In a decision that is particularly relevant to providers of "adrenaline", adventure, or other activities that carry a risk of unlikely but potentially significant injury, the NSW Supreme Court has offered insight into how Courts may evaluate the risk of recreational activities under the Civil Liability Act 2002 (NSW) (CLA), including whether the cause of harm in a personal injury matter can be considered an "obvious risk" of a "dangerous recreational activity".
The defendant's success in Castle v Perisher Blue Pty Limited [2020] NSWSC 1652 relied upon a correct characterisation of the relevant, and ultimately "obvious" risk, and serves as a reminder that just because the specific facts of an accident seem unique, doesn't mean the risk is not also "obvious".
Key takeaways from the Castle decision
- The Court can identify a "dangerous recreational activity" by taking into account a wide range of physical and psychological factors, as well as matters of common knowledge.
- A significant risk that is generally obvious will be considered an "obvious risk". This means that the relevant risk will be the general potential for harm, not the specific facts of a given incident.
- Risk warnings must be specific enough to identify the particular risks of an activity. It is not enough to simply refer to a broad risk of significant harm or injury.
The Civil Liability Act on "obvious risk"
Section 5L of the CLA provides that a defendant is not liable in negligence where an injury was the result of an "obvious risk" of a dangerous recreational activity engaged in by the plaintiff. This requires consideration of two related questions:
(1) whether the plaintiff was engaging in a "dangerous recreational activity"; and
(2) whether the harm was caused by a "materialisation of an obvious risk" of that activity.
Under section 5F of the CLA, what constitutes an "obvious risk" will take into account the circumstances of the specific activity and injury, however it does not need to be a prominent risk or one with a high probability of occurring.
Facts of the Castle case
The plaintiff collided with a ski instructor employed by the defendant while skiing at Perisher Ski Resort, and suffered injuries requiring ongoing treatment. The plaintiff argued that the collision was caused by the instructor, and that therefore the defendant should be held vicariously liable for the harm and for the cost of ongoing treatment.
Having found that the ski instructor did not exercise reasonable care in all circumstances, and that the defendant was vicariously liable for the instructor's negligence, the Court considered:
- whether skiing is a "dangerous recreational activity", such that the defendant rely on section 5L of the CLA; and
- whether the harm suffered by the plaintiff was "materialisation of an obvious risk" under section 5F of the CLA.
Ultimately, the Court determined that skiing was a dangerous recreational activity. Other decisions of the Court have concluded that hunting, horse-racing, operating the catching pen gate at the greyhound track, motorcycling, diving from a height of 10 metres, and BMX riding are all dangerous recreational activities. The Court also held that the relevant "obvious risk" in this circumstance was a general potential for collision with other patrons (rather than, as argued by the plaintiff, the specific risk of collision with a ski instructor skiing in a negligent manner).
What is a dangerous recreational activity?
In determining whether a recreational activity carries a "significant risk of physical harm" the Court applied the objective test set out in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 which requires the Court to have regard to the "nature and degree of harm that might be suffered", as well as the "likelihood of the risk materialising". These two considerations may influence the other, such that a risk which is potentially catastrophic but less likely would still denote a significant risk of harm for the purposes of section 5L of the CLA.
Although section 5L of the CLA deals with the risk of "physical harm", the judgment in Castle demonstrates that an assessment of what constitutes a significant risk may also encompass psychological factors or matters of common knowledge about the activity. Although His Honour identified numerous characteristics of skiing which attract a risk of physical harm, these were not merely limited to conventional physical circumstances (for example, skiing involves descending slopes that are often steep and at speed). Psychological factors associated with skiing, such as the thrill-factor associated with descending slopes at excessive speed, were also considered. These factors, combined with the "common knowledge" that even expert skiers have accidents, and people have been killed or severely injured while skiing, proved sufficient for His Honour to rule that skiing was a "dangerous recreational activity" for the purpose of the CLA.
The Court also affirmed the principle that statistical evidence alone will not be sufficient to demonstrate a "significant risk of physical harm". The Court's preference for the objective test in Falvo over the parties' statistical arguments illustrates that parties in negligence claims must be prepared to consider the nature of risk associated with their actions broadly, and should not rely on a demonstrated safety record alone to establish whether or not a recreational activity is "dangerous".
What is an obvious risk?
For the purposes of section 5L of the CLA, the relevant risk that materialised must be "obvious". In Castle, this meant that even though it would not have been obvious to a reasonable person skiing down a slope that there was a specific risk of colliding with a ski instructor who was skiing negligently, the relevant test is whether it was generally obvious that there was a risk of collision with another rider. The given example included where another (generic) skier lost control or was otherwise skiing inappropriately. Notably in this case, the fact that the plaintiff was a confident skier was not found to detract from the proposition that an obvious general risk of collision remained.
Risk warnings; how specific should they be?
A further point touched upon in Castle was the law surrounding risk warnings (although ultimately not relevant to the decision on liability). Under section 5M of the CLA, a defendant will not owe a duty of care to another person engaging in a recreational activity if a risk warning was given to that person. The relevant (objective) assessment is whether a warning was issued and it does not matter whether the plaintiff actually believed there were risks associated with the activity they engaged in.
In Castle, there was a risk warning which referred to the fact that skiing involved a significant risk of physical harm or personal injury.
The Court said that this warning may be insufficient as it did not identify the particular risks associated with skiing. Activity providers should ensure that warnings go further than merely identifying the existence of risk (and its consequences) by clearly directing the attention of participants to the particular risks associated with the activity (in this case, collision with another skier).