Traps for young players*
June 4, 2013
This decision demonstrates the practical application of the risk warning provisions of the Civil Liability Act 2002 (NSW) (CLA) especially in relation to activities involving children.
The judgment also serves as a reminder of the problems that arise when courts engage in hindsight reasoning.
Action Paintball occupied an area of bushland in Sydney’s north-west where it provided facilities for outdoor paintball and laser tag. On 16 February 2008 the plaintiff attended the site for her brother’s 12th birthday party which involved playing laser tag with a group of children. She was one day short of 10 years of age at the time.
Laser tag is a game where each player is equipped with a laser ‘gun’. The aim is to ‘tag’ other players and avoid being tagged. The playground used was a ‘kind of open, dry forest with rough tracks through the bush but also the usual fallen branches and debris’. In some areas of the bush setting foot traffic had created worn paths which the child’s lawyers sought to characterise as ‘designated pathways’.
Prior to commencing the game, a teenage member of Action Paintball’s staff gave a warning in the presence of the plaintiff’s father, to ‘watch where you are going…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’.
Shortly after starting the game, the child tripped on a tree root and fell to the ground. She suffered a significant fracture to her left elbow. Her evidence at trial was that she was running away from someone on the other team when she fell and had been looking back over her shoulder immediately prior to tripping.
The trial judge, Hungerford ADCJ accepted that as the occupier of the site, supplier of the equipment, and the organiser of the game, Action Paintball owed the plaintiff a duty of care. His Honour identified the risk of harm as the risk of ‘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’. He concluded that such a risk was within Action Paintball’s duty of care as a foreseeable risk.
His Honour concluded that:
- Whilst the bush setting did provide some realism to the game, it was not unreasonable for Action Paintball to remove trip hazards on the formed pathways and otherwise leave the vegetation for effect
- Given the games involved children shooting each other and simulating combat, social utility was not an issue
- But for the defendant’s failure to remove or adequately warn about the tree root, the child’s fall and consequent injury would not have occurred
- Contrary to Action Paintball’s argument, a duty of care was owed as the risk warning ‘did not warn of specific obstacles, such as tree roots, and the warning was not that there should be no running, only not to run full out’
- Despite the plaintiff child having been bush walking a number of times and therefore being aware of the trip hazards, His Honour concluded the tree root was not an obvious risk because this was not ‘ordinary or natural bushland’ used for walking, the plaintiff had never been to the land, and the she had never played laser tag before.
Action Paintball was found negligent for failing to remove the tree root from the pathway, and not adequately warning of its existence. The plaintiff was awarded a little over $280,000 in damages.
Action Paintball appealed the decision, arguing His Honour erred in finding
- That a warning must be specific to the particular risk
- That Action Paintball owed a duty of care at all in circumstances where the plaintiff was engaged in a recreational activity and a risk warning had been given
- Action Paintball was negligent in failing to remove the particular tree root, let alone all trip hazards, when in bushland trip hazards from twigs, branches, sticks and other roots are inevitably present and obvious
- That Action Paintball was negligent in failing to warn the plaintiff of the risk in circumstances where the risk was an obvious risk.
The New South Wales Court of Appeal, led by Basten JA (with whom Hoeben JA and Ward JA agreed), upheld the appeal and delivered reasons immediately.
- The court noted that to suggest that one specific hazard should have been identified is a function of hindsight
- The suggestion that children should not run at all was considered by Basten JA to be ‘disproportionate to the risk and would greatly diminish from the attractiveness of the game, if the instruction were followed’
- It was held that the warning given by Action Paintball was ‘succinct and spoke of general risks’ and the warning was considered appropriate in the circumstances where, ‘with a group of young children intent on playing a game, a longer and more precise warning may have simply lost their attention’.
On that basis, the Court of Appeal found the defendant owed no duty of care to the plaintiff.
Section 5M of the CLA requires that when a person receiving a warning is incapable of understanding it that the warning be given to a parent or guardian. While in this case the warning was given in the presence of the young girl’s father, the Court of Appeal found that as there was no evidence she could not understand the warning given, there was no basis for finding she was incapable within the meaning of the CLA.
For completeness, the Court of Appeal briefly dealt with the scope of Action Paintball’s duty and whether, if it was found to exist, it was in fact breached. In assessing the question, Basten JA noted the importance of the need to avoid reliance on hindsight. The CLA requires that the burden of taking precautions be assessed with regard to the duty to avoid similar risks of harm from materialising. Therefore, if Action Paintball owed a duty to remove the tree root, it would also be under an obligation to remove all such obstacles, which would ‘not only…change the nature of the area, and hence the nature of the recreational activity, but it would be an impracticable and therefore unreasonable precaution’.
The remaining allegation of a failure to warn was met both by a finding that the risk of harm was obvious (and therefore there was no duty to warn) and by the fact that a warning had actually been given.
Finally, the question of ‘social utility’ also fell for comment. Contrary to the trial judge’s dismissal of the social utility Basten JA indicated he had no difficulty in finding that there was social utility in a game that encouraged children to engage in physical activity in a natural environment.
Authored by Emily Harty, Lawyer, Sydney.
*Action Paintball Games Pty Limited (In liquidation) v Barker  NSWCA 128
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