While a visit to a theme park is nearly always associated with fun and relaxing downtime with family and friends, accidents, injuries and even fatalities can occur, as a number of high-profile incidents in recent years have made clear.

Common injuries occur where theme park staff ignore height limit standards for children on certain rides; where rides and equipment are not properly maintained according to industry and government guidelines; and where measures to protect against injury are absent or not properly installed.

What are your rights if your visit to a theme park ends in injury or worse? Most of Australia’s major theme parks are located here in Queensland so this article will deal with applicable legislation in the state. In Queensland, the Civil Liability Act 2003 (‘CLA’) and Personal Injuries Proceedings Act 2002 (‘PIPA’) enable the process for bringing a successful claim against a theme park operator. This article explores the key elements required to bring a successful claim, with a specific focus on the PIPA legislation.

Elements needed to establish a claim

To establish a successful claim against a theme park operator in Queensland, the injured party must establish the elements proving the owner was negligent in causing the injury. This requirement involves demonstrating a duty of care was owed by the park operator to the patron, that the duty was breached and that the breach caused the injury.

The relationship between the owner of a private premises such as a theme park and a person admitted to those premises brings with it a recognised duty of care in common law, known as occupier’s liability. Under PIPA, theme park operators are considered occupiers of the premises and have a legal duty to take reasonable steps to prevent foreseeable harm to visitors.

The test is set out in section 9 of the CLA, where a person does not breach a duty to take precautions against a risk of harm unless the risk was foreseeable (that is, the person knew or ought reasonably to have known of the risk); the risk was not insignificant; and in the circumstances, a reasonable person in the defendant’s position would have taken precautions. An operator may breach this duty if they failed to maintain the theme park in a safe condition, inadequately trained staff, or failed to implement appropriate safety measures.

The injured person must also show the theme park operator's breach of duty directly caused their injuries, requiring them to establish a clear link between the operator's actions or omissions and the harm suffered. Finally, actual damage or loss must be shown as a result of the theme park operator's breach of duty, including physical injuries, emotional distress, medical expenses, loss of earnings, or other financial losses directly attributable to the incident.

The role of the PIPA legislation

In Queensland, specific requirements and procedures for personal injury claims against public and occupiers' liability exist under the PIPA legislation. Some key considerations include:

Notice requirements: The injured party must provide written notice to the theme park operator within strict timeframes (generally within nine months or the injured party must provide an excuse for delay) outlining the details of the incident, the injuries sustained, and the claim being made.

Pre-court procedures: PIPA mandates pre-court procedures, including mandatory settlement conferences and exchange of information, to encourage early resolution and settlement of claims. If agreement cannot be reached, court proceedings may commence.

Time limitations: PIPA sets out strict time limitations for commencing legal proceedings. Generally, a claim must be filed within three years from the date of the incident, although exceptions may apply in certain circumstances.

Other important factors in a claim of this type

Personal injury claims against theme park operators often turn on the strength or weakness of expert evidence furnished as part of the claim. Reports by specialists such as engineers, medical professionals or industry specialists are crucial to establishing whether the theme park operator’s negligence caused the person’s injury.

In an action against a theme park operator, an injured person may need to counter a claim of contributory negligence in proving their case. This means that if the injured party contributed to their own injuries through their actions or failure to take reasonable care, the amount of compensation awarded may be reduced accordingly.

What can the claim for compensation cover?

This type of claim can seek to compensate for:

• pain and suffering (also called general damages or non-economic loss);
• loss of enjoyment of life because of your injury (including psychological injury);
• past and future wage loss or loss of earnings;
• past and future loss of superannuation entitlements;
• past and future expenses e.g. medical expenses, travel and home and vehicle modifications;
• care and help provided by family, friends, or commercial care costs;
• loss of capacity to care for someone who is dependent on you.

The importance of expert legal advice

Negligence claims can be complicated, requiring extensive collection of evidence, pre-court conferences and meeting important time limits. The advice and guidance of experienced personal injury lawyers is essential to assess the strength of your claim and take the stress and time out of navigating the process. At Lifestyle Injury Lawyers, we will strongly advocate for your rights and maximize your chances of a successful outcome. Contact us today to discuss your case. Feel free to contact our personal injury lawyers for legal help.