Consumers of recreational activities need to be careful and vigilant when deciding what kind of activity they wish to engage in. This was made clear in a recent Court of Appeal case that Parramatta City Legal Compensation Lawyers Parramatta won on behalf of its infant client.
In the case of Miss A v Glenworth Valley Outdoor Adventures, the plaintiff, an infant, 2 days short of her 12th birthday, was seriously injured when she participated in a quad bike “adventure” at the defendant’s premises. Her mother had arranged and paid for the quad biking tour the day before, after reading about it on the defendant’s website.
Miss A’s injuries were serious. She was being led around the track in a group by a lead instructor. He gave clear instructions to the group to keep up with him. We successfully argued in the case that the lead instructor was driving his quad bike at an excessive speed in order to return to base. In trying to keep up with the lead rider, Miss A lost control of her quad bike and collided with a tree. She suffered a broken right leg. The nature of the injury was unique, in that she had shattered the growth plate in her right knee. This is not uncommon in quad biking accidents. Many people suffer serious injuries and even death.
The nature of the injury led to uneven growth in Miss A’s legs. Surgeons had to operate on the left leg to disable the growth plate in the other knee so that the uneven growth could be prevented. The result of course was that Ms A’s overall growth was stunted. They consulted Parramatta City Legal who proceeded to act on their behalf in a claim for damages against the adventure park.
The operator of the recreation park tried to allege that the activity was a “dangerous recreational activity” as defined by the Civil Liability Act and therefore no damages could be recovered. In prosecution of its client’s claim, Parramatta City Legal successfully argued that while quad bikes themselves can be viewed as dangerous and inherently unstable, what needs to be examined is the activity as a whole properly conducted under the supervision of the recreation Park operators. They advertised the activity as a safe, fun and ‘surprisingly easy’ activity that anyone could engage in. The Court agreed with this assessment of the dangerous activity issue.
The other difficulty facing our client was that she was 2 days short of her 12th birthday and there were exclusion of liability clauses displayed around the park and in the participation forms signed by the plaintiff’s mother. They are known under the legislation as risk warnings. The recreation park’s website stated that participants needed to be 12 years and over in order to engage in the activity. Parramatta City Legal successfully argued that the requirement that appeared on the website was merely a pre-contractual representation. It did not form part of the contract. The contract was formed when the mother rang up the Park operators and paid for the activity. At the critical time when money was being handed over, there was no age restriction imposed, nor an exclusion of liability provision agreed to by the mother. The Court of Appeal determined that the exclusion clause regarding liability contained in the application form did not form part of the contract as it was completed on the day after the parties entered into the contract.
The Court of Appeal found that our client was entitled to damages under the ordinary principles of negligence and also the Australian Consumer Law (formerly the Trade Practices Act). This was because the defendant did not meet its guarantee that the services to Miss A, as a consumer, would be carried out with all due skill and care.
The recent decision of the Court of Appeal sends out a warning to all recreational and tour park operators to ensure that their practices are safe. They must also ensure that exclusion clauses and age thresholds are properly incorporated into the contract entered into with every consumer. An exclusion clause usually cannot be designed to absolve oneself of his or her own negligence.
As a result of the court proceedings, we were able to recover for our client all her past and future medical expenses, damages for domestic care and assistance, together with pain and suffering. Contact Parramatta City Legal Compensation Lawyers Parramatta today for a free consultation regarding your personal injury claim.
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