At a state and territory level, personal injuries claims are governed by the respective states and territories’ civil liability legislation. The legislation in some of the states have a similar genesis, being broadly based on recommendations made by a panel of legal experts appointed to examine and review the law of negligence in the early 2000’s.
One of those recommendations related to limiting liability in respect of recreational services. The panel stated:
‘the Panel has reached the conclusion that there is widespread and strong community support for the idea that people who voluntarily participate in certain recreational activities can reasonably be expected, as against the provider of the recreational service, to take personal responsibility for, and to bear risks of, the activity that would, in the circumstances, be obvious to the reasonable person in the participant's position.’
New South Wales, Queensland, Tasmania and Western Australia subsequently enacted civil liability legislation incorporating a statutory defence in respect of liability for personal injury suffered during ‘dangerous recreational activities’.
In each Act, ‘dangerous recreational activity’ is essentially defined as a recreational activity involving a 'significant degree of risk of physical harm to a person’. What constitutes a ‘recreational activity’ varies between the Acts.
There have been numerous decisions adjudicating the meaning of ‘dangerous recreational activity’. Activities that have been held to be dangerous recreational activities include white water rafting, BMX bike riding, snow skiing, jumping off a 10m diving board, diving off a wharf, flying or learning to fly a plane, and horse racing.
The purpose of this article though is not to comment on what constitutes a ‘dangerous recreational activity’, but whether the ‘dangerous recreational activity’ defence is available to claims made for breaches of the statutory guarantees under the Australian Consumer Law, which is commonwealth legislation.
