Different levels of generality or abstraction
30 In determining whether a recreational activity is dangerous, difficult questions arise in defining the scope of the recreational activity to which the expression "significant risk of physical harm" is to be applied. At what level of generality or abstraction is the scope to be ascertained?
31 "Recreational activity" is defined by s 5K in terms of very broad generalities. It comprises any sport, be it an organised activity or not (para (a)), any pursuit or activity engaged in for enjoyment, relaxation or leisure (para (b)) and even any pursuit or activity engaged in at a place where people ordinarily engage in sport or any pursuit or activity engaged in for enjoyment, relaxation or leisure (para (c)).
32 The expressions "in the circumstances" and "a reasonable person in the position of [the defendant]" appear in the definition of obvious risk in s 5F. These expressly require regard to be had to the circumstances of the individual case when determining whether a risk is obvious, but are omitted from the definition of recreational activity.
33 The breadth of the definition of recreational activity and the omission in it of any reference to the particular circumstances of the case, and to the position of the plaintiff, tend to suggest that the scope of the recreational activity is to be determined at a higher level of generality than the inquiry into whether a risk is obvious.
34 That is to say, these matters tend to suggest that, in determining whether a recreational activity involves a significant risk of physical harm, regard is to be had only to the activities ordinarily involved in that particular recreational activity and not to the particular and limited activities undertaken in fact by the plaintiff.
35 There are, however, countervailing indications.
36 Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in daytime may be safe but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time but walking on a country road not. Waterskiing may not be dangerous for a competent skier but the same may not be said for a novice. A recreational activity may dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous.
37 As the question whether a recreational activity may be dangerous will often depend on the particular circumstances, if such a determination does not take account of those circumstances it is likely to be unreliable, may be unfair and may give rise to injustice.
38 The unfairness may be particularly apparent where the recreational activity is generally regarded as having significant risks of physical harm, but the plaintiff, by limiting (perhaps deliberately) his or her participation in the activity, reduces those risks to a point where they are not significant risks of physical harm. In my view it would be unfair or unjust for such a plaintiff to have to face a s 5L defence. The same might be said of a plaintiff who is injured by the materialisation of an obvious risk that was not a significant risk of the activity concerned.
39 The higher level of generality approach may also give rise to unfairness to defendants. A recreational activity may generally not be regarded as having significant risks of physical harm, but the way in which a particular plaintiff engages in that activity may give rise to such risks. It would be unfair in those circumstances to deprive a defendant of the s 5K defence.
40 I shall give two examples that illustrate the point I am attempting to make.
41 Assume that a plaintiff is fearful of heights but agrees to assist a friend during an abseiling expedition. The plaintiff stands at the top of a cliff (in what ordinarily would be regarded as a safe position) and acts as a belay, pulling the rope as his friend descends down the cliff. At no time does the plaintiff intend to abseil down the cliff himself. Assume that he is severely injured because of the negligence of a third party responsible for affixing the abseiling equipment and selecting an appropriate location for the abseiling to take place. Assume further that such negligence amounts to the materialisation of an obvious (but not significant) risk involved in abseiling. If the plaintiff is to be regarded as having participated in abseiling, generally, and not merely acting as a belay, it would follow that he would be held to have engaged in a dangerous recreational activity. Section 5L would apply and he would have no claim for negligence. In my view, that would be an unfair result. On the other hand if regard is had only to the limited activities which this notional plaintiff was undertaking, he was arguably not engaged in a dangerous recreational activity and his claim would then not be defeated by s 5L.
42 Another example illustrates the converse situation. Assume that a boy in his early teens visits a zoo. That would be a recreational activity but not a dangerous one. Assume that the boy notices that the fencing to the antelope enclosure has no barbed wire at the top and no measures have been taken to prevent persons from climbing over. He proceeds to climb over, enters the enclosure and is gored by a buck. He sues the Authority that controls the zoo on the ground that it knew that young persons visited the zoo, would be attracted to the animal enclosures, and the more adventurous might attempt to enter them. He alleges that the Authority was negligent in having a fence that young people could readily climb. If the activity engaged in by the boy in this example is not segmented, and he is regarded merely as having been engaged in the recreational activity of visiting the zoo, s 5L would not apply. This would be the case even though the harm the boy suffered was caused by the materialisation of an obvious risk of a recreational activity that, by reference to the actual facts, was dangerous (and brought about by him).
