THE DEFENCE OF ‘VOLENTI’ BOUNCES BACK
November 29, 2016
Rakich v Bounce Australia Pty Ltd  VSCA 289 (25 November 2016)
Bounce Australia Pty Ltd (‘Bounce’) is the owner and operator of indoor trampoline centres both nationally and overseas. Mr Rakich was injured at its Glen Iris facility when he landed awkwardly and fractured his leg on the padded edge of a trampoline while playing the game of dodgeball.
Bounce primarily relied on the defence of voluntary assumption of risk. At the time of injury, Mr Rakich was a 37 year old climatologist employed by the Bureau of Meteorology. He had a science degree, during the course of which he had studied physics. He had previously engaged in a range of adventure activities, including skiing, snowboarding, rock climbing, scrambling, hiking and canyoning.
During his customer journey at the premises, Mr Rakich was presented with a range of warning signs and signs that included the terms and conditions of entry. He was provided with a wrist band pointing to Bounce’s terms and conditions and further oral safety instructions. Mr Rakich gave evidence at trial that he did not recall any such warnings and/or safety information.
On 29 October 2015, the jury found in favour of Bounce by returning a verdict in the form of answers to the following series of questions:
- Was the risk of sustaining the injury suffered by the plaintiff an inherent risk of the activity of trampoline dodgeball, that is to say, a risk that could not be avoided by the taking of reasonable care by the defendant?—Yes.
- If yes to question 1, did the defendant fail to take reasonable care in giving warning of the risk to the plaintiff or in giving the plaintiff relevant safety information, and if so, was that failure a cause of the plaintiff’s injury?—Yes.
- If yes to question 2 did the plaintiff voluntarily accept the risk of sustaining injury?—Yes.
The central issue on appeal was whether the jury’s answers to questions 2 and 4 created a necessary inconsistency, which rendered the decision irreconcilable. It was accepted that if there had been solely a failure to warn of the risk, then that would be inconsistent with a finding of voluntary assumption of risk as Mr Rakich would not have had full knowledge of the nature and extent of the relevant risk. Bounce submitted that the jury may have only given an affirmative answer to the second part of question 2, that is a failure to give relevant safety information and that such an answer was not necessarily inconsistent with an affirmative answer to question 4.
The Court of Appeal held that there was no necessary inconsistency, as there was scope for the jury to reach a number of different conclusions. For example, that:
- it was negligent of Bounce not to have given guidance to Mr Rakich as a beginner about how to safely move around so as to reduce that risk (as at certain ski resorts); and
- the failure to give such guidance was a cause of Mr Rakich’s injury.
It was held that such a conclusion was not irreconcilable with a conclusion that Mr Rakich had full knowledge of the nature and extent of the risk that trampolining activities posed generally, and the risk presented by the joins in the trampoline, and that he freely and voluntarily agreed to incur it.
The Court of Appeal then dealt with Bounce’s cross appeal relating to the exclusion of liability clauses. The terms and conditions of entry contained a number of clauses, one of which excluded liability for death and personal injury and another separate clause which excluded ‘to the extent permitted by law’ Bounce’s liability for (among other matters) loss of profits. The trial judge ruled that all of the exclusion clauses were rendered void under s 64 of the Australian Consumer Law (‘ACL’).
Bounce submitted that s 64 of the ACL did not render all of the exclusion clauses void, but only the clause which went beyond the exclusion of liability for death and personal injury. In those circumstances, it was only the clause which excluded liability for loss of profits that was void.
The Court of Appeal held that the relevant clause only purported to exclude liabilities ‘to the extent permitted by law’. In the Court’s opinion, the clause was not inconsistent with s 64(2) of the ACL, which provides that a ‘term of a contract is not taken, for the purposes of this section to exclude, restrict or modify the application of the provision of this Division unless the term does so expressly or is inconsistent with the provision’.
One cannot discount the importance of having detailed warnings signs prominently displayed throughout a venue, together with a host of other measures such as oral instructions, in order to successfully mount the defence of volenti.
Exclusion clauses which extend beyond death or personal injury are prima facie void pursuant to s 64 of the ACL. Such terms may be salvageable by the inclusion of terms that exclude liabilities to ‘the extent permitted by law’ and the operation of s 64(2) of the ACL. If an exclusion clause is rendered void by s 64 of the ACL, then other clauses should be interpreted separately rather than striking out all of the exclusion clauses.
 Citing Nair-Smith v Perisher Blue Pty Ltd  NSWSC 727 ; and Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1, 47 .
Authored by Brett Weir, Partner & Oliver Lesage, Lawyer, Melbourne.
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