When Does a Recreational Activity Become 'Dangerous'?

Words by Hayley Suthers-Crowhurst

 

AUTUMN IS MY FAVOURITE TIME OF YEAR. IT MARKS THE START OF A NEW SPORTING SEASON!

Like so many others on most weekends between March and September you will find me on the hockey field. In the twenty odd years I’ve been playing, I’ve been pretty lucky not to have suffered anything more than minor scratches, decent bruises and perhaps one black eye.

Until recently, that is.

 

During my second game for the season, I stood between a teammate and the goal box as she was taking a shot on goal. I stopped the ball with my head. A few stitches later, my head was swollen and bruised. I suffered a mild concussion, which saw me resting on the couch for the best part of the following week. A month later, I can still pinpoint the exact point of impact on my head, but I no longer suffer concussion symptoms and I am back on the hockey field.

I was lucky….

But, what if I wasn’t so lucky and suffered a significant brain injury? What rights would I have?

The law in Queensland governing personal injury claims is based on an ‘at-fault’ system. To be entitled to damages, the first element which must be proved is negligence on the part of another person or entity.

However, even if such fault can be established, an exception exists in Queensland where the injury occurs as a result of an ‘obvious risk’ of a ‘dangerous recreational activity’. 

OBVIOUS RISK

An ‘obvious risk’ is a risk that would be easily recognisable or a matter of common knowledge to a reasonable person, even if that risk has a low probability of occurring. 

Hockey is played with a ball (a hard, plastic shell with a cork core) and a hockey stick (predominantly made with composite materials, including carbon, fibreglass and wood). The evolution of the hockey stick over time means the power generated when hitting the ball has increased. The rules of hockey state a player is able to intentionally raise the ball off the ground when taking a shot at goal.

It would likely be found that participating in the match and placing myself between a teammate taking a shot on goal and the goal box would give rise to an acceptance on my part of an obvious risk that I could be struck in the head by the ball.

DANGEROUS RECREATIONAL ACTIVITY

By stepping on the hockey field, I am voluntarily participating in a ‘recreational activity’, defined by legislation as an activity engaged in for enjoyment, relaxation and/or leisure.

BUT IS HOCKEY DANGEROUS?

A recreational activity is considered ‘dangerous’ when that activity involves a significant degree of risk of physical harm to a person.

For a risk to be significant, that risk is somewhere between a trivial risk and a risk likely to materialise.  To add more confusion to the situation, the significant risk that deems an activity to be ‘dangerous’, can be entirely different to the risk which actually materialises.

Not surprisingly, determining whether a recreational activity is ‘dangerous’ is not straightforward.

Courts have previously determined recreational activities such as kangaroo shooting at night, BMX riding at a skate park and learning to fly a light aircraft as ‘dangerous recreational activities’. Conversely, Oztag and a dolphin watching cruise have been found not to be dangerous recreational activities.

WHAT DOES ALL THIS ACTUALLY MEAN?

Establishing liability for claims of this type may be challenging.

All circumstances of the particular case must be considered. We must scrutinise not only the activity being undertaken at the time, but also the actual circumstances giving rise to the injury. It may be necessary to segment the activity to determine whether what actually occurred was the eventuality of an obvious risk.

For me, hockey will go on as usual. But from now on, I will stay out of the line of fire!

 

Civil Liability Act 2003 (Qld), s13.
Fallas v Mourlas [2006] NSWCA 32, [18] (Ipp JA)

 

Original article from Peninsula Life magazine