Written by Peter CarterAugust 5, 2015
A child’s tragic quad bike accident has resulted in an authoritative and concise description of the complex interface between statutory guarantees, waivers and liability immunities associated with potentially dangerous recreational activities.
Hayat Alameddine arranged for her two sons, two daughters and three of their cousins to take a 1.5 hour quad bike tour in the picturesque Glenworth Valley, west of Gosford.
She had investigated the adventure on the recreational facility’s website before making a phone booking for tquad bikihe following day.
On arrival at the admin centre that Saturday morning, paperwork was completed and the bikes assigned.
Senior guide Robert Stubbs, gave a short presentation that explained the danger of injury and then instructed them on how to use the machines.
After satisfying himself that each of the participants had the requisite skill level, he led them along a trail to the company’s “purpose-built quad biking track”.
For the return trip – after 45 minutes or so at the track – the group of eight was separated into two squads. Stubbs led the rear group with Mrs Alameddine following with her two daughters – including 12-yr-old Alyssa – and her youngest son.
As the gap between their troop and the leading group comprising Alyssa’s older brother and cousins began to stretch, Stubbs picked up the pace to stay in touch.
Naturally enough the following riders also increased their speed. Having accelerated to keep up, Alyssa fell from her machine and sustained injuries.
In the ensuing lawsuit, Alyssa relied, in addition to negligence, on the statutory guarantees contained in ss 60 and 61 of the Australian Consumer Law requiring the provider of services to do so “with due care and skill”.
Glenworth Valley Horse Riding P/L claimed Civil Liability immunity because the injury resulted from “materialisation of an obvious risk of a dangerous recreational activity”.
That position was rejected by the trial judge and by the appeal court who noted the company’s website statement portrayed the activity as anything but “dangerous”:-
“Quad biking is a new and exciting way to explore the Australian bush on board your very own four-wheeled fun machine. It is awesome fun and surprisingly easy. In fact no experience is necessary. All our bikes are fully automatic making them easy to ride and use. All riders receive a safety briefing followed by individual instruction, practical training and assessment.”
Having regard to the manner in which “the activity was advertised and intended to be supervised” – and despite the ‘formal’ warnings of danger on arrival and the signed liability waivers – it was not, in the opinion of all four judges, a dangerous recreational activity.
Those warnings did not fairly represent “the activity’s nature as it was presented to Alysa’s family both in their initial contact [by phone] and in what occurred on the following day”.
Neither was the injury the result of “an obvious risk” as the risk that materialised “was not inherent in, nor an incident of, the activity”. Rather the risk was one of falling off after being [carelessly] prompted by the group leader to travel at too great a speed.
To defeat Alysa’s injury compensation claim, the proprietor relied – and had its argument accepted by the trial judge – that danger warnings on signs and in the forms signed on arrival, were sufficient to discharge its duty to take reasonable care. The trial judge ruled in favour of the operator.
The appeal judges however ruled they were irrelevant given the contract had been entered into the previous day by phone before the forms or signs were seen by any of the participants.
Any purported exclusion of liability thereafter – whether signed or not – was ineffective. In any event, the warning sign – even if it could be proved that Alyssa had seen it – did not establish any voluntary assumption of risk on her part.
Her appeal on the basis of the operator’s negligence for conducting the return leg at an unsafe high speed, was allowed and Allysa was awarded $136k plus costs of the trial and appeal.
Justice Robert McFarlan went on to record a useful discussion of the complex interactions of Australian Consumer Law ss 64 & 275 and Competition and Consumer Act s 139A and the (limited) circumstances they afford a service supplier Civil Liability immunity (ACL s 275) or the right to rely on a contractual waiver (CCA s 139A).
He agreed ACL s 275 – the enabler of state law liability pre-emption of ACL liability on the part of service providers – did “pick up” NSW Civil Liability immunity in respect of dangerous recreational activities, but the section was irrelevant in this instance because Alyssa’s claim was in tort, not contract.
He also considered that because the company’s purported liability waiver extended – by use of the words “any injury, loss, damage, death, economic loss whatsoever suffered by you or consequential, direct or indirect” – beyond the permissible limits of “personal injury” only, it did not gain the benefit of the CCA s 139A antidote to ACL s 64’s anti-avoidance proscription.