Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128
• Hearing dates: 13 May 2013
• Decision date: 13 May 2013
• Before: Basten JA at [1]; Hoeben JA at [39]; Ward JA at [40]

Decision

Interlocutory orders:

(1) Upon the agreement of the parties as to indemnity as to the respondent's costs, grant the appellant leave to proceed in relation to this appeal pursuant to s 471B of the Corporations Act 2001 (Cth), such leave to be qualified by the right of the liquidator to move the Court for any variation which he may think fit upon giving consideration to the nature of the proceedings.

(2) The appellant is now Action Paintball Games Pty Ltd (In liquidation)

Final orders:

(1) Allow the appeal and set aside orders 1-3 made in the District Court on 15 December 2011.

(2) In place of those orders:

(a) give judgment for the defendant;

(b) order the plaintiff to pay the defendant's costs of the trial.

(3) Order the respondent to pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - duty of care - s 5M Civil Liability Act 2002 (NSW) - whether appellant gave "risk warning" regarding recreational activity - where warning as to general risks given - where no specific warning given as to risk which materialised - where warning as to general kind of risk adequate - impermissibility of hindsight reasoning; TORTS - negligence - causation - whether failure to warn causative of harm - where trial judge failed to identify content, form or timing of required warning - where warning in fact given - where warning spoke of general risks; TORTS - negligence - breach - whether appellant breached duty of care - where appellant occupied land on which it ran laser tag and paintball activities - game played in area of natural bushland - appellant failed to remove protruding tree root from ground - respondent tripped on tree root and fell - whether a reasonable person in the appellant's position would have removed all such obstacles - risk of harm through tripping and falling - social utility of recreational activity
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5H, 5I, 5K, 5L, 5M; Pt 1, Div 4; Pt 1A, Div 5
• Cases Cited: Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep ¶81-874; Doubleday v Kelly [2005] NSWCA 151
• Category: Principal judgment
• Parties: Action Paintball Games Pty Ltd (In liq) (Appellant); Bethany Barker BHNF Laura Barker (Respondent)
• Representation: Counsel: P J Deakin QC/B Loukas (Appellant); M T McCulloch SC/R G Gambi (Respondent); Solicitors: Moray & Agnew Solicitors (Appellant); Barwick Boitano Lawyers (Respondent)
• File Number(s): CA 2012/10244

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-12-15 00:00:00
• Before: Hungerford ADCJ
• File Number(s): DC 2010/99464

Judgment

1 BASTEN JA: The appellant, Action Paintball Games Pty Ltd, occupied an area of land at Annangrove Road, Rouse Hill in north-west Sydney where it provided facilities for two outdoor games, namely "action paintball" and "laser tag". On 16 February 2008 the respondent, Ms Bethany Barker, went to the site occupied by the appellant for her brother's birthday party, which included playing laser tag. Her brother was 12 years old, she was a day short of 10 years.

2 The game involved each player being equipped with a laser "gun" with which they attempted to "tag" other players and avoid being tagged themselves. The area used for the game involved two bunkers (one occupied by each team) and an area of bushland, which appeared to be a kind of open dry sclerophyll forest. There were rough tracks through the bush but also the usual fallen branches and debris. Unfortunately, the plaintiff tripped on what appears to have been a tree root and fell, suffering a significant fracture to her left elbow. She sued the appellant in negligence. (It is convenient to refer to her, as the trial judge did, as "the plaintiff".)

3 Following a trial in the District Court, Acting Judge Hungerford QC gave judgment in her favour in an amount a little over $280,000.

4 There is no appeal against the assessment of damages; the appeal is limited to the issue of liability and raises numerous grounds including a challenge to the finding as to how the plaintiff came to injure herself, the content of the duty of care, the nature of the alleged breach and the finding as to causation. Various provisions of the Civil Liability Act 2002 (NSW), and in particular those dealing with obvious risks and recreational activities, are relied upon.

5 Making full allowance for the plaintiff's age, her evidence that she was aware of the general kind of risks attendant on running through bushland was accepted. She was in any event given a warning as to the dangers and there is no reason to suppose that a further warning would have changed her conduct. Further, reasonable care did not require that the appellant take the precaution of removing the tree root. For these reasons the finding of liability is unsustainable. It is not necessary to address the other grounds. The appeal must be allowed and the judgment below set aside.

Factual background

6 The young people involved in the game met at the appellant's premises about 15 minutes before the game was due to start, which was at 3pm: Tcpt, p 84(30)-(40). The member of the appellant's staff who was to referee the game spoke to the children, in the presence of the plaintiff's father, referring to what the trial judge described as "certain safety aspects and the game's rules in accordance with his general practice": Judgment, p 17(12). He found that the referee gave a warning that "there's a lot of sticks and obstacles in the way, so not to run full out, because you might fall over, and hurt yourself": p 17(13).

