In circumstances where a 21 year old arts/law student broke his neck causing permanent tetraplegia when doing a backward somersault at an amusement park on a device known as a jumping pillow, the trial judge found the plaintiff/respondent’s activity was a “dangerous recreational activity” within the meaning of that expression in s 5L(1) of the Civil Liability Act 2002 (NSW) (CLA) but, the risk which eventuated had not been an “obvious” risk as defined by s 5K of the CLA, so the defence under s 5L CLA had not been made out. The appeal was dismissed.
The analogous QLD CLA provisions are in all respects relevant.
 The legislation does not appear to be aimed at excluding liability for all obvious risks of all recreational activities. A “dangerous recreational activity” means a recreational activity that involves a “significant risk of physical harm” (s 5K), but since not all “obvious risks” would satisfy that test, it is clear that the existence of an obvious risk does not as such make an activity a “dangerous” one. That is, the existence of an obvious risk of recreational activity is not a sufficient condition for the activity to be classed as “dangerous”.
 In subsequent cases, the NSW Court of Appeal has continued to apply the “objective and prospective” test to the determination of whether a recreational activity is dangerous (see the cases summarised in Streller v Albury City Council (2013) Aust Torts Reports ¶82-146 at  to ).
 That, however, is the question raised by the trial judge’s finding in this case, namely, can an activity be rendered “dangerous” for the purposes of s 5L solely by a risk that is found to be not obvious.
 A conclusion that an activity may be objectively a dangerous recreational activity despite carrying no obvious risk would imply that an activity may be a dangerous recreational activity despite the fact that none of its obvious risks are “significant risks of physical harm”. The conclusion that an activity might be a dangerous recreational activity only by reason of a non-obvious risk, and that its identification as a dangerous recreational activity might depend on an after-the-fact identification of a non-obvious but significant risk, would seem to have a real potential for unfairness; it would also go beyond anything required by the expressed policy aim of requiring plaintiffs to take personal responsibility for the obvious risks of dangerous recreational activities.
 That is, where, on an objective and reasonably common sense approach to the likelihood and consequences of any risks of such an activity, an activity would not be identified as dangerous, but an obvious risk of the activity has materialised and caused injury, a defendant could be tempted to try to produce evidence suggesting a non-obvious and retrospective basis on which the activity should be classed as dangerous.
 If the activity is not apparently dangerous, there does not appear to be a policy reason for transferring the responsibility for the consequences of obvious risks of that activity from a negligent defendant to an uninformed or ill-informed plaintiff.
 The resolution to this issue may be found in the tests applied in the authorities in identifying whether an activity involves “a substantial risk of physical harm”. It may be that in practice, an activity that carries no “obvious” risks could not convincingly be found, on an objective and prospective assessment, to have involved a substantial risk of physical harm or, conversely, that if a judge can, on such an assessment, identify that the activity did carry a substantial risk of physical harm, then the activity by definition would have had at least one obvious risk.
 … the significant feature of his Honour’s (Ipp JA in Falvo v Australian Oztag Sports Association  NSWCA 17 ) approach, in my view, is that both likelihood and consequences must be considered, and a risk of catastrophic consequences of itself is not enough to render an activity a dangerous recreational activity; those consequences must be assessed by reference to likelihood.
 This must in my view be the correct position, given how many of our daily activities, recreational and 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).
 The trial Judge has also overlooked the requirement expressed in Fallas for the court to take a prospective look at the activity; instead, his Honour has found that the activity was dangerous based on an expert’s report provided after the harm was caused, in circumstances where, in the absence of that report and before the harm was caused, it seems likely that the activity would not have been identified (and apparently was not identified by any of the parties) as fitting the description of a “dangerous recreational activity”.
