New South Wales Consolidated Acts
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CIVIL LIABILITY ACT 2002 - SECT 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.
(2) If the person
who suffers harm is an incapable person, the defendant may rely on a risk
warning only if:
(a) the incapable person was under the control of or
accompanied by another person (who is not an incapable person and not
the defendant) and the risk was the subject of a risk warning to that
other person, or
(b) the risk was the subject of a risk warning to a parent
of the incapable person (whether or not the incapable person was under the
control of or accompanied by the parent).
(3) For the purposes of subsections
(1) and (2), a risk warning to a person in relation to a recreational activity
is a warning that is given in a manner that is reasonably likely to result in
people being warned of the risk before engaging in the recreational activity.
The defendant is not required to establish that the person received or
understood the warning or was capable of receiving or understanding the
(4) A risk warning can be given orally or in writing (including by
means of a sign or otherwise).
(5) A risk warning need not be specific to the
particular risk and can be a general warning of risks that include the
particular risk concerned (so long as the risk warning warns of the general
nature of the particular risk).
(6) A defendant is not entitled to rely on a
risk warning unless it is given by or on behalf of the defendant or by or on
behalf of the occupier of the place where the recreational activity is engaged
(7) A defendant is not entitled to rely on a risk warning if it is
established (on the balance of probabilities) that the harm concerned resulted
from a contravention of a provision of a written law of the State or
Commonwealth that establishes specific practices or procedures for the
protection of personal safety.
(8) A defendant is not entitled to rely on a
risk warning to a person to the extent that the warning was contradicted by
any representation as to risk made by or on behalf of the defendant to the
(9) A defendant is not entitled to rely on a risk warning if
the plaintiff was required to engage in the recreational activity by
(10) The fact that a risk is the subject of a risk warning
does not of itself mean:
(a) that the risk is not an obvious or inherent risk
of an activity, or
(b) that a person who gives the risk warning owes a duty
of care to a person who engages in an activity to take precautions to avoid
the risk of harm from the activity.
(11) This section does not limit or
otherwise affect the effect of a risk warning in respect of a risk of an
activity that is not a recreational activity.
(12) In this section:
"incapable person" means a person who, because of the person's young age or a
physical or mental disability, lacks the capacity to understand the risk
"parent" of an incapable person means any person (not being an
incapable person) having parental responsibility for the incapable person.
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