IYIR 2015 | PUBLIC & PRODUCTS LIABILITY
It might be ‘dangerous’ but ‘obvious’
too? Two limbs to the dangerous
recreational activity defence
Written by Sean O’Connor and Travis Luk
What happened?
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In Stewart & Ors v Ackland [2015] ACTCA 1, the Supreme Court of the Australian Capital Territory was
called upon to consider the application of the dangerous recreational activity defence to a backward
somersault on a ‘jumping pillow’.
The discussion of this important case focuses upon the first instance and appeal judgments in the ACT
Supreme Court. Stewart’s appeal to the High Court of Australia was granted special leave but the parties
then settled the matter the day before the High Court Hearing!
Facts
The judgment below
On 10 October 2009, the respondent plaintiff, a 21
year old arts/law student, attended the appellant
defendant’s ‘amusement park’, Green Valley, as part
of a ‘mystery bus tour’ organised by his college
social committee.
At first instance, Burns J was of the view the
risk was foreseeable (particularly in light of the
pamphlet given to the defendant two weeks
prior), the potential risk was catastrophic and the
cost of precautions (e.g. the erection of signage)
was “miniscule”. He thus found the plaintiff had
established the defendant was negligent pursuant
to section 5B of the Civil Liability Act 2002 (CLA).
At about 3pm, the plaintiff sustained catastrophic
injury (tetraplegia) when he landed on his neck
after trying to complete a backward somersault on
a ‘jumping pillow’ at the park.
The plaintiff gave evidence that he had previously
attempted a backward somersault but was
unsuccessful, landing awkwardly.
It was established that, on the day, children were
performing the same manoeuvre in view of and
without intervention from the defendant’s staff.
There were no signs in the area warning users of
the pillow that there was a risk of injury.
The plaintiff tendered a pamphlet the defendant
received from the manufacturer of the pillow
two weeks prior to the plaintiff’s injury. It advised
the defendant to supervise users of the pillow
and to prohibit or warn users not to perform
“somersaults and inverted manoeuvres”. The
defendant’s staff did not take any action following
receipt of the pamphlet and in fact, appeared to
actively encourage users of the pillow to perform
somersaults on their Facebook page. It was
accepted the plaintiff did not see that page prior
to his injury.
W+K Insurance Year in Review 2015
Burns J also held that the plaintiff had been
engaged in a ‘dangerous recreational activity’ (i.e.
one that involved a significant risk of physical
harm) within the meaning of section 5K of the
CLA. He relied largely on the expert evidence of
Dr Olsen that the potential consequences of a
poorly performed somersault were ‘catastrophic’.
However, he held that the “risk of a serious neck
injury if the manoeuvre was not properly performed”
was not an obvious risk within the meaning of
sections 5K and 5F. In making that determination,
Burns J noted, amongst other things, that young
children were performing the manoeuvre and
the jumping ‘pillow’ was full of air and ‘yielding’.
Therefore, the dangerous recreational activity
defence could not succeed.
The judgment on appeal was split into two
separate decisions. The first of Justice Penfold and
the second of Justice Walmsley with whom Acting
Judge Robinson agreed.
Duty of care
The defendant argued the scope and content of
the duty of care they owed to the plaintiff did not
extend to prohibiting and/or warning the plaintiff
of the risk associated with performing backwards
somersaults on the pillow.
It was argued that the duty to prohibit the activity,
whilst potentially extending to children, could
not extend to the plaintiff, an adult of normal
competence expected to take reasonable care for
his own safety.
Penfold and Walmsley however both disagreed,
giving similar reasons. They placed particular
emphasis on the pamphlet received by the
defendant two weeks prior to the plaintiff’s
accident. In their view, the pamphlet would
sensibly be construed as a warning given in the
interests of all of its customers safety, which a
reasonable person would have acted on.
