Provide A Risk Warning means to abide by Civil Liability Act, which were passed across Australia in 2002, by a person, hereinafter an Inviter, providing a Risk Warning which informs Invitee(s) of the Three Types Of Risks of Harm Sufferable by an Invitee(s), when participating in a Recreational Activity.
By way of background, following the collapse of HIH (then the 2nd largest insurance company in Australia) in the late 1990s, amidst a climate of 'inter alia' escalating insurance premiums for professional indemnity and public liability insurance which was negatively impacting a lot of charity and voluntary community groups that were conducting annual fun runs, biathlons, horse gymkhanas etc, the various states and territories across Australia enacted tort laws to pass the Civil Liability Act across Australia in 2002 to remove some of the liability upon organisers by obligating participants to take greater responsibility for their actions.
In the case of NSW the prime purpose of the Civil Liability Bill 2002 was to reduce the magnitude of awards of damages in personal injury actions in order to remove some of the liability upon organisers.
Whereas the subsequent Civil Liability Amendment (Personal Responsibility) Bill 2002 which was passed by the NSW Parliament on 20 Nov 2002 -
(I.) focused on the concept of personal responsibility and render it far more difficult for an injured Invitee (plaintiff) to succeed - prime purpose was to reduce the types of personal injury actions in which damages may be recovered; and
(II.) sought to limit liability arising from a Recreational Activity where there is a Risk Warning, which may include a Disclaimer Of Liability; furthermore the Risk Warning is deemed to be sufficient even if it is only a general Risk Warning.
An Inviter defendant is -
Clause 5L "No liability for harm suffered from obvious risks of dangerous recreational activities" of Division 5 Recreational Activities (for NSW) notes that no Inviter defendant is liable in negligence for Harm Suffered resulting from an Obvious Risk involved in a Dangerous Recreational Activity engaged in by an injured Invitee plaintiff.
Clause 5M(1) "No duty of care for recreational activity where risk warning" notes that an Inviter defendant owes no Duty Of Care to an injured Invitee plaintiff who engages in a Recreational Activity if the risk of that activity was the subject of a Risk Warning to the injured Invitee plaintiff, unless the Harm Suffered concerned resulted from contravention of a law dealing with personal safety practices. An injured Invitee plaintiff is presumed to have been aware of a risk of Harm Suffered was an Obvious Risk unless the injured Invitee plaintiff proves, on the balance of probabilities, that s/he was not aware of the risk.
A conundrum exists due to the separate categorisation of Dangerous Recreational Activity and Recreational Activity because an injured Invitee plaintiff might successfully argue that s/he was not aware that a Recreational Activity fell within the category of a Dangerous Recreational Activity. Equally an Inviter defendant could argue that the Recreational Activity they had invited an injured Invitee plaintiff to participate in was a Dangerous Recreational Activity and, as such, there is no obligation to include in their Risk Warning any Obvious Risks.
Alas, a not insignificant number of bicycle, hiking, kayaking etc. enthusiasts under-state the risks involved in their chosen Recreational Activity due to their enthusiasm to encourage others to join them enjoying their chosen Recreational Activity and probably because those bicycle, hiking and kayaking etc. enthusiasts have avoided a Serious Sporting Accident.
Many, many other bicycle, hiking and kayaking etc. enthusiasts are unaware of the obligation to provide a Risk Warning for whilst the law makers efficiently passed the afore-mentioned Civil Liability Act seven or so years ago, the law makers made -
A.) the purpose of Civil Liability Act, which were passed across Australia in 2002, was to remove some of the liability upon organisers by obligating participants to take greater responsibility for their actions. The purpose was not to reduce Serious Sporting Accidents. Hence the merit in the YELP SPV Regulating Existing Sporting Activity Providers to minimise potential future Serious Sporting Accidents by ensuring that Participants are much better aware of not only Obvious Risks and Inherent Risks but also importantly Foreseeable, Non-Obvious, Explicit Risks, collectively the Three Types Of Risks, associated with their RREA; and
(i) are unfamiliar with the Civil Liability Act; and
(ii) consider that warning prospective new participants of risks, which include Obvious Risk and Inherent Risks, may discourage those prospective new participants to the Recreational Activity that the Organisers and Sporting Activity Providers enjoy.
Hence, whilst the Civil Liability Act of 2002 render it far more difficult for an injured Invitee plaintiff to succeed, a defendant who has invited another person to any of the following should provide a Risk Warning, which may include a Disclaimer Of Liability, in order to mitigate liability and reduce the likelihood of trauma accidents:
* sporting activity (whether or not the sport is an organised activity);
* any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
* any pursuit or 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 or activity for enjoyment, relaxation or leisure.