AustLII Tasmanian Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

CIVIL LIABILITY ACT 2002 - SECT 39

No duty of care for recreational activity where risk warning

(1)  A public or other authority ( "the authority" ) does not owe a duty to a person who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning to that person.
(2)  If the person who engages in the recreational activity is an incapable person, the authority may rely on a risk warning only if –
(a) the incapable person was under the care of or accompanied by another person (who is not an incapable person and not the authority) 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 care of or accompanied by the parent).
(3)  For the purpose 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.
(4)  The authority is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(5)  A risk warning can be given orally or in writing (including by means of a sign or otherwise).
(6)  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).
(7)  An authority is not entitled to rely on a risk warning unless it is given by or on behalf of the authority or has been adopted by the authority.
(8)  An authority 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.
(9)  An authority 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 authority to the person.
(10)  An authority is not entitled to rely on a risk warning to a person if the person was required to engage inthe recreational activity by the authority.
(11)  An authority is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm suffered resulted from an act done or omission made with reckless disregard for the consequences of the act or omission.
(12)  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 an authority 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.
(13)  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.
(14)  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 warning;
parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person;
recreational activity has the same meaning as in Division 5 of Part 6 .



[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]