The recent Victorian Supreme Court of Appeal Decision of Rakich v Bounce Australia Pty Ltd is a rare example of a plaintiff’s recovery of damages for personal injury failing due to the operation of the doctrine of volenti non fit injuria (volenti).
In June 2013 Clinton Rakich attended a ‘Bounce’ branded indoor trampoline park with two friends. In the course of playing a game of dodgeball, Rakich landed on the padding at the edge of the trampoline and he fractured his right tibia.
Prior to partaking in the trampolining, Bounce said Rakich was presented with extensive warning signs and terms & conditions as well as a wrist band that stipulated that the activity was done at a customer’s own risk. Rakich says he didn’t recall seeing such signs and that, with respect to his wristband, he didn’t recall seeing any wording or having any terms or conditions brought to his attention.
County Court jury trial
A County Court jury determined in October 2015 that, amongst other things:
1. The risk of sustaining the injury was an inherent risk of trampoline dodgeball (or put another way, a risk that that Bounce could not have avoided by the exercise of reasonable care);
2. Bounce failed to either:
- give a warning of that risk to Rakich; or
- provide him with relevant safety information,
- and such a failure was a cause of the accident;
4. Rakich voluntarily accepted the risk of injury.
The trial judge determined that the terms & conditions excluding liability, on which Bounce relied, were void pursuant to the Australian Consumer Law.
Rakich appealed to the Victorian Supreme Court of Appeal arguing that determinations 2 and 4, as listed above, were inconsistent.
Rakich’s argument was that if Bounce had failed to warn him of a risk of harm (that he was not aware of), then he could not possibly have voluntarily accepted those risks.
The doctrine of volenti does require an injured person to have been aware of the existence of a relevant danger, fully appreciated it and freely and voluntarily agreed to accept the risk.
Bounce separately appealed the prior finding by the trial judge that the terms & conditions it relied upon in defence of Rakich’s claim were void.
Outcome of the Appeal
The Court of Appeal elected to hear Rakich’s appeal but then dismissed it, deciding that there was no necessary inconsistency between findings 2 and 4 of the jury.
The parties and the Court of Appeal agreed that if Bounce failed to give Rakich a warning of the risk of injury (part 2(a), above), then correctly Rakich could not have voluntarily accepted that risk.
But the Court of Appeal concluded that if the jury found, in the alternative, that there was a failure to provide relevant safety information (part 2(b), above) and that particular failure was a cause of the accident, then that failure would not necessarily be inconsistent with Rakich voluntarily accepting the risk of injury.
The example the Court of Appeal gave was that Bounce may have negligently not given broad safety guidance such as telling Rakich ‘how to move around’ during trampolining, and such lack of safety information may have been a cause of Rakich’s injury, but he may still have voluntarily accepted the risks involved in trampolining.
The Court of Appeal, for completeness, also dealt with Bounce’s appeal about whether its exclusions of liability were void.
The Court of Appeal decided that not all of Bounce’s exclusion clauses were voided by the Australian Consumer Law.
Clause 9, the effect of which was to keep Bounce free from a liability for various things, including a loss of profits, was held to be void by the Court of Appeal.
But Bounce successfully argued that other clauses, which had the effect of limiting their liability for personal injury or death, could be considered separately from Clause 9, and were not void (as long as other statutory requirements were met).
Commentary and impact of the decision
The overall result in this appeal accords with common sense. A mature adult attending a trampolining centre to play dodgeball must surely be aware of the risk that he could fall awkwardly or onto the padding near the trampoline and sustain injury, and, by proceeding with the recreational activity, accepts those risks.
The verdict of the jury was allowed to stand on the basis that the jury may have thought that Bounce’s only error was a failure to give technical or practical safety information, which would not necessarily undermine Rakich’s acceptance of the risks that were present in trampolining dodgeball.
The case affirms the importance of having detailed warnings signs at a recreational venue and terms & conditions carefully drafted so not to fall foul of legislative regimes.
Although Rakich’s case failed because he voluntarily assumed the risk of injury, this decision should not embolden like defendants or their insurers to rely on the complete defence of volenti. It remains very difficult to prove that a plaintiff subjectively appreciated the full extent of risks in a given activity, and the reasoning of the Court of Appeal does nothing to ease the burden on defendants. The Court of Appeal’s reasoning rather focusses on whether various findings by a jury are inconsistent and whether terms & conditions are void.
This article was written byDavid Guthrie, Partner and Dylan Younane, Solicitor.