Action Paintball Games Pty Ltd (in liq) v Barker

In the New South Wales Court of Appeal, Action Paintball Games Pty Ltd (in liq) appealed a District Court decision that found it liable in negligence for injuries sustained by Mr. Barker. Mr. Barker had tripped and fallen on a protruding tree root while participating in a laser tag game conducted by the appellant in a bushland area. The appellant, operating as a recreational activity provider, argued that it had provided adequate warnings of the general risks associated with the activity.

The central legal issues before the Court of Appeal were whether the appellant had breached its duty of care to Mr. Barker, whether any such breach caused his injuries, and whether the appellant had provided a sufficient "risk warning" under section 5M of the Civil Liability Act 2002 (NSW). Specifically, the court had to consider if the warning given, which covered general risks, was adequate despite not specifically mentioning the risk of tripping on a tree root, and whether the failure to warn, if any, was causative of the harm suffered by the respondent.

The Court of Appeal allowed the appeal, reasoning that the trial judge had erred in finding a breach of duty and causation. The court held that the warning provided by the appellant, which alerted participants to the general risks inherent in playing in a bushland environment, including the possibility of tripping and falling, was sufficient under section 5M of the Civil Liability Act 2002 (NSW). The court emphasised that the Act does not require warnings to be specific to every conceivable risk that might materialise, particularly when the general nature of the risk is made apparent. Applying this principle, the court found that the warning given was adequate and that the appellant had not breached its duty of care. Consequently, the court set aside the District Court's judgment and ordered that judgment be entered for the defendant, with the plaintiff to pay the defendant's costs of the trial.