On 12 February 2015, Supreme Court of the Australian Capital Territory (the Court) handed down its decision in Stewart & Ors v Ackland [2015] ACTCA 1, in which it considered whether the owners of an amusement park could be held liable for injuries sustained by a patron whilst performing a backflip on a jumping pillow.

The Court found that the use of a jumping pillow was not a ‘dangerous recreational activity’ and the performance of a backflip on the pillow did not present an obvious risk of harm.  The Court confirmed that in determining whether a recreational activity is ‘dangerous’, the risk must be considered objectively and prospectively, without the benefit of hindsight.

Negligence was established against the owners of the amusement park in failing to implement safety recommendations provided by the manufacturer of the jumping pillow.

FACTS

Mr Benjamin Ackland (the respondent) was a law student at the University of New England.  The respondent resided on campus at Austin College. 

On 10 October 2009, the respondent visited Green Valley Farm (the Farm), an amusement park located near Tingha, New South Wales.  The Farm was owned by Mr Patrick Stewart, Ms Berryl Ann Vickery and Mr Michael Stewart (the appellants).  The respondent was accompanied by 36 college colleagues who attended the Farm as part of a ‘mystery bus tour’ arranged by the college social committee.

At the Farm, the respondent climbed on a jumping pillow and continued to jump up and down, landing either on his stomach or back for about 45 minutes.  After taking a short break, the respondent resumed jumping on the jumping pillow during which he attempted to perform a back flip.  Tragically, the manoeuvre failed and the respondent sustained serious neck injuries, causing permanent tetraplegia. 

AT FIRST INSTANCE

The respondent commenced proceedings against the appellant for damages for negligence.  The appellants pleaded a defence under section 5L of the Civil Liability Act 2002 (NSW) (the Civil Liability Act), which provides that a defendant is not liable in negligence for harm suffered from obvious risks of dangerous recreational activities.  The trial judge found that although the activity engaged in by the respondent, that is jumping on the jumping pillow, was a ‘dangerous recreational activity’ as defined in section 5K(1) of the Civil Liability Act, the risk of harm that materialised was not an ‘obvious risk’. 

Relevantly, the manufacturer of the jumping pillow had circulated a new owners’ manual to the appellants about six weeks prior to the respondent’s accident.  The manual stated: … In addition to implementing all of the safety recommendations in the manual we also recommend that additional signage be attached to your pillow to include words to the effect, ‘No somersaults or inverted manoeuvres’.  Despite this recommendation, the appellants provided no such warnings to patrons, including the respondent, not to perform backflips on the jumping pillow.

The trial judge entered judgment in favour of the respondent in the sum of $4,626,241.84 and costs, including indemnity costs from 7 June 2012. 

THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The appellants appealed the decision to the Court on six grounds alleging errors in relation to:

  1. whether the respondent’s injuries arose from an obvious risk of a dangerous activity;
  2. the content of any duty of care owed by the appellants; and
  3. causation.

The respondent filed a Notice of Contention contending that the trial judge had incorrectly decided that the respondent had engaged in a dangerous recreational activity, however, otherwise confirmed the trial judge’s orders.

Dangerous recreational activity

The Court considered whether the existence of an obvious risk was a necessary condition for an activity to be regarded as dangerous.  There was no dispute that the respondent had engaged in a recreational activity whilst performing a back somersault on a jumping pillow.  However, the Court found that the trial judge had incorrectly determined this activity to be a dangerous recreational activity.

Applying Fallas v Mourlas (2006) NSWLR 418 (Fallas), Justice Penfold held that ‘the defendant will only be protected by s 5L if the risk that does materialise is both an obvious one and one of the risks that renders the activity dangerous’.  His Honour noted that ‘the legislation should not be interpreted as contemplating that an activity might be a dangerous recreational activity despite, on an objective and prospective assessment, carrying no obvious risk’.  In other words, if the respondent’s activity was indeed a dangerous recreational activity, the trial judge could not conclude that the risk that made the activity ‘dangerous’ was not an obvious risk. 

The trial judge had found the activity to be a dangerous recreational activity due to the ‘risk of catastrophic physical harm’ and expert evidence on the biomechanics of the back flip.  His Honour found that in doing so, the trial judge failed to appropriately apply an ‘objective and prospective test’ in assessing if there was a ‘significant risk of physical harm’ in the activity.  Applying Ipp JA’s approach in Falvo v Australia Oztag Sports Association [2006] NSWCA 17, his Honour stated that ‘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’.  Similarly, a ‘prospective’ test requires assessment of the recreational activity prior to participation in the activity without the benefit of expert evidence, as relied upon by the trial judge. 

As the activity was held not to be a dangerous recreational activity, his Honour did not consider the issue of whether an obvious risk materialised during the activity.

Duty of Care

The Court upheld the trial judge’s findings that the appellants had a duty to warn the respondent of the risk that eventually materialised. 

The trial judge considered whether ‘the risk that a person might suffer a serious neck injury if an inverted manoeuvre was not properly performed’ was an obvious risk.  The trial judge had found that the risk was not obvious by reference to the factual circumstances of the activity, including the fact that the jumping pillow was an attraction for both children and adults and the respondent’s prior experience in performing back somersaults.  The Court confirmed this approach and noted that a reasonable person would assess risk ‘less by reference to his or her incomplete understanding of the physics of the pillow’s operation and more be reference to observations of how the pillow was, apparently with the consent of the pillow’s owners, permitted to be used’. 

Prohibition of the Activity

The appellants’ contested the trial judge’s finding that they breached their duty of care by failing to prohibit backflips on the jumping pillow.  In particular, the appellants’ argued that they could have only prohibited the activity for children as adults of ‘normal competence’ would be expected to take ‘reasonable care for their safety’.  The Court acknowledged this argument but noted that in circumstances where the risk of harm was not obvious there was a duty to at least provide warnings of the risk.  This was particularly relevant given the appellants’ received recommended warnings from the manufacturer prior to respondent’s accident.  This constituted ‘important information’ for visitors at the Farm and the appellants’ ought to have either prohibited the activity or provided warnings of the risk.  The Court accepted that a failure to pass on a manufacturer’s recommendation was not determinative of a breach of duty but said that such could contribute to a finding of negligence as in the present circumstances.

Causation

The appellants’ submitted that the trial judge’s findings on causation were not adequately explained and the respondent had not provided evidence in this regard.  The Court held that on the balance of probabilities, it was possible that had there been signposted warnings, oral direction from staff or prohibition of the activity, that the respondent would have been deterred from the activity.  In extending the scope of the appellant’s liability to the harm caused, the Court had regard to the fact that the jumping pillow was being used by children and did not appear to be a ‘dangerous or extreme activity’.  Further, as the activity utilised ‘special purpose equipment owned by the appellants and obtained from commercial providers’, the respondent was entitled to rely on the appellant to provide safety information, particularly information that had been explicitly provided to the appellant prior to the accident.

Conclusion

The Court dismissed the matter with the appellants’ to pay the respondent’s costs. 

KEY LESSONS

  • This case reiterates the importance of appropriately assessing a recreational activity to determine whether any risk of harm associated with the activity is obvious and/or dangerous.   
  • Although retrospectively a risk may appear obvious and dangerous, the appropriate test is to consider the risk prospectively, that is, prior to participation in the activity.  A court may not be persuaded by expert evidence adduced following an accident which provides that the activity was dangerous given a reasonable person cannot be expected to appreciate the biomechanics of an activity without sufficient warning.  
  • Commercial services providers must have regard to any safety recommendations given by manufacturers when providing a service involving special equipment.  The real issue in this case was the appellants’ failure to implement the manufacturer’s safety recommendations, which on a balance of probabilities, may have prevented the respondent’s accident.