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Which case won?

casea
The case for the leisure park
  • Quad bike riding is a dangerous recreational activity because quad bikes are fundamentally unstable and highly susceptible to roll over.
  • The application form stated that quad bike riding is a dangerous recreational activity and the appellant signed the form.
  • A risk warning was provided on the sign where quad bikes were allocated and the instructor explained to the appellant that the activity was physically dangerous.
  • The appellant signed a waiver that excluded us from any liability.
  • Our website stated clearly that quad bike riding is suitable for anyone over 12 years of age. The appellant misrepresented her age and should not have been riding a quad bike on the day of the accident. We would have excluded her if we had known her true age.
  • There could have been a number of reasons why the appellant lost control of the bike, such as hitting an uneven surface, misjudgement in steering or simple inattention.
  • The court should find that we are not responsible for the appellant’s injuries.
caseb
The case for the child
  • The leisure park’s website said that quad bike riding was “awesome fun and surprisingly easy”, “no experience is necessary” and “our bikes are fully automatic making them easy to ride and use”.
  • There was no warning on the website that riding quad bikes is dangerous. My family booked the quad bike session on the basis of the information on the website.
  • The fine print on the application forms we filled in the following day, the sign at the quad bike allocation area and the verbal explanation from the instructor did not constitute adequate risk warnings.
  • The fact that I was two days away from my 12th birthday at the time of the accident is not significant, as I was trained and assessed as being suitable for riding the quad bike by the staff at the leisure park.
  • Riding a quad bike is not a “dangerous recreational activity” provided it is properly supervised. The accident happened because I had to keep up with the instructor, which meant accelerating to a dangerous speed.
  • The risk of injury that arose was not an obvious one, because the risk was not inherent in quad bike riding. The risk arose because an instructor rode faster than was safe for inexperienced or young participants.
  • The court should find that the leisure park is responsible for my injuries.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a73%
b27%

Expert commentary on the court's decision

Alexander MorrisonPractice Group Leader
“The court found that the application form and the sign did not form part of the contract and therefore the waiver was ineffective. It did not exclude the operators of the leisure park from liability.”
Court of Appeal finds in favour of appellant

In the case Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219, the court found in favour of the injured child, Ms Alissa Alameddine. The court was satisfied that the conduct of the operators of the park, Glenworth Valley Horse Riding Pty Ltd, was negligent. The judges observed that the lead instructor governed the speed of the group and that the instructor accelerated to a speed that was excessive in the circumstances.

The court rejected the notion that there were other logical reasons why Ms Alameddine lost control of the quad bike on the dirt track, finding that on the balance of probabilities, the excessive speed, brought about by her need to keep up, caused or contributed to the accident.

Dangerous recreational activity under the Civil Liability Act

The court found that quad bike riding was not a dangerous recreational activity within meaning of section 5L of the Civil Liability Act (CLA). The activity was supervised, Ms Alameddine was trained on how to operate the bikes and she was certified as appropriate to ride by staff.

The court further observed that section 5L did not apply to the case, as the appellant’s injury did not manifest from the “materialisation of an obvious risk” of the activity. The court observed that such a risk was required to be inherent in, or an incident of, quad biking.

The court took the view that the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants was not incidental to or inherent in quad biking. They contrasted this risk to the risk of being struck by another participant if they were unable to control their bike, which they considered incidental to or inherent in quad biking.

Risk warning provided by leisure park not a defence

For the same reasons above, the court found that the defence related to the provision of a risk warning at section 5M of the CLA was unsuccessful, as the risk that materialised in this case was not inherent in or incidental to the activity.

Waiver on application form not part of the contract and therefore ineffective

The court took the view that the primary contract was made before the trip, at the time the tickets were bought. The judges noted that the website did not give notice that there were express terms to be incorporated and they noted that the website did not contain the terms contained in the application form.

The court found that the application form and the sign did not form part of the contract and therefore the waiver was ineffective. It did not exclude Glenworth Valley Horse Riding from liability under section 5N of the CLA.

Claim under Australian Consumer Law (ACL)

Ms Alameddine made a claim under section 60 of the Australian Consumer Law (ACL); namely that the services provided by the respondents were not fit for purpose and not rendered with due skill and care.

The judges noted that the only possible defences under the ACL on the facts were the contractual waiver and sections 5L and 5M of the CLA. However, the judges ultimately found that there was no contractual or statutory defence available to defeat Ms Alameddine’s claim in light of their earlier findings.

The Court of Appeal ultimately found that Ms Alameddine’s action in negligence under the CLA and her action for breach of consumer guarantees under the Australian Consumer Law were both successful.

Ms Alameddine was required to elect to recover under the CLA or the ACL. She ultimately opted for the CLA claim, as it provided more favourable damages, and was awarded $136,075.00 in compensation, comprising non-economic loss plus interest for other components.

Glenworth Valley Horse Riding was also ordered to pay Ms Alameddine’s costs of the initial trial and the appeal.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.Information related to coronavirus can be outdated very quickly.
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