5 September 2017
Community go-karting event becomes a costly legal battle for organisers
The plaintiff attended a conference presented by the first defendant (a church) in WA. The organisers decided to provide a go-karting activity in the parking lot. Numerous males and three females completed the track without any issues. The plaintiff had driven five or six laps without incident. On her second attempt, she lost control of the kart and slammed her right foot down hitting the accelerator instead of the brake, resulting in the kart rocketing into a tree. The plaintiff almost severed her right foot. Unfortunately, her leg had to be amputated below the knee.
The evidence confirmed that the defendants allowed ordinary people (who do not have knowledge or skills to operate a go-kart) to partake in an activity which poses risks of injury, and therefore a duty arose to identify risks and take all reasonable steps to minimise the risk.
The judge found the church and one of the conference organisers, Mr Holman, negligent, as they did not carry out an adequate risk assessment, they did not consider the risk that novice drivers might do something out of the ordinary when faced with an unexpected situation, they did not take any steps to guard against the risk of an inexperienced driver losing control and veering right off the designated track, their instructions were inadequate, they did not warn participants of the potential risk of incurring serious injury and the go-karts had no on-board safety protection.
In assessing whether the go-karting was a dangerous recreational activity, the judge adopted the approach in Lormine and Alameddine, where it was held that the characterisation of the activity should take place in the particular context in which the plaintiff had placed himself/herself, and this involves assessing what the defendant had or had not represented to the plaintiff. Therefore, if there is nothing to suggest to a reasonable participant that the activity was dangerous, it could not be classified as a dangerous recreational activity. In this case, the court held that the go-karting activity was not represented to participants to be dangerous and therefore it was not a dangerous recreational activity.
The judge held that the risk of a participant losing control of a kart, veering off the track, hitting a stationary object on the perimeter and suffering serious injury was not obvious to a reasonable person in the position of the plaintiff.
Regarding the risk warning relied upon, the judge found that the warning did not say anything about the risk of serious injury; it simply stated that participants use the go-karts at their own risk. Therefore the warning was not a warning of the risk which materialised.
This case is a reminder to anyone providing recreational activities, to ensure proper risk assessment is conducted, provide adequate instructions to participants and specifically give warnings about specific dangers that may be involved.
Further, anyone providing recreational activities involving risk should carefully consider all waivers of liability in their contracts.
Dixon v Apostolic Church Australia Limited  WADC 88
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