Basic HTML Version
LEGAL
FOCUS
UPDATE
Mr Ackland suffered catastrophic injuries at the Defendants’
amusement park whilst attempting a backward somersault on a
“jumping pillow” (similar to a trampoline) that was 20 metres x
10 metres in size.
The ACT Supreme Court, at first instance, found the Defendants
liable to pay compensation to the Plaintiff in respect of his
injuries.
The Defendants appealed to the ACT Court of Appeal ,
contending that the Plaintiff’s injuries had arisen from an
obvious risk of a dangerous recreational activity.
The Court of Appeal upheld the Trial Judge’s finding that the
activity in which the Plaintiff was engaged when injured was
a “dangerous recreational activity” for the purposes of the
Civil Liability Act 2002 (NSW). The Court of Appeal upheld the
Trial Judge’s findings that the risk which materialised was not
obvious to a reasonable person in the Plaintiff’s position in view
of the following matters :
• The jumping pillow was full of air and its surface was
yielding.
• The pillow performed very much like a trampoline.
• He would have observed young children were performing
somersaults on the pillow without any apparent attempt
by the Defendant’s staff to stop them.
• He had previously landed awkwardly on the jumping
pillow after attempting a backwards somersault and
suffered no injury or discomfort.
Accordingly, the Court of Appeal dismissed the appeal.
RISK MANAGEMENT SIGNPOST
As set out in Touchline’s previous summary of the Supreme
Court decision in this matter, the Court of Appeal’s decision
demonstrates 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”.
Leisure operators need to consider the nature and mechanism
of injuries that might eventuate. 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. The warning should also 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 manner in which
it may materialise.
Austral ian Capi tal Terr i tory Court
of Appeal dismisses “obvious r isk”
appeal in
Stewart –v– Ackland
.
1 Ackland –v- Stewart [2014] ACTSC 18; Summarised in Edition 18 of
Touchl ine
2 Stewart –v- Ackland [2015] ACTCA 1
3 At paragraphs 145 and 146
LEAGUES
KIDS PARTIES
BUBBLE SOCCER
COACHING
CASUAL HIRE
5-A-SIDE SPORTS FACILITIES
ALL-WEATHER, FLOODLIT, ARTIFICIAL PLAYING SURFACES
PROGRAMS FOR 18 MONTH - 18 YEAR OLDS
5-A-SIDE COMPETITIONS FOR ALL AGES
TOURNAMENTS
JUNIORS - Combined Coaching and League program
starts October 5, just $125 per player.
www.kikoff.com.au
facebook.com/kikoffsoccer
SENIORS - 5-a-side Leagues start September 7,
just $80 per game. MENS, LADIES AND MIXED
EASTERN SUBURBS | NORTHERN BEACHES
INNER WEST | CANTERBURY-BANKSTOWN
TOUCHLINE
ISSUE 21 | AUGUST 2015 |
21