What is a dangerous recreational activity?
Section 18 of the Civil Liability Act 2003 (Qld) (CLA QLD) defines a dangerous recreational activity as:
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:
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 for claims involving dangerous recreational activities
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
Can we help?
Book a consultation for advice and information about a claim involving a potentially dangerous recreational activity by calling (07) 3067 3025 or contact us online.
