The ACT Court of Appeal has upheld the trial judge’s decision in the matter of Ackland v Stewart, which was discussed in the April 2014 newsletter ‘Two courts jump in to consider obvious risk’ following a challenge by the defendant of the large award of damages made in favour of the plaintiff last year.1

The facts

In October 2009 the plaintiff Mr Ackland (who was the respondent to the appeal), broke his neck, causing permanent tetraplegia, as a result of landing incorrectly after performing a backward somersault manoeuvre on a jumping pillow at an amusement park called Green Valley Farm (owned by the appellants). Mr Ackland was attending a university social function on the day and was accompanied by a group of other participants.

Mr Ackland sued Green Valley Farm for damages for negligence and succeeded in obtaining an award at trial of over $4.6 million plus costs. The trial judge found that the activity engaged in by Mr Ackland was a ‘dangerous recreational activity’within the meaning of s 5L(1) of the Civil Liability Act 2002 (NSW) (CLA). However, the trial judge did not consider the risk that eventuated was an ‘obvious risk’ as defined by s 5K of the CLA. As a consequence, the defence under s 5L of the CLA (where a defendant bears no liability for harm suffered from obvious risks of dangerous recreational activities) was not made out by Green Valley Farm.

Green Valley Farm was found to be negligent in failing to implement the safety recommendations of the manufacturer of the jumping pillow by displaying recommended signage to direct users against performing somersaults.

Green Valley Farm appealed the trial judge’s findings on liability on the following grounds:

  1. That the trial judge erred in failing to find that Mr Ackland’s injuries arose from an obvious risk of a dangerous recreational activity; and
  2. Errors were made in relation to the content of any duty of care owed by Green Valley Farm and causation.

In response to those grounds of appeal, Mr Ackland argued the trial judge had incorrectly found he was engaged in a dangerous recreational activity and that, on a proper application of s 5D of the CLA, the cause of his injury was Green Valley Farm’s negligence and, but for that negligence, the injury would not have occurred.

Issues

The Court of Appeal was required to determine the following key issues:

  1. Whether Mr Ackland was engaged in a ‘dangerous recreational activity’;
  2. Whether the risk associated with the activity was an ‘obvious risk’;
  3. Whether the harm suffered was the result of the materialisation of that ‘obvious risk’;
  4. Whether Green Valley Farm owed Mr Ackland a duty of care;
  5. Whether Green Valley Farm should have prohibited the activity concerned; and
  6. Whether Green Valley Farm’s negligence caused Mr Ackland’s loss.

Decision

The appeal was dismissed with costs.

Essentially, the Court of Appeal held that:

  1. By a 2:1 majority, it was considered that the activity of performing a somersault on the jumping pillow was a dangerous recreational activity (with the minority judge still dismissing the appeal as he agreed the risk was not obvious so the defence was not available to Green Valley Farm);
  2. The risk which materialised to cause the plaintiff’s injury was not an obvious risk;
  3. There was no error in the trial judge’s conclusions that Green Valley Farm owed a duty of care to the plaintiff and had breached that duty by failing to display the warning signs or take other steps to stop people performing somersaults on the pillow; and
  4. Green Valley Farm’s breach of duty caused the plaintiff’s injury and subsequent losses.

Dangerous recreational activity

It was agreed by the parties and the judges that the relevant activity to be considered for the purposes of the claim was performing a somersault on the jumping pillow, not simply jumping on it.

Mr Ackland disputed the classification of the activity as a ‘dangerous recreational activity’ on the basis that the trial judge had failed to consider the totality of the evidence, in particular the lack of signage, the casual manner in which Green Valley Farm had presented the jumping pillow to users at its premises and on Facebook,2 and inferences that a reasonable person would have drawn in the circumstances.

In considering the defence sought by Green Valley Farm, the Court of Appeal referred to Tobias JA’s judgment in Fallas v Mourlas3 which held, ‘… as with the case of determining whether the activity in which the respondent was engaged in was a dangerous recreational activity, all of the surrounding circumstances which occurred immediately prior to the respondent suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was obvious’.

On the day of this incident, Mr Ackland had observed young children performing similar manoeuvres on the jumping pillow without any apparent attempt by Green Valley Farm to stop them. Further, Mr Ackland had previously landed awkwardly on the jumping pillow after attempting a backwards somersault and suffered no injury or discomfort.

