Recently the New South Wales Court of Appeal and the Australian Capital Territory Supreme Court have each handed down judgements involving plaintiffs who were injured while participating in water sports. These cases shed further light on the potential limitation of liability for accidents that occur in a recreational setting.

Sharp v Parramatta City Council [2015] NSWCA 260

The facts

On 25 January 2009, the then 24 year old plaintiff sustained injuries whilst jumping from a 10m platform at the Parramatta War Memorial Swimming Centre (swimming centre). The plaintiff said she was very nervous when she reached the top of the diving platform and sought the advice of a lifeguard who had been stationed on the platform. She proceeded to jump from the platform feet first but entered the water at an angle of roughly 45 degrees with her buttock coming into contact with water surface first. She sustained a compression fracture to her thoracic spine as a result.

The primary judgement

The plaintiff’s main allegations against Parramatta City Council (council) were that, as the occupier of the swimming centre, it should not have allowed the plaintiff to jump from the platform of that height, or alternatively, it should have provided proper instruction and supervision with respect to the dive.

The council had displayed a warning sign next to the diving tower which stated ‘persons using the platforms and springboards do so at their own risk’. There was a factual dispute as to the nature of the instructions provided by the lifeguard, but the primary judge accepted the evidence of the lifeguard that he had told all divers, including the plaintiff, to vertically jump off the platform so that their feet hit the water first.

The primary judge rejected the plaintiff’s argument that she should not have been allowed to dive at all. He was satisfied the instructions the lifeguard provided to the plaintiff discharged any duty of care the council owed to the plaintiff to advise her on how to jump. It was found that reasonable care did not require the council to tailor their instructions to the experience level of the diver.

The primary judge held that, in any event, the council had provided the claimant with a ‘risk warning’ within the meaning of s 5M of the Civil Liability Act 2002 (NSW) (CLA (NSW)). Under that provision, no duty of care is owed by a defendant where it provided the plaintiff with a warning with respect to the risk of harm whilst engaging in a recreational activity. The claim by the plaintiff therefore failed.

Appeal decision

On appeal, the plaintiff argued, amongst other things, that the primary judge had erred in finding that the council had provided a risk warning pursuant to s 5M of the CLA (NSW). She also disputed that she had engaged in a dangerous recreational activity at the relevant time, notwithstanding that the primary judge did not form a conclusion on this issue.

The Court of Appeal found that the general risk involved in using a 10m platform was that of injuring oneself while diving or jumping off the platform, which the sign sufficiently warned against. The court also found that the instruction provided by the lifeguard to enter the water vertically and feet first implicitly acknowledged that there was a risk of injury attached to jumping from the platform. The court upheld the primary judge’s ruling that the council had provided an adequate risk warning under s 5M of the CLA (NSW) which excludes any liability of the council.

The court also gave consideration to whether a separate defence applied under
s 5L of the CLA (NSW) on the basis that the injury occurred as a result of the materialisation of an obvious risk of injury while participating in a dangerous recreational activity. The court found the risk of injury associated with impacting the water surface from a height in an uncontrolled or unintended way was one which was both readily apparent as a matter of common sense and within the plaintiff’s personal knowledge. There was a real and significant risk that a person could seriously injure themselves when performing the activity.

Accordingly, it was found that the council had complete defences under ss 5M and 5L of the CLA (NSW). The plaintiff’s appeal was dismissed.

Whittington v Smeaton [2016] ACTSC 76

The facts

On 27 November 2010, the plaintiff was enjoying a jet ski ride with two of his friends (who were also brothers). One of the brothers operated the jet ski (driver) while the other (who was also the owner of the jet ski) towed behind the jet ski on a water ski (skier). The plaintiff was acting as an observer, which involved notifying the driver when the skier fell off and lifting the towrope when it was not in use.

The incident occurred when the driver was turning the jet ski around at a high speed on his way to collect the skier after he had fallen into the water. The plaintiff was leaning forward to pull the towrope when suddenly the jet ski struck the wake of another boat, causing him to fall into the water. His foot became entangled in the towrope and, as a result, he sustained serious injuries to his foot which required amputation.

