An occupier of private land owes a duty to take reasonable care to avoid foreseeable risks of injury to other persons on that land: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.

If somebody is injured as a result of a breach of that duty, the occupier may be liable for the injuries unless it can establish a defence. In New South Wales, occupiers of land have defences available to them under the Civil Liability Act 2002 (NSW) (the Act). These include section 5L, which protects occupiers from liability for injuries suffered by another as a result of the materialisation of an obvious risk of a dangerous recreational activity, and section 5M, which protects occupiers from liability for injuries sustained by a person engaging in a recreational activity when that person was given a risk warning.

Two recent cases of the New South Wales Court of Appeal illustrate the application of these defences.

The cases

In Alameddine v Glenworth Valley Horse Riding [2015] NSWCA 219 (Alameddine), the Appellant was injured on a quad bike excursion when she accelerated, lost control, and fell. When the Appellant’s mother had booked and paid for the quad biking excursion the day earlier, she had done so after reading information on the Respondents’ website, which included statements that quad biking is ‘awesome fun and surprisingly easy’. However, on arrival at the park the next day, the Appellant’s family signed an application form whereby they agreed that quad biking is a dangerous recreational activity under the Civil Liability Act 2002. A warning sign displayed near the family, included a statement that ‘quad biking is an inherently dangerous activity’.

In Sharp v Parramatta City Council [2015] NSWCA 260 (Sharp), the Appellant was injured when she jumped from a 10 metre diving platform at a swimming centre and struck the water surface awkwardly. There was a warning sign at the base of the stairs to the diving platform, which read ‘Persons using the platforms and springboards do so at their own risk’.

As discussed further below, while the Court in Alameddine found the Respondents were not protected by either defence under the Act, in Sharp the Court held that the Respondents were protected by both defences.

Section 5L defence – obvious risk of dangerous recreational activity

What constitutes a 'dangerous recreational activity'?

In Sharp the Court noted for an activity to be dangerous, there must be a ‘significant risk of physical harm’, which is an objective test taking into account the probability of the physical harm. In Alameddine, the Court noted what is considered a dangerous recreational activity also depends on the particular circumstances.

• In Alameddine the Court was swayed by the way quad biking was portrayed to the Appellant’s mother at the time of paying for the excursion. When the contract was entered into, a reasonable person in the position of the Appellant and her family would not have been aware of the risks of quad biking, including that it is a dangerous activity.
• In contrast, in Sharp the Court concluded, in the circumstances, the activity of jumping into the water from a height of 10 metres did carry a real probability of harm.

What is an 'obvious risk'?

The risk that actually occurs must be an ‘obvious risk’ of the activity. The Court in Alameddine explained an obvious risk, as one that is ‘inherent in or an incident of that activity’.

• In Alameddine the risk that materialised was the Appellant’s quad biking instructor had accelerated, which caused the Appellant to also accelerate to dangerous speeds and lose control. This risk was held not to be an obvious risk of the quad biking activity engaged in.
• In Sharp the risk that materialised, the Appellant’s impact with the water surface from a height in an uncontrolled or unintended way, was clearly apparent as the type of risk that might eventuate from jumping from the platform and was therefore found to be obvious.

Section 5M defence – provision of a risk warning

When will a risk warning be considered sufficient?

A risk warning must be given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. It must warn of the general nature of the particular risk concerned. The Court in Alameddine determined this also means the risk that eventuates must be inherent in or incidental to the activity.

• In Alameddine the Court found that the risk that materialised was not inherent or incidental to quad biking. The application form and warning sign, which were general in nature, did not warn the Appellant of the particular risk concerned, and in any case the Appellant was not aware of those warnings before entering the contract the day earlier.
• In Sharp the Court found the warning sign did warn of the general nature of the particular risk, being the risk of injury from jumping from the platform. It held the warning sign was placed on the stairs of the platform in a manner that was reasonably likely to result in the Appellant being warned of the risk.

Lessons learnt

Occupiers of land should be careful how they advertise. In Alameddine the Court had regard to the way quad biking was advertised and intended to be supervised, and held it was not dangerous despite formal warnings of danger on arrival. If there are risks involved in a recreational activity, an occupier should warn participants about the particular risks involved before those people engage in that activity and, if applicable, before the participants enter into any contract. Risk warnings, whether on a sign or in a contract, should be prominently displayed and be easy to understand.