While Penfold J thought the trial judge had applied a retrospective test to consider whether the activity was dangerous and concluded it was not, the majority upheld the trial judge’s conclusion on the basis that the evidence supported a view that there was a significant risk of physical harm (in accordance with s 5K of the CLA).

Obvious risk

Penfold JA found that an activity that carries no obvious risks cannot be found, on an objective and prospective assessment, to have a substantial risk of physical harm involved or, on the contrary, if on such assessment a judge is able to 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 Court of Appeal unanimously upheld the trial judge’s decision that the risk giving rise to the harm that befell the plaintiff (that he might suffer serious neck injuries from the manoeuvre) was not obvious to a reasonable person in Mr Ackland’s position.

Penfold JA considered a reasonable person would judge the risks of the activity on the pillow ‘less by reference to their incomplete understanding of the physics of the pillow’s operation and more by reference to observations of how the pillow was, apparently with the consent of the pillow’s owners, permitted to be used’.

Similarly, Walmsley AJ in his majority judgment was not persuaded that it should have been obvious to a reasonable person in the respondent’s position that he might suffer serious neck injuries from the manoeuvre.

With the Court of Appeal unanimously agreeing the particular risk was not obvious, Green Valley Farm’s efforts to utilise the defence under s 5L of the CLA failed. This component of the appeal was therefore dismissed and the defence failed.

Breach of duty to warn of risk

Green Valley Farm disputed the duty of care the trial judge found it owed Mr Ackland and the finding that it was breached. It argued that the risk was obvious so it owed no duty of care to warn Mr Ackland of the risk. With the Court of Appeal having upheld the trial judge’s decision that the risk was not obvious, the defence in s 5H of the CLA was not available.

Green Valley Farm submitted that its duty was not to prevent harm or to eliminate all risks but to take reasonable care to avoid foreseeable risks of harm to an entrant taking reasonable care for his own safety, and failing to eliminate a foreseeable and preventable risk is not necessarily negligent.

It was argued that duty only extended to prohibiting children from participating in the activity, as adults of normal competence should be expected to take reasonable care for their own safety.

The Court of Appeal upheld the trial judge’s findings, holding that the breach in this case was not the failure to prevent harm but rather to take reasonable care to avoid, or enable patrons to avoid, a risk of which Green Valley Farm had a far better understanding than the patrons by virtue of the specific instructions it received from the manufacturer of the pillow and their experience with the varying conditions of its use. The display of the recommended warning not to perform somersaults on the pillow would, in the court’s view, have alerted a reasonable person in Mr Ackland’s position of the potential dangers to the safety of patrons, adults included.

A reasonable person in Green Valley Farm’s position would have passed on the warning from the manufacturer and its failure to do so constituted a breach of its duty. This aspect of the appeal was therefore dismissed.

Causation

Green Valley Farm criticised the trial judge’s brevity in dealing with the issue of causation.

However, the Court of Appeal considered that, given the trial judge had found that Green Valley Farm was negligent, he was correct in briefly confirming his satisfaction that the negligence had caused the injury sustained by Mr Ackland.

Green Valley Farm criticised the absence of evidence from Mr Ackland as to what he would have done had a warning sign been displayed. This was dismissed as Mr Ackland was restrained from doing so by the provisions of the CLA.

In any event, the Court of Appeal considered there was sufficient evidence before the trial judge to establish the principles of causation as set out under s 5D(1)(a) and (b) of the CLA including Mr Ackland’s cautious approach to performing the activity on the jumping pillow, his previous experience with trampolines coupled with his assumption that the jumping pillow operated similarly and his general awareness of some of the risks associated with the activity as performed on a trampoline. While inferences about Mr Ackland’s response to a warning could be made in favour of either party, the Court of Appeal considered there was evidence to support the trial judge’s conclusions regarding causation on the balance of probabilities.

This component of Green Valley Farm’s appeal therefore also failed.

Conclusion

The matters appealed in this decision raised interesting analysis of the provisions of the CLA (which are very similar to those in the corresponding Queensland legislation) and the common law precedent regarding dangerous recreational activities.

Ultimately, each ground of appeal was defeated and Mr Ackland’s significant damages award was upheld.

While these matters tend to turn on the facts of each case, this decision and its appeal provide useful commentary on the assessment of potential defences available to providers of recreational activities and the proper analysis of the activity involved.