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Touchline issue 22 | November 2015 | 7
undertook quad bike riding entirely at their own risk.
The direction to participants to ride within their ability was
reiterated in the practical training provided to the plaintiff
and her family by the guide conducting the activity.
After completing the introductory training, a guide employed
by the defendant took the plaintiff’s party to the quad bike
trail at the defendant’s premises. The group of 8 separated
into two groups of 4 for the return trip to the start of the
trail and the plaintiff was in the rear group, 50 to 60 metres
behind a group comprising the plaintiff’s older brother and
her cousin.
The leading group began to get further away from the rear
group and the guide accelerated his quad bike to catch up
with them. This resulted in the plaintiff's younger brother
and then the plaintiff accelerating to keep up with the guide
and the plaintiff lost control of her bike, falling off and
sustaining injuries.
In cross-examination, the defendant's employees conceded
that participants were directed to stick with their guides
and that if a guide accelerated, that would likely cause the
participants behind them to accelerate to keep up with the
instructor.
The plaintiff was unsuccessful in the New South Wales
District Court on the basis that the application form and
warning sign constituted a sufficient risk warning to support
the statutory defence provided by section 5M of the Civil
Liability Act 2002 (NSW). The plaintiff then appealed.
The NSW Court of Appeal found that the application and
warning sign did not constitute an adequate risk warning
for the purposes of section 5M. In particular, the Court
noted that the risk which caused the injury, namely a guide
riding faster than was safe for inexperienced or young
participants and effectively giving them no real choice but to
ride at similar speed to keep up, was not one 'of the activity'.
The Court noted that this risk could be distinguished from
inherent risks of the activity such as colliding with objects or
other participants.
Purported waiver not incorporated into the contract
The Court of Appeal rejected the primary judge's findings
that the contract between the plaintiff and defendant
incorporated the application form signed on the plaintiff's
behalf on the day of the incident.
The Court of Appeal held that the contract was formed the
previous day when the plaintiff's mother booked and paid
for the activity and there was no evidence that there was any
discussion about the application form constituting part of
the contract.
The Court of Appeal noted that even if the purported
waiver in the application form had been incorporated into
the contract, as it referred to the 'negligence of others'
but did not specifically identify injury arising from the acts
or omissions of the defendant's staff, it would have been
ineffective to exclude liability against the defendant.
Australian Consumer Law
The Court of Appeal also noted that the plaintiff was entitled
to recover damages for the defendant's failure to provide
recreational services with due care and skill in accordance
with the guarantee implied by section 60 of the Australian
Consumer Law as the potential defences (contractual
waivers and risk warnings) were not available to the
defendant.
Implications.
The decision demonstrates the need for any waiver of a
participant's legal rights to be incorporated into the contract
at the time the activity is booked and paid for, rather than
shortly before the activity commences.
To be effective, the waiver needs to alert the participant
to the nature of the proposed activity, the general risks
associated with the activity and the fact that they are giving
away their legal rights to the activity provider. Unlike the
purported waiver in Alameddine, the waiver should ensure
that the activity provider (and, if appropriate, any agents or
contractors involved in providing the activity) are identified
in the waiver.
Inconsistent marketing representations
The decision also illustrates the need for recreational activity
providers to exercise care in preparing marketing material.
Representations that an activity is 'surprisingly easy' or
'suitable for all ages' may subsequently limit the provider's
ability to rely upon statutory defences relating to obvious
risks and dangerous recreational activities.
Documenting the agreement
When payment is made in person by the participant, the
acceptance of the terms of the release can be documented
in writing at the time of payment. Similarly, in the case
of internet bookings, the operator's website should be
designed so that the acceptance of the terms of the release
can be recorded before payments takes place.
As seen in Alameddine, as telephone sales are verbal,
they create a greater challenge in incorporating a waiver.
However, this risk can be managed by implementing
procedures in which a script setting out the risks associated
with the activity is read and the participant acknowledging
that they are entering into a contract and agreeing to waive
their rights against the activity provider before payment
takes place.
Potential claims by minors
In the case of injuries sustained by children, the contract will
usually exist between the activity provider and the child's
parent or guardian. In this situation, the activity provider
cannot be confident that any waiver will bind the child. Further,
as seen in Alameddine, legislation such as the Australian
Consumer Law may impose statutory guarantees upon the
activity provider, independent of any contractual provisions.