As s 5K notes, a “dangerous” recreational activity” is one which involves a significant risk of physical harm. Authority shows that in this context both the risk and the physical harm are qualified by the word “significant”: In Falvo v Australian Oztag Sports Association  Aust Torts Reports ¶81-831;  NSWCA 17 where the trial judge had found (incorrectly, in the view of the Court of Appeal) a game called Oztag had been a dangerous recreational activity, Ipp JA said at -:
- In my view, the definition of “dangerous recreational activity” in s 5K has to be read as a whole. This requires due weight to be given to the word “dangerous”. It also requires “significant” to be construed as bearing not only on “risk” but on the phrase “physical harm” as well. The expression “significant risk of physical harm” is coloured by the word “dangerous” and the phrase “significant risk” cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.
- The view that a risk is “significant” when it is dependent on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker  HCA 58; (1992) 175 CLR 479 at 490.
- Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.
- In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the “risk of physical harm” may be “significant” if the risk is low but the potential harm is catastrophic. The “risk of physical harm” may also be “significant” if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the “risk of physical harm” may not be “significant” if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is “dangerous”.
 In Lormine Pty Ltd v Xuereb  NSWCA 200, Mason P said of the expression “dangerous recreational activity” at :
The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm.
 In Fallas v Mourlas (2006) 65 NSWLR 418, a driver for a group of kangaroo shooters was accidentally shot by one of them. At  Ipp JA discussed “significant” in the context of the definition of “dangerous recreational activity” as follows:
In the present context, the word “significant” – coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) – is not susceptible to more precise definition.
 At  His Honour said “The composite question is whether there is a significant risk of physical harm and that requires a value judgment dependent on the circumstances of each individual case”.
 At  he said “[F]actors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm”.
 At - Tobias JA said:
- It is true that his Honour accepted (at ) that the risk needed to be assessed according to the incompetence or carelessness of the particular participants. By this I understand him to be distinguishing in the present context between a hunting party of professional kangaroo shooters on the one hand and one comprised of inexperienced amateurs out for a “good time” on the other. The risk of physical harm arising from the hunting activities of the former may indeed be regarded as not being significant.
- But the participants in the present case fall within the second category. If, as I believe to be the case, the word “significant” in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm…
 In Campbell v Hay  NSWCA 129 at  Barrett JA said:
A particular recreational activity is not a “dangerous recreational activity” unless it “involves the significant risk of physical harm”; and a risk is not “significant” unless it lies beyond a threshold point on the scale of possibility of occurrence that is beyond trivial but short of likely. Generally speaking, a risk will be “significant” if there is a real chance that it will materialise. These are the criteria adopted by this Court in the several cases collected and discussed in both Laoulach v Ibrahim  NSWCA 402 and in Streller v Albury City Council  NSWCA 348…
Was there an inconsistency in finding “dangerous recreational activity” but not “obvious risk”
 I am not persuaded there was any inconsistency in His Honour’s finding that the activity was one which was a dangerous recreational activity, while also finding the risk had not been “obvious”. They are two quite distinct concepts or elements of the s 5L defence. They must be considered separately. There will of course be some overlap. In Fallas v Mourlas (2006) 65 NSWLR 418 at  Tobias JA said:
The issue as to whether the harm suffered by the respondent was the result of the materialisation of an “obvious risk”, I find more difficult to resolve. It is clear from the definition of “obvious risk” in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged was a “dangerous recreational activity” as defined, all of the surrounding circumstances which occurred immediately prior to the respondent’s suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was “obvious”.
See also - (per Ipp JA).
 Further, it is consistent with logic that despite overlapping considerations a defendant may prove one element of the defence but not another. Section 5L(1) of the CLA itself assumes someone may be injured by a risk of a dangerous recreational activity which is not obvious. Otherwise, it is hard to see why the drafter qualified “risk” with the word “obvious”.
 Although the appellants submitted it is relevant that the factual matters to be considered overlap to a large degree for the two elements that does not assist the argument. Both of them must still be considered separately and from the perspective of the reasonable person in the respondent’s position.
