Cafest v Tombleson (2003) NSWCA 210Facts
The plaintiff fell and broke her right wrist whilst roller skating at the defendant’s roller skating rink. Although the plaintiff was an active sportswoman, and had previous experience of ice skating, she had not previously tried roller skating.
The plaintiff informed an employee of the defendant when hiring her skates of her inexperience. She was advised to use an inline skate, and told “you’ll be fine”.
The plaintiff entered the main rink - a beginner’s rink was available but the plaintiff chose not to use it - and skated around the outskirts of the rink staying close to the wooden railing. When the plaintiff was halfway around the rink on her second run her feet went from under her and she fell backward fracturing her wrist when attempting to break her fall.
It was common ground that there was a large sign at the entrance of the rink which stated:
"All care. No responsibility. The activities in this complex have a certain amount of risk attached. By entering this centre patrons and their guardians accept that there is a degree of risk and release the centre from any responsibility or legal liability associated with participation . . ."
There were further signs positioned around the premises advising participants that protective equipment was for hire including wrist guards and knee guards. The protective equipment was stored under the front counter. The plaintiff gave evidence that she did not see any of the signs. The plaintiff claimed she was not aware of the availability of the protective equipment, and, had she been made aware wrist guards were for hire, she would have used them.The trial
The trial Judge found in favour of the plaintiff and awarded damages of almost $350,000.00 His Honour found that the defendant had breached its duty of care by failing to meet its:
unequivocal responsibility of ensuring that appropriate protection was firstly made known to skaters, particularly beginner skaters, and secondly, to ensure that such protective equipment was indeed supplied, not withdrawn from [view] under a counter, and not by mere reliance upon the existence of a sign, which said nothing about the inherent risk of the injury".
The trial Judge found the defendant's employee had failed to inform the plaintiff of the risks inherent in skating. The trial Judge placed particular emphasis on the fact that the wrist guards were not stored in full view of participants, but rather were placed under the front counter.The Appeal
The trial Judge’s decision was overturned on Appeal.
The Court of Appeal found that a reasonable person would be aware of the risks inherent in roller skating and would have made use of the beginners rink and the protective equipment available. The Court of Appeal rejected the trial Judge’s finding that the wrist guards had been concealed given the presence of bright pink signs around the rink advising of their availability.
The Court of Appeal held the trial Judge erred by holding the defendant to an overly onerous duty whereby it was required to eliminate all risks associated with roller skating. It concluded the trial Judge had failed to undertake a proper examination of the scope of the defendant’s duty of care and the reasonableness of its actions.
The Court found the defendant acted as a reasonably prudent person should, by exhibiting warnings of the risks of skating and by providing safety equipment and areas for beginners to skate. The defendant’s failure to eliminate all risks was not of itself demonstrative of a want of reasonable care.