Brisbane & Gold Coast No Win No Fee Personal Injury Lawyers explain the law restricting claims for injury arising from dangerous recreational activity.
Restrictions on Claims for Injury Involving Dangerous Recreational Activity
In Queensland, the Civil Liability Act 2003 (CLA) restricts personal injury claims for injury resulting from dangerous recreational activity. The law says that if you’re injured whilst engaging in a dangerous recreational activity, and your injury results from the materialisation of an obvious risk inherent in that activity, then you cannot claim compensation for your injury on the grounds of negligence.
What is “Dangerous Recreational Activity”?
The CLA defines “dangerous recreational activity” as an activity engaged in for enjoyment, relaxation or leisure, involving a significant degree of risk of suffering physical harm.
To give you an idea of what is considered to be a dangerous recreational activity, below we have provided you with a list of what the Courts have decided on this question. Note that there is similar legislation in other Australian States, and so we have included the decisions of interstate Courts, in our list.
The Courts have considered the following activities to be “dangerous recreational activities”:
- Diving into water off a wall, when the depth of water is uncertain;
- Kangaroo shooting at night;
- Riding a BMX bike in a skate park;
- Learning to fly a light aircraft;
- Doing a backflip into water from a rope connected to a tree.
The Courts have determined the following activities as not being a “dangerous recreational activity”:
- Playing an Oztag Touch Football game;
- Calm water cruising;
- Snow skiing for the first time & failing to negotiate a ditch at the end of a slope;
- Participating in a work retreat with physical challenges, including a leap of faith from a platform to a trapeze bar approximately 7 to 8 metres above the ground whilst harnessed;
- Quadbiking;
- Cycling on open road;
- 3 unlicenced youth taking turns driving a motor vehicle on an isolated roadway, where the road was not unsafe, it was known to them, the drivers’ were licenced or had learners permits & had not, prior to the accident been driving dangerously;
- Skating at a skating rink;
- A boy riding his bicycle down a grassed slope into a drainage channel;
- Running down sand dunes into a lake, where the injured party was not made fully aware of the serious injury that had occurred previously in the area from such activity.
In the case of State of Queensland v Kelly [2014] QCA 27, the Court held that for there to be a Defence of “dangerous recreational activity”, there must first be an obvious risk inherent in the activity. This is because, for the Defence of “dangerous recreational activity” to apply, the injury must result from materialisation of an obvious risk inherent in the activity.
No Win No Fee Personal Lawyers Explain What is an Obvious Risk?
This is defined in the CLA as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Obvious Risk can also include risks that are patent or a matter of common knowledge. And the risk doesn’t have to be significant, prominent, conspicuous or physically observable.
When considering what is an obvious risk, the circumstances of each case is to be taken into account, including the knowledge and understanding of the extent of the risk by the injured party.
For example, a football player would be aware that he may suffer injury when tackled in the course of a football game. It is an obvious risk inherent in that activity. However, if the football player is injured because a faultily constructed goal post falls on his head whilst playing football, then this is not an obvious risk inherent in a game of football. However, if the footballer had, before the match been told the goal post was faulty and there was a real risk it may give way during the game, causing him injury, then in such case, the goal post falling would be an obvious risk.
Under the provisions of the CLA, where a person sustains injury as a result of an obvious risk, then they are taken to have been aware of the risk in undertaking the activity carrying the obvious risk, unless they can prove otherwise on the balance of probabilities. Where this cannot be shown, then their case can be defeated upon the ground that, in undertaking the activity, they voluntarily accepted the risk of injury. This defence is known as “Volenti”, or voluntary assumption of risk.
When looking at whether an activity is a dangerous recreational activity, carrying an obvious risk, the question is an objective one, having regard to the particular circumstances which the person was in, including for example, the person’s knowledge and experience of the relevant area and conditions. And, when looking at whether the risk of injury is an obvious risk, even the degree of the risk needs to be considered.
Determining Obvious Risk is Objective, Having Regard to the Particular Circumstances the Injured Party is In
The case of State of Queensland v Kelly, which we have referred to above, provides a very good example of this. In that case, the Queensland Court of Appeal considered the question of what is a “dangerous recreational activity” and an “obvious risk”.
