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Two cases which demon strate these matters are: (a) Regan v ACT Schools Author ity [2003] ACT SC 47 This was a case, which concerned an accident to a student whilst on an abseiling outdoor educa tion program. The School was able to adduce a volume of evidence which satis fied the Judge that: “The school had exercised appro pri ate care in the planning and prepa ra tion for the abseiling class. Mr McCar thy and Mr Thomp son were experi enced and well-quali fied outdoor educa tion teach - ers. I am satis fied that the students were properly instructed and super vised. I am satis fied that the equip - ment was all in good working order. I am satis fied that a teacher acted as a belayer for all student descents, and in partic u lar that Mr McCar thy belayed the plain tiff on this descent. I am satis fied that the require ments in the Outdoor Educa tion Manual were followed.” (b) Ayoub v Downs 7 Oct 1982 NSW SC, BC8200006 This is a much older case, but reveals a much more poorly organ ised excur sion to a farm property. There were about 50 boys most of whom came from special English classes. They were aged between 13 and 15 and only two teach ers went with them. One of the teach ers, who did not give evidence, appar ently knew the owners of the farm and may have been there before. The other teacher had no knowl edge of the area. After alight ing from the bus, the boys looked at various farm animals and then went to the farmhouse where they were met by one of the owners who suggested that some of them might like to walk down and see the river. The group then split with about 25 or 30 boys accom pa ny ing Sir? Some of the kids wonder if this was the best place to bring the school. school excursions & law only one of the teach ers to the river (the one who had not previ ously been to the farm). At one stage, whilst proceed ing along a rough track built onto the side of a steep hill they encoun tered a gate. Some diffi culty was experi enced in opening the gate because of the boys’ unfamil iar ity with such farm gates. In addition, it would seem the gate was in need of repair, and it had been tempo rarily tied up in a make-do fashion. A boy who had been holding the downhill fence post on which the gate appeared to swing fell, and was injured when another boy released the other end of the gate from the tie mecha nism that had been support ing the gatepost, which was not firmly rooted in the ground. Yeldham J found an inade quate provi sion of super vis ing teach ers. He found that one teacher alone could not properly super vise a group of 25 or 30 boys dealing with an unfamil iar piece of equip ment. What this case really shows is extremely poor pre-excur sion planning. Even though this was a fairly inert excur sion, there was no consid er ation of the various factors we raised above under point 1, ‘thor ough planning’. Work experi ence In my view work experi ence programs should be consid - ered and planned for in the same way as group excur sions. Obviously the require ment for super vi sion is absent but as with leader ship programs, greater care may be required to prior planning, train ing and instruc tion (for both the partic i pant and the host). Civil Liabil ity Act impli ca tions – recre ational activ i ties Many excur sions will involve what the Civil Liabil ity Act 2002 (NSW) (‘the Act’) 3 refers to as recre ational activ i ties. Vol. 2 2006 The Verdict 25
school excursions & law Recre ational activ ity includes: • (a) any sport (whether or not the sport is an organ ised activ ity); and • (b) any pursuit or activ ity engaged in for enjoy ment, relax ation or leisure; and • (c) any pursuit or activ ity engaged in at a place (such as beach, park or other public or open space), where people ordinarily engage in sport or in any pursuit or activ ity for enjoy ment, relax ation or leisure. Section 5L of ‘the Act’ 4 provides a complete exclu sion of liabil ity for harm suffered as a result of the materi ali sa tion of an obvious risk of a danger ous recre ational activ ity engaged in by the plain tiff. The liabil ity embargo applies whether or not the plain tiff himself was aware of the risk. What, then, is a danger ous recre ational activ ity? Section 5K 5 states only that danger ous recre ational activ - ity means a recre ational activ ity that involves a signif i cant risk of physi cal harm. Unfor tu nately, this defini tion does not assist greatly. The very occur rence of harm tends, at least in hindsight, to suggest that the activ ity did involve a signif i cant risk of physi cal harm. While signif i cant risk carries a notion of a greater risk than the expres sion “not insig nif i cant risk”, I doubt that the courts would accept that ‘signif i cant’ indicates a degree of proba bil ity of harm occur ring which is more proba ble than not. The signif i cance of risk proba bly refers not only to the proba bil ity of occur rence, but also the magni tude of poten - tial harm. Perhaps signif i cant risk of harm denotes some inher ent quality in the recre ational activ ity. If so, the inher ent quality of the risk is not the