NSWCA 219, the plaintiff’s mother arranged and paid for a quad biking adventure with her children at the defendant’s recreational park via their website. The description of the activity on the website portrayed a safe, fun and controlled activity.
The plaintiff’s mother was faced with a waiver when completing her application form, which surrendered all liability on behalf of the recreational park and its employees.
The plaintiff and her family were given an instructional lesson and were taught how to how to use the bikes. The instructor assessed their skill level and led the group on a trail. During the trip, the instructor drove at a high speed, prompting the plaintiff to try and keep up with him. She subsequently lost control of her quad bike and suffered severe injuries.
The big question was, did the plaintiff have a claim for damages against the occupier or did the waiver limit their liability?
In the Civil Liability Act 2002 (NSW), section 5L suggests that an occupier will not be deemed negligent if an individual suffers injuries as a result of an obvious risk of an recreational activity. Further to this, section 5M also provides that an occupier does not owe a duty of care to individuals who engage in an activity that offered a risk warning.
However, the Court ruled in favour of Ms Alameddine and she was entitled to damages on the following grounds: