All News tagged: Civil Liability Act QLD

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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 DenningDangerous Recreational Activities | Contract Claims & Intentional Torts
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On appeal: QSC marine engine repairs decision

Case note: Ireland v B & M Outboard Repairs [2015] QSC 84

Mechanic Negligence Lawyer – Mechanic Negligence Cases – Professional Negligence Cases – Proof of Negligence – Civil Liability Act Qld

Facts

The Plaintiff, Colin Ireland, brought a claim for neck and psychiatric injuries from an explosion on 10 April 2006.

B & M Outboard Repairs (Defendant) performed the maintenance, repair and modification of outboard marine engines. In September 2004, the Defendant replaced the fuel lines of the Plaintiff’s Haines Hunter (Vessel) and installed an electric fuel pump in the battery compartment.  After the Defendants performed the work the Plaintiff used the Vessel a few times without incident.

In March 2006, the Plaintiff received an enquiry from a prospective purchaser and set about putting the Vessel in a seaworthy condition. The Plaintiff and his son performed some work on the Vessel.

Some repair work was required to the leg of the outboard motor. Mr Brian Keech, a long term friend of the Plaintiff and a qualified mechanic, assisted with the fitting and repairing of the leg to the outboard motor. Mr Keech inspected the battery compartments and told the Plaintiff it was dangerous to have the fuel lines, electric fuel pump and battery compartment in close proximity to one another, because of the risk of a spark.

The Plaintiff took the Vessel to Port Hinchinbrook, to launch it for a seaworthy trial. Once the Vessel was in the water, the Plaintiff reached into the Vessel, turned the ignition key and described ‘a ‘whoosh’ and some flames which forced him to recoil backwards whereupon he fell into shallow water on the back of his neck’.

The Plaintiff suffered a psychiatric injury and a cervical spine injury.  However, the documentary evidence suggested there was no explicit reporting of cervical spine symptoms until 17 months after the incident.

The Plaintiff was head of the Life Church, Townsville. The Church agreed to continue to pay the Plaintiff 100% of his salary, on his agreement to re-pay 50% of it, in the event he was awarded compensation. With this arrangement, the Plaintiff was effectively overpaid an amount of $300,000 in wages for his services to the Church, as at the date of trial.

Issues

Liability and quantum were in issue. The Defendant challenged the Plaintiff on the cause of the explosion, his reporting of the incident, as well as the nature and extent of his injuries. The Defendant disputed that it had breached the contract with the Plaintiff to perform the work or that they breached the duty of care owed.  The case also considered several defences available under the Civil Liability Act 2003 (Qld).

Findings

In a judgment delivered 8 April 2015, the Court found as follows:

  1. The Defendants recommended and installed a new system for the pumping of and delivery of fuel to the outboard engine and in a relatively confined space installed the electric pump close to potential ignition sources. A consequential fire and explosion was foreseeable and the risk of personal injury from such an event was foreseeable. The Defendants should be held responsible for the harm suffered by the Plaintiff.
  2. The Plaintiff did not voluntarily assume an obvious risk, was not engaged in a dangerous recreational activity and was not contributorily negligent, despite the warning from Mr Keech.
  3. The Plaintiff suffered a serious and disabling psychiatric illness. Damages were assessed in the sum of $703,721. This amount included $351,000 for past economic loss, calculated on the basis that the Plaintiff had suffered a 45%-55% loss of earning capacity.

Appeal

An appeal was filed in the Court on 5 May 2015 by the Defendant. The appeal was discontinued by agreement in July 2015.

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Kate DenningOn appeal: QSC marine engine repairs decision
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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.