Negligent but not liable. That was the jury’s decision in a recent case involving voluntary assumption of risk in the world of trampoline-dodgeball that saw the lawyers spring into action: Rakich v Bounce Australia Pty Ltd [2016] VSCA 289

Background

In June 2013, 37 year old Clinton Rakich and two friends visited Bounce Australia (Bounce) trampoline park. During a game of dodgeball, Rakich fractured his leg when his foot hit the padded area between two trampolines.

Signs advising of risk and warning that the customer was responsible for risk were displayed at the entrance to Bounce and other places. Each customer wore a wrist band which stated: “Customers use the services & facilities of Bounce Inc subject to displayed conditions”.

Rakich sued Bounce, alleging (amongst other things) that Bounce had failed to provide adequate warning of risk or adequate safety instructions. Bounce relied on the defence of voluntary assumption of risk.

The jury’s verdict: inconsistent?

The jury found in favour of Bounce after answering a series of questions as follows:

  1. 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.
  2. 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.

  1. If yes to question 2 or 3, did the plaintiff voluntarily accept the risk of sustaining injury?—Yes.

Rakich appealed on the basis that the answers to question 2 and 4 were inconsistent and so the jury verdict could not be maintained..

The Court of Appeal held that there was no necessary inconsistency stating that:

  • the jury may have reached a number of conclusions, including that Bounce negligently failed to give Rakich guidance about how to move around the trampolines safely and that failure was a cause of Rakich’s injury; and
  • yet Rakich still knew the dangers of trampolining and trampoline edges and voluntarily agreed to incur the risk.

Terms & conditions apply…or do they?

Bounce also appealed the trial judge’s decision that “exclusion of liability” clauses in its Terms and Conditions (T&Cs) were rendered void by s64 of the Australian Consumer Law (ACL).

Section 64 of the ACL provides that a term of a contract is void to the extent that it purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying the consumer guarantees conferred by the ACL or any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.

Bounce conceded that clause 9 of its T&Cs was void but argued that other clauses were not due to s22 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA) which applies to contracts for the provision of recreational services. In effect, s.22 of the ACLFTA allows for the limitation of liability in the provision of recreation services so long as certain requirements are met.

Bounce successfully argued each of its T&Cs should be considered separate, so even if cl 9 was void by reason of the CLA, the other T&Cs (ie those purporting to limit liability for personal injury and death) were not (so long as they met all of the relevant statuary requirements).

Lessons for recreational service provider, their insurers and their lawyers

This case provides two key messages:

  • Prevention: Any terms and conditions which seek to exclude liability must be carefully drawn to ensure full compliance with statutory requirements, including being displayed and brought to the attention of consumers; and
  • Curial: Care must be applied when formulating questions for juries to answer.