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Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities – Dangerous Recreational Activities Qld – Dangerous Recreational Activities Civil Liability Act – Dangerous Recreational Activities CLA – Dangerous Recreational Activities Cases – Dangerous Recreational Activities Examples – What is a dangerous recreational activity? – Duty of Care Legislation Qld

What is a dangerous recreational activity?

Section 18 of the Civil Liability Act 2003 (Qld) (CLA QLD) defines a dangerous recreational activity as:

‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.

Civil Liability Act 2003 (Qld)

The CLA QLD limits the ability of injured Plaintiffs to recover damages in negligence for personal injuries that arise out of dangerous recreational activities.

Under section 19 of the CLA QLD, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by a person.

Section 17 of the CLA QLD states:

’17  Application of div

This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.’

But proving that a Plaintiff was engaged in a dangerous recreational activity under the CLA QLD isn’t always straightfoward. A decision of the Supreme Court of Queensland last year highlighted an issue for Defendants seeking to raise the defence.

Ireland v B & M Outboard Repairs

In Ireland v B& M Outboard Repairs [2015] QSC 084, the Defendants argued that the Plaintiff was engaged in a dangerous recreational activity.

The Court rejected the Defendant’s submission that section 19 of the CLA QLD applied; principally, because the activity did not involve an obvious risk. However, the Court made an additional comment that section 19 would not apply because section 17 refers to liability in negligence only and not, to an action for breach of contract.

Liability in Negligence

Unlike the Civil Liability Act NSW (2002) (CLA NSW), the CLA QLD does not define the word ‘negligence’.

Without a definition, one might assume the phrase ‘liability in negligence’ means an action in negligence and not, an action in contract or, an intentional tort. In the first reading speech for the Civil Liability Bill 2003 (Qld), Parliament said that the dangerous recreational activities provisions would change the ‘conventional law of negligence’ – as opposed to the law of contract or, the law of torts.

Considerations

Plaintiffs may frame their claims to avoid the dangerous recreational activity defence under the CLA QLD. However, the interpretation of section 17 is yet to be judicially determined. The comments in Ireland were in obiter. That said, if Ireland’s reasoning is applied, Defendants will not be assisted by section 19 of the CLA QLD against a claim in contract.

Parties to claims involving recreational activities which may be ‘dangerous’ may wish to consider the following:

  • the application of the obvious risk provisions under the CLA QLD
  • any contract between the parties
  • whether the contract between the parties was for the dangerous recreational activity itself (compared with transportation or equipment hire)
  • the application of Commonwealth legislation such as the Competition and Consumer Act 2010 (Cth) to the claim
  • any defects or flaws in equipment in use
  • signage, advertising and manufacturers specifications or notifications
  • facts suggesting an intentional tort
  • insurance coverage issues arising from an action in contract against the Defendant or an intentional tort

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Kate Denning

Kate is the Founder & Principal of Denning Insurance Law. Kate opened her own practice out of a desire to deliver high value, specialised legal services. With top tier and in-house experience, her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Kate DenningDangerous Recreational Activities | Contract Claims & Intentional Torts

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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.