding quad bikes is dangerous. My family booked the quad bike session on the basis of the information on the website.
  • The fine print on the application forms we filled in the following day, the sign at the quad bike allocation area and the verbal explanation from the instructor did not constitute adequate risk warnings.
  • The fact that I was two days away from my 12th birthday at the time of the accident is not significant, as I was trained and assessed as being suitable for riding the quad bike by the staff at the leisure park.
  • Riding a quad bike is not a "dangerous recreational activity" provided it is properly supervised. The accident happened because I had to keep up with the instructor, which meant accelerating to a dangerous speed.
  • The risk of injury that arose was not an obvious one, because the risk was not inherent in quad bike riding. The risk arose because an instructor rode faster than was safe for inexperienced or young participants.
  • The court should find that the leisure park is responsible for my injuries.

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Alexander Morrison

Personal injury

Stacks Goudkamp