 For example, in the then Premier’s second reading speech on 23 October 2012 in the context of excluding liability for dangerous recreational activities he said “[N]or will there be any liability for the obvious risks of particularly dangerous sports and other risky activities…” (my emphasis). So the mischief was not dangerous sports but those which were “particularly” dangerous. That description does not seem to me to embrace a device such as a jumping pillow in a fun park, where children are allowed to perform backward somersaults side by side with university students.
 There is support in Queensland for the proposition that what must be proved to have been obvious was that which materialised. The Civil Liability Act 2003 (Qld) has sections relevantly identical to those of the CLA concerning dangerous recreational activities. In State of Queensland v Kelly  QCA 27 a swimmer was severely injured when he was tossed head first into shallow water when a sand dune he was running across collapsed under him. He had intended jumping in to the water and but for the collapse would have done so safely. He knew the danger of diving into the water, but not of running down the sand dunes. The defendant sought to rely on the s 5L equivalent defence. The outcome in favour of the plaintiff depended on how the risk was classified. There however, the classification argument went more, but not entirely, to the mechanics of the injury rather than to its extent. At  Fraser JA said:
The trial judge considered that if the risk were defined as “the risk of serious injury from entering the water head first too close into the shore” then the risk was obvious, but if the risk were defined as “the risk of serious injury … because of the possibility of the sand giving way or tripping up at the crucial moment when running down the dune sufficiently to throw the person off balance and so converting an intended feet first jump into an unexpected and awkward head first entry into the water”, or merely as “running down the sand dune into the water”, then the risk was not “obvious” but was instead “a trap for the unwary”. The trial judge observed that “the depth of the water was known; the steepness of the dune evident; the firmness of the sand known – or presumed to be known; the ability to reach deep water easily with a running jump demonstrated … the risk here was not apparent to or would be recognised by a reasonable man in the position of the plaintiff exercising ordinary perception, intelligence and judgment …”.
 His Honour then considered the matters the trial judge had taken into account and continued at :
It is not difficult to accept that a reasonable person in the respondent’s position would readily have concluded that running down the sand dunes towards the lake was dangerous in the sense that it involved the risk of some injury, such as a sprain or bruising as a result of a fall consequent upon looseness of the sand. The second warning on the signs should have reinforced such a danger in the mind of a reasonable person. But although the first warning on the signs stated that serious injury or death was “likely to occur” from running into the lake (or jumping or diving into the lake), the cumulative effect of the circumstances to which I have referred militate against a conclusion that this risk was so clear that it would have been “obvious” to a reasonable person in the respondent’s position: the message in the pictograms that the real danger was diving into water of uncertain depth; the fact that the explanation for the risk that the lake was often shallower than it looked was falsified by the ease of ascertaining the true depth of the water; the presence of numerous persons repeatedly running down the sand dune into the lake in apparent safety; the respondent’s own experience in running into the lake without mishap on nine or ten occasions; the absence of any warning of that activity in the video which warned of different dangers on the Island; and the unusually high degree of the risk of very serious injury involved in running down the sand dunes into the lake. These circumstances justified the trial judge in finding that the risk of serious injury which was inherent in the respondent’s activity was not an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003.
 At  Henry J said inter alia: “It is obvious that running down a sand dune into a lake involves a risk of some injury. However…[w]hether running down a sand dune or a lake involves an obvious risk of serious injury will very much depend upon the individual circumstances of the case”.
 It was not, apparently, argued there that knowledge he might receive a minor injury if he ran down the dunes meant he must be taken to have been aware of an obvious risk of major injury. The opening words of  appear to proceed on the assumption such an argument was not tenable. However I concede it is not obvious that the observation by His Honour formed part of the ratio of the case.
 I consider the course taken by the trial judge was that contemplated by s 5L and was supported by State of Queensland v Kelly. I am not persuaded there is any reason not to follow that decision.
David Cormack – Brisbane Barrister & Mediator