Legislation requiring the organiser of a Recreational Activity to warn of "obvious risk(s)" associated with that Recreational Activity

Following the collapse of HIH circa late 1990s an extensive review of legalisation pertaining to various aspects impacting negligence and damages was undertaken within each Australian state.  The catalyst was the insurance industry seeking to mitigate future damages which had escalated where premiums were so high and potential liability so extreme that it negatively affected margins resulting in the collapse of HIH which had been, inter alia, loss leading across too many insurance products.

Division 5 Recreational Activities of Civil Liability Amendment (Personal Responsibility) Act 2002 No 92 governing the NSW jurisdiction imposes an obligation upon the organiser of a Recreational Activity to Provide A Risk Warning to members of the public that the organiser invites which warns of any "obvious risk(s)" associated with that Recreational Activity.   Similar tort legislation was passed in each other state and territory under Civil Liability (Personal Responsibility) Acts.

Clause 5K Definitions notes:

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4 ("an obvious risk to a person
who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person").

recreational activity includes:

(a)  any sport (whether or not the sport is an organised activity), and

(b)  any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c)  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.

Below is an extract of the afore-mentioned clause 5M "No duty of care for Recreational Activity where Risk Warning":

(1)  A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a Risk Warning to the plaintiff.

Patently the organiser of a Recreational Activity is required to Provide A Risk Warning to members of the public which informs of Three Types Of Risks associated with participating in that Recreational Activity.  

Participating in an Individual Time Trials up a 3km to 8km Climb is a low risk RREA due to -

(a)          the low speed involved, and

(b)          cyclists are not racing in open competition, but commencing individually at 1 minute intervals. 

The only Obvious Risks are -

(i)           a cyclist(s) being hit by a passing motor car because he didn't get sufficiently get off the roadway whilst waiting for his/her Individual Time Trial; and

(ii)          suffering cardiac arrest, stroke etc particularly for older Climbers.

Accordingly, the Event Organiser opines that -

(A)        the KOM Challenge Series is a Recreational Activity because it is an organised sport which persons engage in for enjoyment, relaxation and leisure in a public open space;

(B)        Obvious Risks include, but are not limited to, -

   (i)        a cyclist(s) being hit by a passing motor car because he didn't get sufficiently get off the roadway whilst waiting for his/her Individual Time Trial; or

   (ii)       suffering cardiac arrest or stroke which is a greater risk for older Climbers;

(C)        'ipso facto' the Event Team is required to provide overt Risk Warnings to older Climbers to check their blood pressure and cholesterol reading etc and seek medical advice should either be high.

See Section 23 "Liability Risk Management".