Whether a duty of care exists and whether it has been breached is a matter of law. However, the courts determine this question on the facts of each individual case. In some cases, the courts have determined that there is a point at which persons who indulge in risky pastimes and sports must take personal responsibility for their own actions and safety. The courts have been unwilling to make defendants liable for a participant's injuries where inherent risks are present in the sporting activity engaged in.

In one case, a baseball player was injured when he collided with another player running to a base (Insurance Exchange v Dooley (2000) 50 NSWLR 222). In another case, a participant in an indoor cricket game suffered an eye injury during the course of the game (Woods v Multi Sport Holdings Pty Ltd (2002) 76 ALJR 483). In yet another case, a golfer was injured when he slipped on the back of a golf green that had become slippery after rain (Buttita v Strathfield Municipal Council [2001] NSWCA 365). In all of these cases, the injured persons failed to prove any negligence against the defendant. The court in each case found that the circumstances of the injuries were not hidden hazards but common hazards likely to be encountered in the participation of the sport/pastime they were engaged in and therefore the defendant had not breached its duty of care to the participant.

In a similar case, negligence was not established in the case of a body surfer who was dumped by a wave on a popular beachside location, rendering him a tetraplegic. In Prast v Town of Cottesloe (2000) 22 WAR 474, the court considered that the body surfer was sufficiently experienced to be aware of the dangers of the surf and that the relevant public authority was not required to erect warning signs. By contrast, in a very recent NSW case that may be the subject of an appeal, a swimmer successfully sued the local council for negligence after he jumped into the waves at Bondi beach and became a quadriplegic after striking a sandbank (Swain v Waverley Council, NSW Supreme Court, 13 May 2002). This case can be contrasted to the previous one because, in this particular case, lifeguards patrolled the specific area of beach and the plaintiff was swimming between the flags, assuming the area to be safe. The court determined that the council, which was responsible for the operations of lifeguards in the area, had breached its duty of care to the plaintiff in this instance by failing to warn him of the presence of the sandbank.

In another case involving injuries caused to visitors of a national park by a falling tree in high winds, the relevant public authority escaped liability in negligence. The court determined that any requirement on the public authority responsible for vast areas of national parkland to erect signs warning of the possible danger of falling trees would be too great a burden. The court also stated that the possibility of injury from falling trees on a high wind day is a foreseeable risk that goes hand in hand with a walk through the Australian bush (Department of Natural Resources and Energy v Harper (2000) 1 VR 133).

These cases reveal reluctance by the courts to find defendants responsible for injuries sustained by participants of sports and pastimes where there are inherent risks involved in the activities themselves. Obviously, each case is assessed on its own merits and factors such as the type of sport, the level of expertise of the participant and the nature and likelihood of the injuries sustained will all determine the presence of the necessary ingredients for a successful negligence claim.

At the time of writing, negligence has been established in a case involving an amateur wrestler (Foscolos v Footscray Youth Club [2002] VSC 148), primarily based on the fact that the wrestler was a novice in the sport. Mr Foscolos was rendered a quadriplegic after suffering injuries as a result of being thrown down on the mat during a "suplex" manoevre. The court found that, given that the injured party was inexperienced in the sport, there was inadequate supervision and instruction during the bout that led to the throw being used. The court found that the coach of the injured party breached his duty of care by failing to adequately supervise the bout, resulting in the3 dangerous "suplex" throw being used on the inexperienced wrestler. This case highlights the individual nature of negligence cases and the ability of decisions to turn on various factors peculiar to the circumstances of each case.

While cases involving negligence during sporting and risky leisure activities will be determined on their individual facts and merits, the courts appear to be sending a message to potential participants that they need to assess the risks involved before engaging in these activities. Participants need to be aware that they may have to accept responsibility for the risks they assume and any foreseeable injury that results.