[This headnote is not to be read as part of the judgment]
On 21 May 2011 the appellant was injured while riding a quad bike at the respondents’ recreational facility at Glenworth Valley in New South Wales. The appellant claimed that the respondents were liable to her in tort for their negligence in conducting the activity and for their non-compliance with the guarantees relating to the supply of services provided for by ss 60 and 61 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth). The appellant fell off her bike while being led by an instructor employed by the respondents back to their Administration Centre from their “purpose built quad biking track.”
In the District Court, Armitage DCJ directed that judgment be entered for the respondents.
Held, allowing the appeal and entering judgment for the appellant (per Macfarlan JA; Simpson JA and J C Campbell AJA agreeing):
(1) The respondents were guilty of negligence because the respondents’ instructor caused the appellant to travel on her quad bike at an excessive speed (-).
(2) The appellant’s injury did not result from “the materialisation of an obvious risk of a dangerous recreational activity” engaged in by her. As a result, s 5L of the Civil Liability Act 2002 (NSW) did not provide a defence to the respondents (-).
In light of the manner in which the activity was advertised and intended to be supervised, it was not “a dangerous recreational activity”.
Bright v Sampson and Duncan Enterprises Pty Ltd  1 NSWLR 346; Trevali Pty Ltd v Haddad  Aust Torts Report 80-286; Holroyd City Council v Zaiter  NSWCA 109 referred to.
Nor did the appellant’s injury result from the materialisation of “an obvious risk” of the activity as the risk that materialised was not inherent in, or an incident of, the activity.
Lormine Pty Ltd v Zuereb  NSWCA 200 at - applied.
(3) Section 5M of the Civil Liability Act did not preclude the respondents owing a duty of care to the appellant because, while the respondents warned the appellant (by a sign and in an application form) of the risks of riding a quad bike, the risk that materialised, being the risk of injury resulting from the respondents’ instructor’s negligence, was not inherent in, or incidental to, that activity (-).
(4) The exclusion of liability clause that the respondents relied on did not form part of the contract between them and the appellant as it was contained in a form that was signed after the contract was concluded. There was therefore no contractual exclusion clause whose efficacy was preserved by s 5N of the Civil Liability Act. In any event, the terms of the exclusion clause were not sufficiently broad to extend to the respondents’ negligence (-).
(5) The appellant was entitled to compensation from the respondents under the Australian Consumer Law as a result of the respondents’ failure to comply with the guarantee given to the appellant, as a consumer, under s 60 of that Law that they would perform their services with due care and skill (-).
Discussion of the operation of ss 64 and 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act.
Discussion by Campbell AJA of the meaning of the words “consumer” and “guarantee” for the purpose of the Australian Consumer Law.
(6) The appellant’s entitlement to an award of compensation under the Competition and Consumer Act did not preclude the Court awarding the appellant damages for non-economic loss calculated in accordance with s 16 of the Civil Liability Act, there being no relevant inconsistency between the two Acts ().
Macfarlan JA with whom Simpson JA and Campbell AJA agreed:
- This Court’s pre-Civil Liability Act decision in Bright v Sampson and Duncan Enterprises Pty Ltd  1 NSWLR 346 considered the efficacy of the exclusion clause; “skating is at the patrons’ own risk”, to which patrons of the defendants’ skating rink had agreed. Kirby P considered that the clause was “limited to protecting the occupier against liability for injuries caused by activities” inherent in or incidental to skating” (at pp 349-50). Samuels JA used similar language (at p 360) and Mahoney JA noted that the clause did not apply to any injury simply because it resulted from a risk materialising while skating (at p 368). Likewise in Trevali Pty Ltd v Haddad  Aust Torts Reports 80-286, another case involving an injury at a skating rink, the Court referred to “pushing and jostling”, as distinct from deliberate pushing, as an incident of skating in such a venue (pp 69,034-69,035).
- In Holroyd City Council v Zaiter  NSWCA 109; 199 LGERA 319 a nine year old boy rode a bicycle down a grassed slope into a concrete drainage channel. This Court found that s 5L was inapplicable because that activity (riding a bike) was not a dangerous recreational activity and in any event “the [relevant] incidental risk was that the rider might fall off and hit his or her head on the ground or on the bike. The risk which eventuated here [was] not a fall off the bike, but falling a distance of two metres into an unfenced concrete channel” (at ).
- In the present case, it would have been obvious to a reasonable person in the appellant’s position (even taking into account her age, as to which see Carey v Lake Macquarie City Council  NSWCA 4 at  and Holroyd City Council v Zaiter at ) that significant injury might be suffered if that person, or another participant, were unable to properly control his or her quad bike. These were obvious risks incidental to the activity (albeit, as I have held, that it was not a “dangerous recreational activity”). However, I do not consider that the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him, was a risk inherent in or incidental to the quad bike riding activity as it was presented to the appellant and her family. To uphold the defence under s 5L in such circumstances would be inconsistent with the evident policy underlying s 5L to preclude a plaintiff suing where (and only where) the plaintiff has been injured as a result of him or her engaging in a recreational activity when the risk that materialised should reasonably have been obvious to them.
David Cormack – Brisbane Barrister & Mediator