Publish date: 14 February 2023

‘Tubing’ – an extremely exhilarating and fun activity undertaken by many young Australians. Tubing involves a person riding in some type of inflatable object (called a ‘biscuit’), pulled behind a boat at some speed.

Back in my day the biscuit was fairly unsophisticated, usually an inflated tube from a tractor tyre, being pulled by a piece of rope behind a friend’s speedboat across the water.  Usually ending with you riding up over the wake created by the speedboat and ultimately resulting in you being tipped off the biscuit into the water.

In a recent case in the ACT Supreme Court, the activity of ‘tubing’ came in for some close scrutiny. In this case, the Plaintiff was a twelve-year-old boy, who was riding a biscuit towed by a speedboat. The activity was taking place on Burrinjuck Dam in New South Wales, on a clear day when the water was flat. The driver of the boat, being an adult who was sober, commenced zig-zagging the boat which started the biscuit going from side to side until it eventually encountered the wake of the boat resulting in the biscuit becoming airborne and flipping over. The Plaintiff ended up in the water, upside down and still hanging onto the biscuit. He sustained an injury to his back.

In this matter, the Plaintiff was ultimately successful in his claim, with the finding that the driver of the boat had breached his duty of care to the Plaintiff in the manner and circumstances in which the accident occurred on that day.

The accident aside, the real issue for determination by the Court was whether or not the Plaintiff was injured through the materialisation of risk associated with participating in a “dangerous recreational activity” (DRA). If a Defendant, and this applies in Queensland (Civil Liability Act 2002) as well, can prove that the Plaintiff’s injuries were the consequence of an obvious risk associated with their participation in a ‘DRA’ then they may escape liability. It is for the Defendant, who seeks to rely on this defence, to prove that whatever activity is being undertaken was a DRA. In this instance, the Court had no difficulty in finding that the activity of tubing was  a ‘recreational activity’, and I doubt in the circumstances that there could be any dispute about that. It is a fun recreational activity to say the least in my experience.

The key aspect of the case was whether or not tubing was a “dangerous” recreational activity. I am pleased to say that the Court made it clear that a twelve year old boy, riding a biscuit, being pulled by a motorboat, wearing a lifejacket, where the control and speed and direction of the tube was in the hands of a sober apparently responsible adult, with the young fellow’s aunty sitting in the boat facing him as an observer, carried out during day time, at a known water sports location where there were no adverse weather conditions was not considered to be a dangerous recreational activity. The Judge said: “I am not convinced that the activity, by its inherent nature, was in a category which might be viewed as dangerous at any level, such as bungee jumping or aerial skiing.”

The Court has had to consider, on a number of occasions, whether or not an activity is or is not a DRA. Of course, a lot depends on context in which the activity was undertaken at the time of the accident. Below are some examples of the types of ‘recreational’ activities the Court has had to consider and the findings:

  • BMX riding at a skate park in circumstances where there was small margin for error was a DRA;
  • Playing field games, such a touch footy and the like, where there is no tackling or risk of being hit with a hard object is not a DRA;
  • Quad-bike riding by a child was not a DRA if the child was adequately supervised;
  • Participating as a passenger on a boat on a dolphin watching cruise was not a DRA;
  • Go-karting on a properly set out track with barriers was not a DRA;
  • A young boy riding a bike down a grass slope without a helmet was not, in the circumstances of that case, a DRA;
  • Riding a jet ski as an observer on the back was not a DRA;
  • Downhill skiing was held to be a DRA;
  • Diving off a pontoon into relatively shallow water was held to be a DRA;
  • Engaging in a shooting trip at night with loaded weapons where there was inexperience and alcohol involved was a DRA;

In this instance, the Judge also made the observation that, even if tubing was a DRA, the danger of that activity would not have been ‘obvious’ to this particular Plaintiff in the circumstances that existed prior to him undertaking the tubing on that day. The obviousness of the risk must be viewed from the perspective of the Plaintiff. He was only 12 years of age, had limited experience in tubing (he had only been tubing a few times prior) and he had not, on those previous occasions, been whipped from side to side by the driver of the boat doing zigzags to the extent that he encountered the wake of the boat which might cause the tube to flip over as it did on this occasion.

I think this decision is to be applauded and is a sensible rebuff of the suggestion that the activity of tubing should be considered a DRA in these particular circumstances. What would we country folk do without the joy of tubing on a hot summer’s day on a country lake or dam? Having said that, it is worth remembering that if you do engage in recreational activities, which are obviously dangerous, and you are injured, you can  expect the liability insurer to attempt to avoid liability by utilising the DRA provisions within the Civil Liability Act.

Tim McClymont
Tim McClymont
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