Liability for Dangerous Recreational Activity

History and Framework:

While in the 17th century, in the time of de Cervantes, recreation was as popular as it is now, prosperity, shorter working hours and modern technology have served to encourage the population at large to engage in ever more risky recreational pastimes.

The advent of fast cars and boats, and equipment that enable one to cycle, skate, climb, or dive in a manner that was unheard of 50 years ago, has coincided with a change of attitude in the courts.

Such change has been underscored too by general education.  Courts impress the general population, often even the bare teenager, with significant intelligence in order to make decisions about recreational participation and choice.

Finally, the burgeoning consciousness of human rights in the west has embedded in liability jurisprudence the critical value of voluntary choice on the part of those who engage in any lawful activity, but in particular voluntary recreational activity fraught with risk of injury.

What constitutes recreational activity ought not be viewed narrowly.  

Organised sport is but one form of recreation.  So too is playing cards, walking, prayer and occasionally shopping.¹

Add to those the more vigorous activities of skateboarding, bicycle riding, surfing, public-private-waterhole patronage (including diving into unknown depths), gym work, jogging (including by night), recreational driving (including by night and/or when the driver is inebriated), brothel patronage (including without condom use), recreational diving, recreational travel (including to unusual destinations), water or snow skiing, hiking, trekking (eg Kokoda trail), cross-country motorcycling and four-wheel driving (usually on a beach).²

It is one thing to engage in a recreational activity per se.  The critical feature, as some of the lastmentioned items with parenthesis underscore,  is the circumstances in which the activity is undertaken.  Such circumstances can transmute the character of the risk entailed from innocuous to dire.

The Law dehors the Ipp legislation:

So much for the general philosophy.  What precisely do the courts say?

For  the moment I ignore consideration of the legislative changes that have intruded into the general law, in particular early in the millennium with the enactment of the Ipp legislation in the states and territories.  More on that below.

Historically there has been curial pushback against exempting a putative tortfeasor from liability on the basis of volens.  Thus, a person voluntarily participating in an activity such as boxing³, water-skiing⁴, jet skiing⁵, hot-rodding on a country road⁶ and like activity does not assume the risk of all acts of negligence committed in the course of the activity.⁷

No such pushback is to be discerned in the adjudicating duty of care or breach thereof.

In the sphere of organised sport, the best example of absence of a finding of no duty of care is the rugby case of Agar v Hyde & Worsley.⁸  In finding there no duty of care on the part of the rugby organisers, Gaudron, McHugh, Gummow and Hayne JJ focused on the policy or normative issue of autonomy:

[90] The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime. It would do so because it would deter those who fulfil the kind of role played by the IRFB and the appellants in regulating that pastime from continuing to do so lest they be held liable for the consequences of the individual’s free choice. The choices available to all would thus be diminished.

[91] Separate questions may arise about school age children whose decisions are made or affected by others but those questions need not be considered in this case.

A decision at the point of duty, however, is infrequent.  If a plaintiff  comes to grief on adjudication, that is more likely to occur at the point of breach.  In Woods v Multisport Holdings Pty Ltd⁹, Hayne J observed in the case concerning an indoor cricket injury:

[144] The trial judge found that the risk of being hit (by the ball, by a bat, or by another player) was an obvious risk of the sport. When one of the recognised techniques of the sport is to bowl the ball at the player who is batting at such a speed that it cannot be hit, the risk of being hit by the ball when batting is indeed obvious. It is no less obvious that the risk of injury would vary according to the part of the body that is hit, according to the force of the blow, and according to what it was that struck the blow – the ball, the bat, or another player. And in a fast moving and energetic game like indoor cricket, a collision with any of the equipment used in the game or with another player may be very serious indeed. A blow to the head or to the region of the eye could well cause very serious injury – more serious than a similar blow to some other part of the body. That a player could suffer serious injury, even permanent and disabling injury, by playing this sport was evident to all participants in it. Reasonable care did not require the respondent to warn participants of that. Nor was there any reason to single out one form of injury and warn of that. There is, therefore, no reason to disagree with the trial judge’s conclusion that reasonable care did not require the respondent to warn of the specific risk of eye injury.

Outside the sphere of organised sport, occurring usually in the instance of occupation of land, one finds like results.  Examples are the High Court decision of  RTA (NSW) v Dederer¹⁰, and in the United Kingdom Tomlinson v Congleton Burrough Council.¹¹

In Tomlinson, Lord Hoffman, a champion of human rights, said in a case of catastrophic injury resulting from diving into a lake on Council land:

[45] I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

…

[47] It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.