same as an inher ent risk as defined in the previ ous division of ‘the Act’ (ie. a risk which cannot be avoided by reason able care) which would make Section 5L entirely redun dant. Is abseiling, for example, a danger ous recre ational activ - ity? The unini ti ated may well think so, but devotees would proba bly think not. The question did not arise in Regan’s case because that case concerned ACT law not NSW law. In the case of Nobrega v Trust ees of Roman Catho lic Church Archdi o cese of Sydney [1999] NSW CA75 the Court of Appeal agreed in the judgment of Powell JA, who found that a waterslide which was set up on a dam wall, and the use of the slide was not consid ered danger ous “if used in an orderly fashion by boys under super vi sion” and was consid ered by the court to be an entirely appro pri ate activ ity for early teenag ers. It seems to me that Section 5L of the Act is unlikely to make much differ ence to the liabil ity position of a school. It is only where the risk that eventu ates is a normal incidence of the recre ational activ ity itself without contri bu tion from a want of care by the school or teacher that the protec tion of the the Act will operate, and the same position is reached by the common law in any event. Risk warnings 6 Section 5M of ‘the Act’ provides that there is no duty of care to a person engag ing in a recre ational activ ity to take care in respect of a risk, if a risk warning is given. A risk warning is a warning given in a manner reason ably likely to result in people being warned before engag ing in the recre ational activ i ties. A risk warning can be given 26 The Verdict Vol. 2 2006 orally or in writing, includ ing by means of a sign or other - wise. A defen dant is not required to estab lish that the plain tiff received, or under stood, or was capable of receiv - ing and under stand ing the warning. In addition, a risk warning can only be given to an incapa ble person, eg. a child, if the risk warning was given to a parent of an incapa - ble person, or to a guard ian who was in control of, or accom pa nied, the incapa ble person (and who was not himself an incapa ble person and not the defen dant). Presum ably there must be some coinci dence between the risk which materi al ises and the risk against which the warning was given before liabil ity is excluded, but a risk warning need not be specific to the partic u lar risk and can be a general warning of risk that includes the partic u lar risk concerned (so long as the risk warning warns of the general nature of the partic u lar risk). A risk warning cannot be relied on if contra dicted by other repre sen ta tions. A defen dant cannot rely on a risk warning unless it is given by or on behalf of the defen dant, or by or on behalf of the occupier of the place where the recre ational activ ity is engaged in. A risk warning cannot be relied on where there is contra ven tion of a statu tory code or regula tory proto col for protec tion of personal safety. Risk warnings cannot be relied on if the plain tiff was required to engage in the recre ational activ ity by the defen - dant. Query what degree of power, author ity and compul sion is neces sary but it may well be that risk warnings given on the subject of school excur sions may not be effec tive because, for all practi cal purposes, atten - dance on the excur sion was compul sory and formed part of the curric u lum for a partic u lar subject or satisfactory completion of the school year. However, because a risk warning which satis fac to rily complies with the Act require ments, will be effec tive to entirely obviate liabil ity arising on the part of the school for risks emanat ing which are the subject of the warning, it is recom mended that schools should give serious consid er - ation to well drawn risk warnings being passed to parents in paren tal permis sion notes. Pa ren tal con sent/per mis sion notes Are they worth the paper? I would say they are, but not because they of themselves discharge the school from liabil ity, but because, subject to what I said previ ously about risk warnings given under the Act they do not. Gener ally waiver clauses are ineffec tive against legally incapa ble individ u als. This is because as a matter of law, such persons simply cannot contract to waive liabil ity and parents or guard ians cannot do so on their behalf. In NSW the capac ity of minors to contract is governed by the Minors (Property and Contracts) Act 1976 (NSW). Sections 18 and 19 provide that as long as having suffi - cient maturity to under stand what he/she is doing, a minor can be bound by a contract, which is to his/her benefit. Whilst partic i pa tion in the excur sion may well be of benefit to the minor, a document where the dominant purpose and the only endur ing obliga tion is the waiver of liabil ity, will not be seen in the same light. The value of paren tal permis sion notes lies in a contri bu - tion to the proper instruc tion, planning, brief ing and train ing required to discharge the duty of care. A well designed permis sion note setting out the aims, objec tives,
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