7 Shortly after the game started the plaintiff tripped. The plaintiff gave evidence that when the game started, "we started running around": Tcpt, p 11(17). She said that she was "running away from someone on the other team" along one of the paths which she described as a dirt track: Tcpt, p 11(25)-(40). Her evidence continued:

"Q. So you were running. How fast were you running?

A. Jogging.

Q. And then what happened?

A. I looked behind me to see if, like, they were coming and then I fell over.

Q. Did you notice anything about your body before you fell?

A. My foot got, like, hit something."

8 She said that she then fell forward onto the ground and in particular on to her elbow. She recalled her father coming to her assistance, but in fact it seems that her brother arrived first. Her brother said that when the game started the children "just started running, just running wherever we wanted to": Tcpt, p 55(47). He then heard his sister scream and went to her. He described the area she was in as having "twigs and branches everywhere": Tcpt, p 56(20). He was then asked what he did when he heard his sister scream and said that he ran towards her. His evidence continued (Tcpt, p 57)(10):

"Q. What did you observe?

A. There was a huge tree root on the ground.

Q. Whereabouts in relation to her body?

A. Bethany was on the ground and her feet were sticking in the tree root. She had her foot stuck to the tree root."

9 There was a challenge to the finding by the trial judge that she tripped over a tree root, but the evidence of her brother (perhaps not to be taken too literally) provided support for that finding. Her brother later pointed out the tree root in question and there was a photograph of it in evidence. The photograph also showed a considerable amount of loose leaf litter, clumps of grass and broken branches and twigs in the vicinity. There was no evidence as to its size, nor did the trial judge make a finding: it appears from the picture to have been perhaps 10cm in diameter, on the surface of the ground and clearly visible.

10 The plaintiff also gave evidence that she was aware of the possibility of tripping and falling when running in bushland. The trial judge made the following findings at pp 17-18:

"(14) The plaintiff's father saw no occasion at all at the time for any warning to be given to the children in the playing of the game in the bush setting; he saw no problems at all.

(15) The plaintiff was then aware that in walking through the bush twigs and branches and the like may be encountered which, if a person is not keeping a lookout, can cause a trip and fall."

11 The plaintiff appears to have been a physically active girl who enjoyed playing tennis: Tcpt, p 34(25).

Findings of trial judge

12 The trial judge accepted what he described as a common assumption that, as the occupier of the land, the supplier of equipment and the organiser of the game, the appellant owed the children a duty of care: Judgment at [45]-[46]. He noted that the "risk of harm" as identified by counsel for the plaintiff was "tripping over a significant obstacle such as an exposed tree root lying across a designated path within an area where children are playing a game that encourages activity such as running to chase another contestant or attempting to avoid another chasing them": [47]. He then noted the submission of counsel for the appellant that "the risk of tripping and sustaining injury was obvious, known to the plaintiff and her parents and inherent having in mind the natural characteristics of the area as bushland so that there were no additional precautions the defendant could reasonably take".

13 The trial judge also took into account the age, experience and personal characteristics of the plaintiff, in accordance with principles discussed by this Court in Doubleday v Kelly [2005] NSWCA 151 at [28] (Bryson JA, Young CJ in Eq and Hunt AJA agreeing) and in Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep ¶81-874 at [97] (McClellan CJ at CL, McColl JA and McDougall J agreeing). The trial judge then found at [49]:

"I accept the correctness of the risk of harm as identified by [counsel for the plaintiff] and that such risk was within the defendant's duty of care to the plaintiff as being a foreseeable risk."

14 Identifying the nature of the risk did not in terms identify the scope of the duty. However, in discussing breach and applying s 5B of the Civil Liability Act, his Honour reached two conclusions at [65] and [66]:

"No doubt a bush setting was chosen to provide some realism to the game. However, my view is that what was proposed was 'a game' and it was only reasonable to prepare the site by removing and keeping removed trip hazards on formed pathways but otherwise leaving the vegetation for effect.

... As to the element of social utility, I have to say for myself that I have some difficulty in identifying it in the present case. Certainly, I do not consider the social utility in conducting a laser tag game in bushland justifies trip hazards being allowed to exist. They should have been removed by the defendant; they were not. The defendant should have warned the plaintiff of the hazard; it did not."

15 The trial judge turned to causation and, after identifying the relevant test in s 5D(1)(a), stated at [72]:

"Having in mind the findings I have made on the evidence as to what befell the plaintiff, I am satisfied that factual causation has been well established. ... What the circumstances did show, in my view, is that the existence of the tree root caused the plaintiff to trip, fall and thereby suffer injury. The tree root, which the defendant failed to remove or even warn about, was therefore a necessary condition in what occurred or, put another way, but for the defendant's failure to remove the root the plaintiff's fall and consequent injury would not have occurred."

