Action Paintball v Clarke

Action Paintball v Clarke - [2005] NSWCA 170 - NSWCA 2005 case summary — Zoe

[30]

The definition of services in s.4 of the Trade Practices Act includes "the use or enjoyment of facilities for, amusement, entertainment, recreation …". No doubt both the field on which the game was played and the equipment provided by the Appellant for the purposes of the game would constitute a supply of services for the purposes of the first limb of s.74(1). However, no real issue arises in relation to that limb as the parties appear to have treated it as giving rise to the same questions as the general law claim of negligence. 13 In relation to the second limb, the claim was primarily put on the basis that the goggles constituted "materials" which were supplied in connection with the services and subject to an implied warranty that they would be "reasonably fit for the purpose for which" they were supplied. The complaint, in substance, was that the goggles readily fogged up in the humid atmosphere and as the players perspired. 14 In relation to negligence, the Respondent's claim in the Court below appears to have focused upon a combination of factors, central to which was the heavy rain. The rain both rendered the field of play slippery and caused the goggles to fog up. 15 In response to the complaint concerning the goggles, the Appellant asserted that it had given clear instructions that where a player had any difficulty with his or her equipment, the proper course was to stop and raise a hand in the air. Players were told not to remove their goggles to clean them, presumably because an opponent might shoot them with paintballs whilst their eyes were exposed. 16 Whilst not denying such an instruction was given, the Respondent suggested it was ineffective in the context of the game because the referee simply had no time to minister to the needs of all players who were having difficulty with their goggles. In all the circumstances, the Respondent's case was that the game should have been called off or, more probably, should not have taken place on that day at all.

[34]

Cause of action under Trade Practices Act 20 It is convenient to deal first with the allegation that the goggles were not fit for the purpose for which they were provided, because of their propensity to fog up in the humid conditions. The specific complaint made by the Appellant in relation to this aspect of the matter was that the trial judge failed to identify properly the relevant purpose and, consequentially, failed to consider whether they were reasonably fit for that purpose. In relation to the question of purpose, his Honour found: "The purpose for which they were supplied was the carrying out of this particular game in these particular circumstances and I find that the goggles were inadequate in those circumstances." 21 A similar finding of inadequacy was made in relation to the ground, which was also treated as constituting "any materials" supplied in connection with the services, for the purposes of s.74(1) of the Trade Practices Act. Why the nature of the playing field was treated as falling within the concept of "materials" was not articulated in the judgment. On that view, in a provision relating to the supply of services, where the services are supplied on the premises of the supplier, almost anything other than the staff or contractors themselves would fall within that aspect of the provision. Because the definition of "services" in s.4 of the Act includes the provision of facilities, that approach may be doubted. However, for reasons noted below, it is not necessary to resolve this question. 22 Two criticisms may fairly be made of the conclusion reached by the trial judge in relation to the goggles. First, the reference to goggles being "inadequate" appears to be a restatement of the fact that they had a tendency to fog up and hence did not always permit clear vision. Reference to that fact is not sufficient to determine the question posed by the statute, namely whether they were "reasonably fit" for the relevant purpose. Secondly, to identify the purpose in specific terms by reference to the particular game and the particular conditions in which it was being played, distracts attention from the fact that the goggles may have been entirely appropriate for use in the game generally, and that the real difficulty arose from the weather conditions on the day in question. On the other hand, it is not necessary to accept the Appellant's contention that the relevant purpose was "eye protection". The relevant purpose was eye protection in a manner which allowed a player to maintain a reasonable degree of vision.

