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Touchline • Issue 16 • 33
CLAIM TRIPPED UP BY ADEQUATEWARNING
A
ction Paintball Games Pty Ltd (the Appellant)
occupied an area of natural bushland on which
it ran laser tag and paintball games. Throughout
the area of bushland, where the game was
conducted, there were rough tracks through the bush but also
fallen branches and debris. On 16 February 2008, Bethany
Baker (the Respondent) attended a laser tag game in the area
run by the Appellant for her brother’s birthday. At the time of
the incident the Respondent was aged one day short of 10
years of age.
Prior to the laser tag game commencing, a member of the
Appellant’s staff conducted an induction, in the presence of
the Respondent’s father, which warned the Respondent and
other participants in the game about certain safety aspects
and the game’s rules. The Appellant’s safety briefing included
a warning that “there is a lot of sticks and obstacles in the
way, so not to run full out, because you might fall over, and
hurt yourself”.
Shortly after the game commenced, the Respondent tripped
over a tree root and fell whilst jogging on a dirt track. The
Respondent suffered a significant fracture to her left elbow as
a result of the fall. The 2011 District Court decision awarded
the Respondent damages in an amount a little over $280,000.
The appeal brought by the Appellant was limited to the issue
of liability rather than the assessment of damages.
The Civil Liability Act (2002) NSW (the CLA) provides that
a person who suffers harm as a result of an obvious risk is
presumed to have been aware of that risk of harm. The Act
also provides that there is no duty of care to another person
to warn of an obvious risk.
The trial judge found that tripping on a tree root on the
pathway was not an obvious risk pursuant to section 5F under
the CLA because the recreational activity site was not ordinary
bushland, the plaintiff had never been there before and she
had not played laser tag before.
Section 5M of the CLA sets out that a person does not owe
a duty of care in respect of a risk of a recreational activity
if the risk was the subject of a warning. The section further
provides that a valid warning is one that is reasonably likely
to warn people of the risk before engaging in the recreational
activity. A defendant is not required to establish that the
person received or understood the warning or was capable of
receiving or understanding the warning. A warning does not
need to be specific to the particular risk and can be a general
warning of a risk that includes the particular risk concerned.
The Court of Appeal considered whether the Respondent’s
claim for damages resulting from the recreational activity
was the subject of a “risk warning” which would exclude the
Appellant’s duty of care under the Act.
On appeal, it was accepted that the warning was provided to
the Respondent in the presence of her father and that from
her evidence, she understood the general risks associated
with running through bushland.
In a unanimous judgment, the Court of Appeal rejected the
Trial Judge’s suggestions that one specific hazard should have
been identified and held that this was a function of hindsight.
Basten JA held that the suggestion that children should be
told not to run at all would have been disproportionate
to the risk and would have greatly diminished the game’s
attractiveness. He found that a risk warning needs to identify
the existence of a risk but not necessarily instruct the
recipient as to all the steps necessary to avoid the risk. His
Honour determined that reference to the general kind of
risk involved without precise delineation of each separate
obstacle or hazard could constitute an adequate warning.
Accordingly, the Court of Appeal concluded that the
Appellant’s warning was adequate and allowed the
Appellant’s reliance on section 5M in defence of the claim.
Basten JA considered that irrespective of the application of
the 5M defence, the Trial Judge’s formulation of the duty of
care was too high. Basten JA also considered the common
risk of harm through tripping, the need to avoid reliance on
hindsight and the social utility of the activity, in finding that
there was no obligation on the Appellant in exercise of its
duty of reasonable care to remove the offending protruding
tree root from the ground.
The decision provides guidance for operators of areas which
provide recreational activities, in relation to the requirements
for the nature and scope of warnings to be given to
participants regarding the risks of an activity. It is sufficient
for a warning to identify the general type of risk involved
rather than having to identify each and every risk. A further
important consideration for operators is to ensure they can
prove that the warning was appropriately communicated to
participants prior to their involvement in the recreational
activity to discharge their duty of care.
(Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128)
SUMMARY