16 In the course of reaching these conclusions, the trial judge also discussed the reliance placed by the defendant on ss 5H (obvious risk), 5 I (inherent risk) and 5M (recreational activity), as excluding liability. It is necessary to identify those provisions and the relevant findings. Part 1A, Division 4 of the Civil Liability Act, headed "Assumption of Risk" includes four provisions. The first three deal with "obvious risk" and so far as relevant provided, at the time of :

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

17 In discussing the application of s 5F, the trial judge held at [51]:

"The plaintiff frankly admitted, from prior experience on a couple of occasions, that in the bush twigs and branches can be encountered and that not looking can cause one to trip and fall. On its face, therefore, it may be thought that the risk here of vegetation on the pathways such as an exposed tree root providing a trip hazard was an obvious risk. I think that a reasonable person, like the plaintiff, would form that view about the bush, as indeed did Mrs Barker also."

18 The trial judge nevertheless concluded that the presence of the tree root on the pathway was not an obvious risk because:

(a) this was not "ordinary or natural bushland" used for walking and similar activities but "the location for the playing of a competitive game involving running";

(b) the plaintiff had never been to the land before, and

(c) she had not played laser tag before.

19 These considerations were undoubtedly relevant to a finding of negligence or otherwise, in accordance with s 5B of the Act. However, they did not provide any reason for supposing that the risk which materialised was not an obvious risk. The first part of the trial judge's analysis, set out above, demonstrates that the risk was indeed obvious and was understood by the plaintiff. It followed, pursuant to the terms of s 5H, that there was no duty to warn.

20 What is puzzling, indeed, is why there was no consideration in this context of the warning actually given. That might have been relevant in two ways. First, it might in any event have satisfied a general law duty to warn; it might also have constituted part of the circumstances which made the risk obvious to a reasonable person in the position of the plaintiff. At the very least it would have prevented the plaintiff demonstrating, for the purposes of s 5G, that she was not aware of the relevant risk. Although it was raised in submissions (as noted at [44]), the trial judge gave no consideration to the operation of s 5G in this context.

21 The trial judge next addressed s 5 I, which provides that there is no liability in negligence for harm suffered "as a result of the materialisation of an inherent risk": s 5 I(1). The section defines an "inherent risk" as a risk of something occurring "that cannot be avoided by the exercise of reasonable care and skill": s 5 I(2). It does not exclude liability if there were otherwise a duty to warn of the risk: s 5 I(3). It is not necessary to consider further the scope and operation of s 5 I: this case may be determined upon other bases.

22 Finally, the trial judge had regard to Part 1A, Division 5, dealing with "Recreational activity". There was no dispute that the plaintiff was engaged in a "recreational activity" within s 5K. (There was no pleading that this was a "dangerous recreational activity" within s 5L.)

23 Importantly, the defendant did rely upon s 5M which relevantly provides:

5M No duty of care for recreational activity where risk warning

(1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

...

(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

...

(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

24 The trial judge held that there had been no "risk warning". The warning which had been given to the children prior to the commencement of the game was said not to qualify because the appellant's employee "did not warn of any specific obstacles, such as tree roots, and the warning was not that there should be no running only not to run 'full out'": at [53].

Disposition of appeal

25 Section 5M provides a straightforward path for disposing of this appeal. No duty of care is owed in respect of a risk of the activity, if the risk were "the subject of a risk warning". The trial judge held that it was not, but for reasons which should not be accepted.

26 The suggestion that one specific hazard should have been identified is a function of hindsight. The suggestion that children should be told not to run at all would be disproportionate to the risk and would greatly diminish the attractiveness of a game, if the instruction were followed.

27 A "risk warning" is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk: indeed, such instruction might be counterproductive. Further, an adequate warning can be given, at least in some circumstances, by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard which may be encountered: s 5M(5).

28 In this Court the respondent contended that the plaintiff was, because of her age, an "incapable person" so that the defendant might only rely upon a risk warning if the warning had been given to a parent, which he said did not happen: s 5M(2). In fact, the father appears to have been present at the time when, as the trial judge accepted, the warning was given. Further, a person is only an "incapable person" for the purposes of s 5M if they lack the capacity to understand the warning: s 5M(12). There was no evidence to suggest that the plaintiff fell into this category. Accordingly, the appellant's reliance on s 5M should have been upheld, with the result that it did not owe the plaintiff a relevant duty.