So much for the doom and gloom.  It is not every case involving arguably dangerous recreational activity that a plaintiff is destined to lose.  

Leading into a consideration below of the statutory incursions  into the liability jurisprudence, let  me suggest three issues which warrant focus by a lawyer acting for a  plaintiff injured in the course of what might otherwise be characterised as a dangerous recreational activity:

• identification of a contract for service provision which hopefully affords a prescriptive obligation in favour of the plaintiff or at least attracting statutory obligations of providing safe equipment, services fit for purpose or at least due care and skill.

• collection of promotional or advertising material by the service provider playing down by benign description the risks entailed in the activity;

• canvassing evidence of:

• activity equipment, apparently safe in quality, being defective for some reason;

• established rules being departed from,

As to the last, to borrow from the statutory examples in s 13 of the Civil Liability Act 2003 (Qld) (see below), irrespective of whether a contract for equipment or  facility use is entered into, where the apparently sound bungy cord breaks because it has flaws through over-use, or  go-kart has a mechanical defect, in either case unknown to the user plaintiff, there is real prospect for a successful case despite the danger entailed in the activity in question.

Commonwealth Provision:

I propose now to focus on statutory remedies which are available to those plaintiffs fortunate enough to have the benefit of a contract founding their participation in  the recreational activity in question.

Those remedies are sourced in what was until 1 January 2011 the Trade Practices Act 1974 (Cth) (“TPA”), and after that date the Competition and Consumer Act 2010 (Cth) (“CCA”).  In any particular case  investigation need be undertaken as to which Act applies to the case at hand.

Prior to 1 January 2011 some of the states and territories also provided relevant contractual remedies in their fair trading legislation.¹²  Following enactment of the CCA these have been largely subsumed within the Commonwealth legislation.

There are some significant substantive differences between the TPA and CCA.  For example, the TPA applies only to corporate defendants however the CCA is not so constrained.  I do not intend to descend to these issues further for the purpose of this paper.

In the TPA the critical provisions are ss 68 to 74.  In particular it is important to note about these provisions:

• the contractual warranties in s 74 (if established) were two in number, namely that “services will be rendered with due skill and care and that any material supplied in connection with those services will be reasonably fit for the purpose for which they were supplied” and that “the services supplied under the contract for the supply of the services and any materials in connection with those services will be reasonably fit for (the expressed or implied) purpose (made known)”.
• s 74(2A), from 2004, applied the law of a state or territory “to limit or preclude liability for the breach” any warranty implied under s 74.
• s 71 implied a condition that “goods supplied under the contract for the supply of goods are of merchantable quality” and that such goods “are reasonably fit for (the expressed or implied) purpose (made known)”.
• there was no analogue of s 74(2A) in s 71.
• s 68 and 68A, in many instances, precluded reliance on an exclusion clause excluding the said implied warranty under ss 71 and 74.
• as to s 74 alone, under s 68B in the case of “recreational services”, meaning services “that consist of  participation in … a sporting activity or similar leisure pursuit” or any other activity that “involves a significant degree of physical exertion or physical risk and is undertaken for the purpose of recreation, enjoyment or leisure”, liability for personal injury (only) could be contractually excluded.

Three further points ought be made about these provisions.

First, as to s 68B, one does frequently confront exclusion clauses, but  generally they are poorly or inadequately drafted¹³, and inexorably purport to  exclude both property damage and personal injury thereby divorcing the exemption clause from protection.¹⁴

Second, s 74(2A) presents no effective avenue for operation of the Ipp legislation (canvassed below) or contributory negligence in respect of a claim for breach of a s 71 warranty, or even a s 74 warranty to the extent that the same was breached on account of materials or services supplied being reasonably for a stated purpose.

The lastmentioned conclusion derives because a breach of a prescriptive (whether statutorily implied or contractually agreed) warranty would not ordinarily invoke any liability provision1⁵ of the Ipp legislation because the provisions of the same are (for the most part) expressly operative apropos  breach of a conventional duty to exercise reasonable care.  This is exemplified in the recent decision of French v QBE Insurance (Australia) Limited.¹⁶   There the point was made that breach of  a warranty of fitness for purpose is  strict in character.

