The NSW Court of Appeal has awarded a girl $136,075 after she injured herself falling from a quad bike while on a family activity day.
In 2011, the plaintiff’s mother took her and six other children to a recreational park that offered quad bike sessions. The girl, who was 11 years old at the time, went with three siblings and four cousins.
The accident occurred on the return journey back to the park’s administration centre. The group’s guide, who was there to observe and instruct participants, separated the children into two groups – boys and girls.
According to court documents, the boys were on the trail ahead of the guide, while the girls were behind. However, the boys began to speed up, causing the instructor to accelerate in order to remain within a safe distance of them.
The girls had been instructed to follow the guide, meaning they also increased their speed. The plaintiff claimed this was when she lost control and fell off her quad bike.
Her family pursued a public liability claim against the operator for negligence, arguing that the instructor’s behaviour had led to the girl travelling on her bike at an excessive speed.
Original decision overruled
The original judge said that while the guide had been negligent, his company was protected from a public liability claim due to a waiver the girl’s mother signed before the children began the activity.
Section 5N of the Civil Liability Act states that such a waiver of contractual duty of care for recreational activities can exclude, modify or restrict a company’s liability. The family’s claim was therefore rejected.
However, when the case was appealed, the judges ruled that the contract between the plaintiff and the defendant was actually constituted the day before the accident, when the girl’s mother rang the park and paid for the day out.
Furthermore, while the risks of the activity were outlined on arrival at the centre, the organisation’s website underplayed the potential for injury. The site described quad biking as “surprisingly easy” with “easy to use” fully automatic bikes, which was deemed misleading.
The appellate judges overruled the original decision and awarded the girl $57,220 for non-economic losses, as well as $76,453 plus interest for additional components.
If you think you are eligible to make a public liability claim, please talk to a seasoned personal injury lawyer who can help you decide whether or not to proceed.