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21/09/2020 Foundations Lawyers.

Dear Australian Adventure Club (AAC), This advice will be in regard to the liability waiver that was enquired about. Research has been conducted on whether potential clients can sue the AAC. This email will be looking at two cases that has had issues with liability waivers. Comments will be made in regard to how AAC can implement strategies to avoid these issues. The legislative framework for this case would be in relevance to the Civil Liability Act 2002 No 22 (NSW). The purpose of this Act is to ‘make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes’.1 Liability waivers are a major part of this act as it determines the importance of clear and coherent information that must be disclosed to a client. As AAC has many risks involved in their business nature it is important that a clear liability waiver is set out in order to reduce any potential suing against them. A risk warning will be ideal for AAC to use. Case 1: The case Powell v JFIT Holdings [2020] NSWDC 264, negligence was being claimed after an accident at the Dimensions health and fitness centre.2 One of the key factors, in this case, was the use of a liability waiver, determining whether or not the client could sue. This case highlights the defence of a waiver to protect the defendant from the plaintiff’s injury under s 5N of the Civil liability Act 2002 No 22.3 5N Waiver of contractual duty of care for recreational activities was used in this case to determine the extent to the duty of care to a client.4 The plaintiff argues that she was not engaging in a recreational activity at the time of the incident, hence arguing that the waiver does not cover this.5

1 Civil liability Act 2002 (NSW) pt 1 div 5. 2 Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264. 3 Ibid 125. 4 Ibid 129. 5 Ibid 125.

“Accordingly, I find that neither the purported waiver nor the intended protective effect of s 5N of the CL Act as contended by the defendant provides the defendant with any shelter from liability to the plaintiff’s claim for damages: s 5N(6) of the CL Act.”6 The defendant had to pay for damages as they did not clearly state the conditions of entry and what the fitness centre can be liable for.7 AAC will have a responsible duty of care that must be met. Including in their liability waiver where their duty of care will apply is important. Duty of care is an important part of AAC’s liability waiver as medications and the responsible service of alcohol is involved. Levy J deemed this narrow as, the ultimate ratio decindi was that it ‘failed to recognise the avoidable untidy and hazardous circumstances that prevailed in the weights area of the gymnasium under the defendant’s watch’. Having a clear liability waiver will allow AAC to have a cover where the risks can be high. AAC describes their activities as ‘an extreme obstacle course’. Having a strong liability waiver where the client is knowledgeable about the risks of the activity can allow for issues such as suing to not be a problem. If the waiver is clear in writing clients will be able to know what to expect. Even if accidents occur if the clients are aware of the waiver that they have signed and will not need to get further assistance. This relates to AAC has it will keep AAC not liable if waivers have been signed and the degree of damage is not dependent on the fault of AAC. The next case will further discuss the implications of harm and liability. Case 2: The case of Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) NSWCA 219 can be used as a good example to the AAC as to why a clear liability waiver is important.8 The appellant was injured while riding a quad bike at the respondents’ recreational facility at Glenworth Valley in New South Wales. The plaintiff injured herself on a quad bike as her instructor was speeding up. The plaintiff did not sign the waiver but her older sister did. The Judge decided that the defendant was at fault. A sign located near the waiting zone states: “Please be advised that quad biking is an inherently dangerous activity. You are required at all times to ride at a speed which is within your ability and that is suitable for the ground conditions you may experience.”9 However, this was not mentioned in the waiver that needed to be signed. It is also important to note that the judges defined quad biking as not a 6 Ibid 155. 7 Ibid 248. 8 Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 4. 9 Ibid 6.

dangerous recreational activity.10 This found that the respondent was part of a contract as soon as they ended their phone call and not before the waiver was found. Hence why for the respondents had liability that had not been excluded which can be seen in Civil Liability Act 2002 (NSW) Part 1A Division 5 s 5K.11 The court’s decision was that, “import[s] the notion that I have referred to in connection with s 5L that, for the section to be applicable, the risk must be inherent in or incidental to the activity”12 The head judge used s 5M of the Civil Liability Act 2002 (NSW).13 Having this apart of the liability waiver would have made it clear to the Glenworth Valley Horse Riding staff what is needed from them. As it states “care and skill” accounts for liability.14 Therefore, the AAC should consider all circumstances and possibilities when providing recreational activities that pose risks. With the court’s rulings AAC must consider changing their waiver to have a more accurate representation of “recreational activities”. Duty of care must be in place as soon as the waiver has been signed which forms a contract under s5N.15 the AAC must consider clearly explaining the extreme activities that they will be conducted to both the client and the staff. Having these rules in the liability waiver will allow for the AAC to be covered. AAC should make sure all members are comfortable with the course. If a proper risk warning is put in place under Civil Liability Act 2002 (NSW) pt. 1 div 5 s5L, protects the AAC if they instil risk warnings. 16 To conclude AAC should implement better protocols to strengthen their liability waiver. Through making sure that the staff and clients understand the risks and harms of the high risk, there will be a lower chance for accidents. Divisions 4 and 5 under the Civil Liability Act 2002 (NSW) demonstrates the necessity for a risk warning.17 This can be implemented into the waiver which highlights what the AAC will be responsible for when it comes to responsible duty of care. Warm regards, 10 Ibid 37. 11 bid Part 1A Division 5 s 5K [21]. 12 Ibid NSWCA 219 [49]. 13 Civil Liability Act 2002 (NSW) s 5M. 14Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 51. 15Civil Liability Act 2002(NSW) pt 1 div 5 s 5M. 16 Civil Liability Act 2002 (NSW) div 5 s5L. 17 Civil Liability Act 2002 (NSW) div 5....