See also Gharibian v Propix Pty Ltd [2007] NSWCA 151 at [49]-[64] per Ipp JA — a case of an injury on a toboggan run.

Third, s 74(2A) can operate to trump exclusion clause vitiation under s 68, but is of no effect in any event insofar as the Ipp legislation provision merely allows of a particular contractual outcome, rather than being self-executing.

The relevant authority in the lastmentioned regard is that of the High Court in Insight Vacations Pty Ltd v Young.¹⁷  The court said there of Civil Liability Act 2002 (NSW) s 5N after noting at [24] that ss 68A, 68B and 74(2A) qualified the avoiding provisions of s 68:

[26] …  s 74(2A) should not be construed as picking up and applying as a surrogate federal law a provision, such as s 5N of the Civil Liability Act, which in its terms does not limit or preclude liability for breach of contract. In terms, s 5N does no more than permit the parties to certain contracts to exclude, restrict or modify certain liabilities and limit the operation of any other part of the written law of New South Wales that would otherwise apply to avoid or permit avoidance of such a term. That is not a law of the kind described in s 74(2A) of the TPA. Section 68 therefore operated to render the exemption clause void in so far as the clause applied to the warranties implied by s 74.

Such ratio, by parity of reasoning, would arguably extend to the risk warning provision contained in s 7M of the NSW Act and its analogues, but not the dangerous recreational activity exemption in s 5L of the NSW Act and its Queensland, Western Australian and Tasmanian analogues (all of which I come below).  The former requires a risk warning to be given.  The latter, in contrast, is self-executing.  This awaits judicial determination.

The CCA is somewhat differently structured but in essence, for relevant purposes, is broadly similar to the above provisions of the TPA:

• most of the relevant provisions are contained in the CCA schedule 2 known as the Australian Consumer Law (“ACL”).
• the various former TPA warranties now take the form of statutory “guarantees” and are to be found in Division 1 of Part 3-2 of the ACL, in ss 51 to 68.
• in terms the guarantees are somewhat easier to apply to any particular case, albeit only in respect of a “consumer” as defined.
• in respect of the analogue of s 74, insofar as the same prescribes warranties, the same are to be found in ACL ss 60 and 61, they being in Subdivision B of Division 1 of Part 302, with a replication of TPA s 74(2A) to be found in ACL s 275.
• TPA s 68B is largely replicated in CCA s 139A.
• an action for damages for failure to comply with a guarantee is also statutory in form and is provided for by ACL s 267 and following.

For convenience I ought set out the said ACL s 275 (the successor of TPA s 74(2A)):

275   Limitation of liability etc.

If:

(a)  there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3-2; and

(b)  the law of a State or a Territory is the proper law of the contract;

that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.

Thus even absent operation of an exclusion clause utilising CCA s 139A (the successor of TPA s 68B), the Ipp legislation law as to causation, obvious risk, dangerous recreational risk exemption, criminal liability exemption,  contributory negligence (including for alcohol consumption) and damages are operative.

The above three points made in respect of the TPA apply mutatis mutandis to the CCA.

State and Territory Provision:

The Ipp legislation has been enacted in the various states and territories, albeit not uniformly.

I propose, at this point, to focus upon the Ipp legislation which is founded on statutory “obvious risk” and in turn, in those states and territories where it applies, the concept of “dangerous recreational activity” exemption.

All of the states (but neither of the territories) make provision for statutory “obvious risk”, and in turn cognate warning¹⁸ and volens defence provisions.  As an adjunct to such “obvious risk” provision, however, only New South Wales, Queensland, Western Australia and Tasmania make provision for dangerous recreational risk exemption.

Characterisation of a risk which materialises as a statutory “obvious risk”, even short of such exemption, has potential to defeat a claim arising from engagement irrespective of the characterisation of the relevant activity as a “dangerous recreational activity”.

It is important, therefore, on either basis, to treat first the issue of such statutory “obvious risk”.

There is no question that in respect of any allegation pertaining to or arising out of statutory “obvious risk”, including any statutory exemption arising therefrom, the obligation to plead and prove the same lies with the defendant not the plaintiff.

(a)    Statutory Obvious Risk:

The NSW Act is essentially representative of the various Ipp statutes in this regard.¹⁹

Section 5F of the NSW Act provides:

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Even without resort to authority it can be seen that such provision is protean in its expression, such that a risk even with a low probability of crystallising, or even not conspicuous or physically observable, may be characterised as “obvious” in the requisite sense.

