Adventure Sports Providers Beware

To a lay bystander, Glenworth Valley Horse Riding’s entry into the business of recreational quad biking rides seems like it was handled carefully enough. They had participants sign waiver that made specific reference to the (Civil Liability) Act under which they were to ultimately seek protection. They gave riders a training assessment before letting them loose on an open trail and even had a sign posted at the spot where riders waited to be allocated a bike saying “…quad biking is an inherently dangerous activity.” But for a bit of marketing puff and a slightly over-zealous instructor their position seemed watertight.

In Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 the plaintiff sued for injuries sustained while on a quad biking excursion. The key factual finding made by the first instance judge was that the instructor sped up on the way back to the finishing point causing the plaintiff, in her attempt to keep up with him, to lose control and crash.

Given what seemed a fairly painstaking set of measures Glenworth had taken to ensure they would be protected if an accident took place, one would have thought they’d be immune from suit. The trial judge also thought so, finding that the waiver the plaintiff’s mother had signed on her behalf as part of an application form was enough to protect Glenworth.

However, the NSW Court of Appeal (Macfarlan JA with Simpson JA and JC Campbell AJA agreeing) soundly knocked down this and the several other statutory defences Glenworth alleged so as to reverse the trial judge’s decision. The manner in which it did so is informative for all providers of adventure sports in this state.

Starting with section 5L. This section provides a defence if the harm suffered by the plaintiff is the result of “the materialisation of an obvious risk of a dangerous recreational activity”.

There is some useful commentary on what is a “dangerous recreational activity” taken from a previous decision of the Court in Falla v Mourlas [2006] NSWCA 32 to the effect that the totality of circumstances need to be taken into account. As such, what is or isn’t defies any clear categorisation.

In the present case, the contents of Glenworth’s website proved problematic. In what seemed to be a bit of marketing overstatement in an attempt to attract those who might otherwise be scared away from quad biking, the website described it as ‘surprisingly easy’ and requiring ‘no experience’. Of course, once they were on site the punters were given all the heavy stuff about danger and risk by way of the waiver and signage.

Despite there being an expert in support of Glenworth who said that quad bikes are inherently unstable and susceptible to rolling, the Appeal bench was unpersuaded. So it found section 5L didn’t apply because this kind of quad biking wasn’t a “dangerous recreational activity”.

However, even if it was a dangerous recreational activity, the Court called on some ice skating rink decisions on this issue which were made before the Civil Liability Act came into force to find that if the ‘obvious risk’ defence was to apply, the risk in question had to be one which was ‘inherent’ in the activity itself. Applying that position to the facts, it found that the instructor’s conduct in accelerating so as to cause the plaintiff to go outside her comfort zone was not a risk inherent in the activity as promoted by Glenworth.

On the same basis the Court also knocked out section 5M, which dealt with risk warnings “in respect of a risk of the activity”. The instructor’s conduct was not “a risk of the activity”, the Court found. That is, it was not a risk inherent to the activity itself but one created by an outside influence (ie. the instructor’s conduct).

The Court then dealt with section 5N of the Act and contractual waivers. In this regard the Appeal Court took the view that the primary judge had made a wrong finding of fact that the contract had been entered when the application form, which included the waiver, was signed on the plaintiff’s behalf. The contract, it said, had been formed when the plaintiff’s mother had made the booking and provided payment over the phone the previous day. This is consistent with the old ‘ticket cases’ in contract law. Therefore, the waiver was not part of the contract and fell outside the reach of 5N.

Another basis the Court identified for refusing to recognise the waiver was that its wording did not specifically refer to the exclusion of liability for negligence on the part of the defendant, Glenworth. Instead it made a general reference to the ‘negligence of others’.

Even if they had made out one of the Civil Liability Act defences, Glenworth was still faced with the plaintiff’s claim for a breach of the warranty under section 60 of the Australian Consumer Law for its alleged failure to supply quad bike instruction services of a sufficient standard. The 5L and M defences have already been found to be inapplicable to a claim under this provision’s predecessor under the Trade Practices Act in past cases.

However, the Court found the waiver contained in the application form would have provided Glenworth with a defence to a breach of section 60 (pursuant to section 139A of the Competition and Consumer Act) but for it failing to limit Glenworth’s liability to only personal injury. It was wider and covered property damage too. Therefore, section 139A was not satisfied either.

So what is to be learnt by adventure sports operators? Don’t understate the dangers and physical challenges of the pastime on your website. If you are in the habit of taking payment over the phone in advance, make any waiver clear on the website. This way, it is more likely to form part of the contract. Check the wording of your waiver itself so it accords with the Court’s decision and….woah Tonto!

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