Disposition of appeal
25Section 5M provides a straightforward path for disposing of this appeal. No duty of care is owed in respect of a risk of the activity, if the risk were "the subject of a risk warning". The trial judge held that it was not, but for reasons which should not be accepted.
26The suggestion that one specific hazard should have been identified is a function of hindsight. The suggestion that children should be told not to run at all would be disproportionate to the risk and would greatly diminish the attractiveness of a game, if the instruction were followed.
27A "risk warning" is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk: indeed, such instruction might be counterproductive. Further, an adequate warning can be given, at least in some circumstances, by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard which may be encountered: s 5M(5).
28In this Court the respondent contended that the plaintiff was, because of her age, an "incapable person" so that the defendant might only rely upon a risk warning if the warning had been given to a parent, which he said did not happen: s 5M(2). In fact, the father appears to have been present at the time when, as the trial judge accepted, the warning was given. Further, a person is only an "incapable person" for the purposes of s 5M if they lack the capacity to understand the warning: s 5M(12). There was no evidence to suggest that the plaintiff fell into this category. Accordingly, the appellant's reliance on s 5M should have been upheld, with the result that it did not owe the plaintiff a relevant duty.
29The trial judge, not having disposed of the claim on that basis, addressed the matter by reference to the scope of the appellant's duty and whether it was breached. For completeness it is appropriate to deal with those issues, although as a matter of principle if there is no duty, these questions cannot arise. The proposition, noted at [12] above, that the appellant owed the plaintiff a duty to take reasonable care identified the duty at too high a level. The appellant's reliance on s 5M raised a challenge to the existence of a duty of care with respect to the recreational activity which gave rise to the harm. The scope of the duty (and hence breach) should, in any event, have been identified and addressed in those terms.
30There were findings of dual breaches of duty. These findings involved a potential inconsistency; if the appellant were obliged to remove the hazard, no issue of a warning would have arisen. If there were a duty to warn, it would seem that there was no absolute duty to remove the hazard. It may be inferred that the duty upheld was not to take both courses, but rather to take one or other of alternative ways of satisfying the duty of care.
31The more plausible alternative is that there should have been a warning. However, it is by no means clear what warning should have been given or in what form or at what point. The trial judge made no finding in that regard. Absent such a finding, it is not possible to know whether the failure to warn was a necessary condition of the harm, for the purposes of s 5D(1). Indeed, there was no finding as to causation in respect of a failure to warn, nor was this Court invited to make such a finding. On the evidence available, it is by no means clear how such a finding could be made in favour of the plaintiff, on the balance of probabilities.
32There is a further difficulty: the employee of the defendant in fact gave a warning. That warning was succinct and spoke of general risks. However, with a group of young children intent on playing a game, a longer and more precise warning may simply have lost their attention. At least when giving evidence three years later, the plaintiff had no recollection of the warning. Nor was she aware of a large notice which appears to have contained safety rules and directions (though not in terms relevant to the laser tag game). Accordingly, the evidence fell well short of determining what additional warning was required and that it would, if given, have had any relevant effect.
33The lack of a finding as to causation in respect of any proposed warning indicates that the trial judge relied primarily upon the duty to remove the tree root. The question is whether such a duty could constitute a precaution which a reasonable person in the position of the defendant should have taken.
34The first important consideration in assessing that question is the need to avoid reliance on hindsight. One aspect of hindsight reasoning is to focus on the specific circumstances which gave rise to harm. The questions of duty and breach must be assessed by reference to the perspective of the reasonable person in the shoes of the defendant, viewing the matter before the harm arose. As the Act requires, the burden of taking precautions must be assessed having regard to the supposed duty to avoid similar risks of harm to that which materialised. The photographs in evidence demonstrate, as the trial judge found, that the game was played in an area of natural bushland which contained clumps of grass, broken branches, tree roots, low shrubs, low hanging branches and no doubt numerous other obstacles in the way of a person seeking to run, or even walk, through the bush. Although there are said to be pathways through the bushland, there was no evidence of tracks formed otherwise than by regular use. Not only would the obligation to remove all such obstacles change the nature of the area, and hence the nature of the recreational activity, but it would be an impracticable and therefore unreasonable precaution.
35Secondly, the risk of harm through tripping and falling is a common risk of daily life. It can occur inside a house, in a garden, on a pavement or roadway or in the bush. Absent a rocky environment, the risks of serious injury from a trip and fall are probably less in bushland than in some other places. That is a relevant consideration pursuant to s 5B(2)(b). Further, the likelihood that children running through the bush will avoid such hazards, even when chasing others or seeking to escape, is reasonably high. There was no evidence, apparently, of any similar injury occurring in this bushland, whilst playing laser tag. These matters are relevant to a consideration of s 5B(2)(a).
36Finally, it may be noted that the primary judge was somewhat dismissive of the "social utility" of the activity. Whatever the nature of the game, there is social utility in providing physical activity for children in a natural environment. It is likely that the natural environment provided an attraction to the children involved, quite apart from any other benefits which may have accrued.
37All of these circumstances combine to demonstrate that there was no obligation on the appellant, in exercise of its duty of reasonable care, to remove the offending tree root.