Does your business entail recreational risks? Do you operate camel or horse rides or go-karts? Or you might own swimming pools, gyms, sport arenas or golf courses. Your shopping centre might have a jumping castle in it during busy school holidays. Or your resort may offer jet-ski lessons.

While there are many people who would simply pick themselves up after injuring themselves in a recreational activity simply because they recognise there is a risk when they partake in such activities – there are still many who make claims and you may be held liable for their injuries.

Even if you are successful in court you may end up paying a lot on legal and expert fees to defend your case.

Take the example of the woman who was on a treadmill at the gym. As she was winding down during the cooling period and exhausted she flung her towel onto the handrail & lost balance thus falling onto the treadmill and fracturing her collar bone. She is now claiming against the gym. Or the man playing soccer and tripping over when going to make a strike, admitting he was being a “hero” but who is now threatening to sue as he fractured his ankle.

In NSW, the burden is on the claimant in a sport or recreational activity which is an obvious risk to take reasonable care of their own safety. Also the legislation states that no duty of care is owed to someone who engages in a recreational activity which is subject to a risk warning.

In a recent NSW Court of Appeal case, (Action Paintball v Clarke [2005] NSWCA 170) Mr Clarke was playing paintball in heavy rain on wet and slippery terrain when he slipped and fractured his ankle. He sued Action Paintball on the basis that they had breached their duty of care to him by allowing the game to continue in unreasonably risky conditions.

It was held that the cause of Mr Clarke slipping was the slippery ground, but that he was well aware of the condition of the ground from the rain but he continued to play regardless. As Mr Clarke appreciated the obvious risk presented by the slippery ground, he was unable to demonstrate on the balance of probabilities that it was unreasonable for Action Paintball to allow the game to continue.

Thus the court confirmed that when it comes to the duty of care owed in sport or recreational activities which involve obvious risk – the standard of care is affected by the fact that the participants are adults who choose to play for personal enjoyment. The burden is, therefore, on participants in sport or recreational activities to take reasonable care of their own safety.

So what can you do to better protect your company and improve your risk exposure should a claim be taken? We would recommend the following:

1. Recording all incidents so that you can ascertain how regularly patrons are injured. If it is not frequent – then you are in a better position. If it is frequent and a trend develops, then you may have to scrutinise why and decide whether there is anything that can be done to reduce injuries i.e. fix and service equipment.

2. Report the incident to Proclaim as soon as possible, particularly if the injuries are serious, so that we can get hold of the injured person and also start gathering information to assess liability.

3. If you have equipment and machines, make sure there is a regular maintenance and/or servicing program to check that they are operating correctly. Maintenance checks of gym equipment such as treadmills should confirm the incline, speed, stopping mechanism, display and program functions are working well.

4. If there are industry regulations relating to the activity – make sure you comply with these regulations.

5. Make sure you have properly trained staff to give instructions.

6. Waiver forms, warning signs and induction programs are all very helpful to argue that the adult participant was fully aware and thus the risks were obvious (especially in NSW).

Marianne Lim, Proclaim Management Solutions

PO Box A793, Sydney South NSW 1235, t: 02 9287 1311, f: 02 9261 2410