Importantly, however, risks which are truly hidden, and could not be reasonably expected or apprehended likely to occur in the event of reasonable care being exercised, fall outside the statutory embrace.

That, it is submitted, is implicit in the language of s 5F above. Furthermore, that this is so  is pointed up by express portions of the Vic Act and the Qld Act.

The Vic Act, in s 53, provision recites:

(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

The Qld Act, in s 13, contains a similar provision in subs(5) and likewise affords statutory examples which inform this outcome: 

Examples for subsection (5)—

1  A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.

2  A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.

The import of these statutory qualifications inform the construction  provisions of the states bereft thereof.

In Council of the City of Greater Taree v Wells²⁰ the relevant law as to characterisation was well summarised by Beazley JA:

[75] Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that “the position of the plaintiff” comprehended the particular circumstances in which the risk materialised and the harm was suffered.

[76] The question of obvious risk requires a determination of whether the appellant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101 ; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff’s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]—[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which “the aspects of ‘the position’ of the plaintiff” are to be ascribed to the reasonable person.

Thus a local natural danger (eg, surf rips, crocodiles, snakes) may be an “obvious” risk to local but not a foreign tourist.

In the case of child, and probably intellectually disabled plaintiffs also, a less onerous test is imposed.²¹

The trend in the diving cases to find the risk of injury is so “obvious”.²²  See, likewise, the golf case of Pollard v Trude.²³

A risk which is not obvious at the commencement of the activity may become so during the activity, such as to found the statutory characterisation.²⁴

Characterisation of a risk of harm as an “obvious risk” is not self-executing as an exemption or curtailment of liability, but rather merely a foundation for potential operation
of other provisions of the Ipp legislation.  Such characterisation certainly does not “automatically lead to a finding of no breach of duty”.²⁵ 

The relevant provisions which are triggered are those of no obligation to warn (ordinarily), assisting proof of voluntary assumption of risk and the dangerous recreational risk exemption.

For convenience, given my topic, I will deal with the first and third of these only as they are the ones most likely to be operative in a dangerous recreational risk case.

(b)    Warning:

Again, the NSW Act provision is representative of that of the other states.²⁶

Section 5H of the NSW Act provides:

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a)  the plaintiff has requested advice or information about the risk from the defendant, or

(b)  the defendant is required by a written law to warn the plaintiff of the risk, or

(c)  the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

The critical thing to note about this provision is that (subject to the stated exceptions) it only excludes an obligation to warn of the risk to the extent that that is otherwise found by the court to be a measure that a reasonable person in the position of the defendant would adopt in response to the risk.

In the event the court goes further and finds that there were other (non-warning) measures which were apt in reason, this provision is of no assistance to a defendant.²⁷

Thus, in proving a case where the prospect of an “obvious risk” defence will be sought to be made out by the defendant, the plaintiff’s lawyer should be careful to lead evidence, and otherwise plead and conduct  the case on the basis that non-warning measures were apt in the exercise of reasonable care.

One can well imagine cases where, for example, occupiers ought take steps transcending  warning,  say  by preventing persons from coming onto their property, where persons are likely to engage in dangerous recreational activity thereon.  Such instances, it is submitted, however, will be infrequent.  Alternatively they would modify the areas accessed or supervise their use.

There is little doubt that in the event that the case of Dederer, upon passage to the High Court in respect of one of the defendants, if it had fallen to be decided under the NSW Act in respect of that defendant, inexorably and in any event would have been concluded adversely to the plaintiff on the basis of no duty to warn.  That is precisely what occurred in Dederer in the Court of Appeal concerning the other defendant in respect of the cause of action against whom the NSW Act applied.

(c)    Dangerous Recreational Activity Exemption:

The Ipp Report²⁸ addressed this issue at paras [4.11] to [4.25].

The Report authors opined that distinction between recreational and other activity, for liability disposition, was justified on the basis that participation in recreational activity is usually voluntary and ‘wholly or predominantly for self-regarding reasons’.²⁹

Further, the report purported to identify the existence of ‘strong community support’ for implementation of a strong form of personal responsibility in circumstances of dangerous recreational activity.³⁰

Again, but subject to the caveats to uniformity identified below, the NSW Act is representative.³¹

NSW Act ss 5J, 5K and 5L provide:

5J Application of Division

(1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff.

