The NSW Court of Appeal find quad bike provider guilty of negligence

Alissa Alameddie, the plaintiff, commenced proceedings against the defendant, Glenworth Valley Horse Riding (Glenworth) in relation to an injury she suffered while participating in a quad bike trail ride at the defendant’s premises on 21 May 2011. The plaintiff’s mother organised and paid for the quad bike activity in advance, after reading about it on the defendant’s website.On 21 May 2011, the plaintiff’s family attended Genworth’s facility. Glenworth required all participants to be 12 years of age or above in order to participate in the quad biking. At the time of the ride the plaintiff was two days short of her 12th birthday. The plaintiff’s older sister completed an application form which included an exclusion of liability clause. There was also a sign at the premises containing warnings that quad biking was ‘an inherently dangerous activity’, that participants were to travel at ‘a speed which [was] within [their] ability’ and that engaging in the activity was ‘entirely at [their] own risk.’In addition, there was a safety briefing followed by a demonstration on how to operate, control and manage the quad bikes.On the return leg of the ride, the plaintiff increased her speed to keep up with the group, which lead her to lose control of the quad bike, fall off and injure herself.

First Instance

Armitage J of the NSW Supreme Court accepted that the plaintiff increased her speed to keep up with the group.

Armitage J found that the application form signed by the plaintiff’s sister on behalf of the plaintiff formed part of the contract, which entitled Glenworth to rely on section 5M Civil Liability Act 2002 (NSW) (CLA). He found the broad scope of the exclusion of liability clause operated to exclude Glenworth’s liability.

As an aside, Armitage J determined the injury did not occur as a materialisation of an obvious risk of a dangerous recreational activity (section 5L Civil Liability Act 2002 (NSW)).

Further, he concluded the warning sign at the premises did not form a part of the contract, and hence Glenworth had not waived its contractual duty pursuant to section 5N Civil Liability Act 2002 (NSW).

Court of Appeal

Negligence

The NSW Court of Appeal agreed with the primary judge’s finding that Glenworth acted negligently.

Contractual waiver

The court found the contract between the plaintiff’s mother and Glenworth was held to have been made when the plaintiff’s mother paid for the quad bike activity in advance via the website. As a consequence, the exclusion of liability clause contained in the application form which was completed on the day of the activity did not form part of the contract.

In addition, the Court determined that even if the exclusion clause had formed part of the contract between the parties, it was not broad enough to extend to Glenworth’s negligence. The exclusion clause made reference to the ‘negligence of others’, which the Court interpreted to include the negligence of other participants, not the negligence of Glenworth or its staff.

Dangerous recreational activity

The Court rejected Glenworth’s defence pursuant to section 5L CLA as the court agreed that the injury suffered by the plaintiff did not arise from an obvious risk inherent in a dangerous recreational activity.

The Court found that the risk from which the injury resulted was not an ‘obvious risk’ of the quad biking activity. This was not a risk that was inherent in or incidental to quad biking.

In addition, the Court held that the manner in which the activity was advertised precluded Glenworth from arguing that the activity was a ‘dangerous recreational activity’. Significantly, the website represented that quad bike riding was ‘surprisingly easy’, riders would receive a safety briefing and individual practical training would be provided.

Risk warnings

The Court rejected Outdoor Adventure’s argument that section 5M CLA precluded them from owing the plaintiff a duty of care. The Court emphasised that section 5M of the CLA imports the notion that for the section to be applicable the risk must be inherent or incidental to the injury.

Lastly, the Court held the plaintiff was entitled to compensation under the Australian Consumer Law, as a result of Glenworth’s failure to comply with the guarantee given to the plaintiff, as a consumer, that the services would be performed with due care and skill.

Implications 

Recreational activity suppliers can exclude, limit or modify their liability for personal injury through contractual waivers. However, to be effective suppliers must ensure:

• the waiver is effectively worded; and
• the waiver forms part of the contract for the provision of the recreational activity.

In addition, operators and suppliers of recreational activities should take care in how they advertise the recreational activities so as not to create the wrong impression.

Hall & Wilcox have depth and breadth of expertise in acting for public and private corporations including numerous sporting and recreational organisations. In addition we act for insurers of these industry groups.