Bounced out of Court?
There was an eye catching article in the Sydney Morning Herald last week about injuries in “trampoline parks”. Now those of us above the age of about 30 will have very fond memories of our backyard trampolines, complete with the exposed steel springs and (after many years) the ever present danger of going straight through the worn and tired mat.
Apparently the “trampoline park” is a much different beast and I’m told (I decided it was unseemly for a 37 year old lawyer to go to one in the middle of the work day) a great deal of fun.
As with all fun pastimes though there is a downside. The article refers to statistics that have almost 500 children between the ages of 0-19 presenting with injuries to emergency departments in Victoria, Queensland and Western Australia over a five year period. A hundred a year sounds like a lot and the number would no doubt be higher if other states were included.
No doubt each of these parks have various waivers and other conditions on entry. It looks like the trampoline park in town has one, and also have a requirement that “gripper socks” be worn.
Waivers are a valid and important part of doing business, but are they always appropriate and/or enforceable? To use a great lawyer’s response, it depends.
Whether or not a waiver is effective will depend on its wording, and the relationship of that wording to the injury suffered. It will invariably be different in each and every case.
Even if a waiver is able to be defeated, a plaintiff must also get over various restrictions in the Civil Liability Act. Invariably an action of an injury in a place like a trampoline park will be based on negligence. The Act provides that a person is not negligent in failing to take precautions against the risk of harm unless the risk was foreseeable, it was not insignificant, and a reasonable person in the same position would have taken precautions.
The Act also makes provision what it terms “obvious risks”. An obvious risk is one that is obvious to a reasonable person in that position and includes patent or common knowledge risks. There is a presumption that a person is aware of an obvious risk, and there is no proactive duty to warn of obvious risks.
The situation is different as regards “dangerous recreational” activities. These are activities with a significant risk of physical harm. Where there has been a risk warning given the Act provides that there is no duty to the injured person and there is no liability for harm suffered from “obvious risks”.
Indulging in yet more nostalgia the biggest risk I can remember from trampolines was not from being on them at all. Our trampoline fielded at cover in backyard cricket and was known as Botham. Hit it on the full and you were out, and to a Pommy no less!
So, what does all this mean? Well it doesn’t mean places like a trampoline park can’t be sued, it just means it’s more difficult than it looks on American TV shows. It will also depend heavily on the circumstances of the case.
If there is someone trying to recreate Sean White’s medal winning snowboard half pipe run, but without either snow, snowboard experience and on a trampoline, they are unlikely to go very well in Court either.
If however a person is behaving as might be expected on trampoline, ie bouncing on it, and the mat gives way without warning, well then the story may well be very different.
If it is decided to go to Court make sure you have everything lined up, or you could end up getting bounced out of there very quickly!