(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

Definitions 5K In this Division:

dangerous recreational activity

means a recreational activity that involves a significant risk of physical harm.

obvious risk

has the same meaning as it has in Division 4.

recreational activity

The caveats to uniformity are:

• the Qld Act applies only to “negligence”, not “breach of duty” which is more widely defined to include claims for duty owed under contract.  In  Queensland a plaintiff always looks for and pleads contract to found liability.
• the WA Act refers only to “liability” and although not clearly defined it probably only extends to liability for breach of duty of care whether in contract or in tort.

A critical question lies in characterising the activity in question as a “dangerous recreational activity”.

The NSW Court of Appeal summarised the relevant considerations well, by reference to the authorities,  in Lormine Pty Ltd Xuereb³²:

[31] The principles as to how an activity is to be characterised to determine if it is a “dangerous recreational activity” (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]—[50], [92]). Accordingly, it is irrelevant for the appellants to rely upon evidence from the plaintiff about the risks of crossing the English Channel.

Thus, for example, a rough unlit headland path negotiated by night, but not by day, is likely to constitute engagement in a “dangerous recreational activity”.

Lormine is an instructive case because it demonstrates the admissibility of representational and like evidence emanating from the defendant or others as to the activity in question.  There the plaintiff was a fare paying passenger on a dolphin watching cruise undertaken north of Forster in Central New South Wales.  The vessel went into open water and, through negligent navigation, was swamped by a rogue wave, leading to the plaintiff’s injury.  She did not engage in swimming with dolphins but rather she remained on the vessel.

Mason P wrote:

[2] The respondent (the plaintiff) was in a group of approximately 20 adults and children who were enjoying a dolphin watching cruise on “Avanti” not far from shore just north of Forster on 29 November 2000. She and her husband had been encouraged to book a tour upon reading the shipowner’s brochure that relevantly stated:

Forster has its own unique pods of resident Dolphins which reside in the calm ocean waters 10 minutes offshore … .Dolphin Watch Cruises suit people of all ages. For the more adventuresome (adults-15 years and over) you will have the opportunity to get in the water and swim with our dolphins.

    …

[32] The first appellant’s brochure (extracted above) was available by way of admission as a categorisation of the gentle activity that the plaintiff and her children were being invited to engage in. There was nothing to suggest to the reasonable reader that the particular vessel would go so close to the wave zone or generally into conditions where getting swamped was one of the expected thrills of the cruise. The plaintiff said that she did not even expect to get wet when she went up to the bow.

[33] Section 5L applies whether or not the plaintiff was aware of the risk (see s 5L(2)). However, I do not accept the appellants’ submission that the trial judge determined the character of the activity by reference to the plaintiff’s subjective perception. Her Honour was entitled to assess the matter from the perspective of what the appellants had or had not represented would be involved.

(emphasis added)

Thus the finding of the trial judge in favour of the plaintiff  on a s 5L issue was affirmed on appeal.

The lesson here is that in any case where a lawyer is acting for such a plaintiff, one should elicit from the plaintiff, and defendant on disclosure, all promotional and advertising material (electronic or paper),  not only that which the plaintiff saw but also that which he or she did not hear or see or did not notice.  Each is relevant to the requisite characterisation.

By parity of reasoning, statistical evidence as to injury from the activity in question is admissible on this characterisation issue.

In Vreman & Anor v Albury City Council³³ each of the plaintiff s was injured after falling from a BMX bike when engaged in a bike jumping activity at a skateboard facility which was under the control of the defendant Council. A defence under NSW Act s 5L was made out after a finding characterising the bike riding activity as “dangerous recreational activity”:

[89] … (O)nce a rider has determined upon an activity commencing with an accelerated entry from the raised platform dropping to the flat concrete surface below, with the likely or anticipated need to negotiate a raised obstacle in the form of the fun box, and then perform a jump or other trick in the air, a risk of falling is created that is completely different to the same risk that arises from simply riding the bike on a flat surface. There was a risk in the former case that the jump or the trick would not go as planned and that the landing may lead to a fall. That risk had a real chance of materialising. Mr Vreman was an experienced rider and expressly acknowledged the existence of this very risk. Mr Morris also agreed, “if you make a mistake and have a fall you might hurt yourself”.

