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Written by Peter Carter

September 1, 2010

The Civil Liability Act contains complex concepts of “obvious risk”, “inherent risk” and “dangerous recreational activity”.  Nearly 8 years on, there remains a paucity of judicial guidance.
The District Court of Queensland recently had to consider some of these concepts *.

The plaintiff was in the company of two friends including the defendant whose father had given permission for the three of them to use his work vehicle for a short period. They drove the car to a narrow bitumen dead-end road at Simpson’s Falls, Bardon in Brisbane and proceeded to do “circuits” and “burnouts”.

When returning home at the end of the outing, the defendant was driving and accelerated on a down slope, losing control and crashing into a culvert. All three were injured, the plaintiff seriously.

He sued his driver friend and Suncorp for compensation. Suncorp raised a number of matters Under the Civil Liability Act 2003 in defence:-

  • The risk was an “obvious risk” (section 13) and pursuant to section 14 the plaintiff was taken to have been aware of the risk, giving rise to a defence of Volenti;
  • The activity was a “dangerous recreational activity” (section 19) and thus the defendant was not liable for the injury sustained “as a result of the materialisation of the obvious risk”; and
  • The plaintiff by agreeing to ride in the vehicle and participate in the activity contributed to the injury and was contributorily negligent.

His Honour found the three were engaged in conduct which would not be permitted on a public road. The type of driving being executed by the defendant during the journey home was however entirely different and “at a level of dangerousness far more serious than could have been contemplated”. The plaintiff had no reason to believe that the defendant would operate the car in that manner and was taken by surprise.

Thus the risk of the accident that had actually occurred was not “obvious” to the plaintiff. Further although it arose from a “recreational activity”, the driving earlier in the evening was not “dangerous” even though it was “perhaps mindless and attended on occasions by some speed”.

Finally, His Honour was of the view that by participating in the activities, the plaintiff had not contributed to his own injuries.

* Wilson v. Lambkin [2010] QDC 254 (24 June 2010)

Categories: Personal Injury , Litigation & Law Practice

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