On 25 August 2012 the Apostolic Church Australia Ltd held a spiritual growth conference for church members. The theme was “Accelerate” so the organisers set up some go-karting in the Church’s car park.

Ellen Dixon had volunteered to take photographs and video footage of the conference. During a lunch break she drove a go-kart for five or six laps without any incident, after receiving some basic instructions. She was later offered another drive and given the same instructions. This time, while driving, her go-kart lost traction and she started to spin. She tried to brake, but pressed the accelerator instead of the brake and drove into a tree. She was seriously injured with her right leg having to be amputated below the knee.

The parties agreed damages at an undisclosed sum, but the Church and Graeme Holman (one of the conference organisers) denied liability. The trial on liability came on before Her Honour Schoombee DCJ.

At trial there was no dispute the Church and Holman owed a duty of care to Dixon to take all reasonable steps to ensure the go-karting activity was safe for participating drivers. Her Honour concluded the Church and Holman breached that duty because of:

  • their failure to conduct a proper risk assessment;
  • their failure to recognise a problem caused by Dixon’s unfamiliarity with the brakes as she only had an automatic licence;
  • the absence of proper instructions with regard to the risk;
  • their failure to place barriers around the outer perimeter of the track; and
  • their decision to proceed with the activity although racing go-karts were not suitable for amateur drivers,

had all caused or contributed to Dixon’s injury.

Her Honour was then required to consider if go-karting was a “dangerous recreational activity” because if it was, both defendants would gain protection from Section 5H Civil Liability Act (CLA) and would not be liable for Dixon’s injuries. Her Honour noted the real risk of serious harm occurring in this particular case was that of a driver losing control, veering off and hitting a stationary object in the carpark. This risk was caused by the defendants when they negligently set the track up without perimeter barriers and without a proper risk assessment. In Her Honour’s view this was not a risk inherent in the activity of go-karting, it had been caused by the defendants’ negligence. She therefore held go-karting was not a dangerous recreational activity, in and of itself.

Her Honour noted that in case she was wrong (and we have some reservations about this aspect of the decision, particularly in light of her comments about the unsuitability of racing go-karts), she would also consider if Dixon’s injuries were caused by an “obvious risk” under Section 5F CLA. The issue to be determined here was whether it would have been apparent to a reasonable person in Dixon’s position, with her level of experience, placed in her circumstances just prior to her driving the go-kart, that she might lose control, veer off the track, collide with a stationary object in the carpark and suffer serious injury. Her Honour held the risk was not obvious to a reasonable person in Dixon’s position and so CLA did not exempt the defendants from liability.

The defendants then argued no duty of care was owed as a risk warning was given. Section 5I (7) CLA states such a warning does not have to specifically address the particular risk, but can be a general warning that includes the particular risk concerned. The Church’s warning that participants drove the go-karts at their own risk did not, however, mention the risk of serious injury. Her Honour therefore held the Church’s warning was not a warning of any risk, in specific or in general terms, and again found the CLA did not exempt the defendants from liability.

Finally, she noted it was to be expected that even a reasonable person in Dixon’s position might have made an accidental mistake such as pressing the accelerator instead of the brake and so she did not consider Dixon was guilty of any contributory negligence.

The Church was therefore liable to pay Dixon the damages agreed in respect to her injury.

Conclusion

This decision makes it clear that if you are providing recreational activities with any associated risk, you should conduct a proper risk assessment, give adequate instructions and a specific warning about any dangers involved. In addition, you should carefully consider a contractual disclaimer as outlined in our earlier article entitled Dolphins, Boats, Tickets, Waves and Waivers.