…

[92] One of the submissions made on behalf of Mr Vreman and Mr Morris was that in statistical terms it could not be said that BMX bike riding at purpose built facilities was dangerous. It was suggested that material to be found at page 82 of the Skate Facility Guide under the heading “How dangerous is skating” showed that injury from BMX bikes accounted for 158 of the 136,000 presentations for accident related injuries to Victorian Hospitals over a three year period, and that this was statistically insignificant and consistent with little danger. That was promoted as at least prima facie support for the proposition that BMX bike riding is not a dangerous recreational activity, especially if it is carried out in a purpose built facility. The Council’s response was that activities might be statistically “safe” but fundamentally dangerous. Although not cited as an example, one instance of this idea would seem to be recreational parachute jumping, which is not notoriously associated with unduly high rates of injury or death, but which could in my view only be described as a dangerous activity. Motorcar and motorbike racing would seem to fall into a similar category.

[93] In my opinion it would be an exercise in sophistry to conclude that the activities in which Mr Vreman and Mr Morris were each separately engaged were not dangerous recreational activities, even if the incidence of injuries was not particularly high or the degree of seriousness of injuries that were caused were not always or often catastrophic.

There is no linguistic reason in the fabric of the statutory definition which would confine the characterisation to sporting or like activity, it being sufficient that it be a “pursuit or activity engaged in for enjoyment, relaxation or leisure” (NSW Act s5K definition but with analogous provisions in the Qld Act, WA Act and Tas Act).

For that reason, each of the following persons, it is strongly arguable, is engaged in dangerous recreational activity:

• a passenger in a vehicle, driven by a grossly inebriated driver, who agrees to participate in an early morning recreational drive to a nearby lookout, which involves traversing a narrow and winding road.
• a late night street race driver together with any passenger or spectator of such person, particularly in relation to road conditions.
• a patron attending a stockcar racing event who, by permission, makes his or her way into the pits, beyond the safety barriers, to view the vehicles which are continually pulling in and out of such pits at high speed.
• a patron attending a sporting fixture who wears a tee-shirt bearing an emblem offensive to one of the participating teams and proceeds deliberately to stand among or sit with that team’s supporters.

The statutory exemption is engaged in the event of “the materialisation of an obvious risk” of a dangerous recreational activity engaged in by the plaintiff (NSW s 5L).

Notwithstanding this provision, it ought be noted that the legislation does not effect linguistic symmetry between the obvious risk which crystallises and the “significant risk” by which an activity is characterised as being a “dangerous recreational activity”.

In Fallas v Mourlas³⁴ Ipp JA held, in respect of the NSW Act, that a significant risk that converts a recreational activity into one which is dangerous permissibly may be entirely different from the risk that materialises.³⁵  Basten JA held to the contrary, saying that in order for s 5L to be engaged at least one of the significant risks must be the risk that materialises resulting in harm.³⁶

This issue remains live for final judicial decision but, in my view, the view of Ipp JA is to be preferred.  In truth, that view conforms even more comfortably with the slightly differently worded definition of “dangerous recreational activity” which exists in the Qld Act and the Tas Act, each of which defines the term as “recreational activity that involves a significant degree of risk of physical harm to a person”.

Finally, the exemption, once engaged, extends to all persons who may be sued in negligence for the harm.  It is not confined to the service provider, occupier or the like, but to any person who may be sued for contractual or tortious breach of duty (or in Queensland negligence per se) in respect thereof.

The common instance of the operation of the statutory exemption is in the diving cases.³⁷

(d)    Risk Warning:

I address this for completeness.

Each of  NSW Act s 5M, the WA Act s 5I and the Tas Act s 39  provides that a person does not owe a duty of care to another where the latter engages in recreational activity, in respect of a risk which was the subject of a risk warning to the plaintiff.  The Tas Act provision only protects “a public or other authority”.

Such statutory risk warnings historically³⁸, and under the Ipp legislation, are invariably unsuccessful as a means of avoiding liability.  Usually that is because the risk warning is wholly inadequate in content.

Belna Pty Ltd v Irwin³⁹ was a gym case, probably not involving dangerous recreational activity, but the point was well made by the court there in a case where the defendant unsuccessfully relied upon a risk warning:

[17] As regards s 5M(1), the appellant contends that the risk warning given to Ms Irwin was the following acknowledgment contained in the questionnaire she signed:

“I understand that Fernwood Fitness Centre is not able to provide me with advice in regard to my medical fitness and that this information is used as a guideline to the limitations to my inability to exercise. I will not hold this club liable in any way for the injuries that may occur while I am on the premises.”

