“Obvious Risk” saves Operators from Compensation Claims
Recreational and adventure operators can breathe a sigh of relief as a recent court decision helps protect them against liability charges.
For many, the thought of jumping out of a plane, firing paintballs throughout the Australian bushland or skiing down Perisher Blue’s frosty slopes is an exhilarating one; the physical exertion, the challenge of conquering your fears, the camaraderie built amongst mates and the rush of adrenalin that will leave you with stories for decades to come is enough to fork out the bucks for. But it has finally been recognised that we must face these fears with our eyes open to the fact that injury, even the possibility of death, is ever present.
In the case of Action Paintball Games v Barker, the defendant, Action Paintball Games, successfully appealed the awarding of damages of $280, 000 to a young plaintiff who had sustained injuries after tripping on a tree root whilst running. The child (under 10) had been spoken to by employees of Action Paintball, in the presence of her father, and warned that due to sticks and general debris that running was not advised.
Whilst the trial judge had found that tripping on a tree root was not an obvious risk in this case, as the child had never played laser tag before and the bush land she was playing in was not natural bushland, the Court of Appeals disagreed. They found that APG had issued a warning to the plaintiff and that there was no duty of care owed to her.
What this means for liability compensation?
Participants seeking the thrills and spills of adventure and recreational activities must not expect to do so wrapped in cotton wool. ‘A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. Most people participate in organised sport on that understanding,’ writes Ross Donaldson, of Colin Biggers and Paisley.
The success in the Court of Appeals for Action Paintball is just one amongst a slew of recent cases demonstrating a growing trend towards pragmatism in the courts as opposed to restrictive measures.
This is good news for operators who feel the fear of their adventure activity centres being shut down, or sent into financial ruin, following legal actions. Whilst the definition of “Obvious Risk” will be open to some interpretation in the courts, operators can feel less burdened by the pressure of going through overly comprehensive risk assessments with patrons for fear of scathing litigation.
It’s important that both recreational and adventure operators and their patrons understand the risks involved with their activities. The recent crash, resulting in the devastating death of five skydivers at Caboolture, is a harsh reminder of the risks we take when we participate in such activities.