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28 • Touchline • Issue 18
ACKLAND V STEWART[2014] ACTSC 18
Mr Ackland took a tour to the Green Valley Farm as part of an
activity organised by his university college social committee.
Green Valley Farm was a holiday/amusement park owned by
the defendants which, amongst other attractions, included a
“jumping pillow” (similar to a trampoline) that was 20m x 10m
in size.
Various patrons were performing somersaults in the air and Mr
Ackland, at the urging of other patrons, attempted to perform
a back somersault. After various failed attempts where he
landed awkwardly on his “side and the belly”, he attempted the
somersault again but landed heavily on his head, suffering a
serious neck injury and quadriplegia.
Mr Ackland alleged that his injury was a result of the
defendants’ negligence in failing to provide instruction in the
safe use of the jumping pillow, failing to supervise the pillow
and failing to prohibit backflips on the jumping pillow.
The critical issues was whether the injury was sustained as a
result of “the materialisation of an obvious risk of a dangerous
recreational activity” within the meaning of section 5L of the
Civil Liability Act 2002 (NSW). Having found that the act of
performing a backwards somersault in the air was clearly a
dangerous recreational activity, the issue central to the case
was whether there was an “obvious risk” that a person might
suffer a serious neck injury when performing a backwards
somersault on the jumping pillow.
The Australian Capital Territory Supreme Court held that, to a
reasonable person in Mr Ackland’s position, it would not have
been obvious to that there was a risk of serious neck injury in
attempting a backward somersault on the jumping pillow. The
judge noted that a reasonable person in Mr Ackland’s position
would have acknowledged the risk of minor harm, but not the
risk of a serious neck injury, in view of the following matters:
1
Young children were performing similar manoeuvres on
the pillow, without any apparent attempt by staff at the
park to stop them;
The jumping pillow was yielding and full of air;
He had extensive experience in performing back
somersaults and other inverted manoeuvres in the past,
albeit not for the last 5 years;
He had previously landed awkwardly on the jumping
pillow after attempting a back somersault and had
sustained no injury or discomfort.
Accordingly, the Court found that the defendants could not rely
upon the “obvious risk” defence set out in section 5L of the Civil
Liability Act 2002 (NSW).
In considering whether the defendants had complied with their
common law duty of care, the Court noted the defendants had
received letters from the manufacturers of the pillow enclosing
a “Jumping Pillows User Manual”, which recommended that
additional signage to be erected or printed on the pillow to
include words to the effect of “no somersaults or inverted
manoeuvres”. The judge held that a reasonable person in the
position of the defendants would have taken precautions by
prohibiting patrons from performing such manoeuvres and
placing warning signs advising patrons against performing
somersaults and other inverted manoeuvres.
Accordingly, the Court gave judgment for the plaintiff and
awarded damages of A$4,626,241.
RISK MANAGEMENT SIGNPOSTS
These recent cases demonstrate the critical importance of
written warnings in a leisure activity provider’s ability to mount
a defence based upon the materialisation of an “obvious risk”.
The cases illustrate the need for explicit warning signs which
adequately outline the dangers inherent in participation in a
recreational activity.
When formulating warnings, leisure operators need to consider
the nature and mechanism of injuries that might eventuate
as well as those which have previously been sustained (this
was particularly relevant in Kelly) as well as warnings from
the manufacturers of any equipment used in the activity (as
seen in Ackland). Once those risks have been identified, they
need to be conveyed to patrons, ideally in writing and clearly
convey the nature of the risk and how it may materialise
and the warning should be delivered close in time to the
commencement of the activity.
Where the leisure activity involves international patrons,
operators should consider the various languages spoken
by their potential patrons and assess whether multilingual
warning signs are appropriate. Pictograms may assist in
overcoming language barriers but care must be taken to
ensure the pictograms adequately convey the risk and the
manner in which it may materialise.
ACKLAND V STEWART[2014] ACTSC 18
RISK MANAGEMENT SIGNPOSTS
1.
Ackland v Stewart [2014] ACTSC 18, at [304]