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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Civil Liability (Recreational Services) Amendment
Bill 2008
A BILL FOR
An Act to amend the Civil Liability Act 1936; and to repeal the
Recreational Services (Limitation of Liability) Act 2002.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
Part 2—Amendment of Civil Liability
Act 1936
3 Insertion of Part 6 Division 3A
Division 3A—Recreational activities
39A Application
of
Division
39B Interpretation
39C No
liability for harm suffered from obvious risks of dangerous recreational
activities
39D No duty of care for recreational
activity where risk warning
39E Waiver of contractual
duty of care for recreational activities
Schedule 1—Repeal of Recreational Services
(Limitation of Liability) Act 2002
1 Repeal of Act
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Civil Liability (Recreational Services)
Amendment Act 2008.
This Act will come into operation 2 months after the date of
assent.
Part 2—Amendment
of Civil Liability
Act 1936
3—Insertion of
Part 6 Division 3A
After Part 6 Division 3 insert:
Division 3A—Recreational
activities
39A—Application of Division
(1) This Division applies only in respect of liability in negligence for
harm to a person (the plaintiff) resulting from a recreational
activity engaged in by the plaintiff.
(2) This Division does not limit the operation of Division 3 in respect of
a recreational activity.
39B—Interpretation
In this Division—
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
3;
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.
39C—No liability for harm suffered from obvious
risks of dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for
harm suffered by another person (the plaintiff) as a result of the
materialisation of an obvious risk of a dangerous recreational activity engaged
in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the
risk.
39D—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.
(4) The defendant 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) 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 in.
(8) 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.
(9) 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 person.
(10) A defendant is not entitled to rely on a risk warning if the
plaintiff was required to engage in the recreational activity by the
defendant.
(11) 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.
(12) 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.
(13) 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.
39E—Waiver of contractual duty of care for
recreational activities
(1) Despite any other written or unwritten law, a term of a contract for
the supply of recreation services may exclude, restrict or modify any liability
to which this Division applies that results from breach of an express or implied
warranty that the services will be rendered with reasonable care and
skill.
(2) Nothing in the written law of the State renders such a term of a
contract void or unenforceable or authorises any court to refuse to enforce the
term, to declare the term void or to vary the term.
(3) A term of a contract for the supply of recreation services that is to
the effect that a person to whom recreation services are supplied under the
contract engages in any recreational activity concerned at his or her own risk
operates to exclude any liability to which this Division applies that results
from breach of an express or implied warranty that the services will be rendered
with reasonable care and skill.
(4) In this section, recreation services means services
supplied to a person for the purposes of, in connection with or incidental to
the pursuit by the person of any recreational activity.
(5) This section applies in respect of a contract for the supply of
services entered into before or after the commencement of this section but does
not apply in respect of a breach of warranty that occurred before that
commencement.
(6) This section does not apply 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.
Schedule 1—Repeal
of Recreational Services (Limitation of
Liability) Act 2002
The Recreational Services (Limitation of Liability) Act 2002 is
repealed.