The Case of State of Queensland v Kelly – the Facts
The case involved an Irish tourist visiting Lake Wabby in Queensland. Lake Wabby is surrounded by steep sand dunes and the lake has varying depths of water, posing a hazard when diving or jumping into the lake. Mr Kelly, whilst enjoying his time at the lake with friends, was running down a sand dune intending to run into the lake, when he tripped and fell just next to the water’s edge, sustaining serious injury to his spine. As a result, he was rendered quadriplegic.
In defence of Mr Kelly’s claim for damages for the serious personal injury he sustained, the State of Queensland argued the defences of “dangerous recreational activity” and voluntary assumption of risk, as the injury arose from an “obvious risk”. The State’s arguments were grounded on evidence that Kelly had been shown a video warning tourists of dangers in the area and witnessed two warning signs on the way to the lake.
The video included a brief warning about diving and jumping into lakes in the area because of the dangers of varying depths in the lakes. The warning signs provided similar warnings, as well as warning of running down sand dunes and jumping or diving into the lake. Evidence was also provided to the Court of a number of very serious spinal injuries being suffered by tourists running down the sand dunes and this information had not been provided to Mr Kelly prior to his visit to Lake Wabby.
The Queensland Court of Appeal Decision
The Queensland Court of Appeal found that:
- The risk of suffering such serious injury from running down the sand dunes, would not have been an obvious risk to Mr Kelly prior to his injury occurring. The Court considered Mr Kelly may have considered he could suffer some minor injury if he tripped whilst running down the sand dunes, but would not have reasonably been aware he could suffer such serious injury;
- The warnings provided by the video and signage near the lake should be taken into account in determining whether the activity giving rise to the injury was an obvious risk made known to the plaintiff;
- The signs provided by the State did not provide adequate warning of the seriousness of the risk of injury from running down the sand dunes. The Court considered that the signs’ warnings were focussed on running down sand dunes and diving or jumping into the lake and did not warn of serious injury from simply running down the sand dunes. The Court held the video warnings were also similarly lacking in providing such warning.
The Court therefore held that Mr Kelly had not received adequate warning of the seriousness of the injury he could suffer running down the sand dunes at Lake Wabby. Accordingly, as the activity of running down the sand dunes did not carry an obvious risk known to Mr Kelly, or which he ought to have been reasonably aware in his position, it was not a dangerous recreational activity.
Recreational Activities & Liability Waivers
When a person is injured undertaking recreational activities carrying some risk, such as participating in extreme sports, there is often the issue of a liability waiver having been signed by the injured party. This can result in the injured person believing they don’t have a right to pursue a personal injury claim and obtain compensation for their injury. However, it is important to be aware that liability waivers are, in a lot of cases, ineffective and are not always a bar to pursuing a personal injury claim.
To learn more about when liability waivers apply, go to our article at the following link: “Personal Injury Lawyers Explain When Liability Waivers Apply”.
No Win No Fee Personal Injury Lawyers Can Advise You Whether You’ve a Personal Injury Claim to Pursue
If you’ve been injured whilst undertaking a recreational activity, we can advise you whether you’ve a valid and worthwhile personal injury claim to pursue. No Win No Fee Personal Injury Lawyers are personal injury claim experts and will be able to advise you within just a few minutes whether you’ve a claim to pursue and the compensation you are entitled to.
You can contact us by calling 1300 388 383, Chatting with us online on our website or mobile, or you can send us an enquiry via one of our enquiry or FREE Instant Case Appraisal forms on our website. All enquiries are FREE of charge, totally confidential and without obligation. And we are available to you 24 hours a day, 7 days a week.
Our offices are based in Brisbane and on the Gold Coast but we offer our legal services to all Queenslanders and those injured in Queensland. We will undertake your case for you on a no win no fee basis, so you don’t pay us anything unless we obtain compensation for you. And there are no upfront costs, or outlays you need to meet during your claim. We undertake all the work and pay for all claim expenses involved in your case, and you don’t pay us anything until the conclusion of your claim, when you receive your compensation payment.
Time Limits Apply to Personal Injury Claims – So Don’t Delay
You should not delay in investigating whether you’ve a claim to pursue as time limits apply to personal injury claims in Queensland. There are also Notice periods that apply under legislation governing how personal injury claims are run in Queensland. If you fail to comply with these time limits, you could lose all rights to claim and therefore entitlement to significant compensation.
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