Who’s responsible for all the fun? Some observations on the limits to liability in recreational activities provided by Sections 5M and 5N of the Civil Liability Act 2002
All work and no play makes Jack a dull boy, goes the old adage. Recreation, that antidote to dullness, has become increasingly recognised as an integral part of many social and community events including school curricular and extracurricular activity and organised workplace and association events. But while it is the antidote to dullness, recreation also inherently brings with it a range of risks – some great, some small. When such risks materialise and questions turn to legal responsibility what concessions, if any, does the law recognise in relation to the risk in recreational activities?
Liability – a super brief overview
Where a person suffers an injury in the course of an activity (the plaintiff), another person (the defendant) may be liable for that injury if they were under, and failed to a requisite degree, to fulfil either a contractual duty or a tortious duty at common law. Whilst in each case establishing liability will require proof of a number of key elements such as causation, existence of duty, standard of duty and breach, the focus of this article is on the provisions of the Civil Liability Act 2002 (NSW) (‘the Act’) in relation to liability in the context of recreational activities and what protection those provisions might hold for Defendants in the recreational context.
Recreational activity and the dangerous recreational activity
The relevant part of the Act is Division 5 “Recreational Activities.” Section 5K defines “recreational activity” in broad terms to include:
“any sport (whether or not in an organised activity”) and any pursuit or activity “engaged in for enjoyment, relaxation, or leisure” and “any pursuit of activity engaged in at a place (such as a beach, park, or other public open space) where people ordinarily engage in sport or in any pursuit for enjoyment, relaxation or leisure).”
It also introduces the concept of “dangerous recreational activity” which is a recreational activity that involves “significant risk of physical harm.”
When is liability excluded for dangerous recreational activities?
Section 5L of the Act excludes liability for negligence of a defendant for harm suffered by a plaintiff “as a result of the occurrence of what was an obvious risk of a dangerous recreational activity engaged in by the plaintiff”.
Obvious risk is defined as a risk that in the circumstances would have been obvious to a reasonable person in the position of the person who suffers the harm, and includes: risks that are patent or a matter of common knowledge regardless of probability of occurrence and prominence, conspicuousness or physical observability of the risk.
What about giving warnings about risks?
Section 5M removes the duty of care owed to a person engaging in a recreational activity in respect to the risk of that activity where the defendant provides the person engaging in the recreational activity with a risk warning in relation to that risk.
Importantly, Section 5M does not require that the recreational activity be a dangerous recreational activity as defined above.
Where the risk warning is given to an “incompetent person” such as a child or someone lacking capacity to understand the warning, the risk warning cannot be relied on unless that risk warning is provided to:
- another person capable of understanding the risk, and who accompanies and retains control over the incapable person or;
- the parent of the incompetent person (whether or not the parent later accompanies or does not accompany the incompetent person).
Warnings about warnings
Despite the protections of Section 5M where a risk warning has been issued, decided cases have shown that the nature of the risk warning and how it is given, can impact critically on whether or not the Section 5M applies to remove the duty of care.
How the warning is given:
In Action Paintball Games Pty Ltd (In liquidation) v Barker[1] where a 9 year old girl playing outdoor laser tag tripped on a tree root suffering a fracture, the risk warning was given by a big sign on the recreational grounds and verbally by an employee of the recreation service provider. The Court noted that the children would not likely have read the notice or had the attention span to actively listen to the more precise warnings verbally enumerated by the employee. Also, the girl’s father was present and hence the Court considered this to make irrelevant the question of whether or not the girl had capacity to understand the warning. Interestingly, the Court did not focus on whether or not warning was sufficiently directed to the father as opposed to his just being present at the verbal presentation but did ultimately find that the risk warning had been properly given.
Nature of the warning:
In Belna Pty Limited v Irwin[2] the Plaintiff was a woman who injured herself performing a lunge exercise in a gym. The gym provided a risk warning at the end of a questionnaire that members of the gym were required to read and sign:
“I understand that Fernwood Fitness Centre is not able to provide me with advice in regard to my medical fitness and that this information is used as a guideline to the limitations to my inability to exercise. I will not hold this club liable in any way for the injuries that may occur while I am on the premises.”
It was held however that this warning was not sufficiently specific to enliven Section 5M (and hence remove the duty of care of the gym) in respect of the harm suffered by the plaintiff to her knee in performing the lunge exercise, because it did not warn the plaintiff as to the risks to her involved in the lunge or any other exercise that she undertook, particularly where the plaintiff had disclosed that her knee had in the past been injured. The protection of section 5M did not extend to the risk warning.
Contracts to provide recreation services
Section 5N allows for providers of recreational services to exclude, restrict or modify any liability in relation to the recreational activity that results from breach of the implied warranty that the recreation services will be rendered with reasonable skill and care.
Recreational services are defined as those “in connection with or incidental to the pursuit of recreational activity.” Whilst this is a fairly broad definition, the service cannot be too remote from the pursuit of the recreational activity.
The section is therefore more useful to limit the contractual liability of the recreation service provider, rather than a person or entity, such as a school or aged care facility, that contracts with the provider for the recreation services.
Recommendations
When planning recreational activities, it is important to think about liability and where you stand.
Consider whether you are the provider of the recreational services or merely engaging a service provider to deliver recreational services to others over whom you have a duty of care. In that situation it is critical to ensure you have checked the contract of service, insurance, and any other relevant industry and background checks prior to engaging the service provider.
If you are a recreational service provider, you should review your contract to procure the protections of section 5N. It is also important that you specifically detail the risks involved and possible injuries or harm (minor as well as more remote and severe) that may result from the recreational activity, and clearly outline these details in the warning given
The warning should appear prominently and clearly so as to be brought to the attention of the person engaging in the recreational activity, or in the case of an incapable person, the parent or person accompanying with control over the incapable person.
A signature should be obtained in respect of the risk warning and the waiver of liability for injury or damage from obvious risks in dangerous recreational activities, and risks in respect of which the warning has been given.
You should also obtain compliance advice from your insurer and independent legal advice in preparing agreements for recreational activities and risk waivers.
Authors: Robert Algie & Kim Leontiev