[18] This acknowledgment by Ms Irwin herself did not warn Ms Irwin about any risk involved in the lunge or any other exercise she undertook. Therefore, it was not a risk warning in terms of s 5M.

To like effect, in the case of what would otherwise be characterised as a dangerous recreational activity.⁴⁰

Conclusion:

Suing for damages in respect of what might be characterised as a “dangerous recreational activity”  can itself a dangerous pastime  given the frequent lack of success in this sphere.

Apart from selecting the right case to run, serious consideration need be given to:

• identifying a contract and preferably one which avails favourable Commonwealth legislation.
• identifying hidden flaws in equipment which spawn or amplify the risk of injury.
• locate advertising and like material which diminishes the objective risk entailed in the activity in question.

R J Douglas S.C.

Footnotes

1. Villa “Annotated Civil Liability Act 2002 (NSW)”, Law Book Company, 2004 at 78
2. Douglas et al “The Annotated Civil Liability Act 2003 (Qld)”, Second Edition, LexisNexis, 2008, at 156
3. Watson v British Boxing Board of Control Ltd [2001] QB 1134 9CA) at [84], [85]
4. Rootes v Shelton (1967) 116 CLR 383
5. Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 at [26]-[29]
6. Bondarenko v Sommers (1968) 69 SR(NSW) 269 (CA)
7. These matters are canvassed in “Fleming’s Law of Torts” (Tenth Edition — 2011) at 338-339
8. (2000) 201 CLR 552
9. (2002) 208 CLR 460
10. (2007) 234 CLR 330
11. [2004] 1 AC 46
12. These are canvassed in Douglas et al “Civil Liability Australia” (LexisNexis) at [18,000] ff.
13. Insight Vacations Pty Ltd v Young [2011] 85 ALJR 629 at [38]
14. Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279 at [37] per McGill  DCJ
15. cf Ipp legislation damages provisions in the case of s 74 breach of a duty
16. [2011] QSC 105
17. (2011) 85 ALJR 629
18. except Victoria — see below
19. Civil Liability Act (NSW) s 5F;  Wrongs Act 1958 (Vic) s 53;  Civil Liability Act 2003 (Qld) s 13;  Civil Liability Act 1936 (SA) s 36;  Civil Liability Act 2002 (WA) s 5F;  Civil Liability Act 2002 (Tas) s 15
20. [2010] NSWCA 147
21. Doubleday v Kelly [2005] NSWCA 151 at [28], [29]
22. see Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [153]-[172] where the issue was dealt with in respect of one of the defendants under the NSW Act but went on to the High Court to be dealt with at common law in respect of the other defendant ;  see also Jaber v Rockdale City Council [2008] NSWCA 98 at [27]-[29], [39], [40]
23. [2008] QCA 421
24. Mikronis v Adams (2004) 1 DCLR (NSW) 369
25. Angel v Hawkesbury City Council [2008] NSWCA 130 at [83]
26. NSW Act s 5H;  Qld Act s 15;  SA Act s 38;  WA Act s 5O;  Tas Act s 17;  the Vic Act has no provision to this effect
27. see, for example, Chotiputhsilpa v Waterhouse [2005] NSWCA 295
28. DA Ipp (Chairman), Review of the Law of Negligence Report:  Final Report, (The Ipp Report), 2 October 2002,  http://www.revofneg.treasury.gov.au 
29. Ibid, at para [4.11]
30. Ibid, at paras [4.12]-[4.14]
31. NSW Act ss 5J, 5K and 5L;  Qld Act ss 17, 18 and 19;  WA Act ss 5E, 5G and 5H;  Tas Act ss 18, 19 and 20;  there is no provision in the Vic Act or SA Act to this effect
32. [2006] NSWCA 200
33. [2011] NSWSC 39
34. [2006] NSWCA 32
35. at [25]
36. at [151]
37. Jaber v Rockdale City Council [2008] NSWCA 98;  Laoulach v EI Khoury [2010] NSWSC 1009
38. White v Blackmore [1972] 2 QB 651 in the dissent of Lord Denning;  Ashdown v Samuel Williams & Sons Pty Ltd [1957] 1 QB 409
39. [2009] NSWCA 46
40. see Vreman v Albury City Council [2011] NSWSC 39