|
Legislation in some states and territories now gives greater effect to a policy that persons who knowingly engage in situations involving obvious risks of harm should themselves bear responsibility for the harm that may occur.
See, for example, sections 5F - 5I Civil Liability Act 2002 (NSW).
A risk is obvious when it would have been obvious to a reasonable person in the position of the plaintiff, including risks that are patent or a matter of common knowledge; risks that have a low probability of occurring; and risks that are not prominent, conspicuous or physically observable. Injured persons are presumed to have been aware of obvious risks, and the defendant is under no duty to warn of such risks except in certain specified cases.
In terms of state and territory legislation, persons who knowingly engage in recreational activities that involve a significant risk of physical harm also now bear responsibility for the harm that may occur. Recreational activities include sports and other activities undertaken for leisure, relaxation or enjoyment. If a plaintiff engages in a recreational activity that involves a significant risk of physical harm, the defendant will not owe a duty of care in relation to risks of which the plaintiff has received warning.
See, for example, sections 5J - 5N Civil Liability Act 2002 (NSW).
Warnings must be given in a way that is reasonably likely to inform people of risks before they engage in the activity. The sections detail several exceptional circumstances, such as when the plaintiff is unable to understand a risk warning because of young age or mental disability.
Tapp v Australian Bushmen's Campdraft and Rodeo Association Limited [2022] HCA 11.
|