Obvious Risk means for the Civil Liability Amendment (Personal Responsibility) Bill Nov 2002, and for Civil Liability Acts 2002 generally, Risks Of Harm to an Invitee(s)/Participant(s) that, in the circumstances, would have been obvious to a reasonable person in the position of an injured Invitee/participant(s) and is patent or a matter of common knowledge, albeit generally has a low probability of occurring and a risk of Harm Suffered which may not be prominent, conspicuous or physically observable for a particular Recreational Activity with in a RREA.

If an Invitee/participant(s) suffers injuries as the consequence of such an Obvious Risk that Invitee/participant(s) is now presumed to have been aware of the risk of harm, unless he or she can prove otherwise. The Duty Of Care to warn of an Obvious Risk has also been rendered unnecessary, other than in specific circumstances, such as where the injured person has requested information about the risk.

An “obvious risk” is a risk which would be obvious to a reasonable person or is patent or a matter of common knowledge.  A risk can be obvious event though it has a low probability of occurring or if it is not prominent, conspicuous or physically observable.  Two state CLA amendments contain additional clarification. Queensland and Victoria provide, in addition to the standard definition, that a risk from a thing is not obvious “… if it is created because of a failure on the part of a person to properly maintain, replace, prepare or care for the thing unless the failure itself is an obvious risk”.

Examples of Obvious Risks are:

1.         Each year worldwide there are ~ 10 deaths attributable to shark attacks compared with ~ 150 deaths worldwide caused by falling coconuts.  More people each year are killed by elephants, crocodiles, bees, and wars and many other dangers that confront us, than by sharks.  Stevens & Paxton, 1992 report that an average of one Australian a year died from shark attacks between 1890 and 1990.  In the last 50 years, there have been only 61 human deaths in Australian waters from shark attack.

 2.        Report on Cyclists Deaths - July 2006 informs that between 40 and 60 cyclists were killed on Australian roads each years during the 1990s.  >95% of fatalities involved a motor vehicle(s), the vast majority occurred when the motorist came from behind the cyclists but alleged that he failed to see the cyclist.

 3.        Drowning after capsizing is a prominent reason for fatalities whilst kayaking.

 4.        Cycling into a Deteriorate Road Section is a prominent reason for cyclists to fall from their bicycles which generally cause painful injuries which could result in permanent nerve damage or death.

 5.        A cyclist can purchase third party public liability insurance to cover the cyclist should his/her negligence seriously injure a third party(ies), be it another cyclist(s), pedestrian(s) or motorist(s).  If a negligent cyclist seriously injures a third party, that negligent cyclist could be sued by the injured third party, or its estate for damages and legal costs.  One of the manners to mitigate damages/costs paid from being so litigated is to hold public liability insurance which is provided under Bicycle NSW annual membership, or the membership of another comparable state cycling organisation or many bicycle racing clubs.  If the negligent cyclist was breaking a road rule whilst injuring a third party, the negligent cyclist might forfeit any third party insurance protection, as his/her insurer might deny liability because the negligent cyclist had breached a term of the policy by breaking a road rule.