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:
- The instructor’s negligence had caused her to ride her quad bike at an excessive speed. The injuries she sustained did not result from “the materialisation of an obvious risk of a dangerous recreational activity”. Meaning, that the carelessness of the instructor was not something the plaintiff should have expected.
- The exclusion clause did not form a part of the contract. The plaintiff’s mother had already paid for the quad biking experience on their website, which constituted the contract. There was no application form which waived their liability at the time of payment. The Court found that the waiver was signed after this, and so the exclusion clauses were not relevant.
In our experience, many clients who have been injured doing activities such as horse riding, quad bike riding, water sports and other such activities do not realise that they may have a compensation claim even if they have signed a waiver. Often they have tried to bring a compensation claim themselves and had their claim denied by the defendant or its insurer on the grounds of the waiver, and have taken the insurer’s word for it.
Ms Alameddine’s case makes it clear that even if you have signed a waiver, you may still be entitled to compensation for injuries sustained during a dangerous recreational activity. Factors to consider are:
- Was the waiver and the warning effectively worded? Were certain terms vague or did not make sense?
- Were you warned prior to payment that the sport/activity was dangerous and could cause injury, or only after you had entered the contract?
- Were you given time to read the waiver, or just told to sign it?
- If you were warned, what exactly were you warned about? Did it cover the risk and injury that you actually sustained?
You should also be aware that in most cases you will have three potential causes of action: in negligence, breach of contract, and breach of statutory guarantees under the Australian Consumer Law. The validity of the waiver should be looked at for the rules that apply for each cause of action.
Stacks Goudkamp have wide expertise in acting for individuals that have been injured in sporting or recreational activities. If you have been injured and would like more information about what you can do, call us on 1800 25 1800 or make an online enquiry for a free, no obligation consultation.
Written by Vladana Vracar.
Vladana is a Law Clerk in Julie Mahony’s Practice Group. Vladana assists Julie with a variety of personal injury cases including public liability claims arising out of sporting and recreational activities. Vladana is due to be admitted as a Solicitor later this year.