In four of the Civil Liability Acts introduced across the Australian states there is a specific defence that Plaintiffs engaged in a “dangerous recreational activity” are disentitled from bringing an action for harm caused by the materialisation of an obvious risk of that activity1.

We have watched as the courts interpret and apply the dangerous recreational activity provisions set out in the various Acts.

Courts particularly in New South Wales have considered the definition of a “dangerous recreational activity” which is defined in their legislation under section 5K as one involving a significant risk of harm.

To date the courts have considered the following to be dangerous recreational activities:

  1. Diving into an uncertain depth of water off a wall2;
  2. Kangaroo shooting at night 3;
  3. Riding a BMX bike in a skate park 4;
  4. Learning to fly light aircraft 5;
  5. Doing a back flip from a rope connected to a tree into the water 6.

The courts have held that the following activities are not dangerous recreational activities:

  1. Playing an Oztag Touch Football game7;
  2. Calm water cruising8;
  3. Snow skiing for the first time and failing to negotiate a ditch at the end of the slope9;
  4. Participating in a work retreat with physical challenges including a leap of faith (i.e jumping from a platform to a trapeze bar at seven to eight metres above ground whilst harnessed)10;
  5. Alighting from the wing of a vintage aircraft11.

The New South Wales Court of Appeal again considered the issue in Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128. This decision was handed down on 13 May 2013.

The facts are that on 16 May 2008 the Plaintiff, Miss Barker, attended at Action Paintball Games for her brother’s birthday party which included playing laser tag. She was nine years old at the time. Each player was equipped with a laser gun and they attempted to tag other players and avoid being tagged themselves. The game was carried out in an area of bushland where there were rough tracks, fallen branches and debris. A staff member spoke to the children prior to the game commencing in the presence of the Plaintiff’s father. A warning was given that there were lots of sticks and obstacles in the way and to not run “full out” because you may fall over and hurt yourself.

The Plaintiff tripped on a tree root and fell suffering a significant fracture to her left elbow. She sued Action Paintball Games Pty Ltd in negligence. The Plaintiff was successful in the District Court before acting judge Hungerford QC who gave judgment in favour of the Plaintiff for which she received an award of damages of $280,000.

The Defendant appealed and the appeal related solely to the issue of liability the content of the duty of care and the provisions in the Civil Liability Act 2002 (NSW) dealing with obvious risks and recreational activities.

The trial judge concluded that the presence of the tree root on the pathway was not an obvious risk because:

  1. This was not ordinary or natural bushland used for walking but was a location for playing a competitive game which involved running;
  2. The Plaintiff had never been to the land before; and
  3. The Plaintiff had not played laser tag before.

The Court of Appeal considered that his reasoning was relevant to a finding of negligence but the judge failed to provide reasoning for supposing the risk which materialised was not an obvious risk.

The Court of Appeal was critical that the trial judge in the first instance did not consider the warning that had been given by the staff member in the presence of the father to be sufficient. The trial judge held there had been no risk warning and that the warning that had been given at the commencement of the game did not qualify because it did not warn of specific obstacles such as tree roots nor did the warning suggest there should be no running only not to run “full out”.

The Court of Appeal found that the suggestion that children should be told not to run at all would be disproportionate to the risk and would diminish the attractiveness of the game. They also found that it is possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk. At the Appeal the Plaintiff argued that because of her age the Defendant could only rely upon a risk warning if the warning had been given to the parents. The Court of Appeal found that the father appears to have been present when the general warning was given by the staff.

The Court of Appeal accepted the Defendant’s reliance on section 5M and found that it should be upheld with the result that the Defendant did not owe the Plaintiff a relevant duty.

As the trial judge addressed the Defendant’s duty and whether it was breached the Court of Appeal deemed it appropriate to also deal with those issues although they identified that if there was no duty then those questions would not arise.

The Court of Appeal noted that an employee of the Defendant did give a general warning. The warning spoke of general risks however with a group of young children a longer and more precise warning may have lost their attention.

The Court of Appeal found that the trial judge relied primarily upon the duty of the Defendant to remove the tree root. The Court of Appeal questioned whether such a duty would constitute a precaution which a reasonable person in the position of the Defendant should have taken. The Court of Appeal noted that when assessing that question there is a need to avoid reliance on hindsight and that the obligation to remove obstacles such as the tree root would change the nature of the area and the nature of the recreational activity. They also found it would be impractical and an unreasonable precaution. They noted that the risk of harm of tripping and falling is a common risk of daily life. They found that there is no evidence of any similar injury occurring in this bushland.

The Court of Appeal also considered the “social utility” of the activity. They found there is social utility in providing physical activity for children in a natural environment and it is likely this environment provided an attraction to the children involved.

The court found that all of the circumstances combine to demonstrate that there was no obligation on the Defendant in exercise of its duty of reasonable care to remove the offending tree root.

The Court of Appeal set aside judgment in favour of the Plaintiff and allowed the Appeal. They ordered the Plaintiff to pay the Defendant’s costs of the trial and the Appeal.