[36]

The negligence claim 25 The case thus reduces to the question whether the game should have taken place at all in the weather conditions which prevailed. His Honour concluded that it should not, in the sense that it was unreasonable for the Appellant to permit the game to proceed in the conditions. 26 There are a number of considerations relevant to the reasonableness of the game proceeding. First, the Respondent was an adult; he turned 32 years of age on the day after the accident. Secondly, although the game was played in heavy rain, it was raining when he and his friends arrived at the Appellant's fields and continued to rain during the morning. There was no significant change in the weather conditions. Thirdly, the fact that the ground was rough and slippery was appreciated by the Respondent, although he may not have been aware of how rough the ground was until the commencement of the second game. There is, however, no evidence as to the period during which the play had continued, prior to the accident. 27 On the other side of the balance, it was possible that the Respondent considered himself under some social pressure from his friends to continue playing, even if he himself had doubts about the safety of the conditions. The occasion of the activity was a "bucks party", organised for his brother, who was shortly to be married. Nevertheless, this matter was not raised in his own evidence as a consideration and was not put forward in re-examination. The relevant cross-examination as to his understanding of the conditions and his thoughts about it is found in the following short passage. "Q: It's a matter of plain common sense that if you go out running around the fields trying to shoot people or avoid being shot that during the rain you're likely to slip over. Don't you agree with that? A: It's not the initial thought, no. Q: Well, it was by the time you got out there, that there was a risk of slipping over. Isn't that the case? A: Yes. Q: And the longer you stayed out there, because you played the first game and then went on to the second, the longer you stayed out there, the greater the risk was that you might slip over in those conditions, isn't that true? A: It's not - it's not one of the things that we were thinking about. Q: Well, you were thinking about it during the first game when you - as you told your barrister it was slippery? A: We noticed, yes. Q: Yes, it was slippery, knowing it was slippery you kept on going, didn't you? A: I did. Q: Knowing that you could slip over any moment; you kept on going, didn't you? A: Yes. Q: And so long as you were running around on that field, that second field, there was a chance of you slipping over, wasn't there? A: There was, yes."

[37]

The significance of this evidence is not that he appreciated the obvious, but that having done so, he was not discouraged from continuing and did not suggest he felt under any pressure to continue in circumstances where he would have preferred not to. 28 The principles applicable to duties of care owed in relation to a sport or recreational activity are, as noted by Kitto J in Rootes v Shelton (1967) 116 CLR 383 at 387, neither "new or mysterious". That there may be risk of injury, of a form obvious to most participants, does not mean that no duty of care arises in relation to such risks. The fact that the participants are adults who choose to play for personal enjoyment does not relieve the organiser of the sport or pastime of a duty to exercise reasonable care in controlling the activity. Nevertheless, each of these factors is relevant to determining the standard of care and whether or not there has been a breach in particular circumstances. 29 Where, as in the present case, the risks are apparent and the need to exercise care is appreciated by the participants, wet conditions do not necessarily call for a game to be abandoned. Although there was evidence that other games were in progress on the morning in question, there is no evidence that any of them was abandoned, nor indeed that the game in which the Respondent was participating was abandoned after his injury. Evidence of abandonment might not have been of great weight, but its absence removes a possible basis for the judgment that the conditions were such that the game could not reasonably have been allowed to proceed by those in control, or would not have been engaged in by reasonable participants aware of the risks. 30 The Appellant invites the Court to disturb the conclusion of the primary judge on the basis that there was no evidence to support his Honour's conclusion. In this case it was not apparent that his Honour had any great advantage over this Court in assessing the evidence. As already noted, the only relevant evidence was that of the Respondent; his Honour did not see the area where the incident took place, nor were there photographs to assist him. The evidence of the Respondent fell within a short compass and raised no questions of credibility. The difficulty with the Respondent's case arises from the paucity of evidence, rather than the evidence which was given. In these circumstances, I am not satisfied that the Respondent demonstrated, on a balance of probabilities, that the conduct of the Appellant, in allowing the game to proceed, was unreasonable and therefore in breach of its duty of care to the participants in the game. 31 It is common ground that no different test applies to the first limb of s.74(1): accordingly, to the extent that the provision of facilities for recreation required that the Appellant act "with due care and skill", it was not contravened on the evidence and there was, therefore, no breach of s.74(1) of the Trade Practices Act. 32 The appeal should be allowed, the judgment of the District Court set aside and judgment entered in favour of the Appellant. The Respondent should pay the costs of the Appellant in this Court and in the Court below, but in respect of the former should have a certificate under the Suitor's Fund Act, 1951, if otherwise qualified. **********

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