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1
hold the Defendant liable when he willingly took
that risk.
The Court of Appeal found that the Plaintiff had ‘full
knowledge of the nature and extent of risk and fully
appreciated it and voluntarily accepted the risk’.
Can a child truly understand the true
meaning of ‘risk’?
All of the following factors led the Court to the
conclusion that the Plaintiff fully understood and
consented to the nature and extent of risk and had
voluntarily accepted it:
(i) the Plaintiff (despite his age) is experienced,
(ii) he had injured himself during BMX riding
before,
(iii) he knew the track was modified,
(iv) he knew the jump was dangerous,
(v) he knew the specific risk and the nature and
extent of the injury that he would sustain if
he did not perform the jump successfully,
(vi) he admitted that he would still perform the
jump even if there was a warning not to,
(vii) he assessed the risk against his capability and was sure
he could make the jump,
(viii) he actually successfully performed the first jump, and
(ix) went on to perform the second jump voluntarily.
Knowledge of risk itself is not sufficient to satisfy the requirement
for a complete defence as ‘knowledge does not mean one fully
understood the nature and extent of the risk or voluntarily accepted
the risk’ (
Carey v Lake Macquarie City Council [2007] NSWCA
4
). This is especially so for children because they are often too
young to understand. However, the clear cut factors of this case
pointed to the conclusion that the Plaintiff, although a child, had
fully appreciated and accepted the risk.
Application of Civil Liability Act 2003 to Leyden
Sections 13 and 19 of the
Civil Liability Act 2003
(Qld) (‘
CLA
’)
deal with ‘obvious risk’ and ‘dangerous recreational activities’
respectively and would seem to apply to the case of Leyden (it
was not, as Leyden is pre-CLA).
Obvious risk is a risk that would have been perceived to be
obvious by a reasonable person through common knowledge or
if the risk is patent (section 13 CLA). A Person suffering harm
from an obvious risk is ‘presumed to be aware’ of it. There is also
‘no proactive duty to warn’ another of an obvious risk (section 15
CLA).
Dangerous recreational activities are activities ‘engaged in for
enjoyment, relaxation or leisure that involves a significant degree
of risk of physical harm’ (section 18 CLA). Section 19 CLAprovides
that a person who suffers harm as a result of participation in an
obvious risk that resulted from a dangerous recreational activity
whether he or she is aware of the risk will not be able to hold
another person liable.
The application of sections 13 and 19 to Leyden would not change
the outcome of the case as it is very likely that BMX bike riding falls
under the definition of a ‘dangerous recreational activity’. Taking a
jump on the BMX track is also likely classified an ‘obvious risk’ as
most reasonable people would appreciate that there is the danger
in crashing and sustaining injury.
Risk to sporting associations
However, Civil Liability Act or not, the naiveté of children still
plays a major factor in cases involving obvious risk as what is
perceived by a reasonable man to be obvious, may not be so
to a child. In determining whether a risk is obvious to a child,
a court and, sporting organisations, their brokers and insurers,
will have to place themselves in the position of the child, taking
into consideration his or her age, understanding, appreciation and
acceptance of the risk.
Paul Cantwell is the Principal of Cantwell Lawyers in Brisbane.
His co-author Michelle Tseu is a Solicitor at the firm.