43 These potential situations of unfairness and injustice can be avoided if, for the purposes of s 5K, the scope of the recreational activity is determined by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred.
44 The matter is essentially one of statutory construction. In a case of clear ambiguity (as is the case with s 5K and s 5L), a construction that might result in potential unfairness and injustice should be avoided and a fair and just construction is to be preferred. There are no other policy factors involved. Deciding issues under s 5L by reference to all the circumstances that actually occurred may benefit a plaintiff in one case and a defendant in another.
45 Many of the provisions of the Civil Liability Act are modelled on the Recommendations of the Final Report by the panel appointed by the Commonwealth and State Governments to review the law of negligence (Second Reading Speech, Hansard 23 October 2002 at 5765). Sections 5K and 5L are based on Recommendations 11 and 12, although they differ materially from those Recommendations by not incorporating the element of voluntariness. Nevertheless, part of the reasoning expressed to be the rationale for Recommendations 11 and 12 applies to ss 5K and 5L. That is, a plaintiff who engages in a dangerous recreational activity in circumstances where the risks are obvious is to be regarded as having assumed those risks (see paras 4.20 to 4.24 of the Final Report).
46 In my view, the fulfillment of that rationale should be regarded as the purpose of the legislature in enacting ss 5K and 5L, and that rationale must inform the construction of ss 5K and 5L. Unless regard is had to the particular circumstances of each individual case, and this includes segmenting (where that is reasonably possible) the particular activities actually engaged in from the broader (and more general) activity of which it forms part, the rationale may often not be achieved. In my view, segmenting in this way would reasonably be possible where persons are engaged in a recreational activity that comprises sets of activities that, according to commonsense considerations, are distinguishable and separate from each other.
47 I would add this further consideration, which supports the conclusion that regard must be had to the particular activities engaged in by the plaintiff at the relevant time. Any other test for determining the scope of the relevant dangerous recreational activity is likely to be vague and uncertain (if another test is capable of formulation at all). It is, in my view, not possible satisfactorily to define with any reasonable certainty, a line between the ordinarily used and general description of a particular recreational activity (encompassing the risks ordinarily attendant upon that activity), and a description that is qualified so as to limit that degree of generality - but not so qualified to the degree constituted by a description of the line as being merely the "particular activities engaged in by the plaintiff at the relevant time". It is not possible, in my view, to provide a bright line distinction somewhere between the everyday general description of a recreational activity and the "particular activities engaged in by the plaintiff at the relevant time". It is not even possible to suggest a faint and dull line, smudged only in parts. And, in any event, any other line of demarcation (not based on the particular activities of the plaintiff) is not likely to take into account any risks created by the conduct of the plaintiff that would not ordinarily be part of the general activity.
48 For example, if it is accepted that "walking" is too general a description, where does one draw the line between that general description and a description that would allow one or more of the following factors to be taken into account: the place of the walk, the state of the traffic anticipated and experienced, the condition of the path, the actual weather, the weather that was expected, the visibility, the age of the walker, the mental competence of the walker, the walker's physical competence, the walker's experience, the walker's sobriety, the walker's knowledge or ignorance of any dangerous circumstances in the path which would be regarded as traps, the walker's clothing and equipment, whether the walker was alone or with companions, the age, competence, experience and sobriety of the companions. The list of factors that could bear on the risk involved in this simple common or garden recreational activity is infinite in number. How can one differentiate in a principled way between them? In my opinion, this question cannot be answered in a satisfactory way. All must be taken into account.
49 If no practicable test for determining the scope of the activities exists, other than "the particular activities engaged in by the plaintiff at the relevant time", it is self-evident that the test so articulated must be regarded as the test intended. Otherwise uncertainty and confusion would be the result. No other test has been suggested.
50 Accordingly, in my view, the dangerousness (in terms of s 5L) of the recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time. All relevant circumstances that may bear on whether those activities were dangerous in the defined sense include relevant matters personal to the plaintiff and others of the kind I have mentioned.