As some recreational activities are inherently risky, business owners will essentially seek to limit their liability if not exclude it all together in relation to any hazards to which participants at such activities, may be exposed.
One way in which liability could be limited is through the drafting of a risk warning. Indeed, under section 5M of the Civil Liability Act (NSW), no duty of care is owed by business owners to persons who engage in a recreational activity if the risks involved in such activity were the subject of a risk warning.
Section 5M seems to alleviate the evidentiary burden on business owners as such owners need not establish that participants at the recreational activities received or understood the warning or were capable of receiving or understanding the warning.
Section 5M provides further flexibility since a risk warning can be given orally or in writing (including by means or a sign or otherwise). Such legislative provision is certainly keeping up with the times as it envisages the possibility that risk warning may exist only electronically. In particular, the words “by means of a sign or otherwise” hints at the possibility for participants at recreational activities to tick a box rather than to electronically sign a risk warning.
In relation to the level of details that need to be provided as part of the risk warning, the legislation and in particular section 5M, states that a risk warning can be a general warning of risks provided that it includes the particular risks concerned. The interpretation of this legislative provision has been recently the subject of a lawsuit in the recent case of Castle v Perisher Blue Pty Limited.
In this case, a skier collided down the slopes of Perisher Blue, with another skier who was a ski instructor employed by the company defendant, Perisher Blue Pty Limited. As a result of the accident, the skier sustained multiple injuries and continuing disabilities for which she sought damages.
The issue in this matter was not whether a risk warning was given but rather, whether the content of the risk warning satisfies section 5M.
The Perisher Booking Terms and Conditions contained, among other things, an acknowledgment that the warning constitutes a risk warning pursuant to the Civil Liability Act 2002 (NSW). The actual risk warning was in the following terms:
“RISK WARNING: RECREATIONAL ACTIVITIES (INCLUDING SKIING, SNOWBOARDING AND SNOW TUBING) INVOLVE A SIGNIFICANT RISK OF PHYSICAL HARM OR PERSONAL INJURY INCLUDING PERMANENT DISABILITY AND/OR DEATH TO PARTICIPANTS. ANY SUCH INJURY OR LOSS MAY RESULT NOT ONLY FROM YOUR ACTIONS BUT FROM THE ACTION, OMISSION OR NEGLIGENCE OF OTHERS. PLEASE READ AND OBEY ALL SIGNS.”
It can thus be immediately noticed, that the very risk to which the skier was involved, namely, collision with other skier was not the subject of a risk warning. However, the argument could have been that the risk warning, by referring to an injury or loss resulting from the action, omission or negligence by others, impliedly referred to the risk of collision with another skier. The Court seems however to derail from such view.
Indeed, the Court held that the risk warning in question was generic since, identifying that other persons may be negligent does not, of itself, direct attention to any risks associated with skiing, and for this reason, it did not satisfy section 5M.
In reaching this conclusion, the Court took the time to distill some guidance in relation to warning risks generally which is as follows:
- The nature of the inquiry is an objective. Thus, it does not matter whether the plaintiff (participant at the recreational activity) actually believed that there were risks associated in which they were engaging in.
- It is possible to warn of a risk without necessarily bringing to the attention of the recipient of such risk warning, all the steps necessary to avoid the risk.
- In some circumstances, a warning may be considered as being adequate even in the absence of a precise delineation of each hazard or which may be encountered by the recipient of the risk warning.
Key takeaways
The Court judgment in Castle v Perisher Blue Pty Limited, if anything, provides us a general guidance on how to render a risk warning adequate in order for business owners to successfully rely on a warning risk as a defence in case of a dispute.
The main takeaway is that a general risk warning will never be adequate in the eyes of the Court if it does not allude to the specific risks associated with the reactional activity in question. Furthermore, an acknowledgment in the risk warning that the warning constitutes a risk warning pursuant to the Civil Liability Act 2002 (NSW) will not render the risk warning adequate if it is too generic.
Written by Samar Ashour, Paralegal, The IP House Lawyers