The plaintiff brought claims against the driver and the skier. The case was heard by the Australian Capital Territory Supreme Court although the incident occurred in Queensland and Queensland civil liability provisions applied. The plaintiff alleged that the defendants were liable for his injuries for failing to properly instruct him on how to brace himself while sitting on the jet ski as an observer, and failing to advise him to only lift the towrope when it was moving at a low speed or stationary. It was also alleged that the driver owed a separate duty to warn the plaintiff when they were about to cross the wake of another boat and to avoid sudden movements while operating the jet ski.

Breach of duty

The defendants led evidence that prior to commencing the ride, the driver provided the plaintiff (who had never acted as an observer before) with brief instructions on his duties as an observer and explained that the purpose of pulling up the towrope when it was not in use was to prevent it from getting caught in the jet ski’s propulsion system.

Experts that were called upon by the plaintiff and defendants at trial agreed that the plaintiff should have been instructed not to pull the tow rope until the jet ski was at a very slow speed or stationary.

The court ruled that the defendants should have taken steps to ensure that the plaintiff understood he only needed to lift the towrope when the jet ski was almost stationary and, had he been aware of this, he would not have leaned forward to take hold the rope and would therefore have averted the incident. The court also accepted the plaintiff’s argument that the driver should have warned the plaintiff of approaching water conditions and to avoid sudden movement while operating the jet ski. Accordingly it was found that the defendants had breached their duties of care to the plaintiff which was causative of the incident.

Obvious risk and dangerous recreational activity

The defendants argued that, by reason of the disclosed risk of the towrope becoming entangled with the propulsion system, the risk of harm associated with the plaintiff falling from the jet ski should have been obvious to him. It was submitted that the plaintiff was injured as a result of the materialisation of an obvious risk while participating in a dangerous recreational activity so as to trigger a defence under s 19 of the Civil Liability Act 2003 (Qld) (CLA (Qld)).

The court observed that the parties were using the jet ski for the purposes of towing the water ski and not to perform water stunts, which would attract a higher degree of risk. The court gave weight to the evidence of the experts that acting as an observer on a jet ski did not involve a significant risk of physical harm and that neither of the experts were familiar with any other incidents in which an observer had sustained injuries from falling off a jet ski.

It was also noted that the plaintiff only agreed to be an observer because he believed he would not get wet, which the court said:

‘Constituted a limitation on his participation, agreed to by the defendants, which qualified the nature of the activity so as to reduce any danger that might otherwise be involved.’1

Overall the court was not satisfied that the act constituted a dangerous recreational activity.

In any event, the court found that the risk of harm which materialised during the activity was not an obvious one. The court differentiated between the risk of the towrope becoming entangled with the jet ski’s propulsion system and the risk of a person falling off the jet ski, and becoming caught in the rope - the latter was said to be far from obvious to a person in the plaintiff’s position, who had no general boating experience and had only ridden on a jet ski as a passenger once before, but not as an observer. The plaintiff’s claim therefore succeeded against the defendants and he was awarded $800,000 plus costs.

Conclusion

In Queensland, s 19 of the CLA (Qld) exempts a defendant from liability if it can be established that the activity the plaintiff was engaging in at the time of the incident was a ‘dangerous recreational activity’ and the harm suffered by the plaintiff was a result of the materialisation of an obvious risk of that activity. There is also no obligation by a defendant to warn a plaintiff of an obvious risk of injury under s 15 of CLA (Qld).

These decisions demonstrate that, while courts are prepared to hold plaintiffs accountable for their own actions in a recreational context, proving a recreational activity is dangerous and that the risk of injury which materialised is obvious is no easy task for a defendant. The difference between the two decisions is that in Sharp, the courts were dealing with a readily apparent risk of injury that was inherent to the activity of platform diving, whereas in Whittington, the risk of harm was not well defined and would only be appreciated by a limited group of persons not including the plaintiff.

When determining whether a recreational activity is dangerous, a court will not simply look at the activity generally but will carefully consider the purpose, nature and extent of a plaintiff’s participation. It must be shown that the activity in question involves a risk of serious harm and the degree of risk is significant. As demonstrated in Whittington, even a thrill-seeking water sport, which may appear to be risky to most, may not necessarily meet the threshold for a ‘dangerous recreational activity’ if the risk of physical harm to the individual participant is not significant.

Further, the test of whether a risk of injury is obvious and should have been known to the plaintiff is a subjective one and a court will take into account factors such as the age and experience of the plaintiff. It is important to keep in mind that what is obvious to one person may not be obvious to another.