Were the operators of the leisure park to blame for the child’s quad bike accident? Which case won?
Family quad bike session booked after visiting leisure park’s website
The appellant was an 11-year-old child. Her mother phoned the leisure park to arrange a quad bike excursion on 20 May 2011.
The mother paid for the excursion over the phone after visiting the park’s website, which stated that it provided quad bike sessions of one and a half hours in duration and that the minimum age for participants was 12 years.
Website description of quad biking activity
The website described quad bike riding as a “new and exciting way to explore the Australian bush”. It also stated:
Quad biking on a four wheel ATV is awesome fun and surprisingly easy. In fact, no experience is necessary and anyone 12 years and above can do it. All our bikes are fully automatic making them easy to ride and use.
All riders receive a safety briefing, followed by individual instruction on how to control and manage their bike. We then do some practical training and assessments on our confidence building course, before we hit the open trails to Glenworth Valley’s purpose built quad biking track…
Waiver on leisure park’s application form
On arrival at the park, the appellant’s sister signed an application form on her behalf, which falsely stated that she was over 12 years of age. At the time the appellant was two days away from her 12th birthday.
Under the Civil Liability Act (NSW), a person is not liable in negligence for harm suffered by another person if that other person is undertaking a “dangerous recreational activity” and the harm they suffer results from an “obvious risk”. The application form included a statement that quad bike riding constituted a dangerous recreational activity under the Civil Liability Act and that the activity involved a significant risk of physical harm or personal injury.
The application form also contained a waiver, agreeing to release the officers, employees or agents of the leisure park from liability in contract, tort or under statute.
Written risk warning on sign in quad bike allocation area
There was also a sign situated in the area where quad bikes were allocated that stated:
Please be advised that quad bike riding is an inherently dangerous activity. You are required at all times to ride at a speed which is within your ability and that is suitable for the ground conditions you may experience.
If you decide to go quad bike riding you are advised that you do so entirely at your own risk. All riders need to pass our training assessments to qualify to go out on our rides.
Instructor gives verbal risk warning prior to quad bike riding session
An instructor who was an employee of the leisure park verbally highlighted the risk by stating words to the effect that “quad biking is a physical activity and there’s always the potential for personal injury so always ride in a manner and at a speed that you feel comfortable, that you can control your bike”.
Family receives instruction on quad bike use and performs test rides
The family was part of a group of eight riders who were all given instruction on how to use the quad bikes and given an opportunity to test ride them. The instructor was satisfied with their performance and led them along a trail from the administration centre to the “purpose built quad bike track” where they rode for some time.
Accident occurs when appellant accelerates quad bike
The group of eight then separated into two groups of four for the return trip to the administration centre. The appellant was part of the rear group. The group rode in single file with the instructor in the lead.
The group in front accelerated to get further away from the rear group, where the appellant was riding. This caused the instructor to accelerate his quad bike to catch up with them. The appellant accelerated to keep up with the instructor but lost control of her bike, falling off and injuring herself.