As your parents probably told you, you can’t live your life wrapped in cotton wool. At some point most of us participate in a sporting, leisure or other recreational activity that has an element of danger. But what happens if you’re injured while doing so? Can you claim compensation for the effects of your injury?
In NSW, recreational activity is outlined in the Civil Liability Act 2001 (“CLA”) and includes:
- any sport (whether or not the sport is an organised activity);
- any pursuit or activity engaged in for enjoyment, relaxation or leisure;
- 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.
In many of these situations, depending on the specific facts of your incident, you may be able to claim compensation for injury… that is, unless the activity is considered a ‘dangerous recreational activity’.
Dangerous recreational activities are defined in the CLA as those that involve a significant risk of physical harm, and injuring yourself while undertaking one will likely prevent you being able to claim any compensation.
What sort of activities are dangerous?
Much legal argument in cases involving dangerous recreational activity is devoted to whether the activity should be considered dangerous. Some examples of dangerous recreational activity – often found in the case law – including diving off bridges into bodies of water where the depth is uncertain or unknown, swinging off rope swings into rivers, shooting guns at night and riding bicycles in unsuitable environments.
Working out whether the activity poses a risk of significant harm involves an objective assessment – that of a reasonable person in the same position as the injured party – of the probability of physical harm and the seriousness of the harm which would or might then result. This degree of risk does not mean that it is “likely to occur” but is often expressed as “more than trivial”.
Using the reasonable person test, courts will generally assess both the nature and degree of the harm that might be suffered, as well as the likelihood of the risk occurring. Cases are often made more complex when factors such as time, place, competence, age and sobriety of the participant, equipment and the weather are considered as contributing to make a recreational activity dangerous.
How does the legislation treat dangerous recreational activity?
If you’re injured while undertaking a recreational activity that is considered dangerous and posed an obvious risk, and believe your injury is the result of another person’s negligence (such as that of the activity’s operator, for example), under the terms of the CLA that person cannot be held liable for the harm you have suffered.
To be clear, this means that where an activity poses a risk so obvious that a reasonable person in the same position would have identified it and refrained from participating in the activity, another person cannot be held accountable for your injury.
Many recreational activities will include a risk warning, perhaps provided by prominent signs or verbally by the operator of the activity before you undertake it. Where such a warning is provided in a manner that is reasonably likely to result in a person being warned of the risk before engaging in the recreational activity, the CLA says that no duty of care is owed to the participant in the activity in respect of the risk specified in the warning.
A couple of case examples
In a 2012 NSW Supreme Court case, Streller v Albury City Council, Mr Streller suffered severe injuries after attempting to do a flip off a rope swing into the Murray River. His case alleged that the Council owed him a duty of care to take reasonable precautions to avoid a risk of injury to him that was foreseeable, and that the Council had breached its duty of care by failing either to remove or properly supervise the rope swing; by failing to ensure that the water in the area was sufficiently deep for safe use of the swing; and by failing to warn Mr Streller that it was dangerous for him to dive into the water or to use the swing.
Mr Streller’s negligence claim was unsuccessful, the court finding that he had engaged in a dangerous recreational activity and that there was an obvious risk of harm associated with the activity.
In Goode v Angland decided in 2017, the NSW Court of Appeal confirmed the CLA’s statutory defence of “obvious risk” of a “dangerous recreational activity” can even apply to professional sports. Mr Goode, a professional jockey, made a personal injury claim against fellow jockey Mr Angland after he was injured during a horse race, accusing Angland of negligence during the race that caused his horse to fall.
Mr Goode’s claim failed when the Court of Appeal upheld the decision of the Supreme Court that found Mr Angland could not be held liable for Goode’s injury because professional horseracing was, by the terms of s 5K of the CLA, a “recreational activity” and therefore Angland could rely on the defence of obvious risk of a dangerous recreational activity.
There can sometimes be grey areas in determining whether a recreational activity is dangerous and poses an obvious risk. Other factors such as a person’s age and experience can also be called on when someone is injured while participating in a recreational activity.
Assessing all these variables requires the services of experienced personal injury lawyers. BPC Lawyers has won multiple industry awards in this specialist area of the law, and can help you work out your options if you’ve been injured during a recreational activity. Contact us today (02) 8280 6900 for a free legal consultation.