Basic HTML Version
Is the risk obvious?
The legislation generally defines ‘obvious
risk’ as a risk that, in the circumstances,
would have been obvious to a reasonable
person in the position of the injured
person.
The reference to a reasonable person
in the position of the injured person is
important as it allows the court to take into
account the experience and knowledge
of the injured person. This was crucial
in Dederer. In that case, the plaintiff had
been holidaying in the area since he was a
small child and was aware that the estuary
into which he was diving could be shallow
with shifting sands, causing the depth of the
water to vary. The New South Wales Court
of Appeal found that the assessment of the
obviousness of a risk was to be undertaken
objectively with reference to a notional
reasonable 14 year old with the knowledge
of the area and conditions possessed by
the plaintiff at the time. Consequently, the
court found that even without a pictograph
sign prohibiting diving, the risk of serious
spinal injury should have been obvious
to a 14 year old person with the plaintiff’s
knowledge of the area. Consequently, the
plaintiff’s claim failed.
Similarly, in Laoulach the New South Wales
Supreme Court held that the risk of serious
spinal injury from striking the bottom of
a bay should have been obvious to the
plaintiff, particularly after the defendants
had relocated their boat due to concerns
about the water being too shallow for diving
and the plaintiff had been aware of these
concerns.
Further, in the Albury City Council decisions,
the New South Wales Supreme Court
rejected an argument that the plaintiffs’
severe injuries were caused by the council’s
negligence by applying paint that caused
the skate park surface to become slippery.
The New South Wales Supreme Court
noted that a reasonable person in Vreman’s
position who had ridden on the surface
of the skate park many times would have
been able to form his own conclusions as to
the suitability of the surface. The court also
held that a reasonable person in Morris’
position (who was aware of Vreman’s
accident) would also have been able to
form his own opinion as to its suitability for
riding. The court concluded that the risk
of injury from attempting jumps on a BMX
bike in a concrete skate park would have
been obvious to a reasonable person in the
position of the plaintiff.
Although the provisions allowed the
defendants to successfully defend claims
for catastrophic injuries in these cases,
a critical factor in the effectiveness of
the defence was the state of knowledge
of the plaintiff. The risks of spinal injury
from diving into water of uncertain depth
are relatively well known to Australian
residents. However, the outcome of a
claim like the one in Dederer might be
different if the injured claimant was a non-
English speaking overseas tourist with
limited knowledge of water safety issues.
If our hypothetical tourist suffered injuries
from diving into water of uncertain depth, a
court would be less likely to conclude that
the risk which materialised was obvious to
a reasonable person in the position of that
tourist.
However, the fact that a recreational activity
is simply dangerous is insufficient to make
out the defence provided by the legislation.
Defendants need to demonstrate that
the risk which caused the injury was an
obvious risk of the dangerous recreational
activity. In Fallas v Mourlas the plaintiff
was injured when he was shot in a vehicle
while the defendant attempted to clear a
jammed handgun rather that while he and
the defendant were using rifles to shoot
kangaroo. Ipp J held that the defendant’s
gross negligence was not an obvious risk
of the activity while Basten J found that the
risk of accidental discharge of a handgun
while sitting in a vehicle was too far removed
from the activity of kangaroo shooting to
form part of that activity.
The outcome on these cases will always
turn upon their individual circumstances.
The decision in Fallas may well have been
different if the plaintiff had been injured by a
rifleshot whilst thedefendant wasattempting
to despatch a luckless marsupial.
Summary
The focus upon the awareness of a
reasonable person in the position of the
plaintiff (which can include the plaintiff’s
knowledge of the area or activity) imports,
to some extent, the concept of ‘personal
responsibility’ to claims arising out of
dangerous recreational activities.
However, the provisions do not provide a
silver bullet for defendants to defeat such
claims. The onus rests with the defendant
to make out the defence provided by the
legislation and, as illustrated above, this will
depend upon the circumstances of each
case and the knowledge of the claimant.
The outcomes of Dederer, Laoulach and
Vreman may have been same on the
basis that the defendants had adopted all
reasonable measures within their power to
respond to the risk. However, the provisions
do provide defendants with an additional
defence beyond simply arguing that they
exercised reasonable care to avoid a
foreseeable risk of injury to the claimant.
Commercial leisure activity providers
should consider the type of activities they
are providing, how those activities are
being marketed and their customer base.
In the event of a claim, an operator which
markets its activities as being ‘for all ages’ is
unlikely to persuade a court that the activity
was actually a ‘dangerous recreational
activity’. Similarly, the legislative reference
to a reasonable person in the position of the
plaintiff cuts both ways - a risk that might
be obvious to an Australian resident (such
as diving into water of unknown depth) may
be unknown to a non-english speaking
overseas tourist and the operator’s
prospects of persuading a court that the risk
was obvious to the injured foreign tourist
would be uncertain.
Commercial leisure activity providers
should not pin their hopes of defeating
claims upon the statutory defence provided
by the legislation but should be proactive
in undertaking risk assessments to
identify the likely risks associated with the
operations, provide relevant warnings and
where possible, arrange for their customers
to sign a release at the time they enter into
contracts with their clients (see Touchline
issue 8: Releases can they cover the spills
while you deliver the thrills?).
James McIntyre
Senior Associate,
DLA Piper
Australia
T +61 7 3246 4138; F +61 7 3229 4077
E james.mcintyre@dlapiper.com
touchline
21
Through Legal Eyes
1
Civil Liability Act 2002 (New South Wales),
Civil Liability Act 2003 (Queensland), Civil
Liability Act 2002 (Tasmania), Civil Liability
Act 2002 (Western Australia).