29 The trial judge, not having disposed of the claim on that basis, addressed the matter by reference to the scope of the appellant's duty and whether it was breached. For completeness it is appropriate to deal with those issues, although as a matter of principle if there is no duty, these questions cannot arise. The proposition, noted at [12] above, that the appellant owed the plaintiff a duty to take reasonable care identified the duty at too high a level. The appellant's reliance on s 5M raised a challenge to the existence of a duty of care with respect to the recreational activity which gave rise to the harm. The scope of the duty (and hence breach) should, in any event, have been identified and addressed in those terms.

30 There were findings of dual breaches of duty. These findings involved a potential inconsistency; if the appellant were obliged to remove the hazard, no issue of a warning would have arisen. If there were a duty to warn, it would seem that there was no absolute duty to remove the hazard. It may be inferred that the duty upheld was not to take both courses, but rather to take one or other of alternative ways of satisfying the duty of care.

31 The more plausible alternative is that there should have been a warning. However, it is by no means clear what warning should have been given or in what form or at what point. The trial judge made no finding in that regard. Absent such a finding, it is not possible to know whether the failure to warn was a necessary condition of the harm, for the purposes of s 5D(1). Indeed, there was no finding as to causation in respect of a failure to warn, nor was this Court invited to make such a finding. On the evidence available, it is by no means clear how such a finding could be made in favour of the plaintiff, on the balance of probabilities.

32 There is a further difficulty: the employee of the defendant in fact gave a warning. That warning was succinct and spoke of general risks. However, with a group of young children intent on playing a game, a longer and more precise warning may simply have lost their attention. At least when giving evidence three years later, the plaintiff had no recollection of the warning. Nor was she aware of a large notice which appears to have contained safety rules and directions (though not in terms relevant to the laser tag game). Accordingly, the evidence fell well short of determining what additional warning was required and that it would, if given, have had any relevant effect.

33 The lack of a finding as to causation in respect of any proposed warning indicates that the trial judge relied primarily upon the duty to remove the tree root. The question is whether such a duty could constitute a precaution which a reasonable person in the position of the defendant should have taken.

34 The first important consideration in assessing that question is the need to avoid reliance on hindsight. One aspect of hindsight reasoning is to focus on the specific circumstances which gave rise to harm. The questions of duty and breach must be assessed by reference to the perspective of the reasonable person in the shoes of the defendant, viewing the matter before the harm arose. As the Act requires, the burden of taking precautions must be assessed having regard to the supposed duty to avoid similar risks of harm to that which materialised. The photographs in evidence demonstrate, as the trial judge found, that the game was played in an area of natural bushland which contained clumps of grass, broken branches, tree roots, low shrubs, low hanging branches and no doubt numerous other obstacles in the way of a person seeking to run, or even walk, through the bush. Although there are said to be pathways through the bushland, there was no evidence of tracks formed otherwise than by regular use. Not only would the obligation to remove all such obstacles change the nature of the area, and hence the nature of the recreational activity, but it would be an impracticable and therefore unreasonable precaution.

35 Secondly, the risk of harm through tripping and falling is a common risk of daily life. It can occur inside a house, in a garden, on a pavement or roadway or in the bush. Absent a rocky environment, the risks of serious injury from a trip and fall are probably less in bushland than in some other places. That is a relevant consideration pursuant to s 5B(2)(b). Further, the likelihood that children running through the bush will avoid such hazards, even when chasing others or seeking to escape, is reasonably high. There was no evidence, apparently, of any similar injury occurring in this bushland, whilst playing laser tag. These matters are relevant to a consideration of s 5B(2)(a).

36 Finally, it may be noted that the primary judge was somewhat dismissive of the "social utility" of the activity. Whatever the nature of the game, there is social utility in providing physical activity for children in a natural environment. It is likely that the natural environment provided an attraction to the children involved, quite apart from any other benefits which may have accrued.

37 All of these circumstances combine to demonstrate that there was no obligation on the appellant, in exercise of its duty of reasonable care, to remove the offending tree root.

Conclusion

38 There being no duty of care in respect of the activity in which the harm was suffered and hence no liability, the appeal must be allowed and the judgment in favour of the plaintiff set aside. The order that the defendant pay the plaintiff's costs of the trial must also be set aside. The Court should make the following orders:

(1) Allow the appeal and set aside orders 1-3 made in the District Court on 15 December 2011.

(2) In place of those orders:

(a) give judgment for the defendant;

(b) order the plaintiff to pay the defendant's costs of the trial.

(3) Order the respondent to pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

39 HOEBEN JA: I agree with the reasons given by Basten JA, and with his proposed orders.

40 WARD JA: I agree with the reasons of Basten JA and with the orders he proposes.

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Decision last updated: 17 May 2013