Although the approach to section 5L
differs between the two judgments,
the decision confirms the focus of
the Courts’ enquiry is on the specific
activity and circumstances of the
plaintiff’s injury.
Penfold J at paragraph 59 stated:
“It is one thing to say that personal autonomy
requires competent adults to take responsibility
for the obvious risks of an apparently dangerous
recreational activity. It is quite another to say that
it extends to requiring those adults to take such
responsibility for the risks of an activity that may
not be apparently dangerous, even where the
nature or severity of a non-obvious risk of that
activity has been brought to the attention of the
person providing the activity.”
In both Walmsley and Penfold’s opinion, Burns
J was correct in deciding that the plaintiff had
established negligence under section 5B of the
CLA.
Section 5L - dangerous recreational
activity
Section 5L states that “a person is not liable in
negligence for harm suffered by another person as
a result of the materialisation of an obvious risk of
a dangerous recreational activity engaged in by
the plaintiff”. ‘Dangerous recreational activity’ is
defined in section 5K as “a recreational activity that
involves a significant risk of physical harm”.
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It was not in dispute that performing a backwards
somersault on a jumping pillow was a ‘recreational
activity’.
As to whether it was a ‘dangerous recreational
activity’, Penfold J, referring to a series of NSW
authorities, formulated the test as being whether,
on an “objective and prospective” assessment, the
activity carried a ‘significant risk of physical harm’.
In Penfold’s view, Burns J at first instance fell into
error by classifying the activity as dangerous.
He said the risk of catastrophic consequences,
by itself, was insufficient to classify the activity
as a dangerous one and that the likelihood of
those consequences eventuating, must also be
considered.
At paragraph 34 he states:
“This must be the correct position given how many of
our daily activities, recreational or otherwise, carry a
small to miniscule risk of catastrophic consequences
but are nevertheless viewed as generally safe and
entirely sensible activities to engage in (for instance,
private car travel and commercial air travel).”
On the other hand, Walmsley J accepted the
activity was a ‘dangerous recreational activity’,
specifically referring to and relying upon, as Burns
J did at first instance, Dr Olsen’s biomechanical
evidence that there was a risk of catastrophic harm
if the manoeuvre was not executed perfectly.
However, he said the risk that materialised was not
an obvious risk of jumping on the jumping pillow.
Relying heavily on a Queensland Court of Appeal
decision of State of Queensland v Kelly, he held that
knowledge of a risk of injury does not make the
risk of serious injury obvious.
Walmsley’s conclusion was that whilst the activity
was a ‘dangerous recreational activity’, the risk that
materialised, being of serious neck injury, was not
obvious to the plaintiff as required under section
5L.
Concluding remarks
Although the approach to section 5L differs
between the two judgments, the decision
confirms the focus of the Courts’ enquiry is on the
specific activity and circumstances of the plaintiff’s
injury.
An important aspect of the decision is the Courts’
majority approach to determining whether the risk
was an obvious risk of a dangerous recreational
activity within the meaning of section 5L and
its reliance on the Queensland decision of State
of Queensland v Kelly. That is, the plaintiff must
appreciate the risk of serious or significant injury
not just of minor injury for it to be considered an
“obvious risk” of a dangerous recreational activity.
Sean O’Connor
On 11 September 2015, the High Court heard
a special leave application by the defendants
to appeal against the Supreme Court of ACT’s
decision. On 3 December 2015, the parties
resolved the appeal by consent. What then is
the status of the judgments in the ACT Supreme
Court? By consent, the High Court allowed the
appeal and the first instance decision of Burns J
was set aside.
Travis Luk
Partner | Sydney
T: + 61 2 8273 9826
[email protected]
Associate | Sydney
T: + 61 2 8273 9805
[email protected]
As a result, the much needed clarification by the
High Court on the ‘dangerous recreational activity’
and ‘obvious risk’ defences, particularly given the
increasing trend of the state courts to limit their
application, is yet to occur but eagerly awaited.
Stay tuned.
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