LAWS1000- Task 4, Hypothetical Problem PDF

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 _______________________________________________________________________________________ Your Ref: Phone: (07) 2343 6754 Our Ref: CC.R21.001 24 Fax: (07) 2343 6754 Email: [email protected] _______________________________________________________________________________________ 10 April 2020 PRIVATE AND CONFIDENTIAL Australian Adventure Club 34 Wallaby Way PORPOISE SPIT Q 4356 Dear Australian Adventure Club, I have reviewed your case file and I believe you are seeking advice on whether your liability waiver will protect the (AAC) from legal action in the event of a participant getting injured. I have conducted some research on the law in this issue, and in order to evaluate the effectiveness of the waiver in the prevention of liability claims, the relevant legislation I'd like to highlight is the Civil Liability Act 2002 (NSW) abbreviated throughout as the CLA. The purpose and reason of this act is to provide a guideline to understand the effectiveness of the waiver in protecting the AAC from liable claims in the conduction and planning of your event. What is also crucial, extracted by the IPP report discussing the laws on negligence, that we evaluate “actions for misleading and deceptive conduct, to recover compensation for personal injury and death” and “evaluate whether there are appropriate consumer protection measures in place”. 1 Relevant areas of the act that I would like to draw your attention to are division 4 and division 5 of the act, that highlight the concerns of ‘obvious risk’ and ‘recreational activity’ and there link to liability. 2These key terms are distinguished in division 5 as, Dangerous recreational activity means a recreational activity that involves a significant risk of physical harm 3 and obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a person of reason. 4 In order to prevent liability claims against the AAC, it is important to evaluate previous cases.

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David Ipp,Review of the Law of Negligence ( Final Report, September 2002) 1-2. Civil Liability Act 2002 ( NSW) div 5. 3 Ibid s 5L. 4 Ibid s 5F.

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Case 1- Sharp v Parramatta City Council. 5 The appellate jumped from a 10 metre diving board into a swimming pool at Parramatta War Memorial Swimming Centre, sustaining multiple fractures to the T11 vertebrae through landing awkwardly. It was found that the plaintiff could not sue for liability for the sustained injuries whilst participating in the recreational activity, as the risk of injury was deemed an ‘obvious risk’ 6and a subject of a risk warning. Section 5M of the CLA provides defence to liability for negligence when an individual participates in a recreational activity with an obvious risk. Section 5L of the CLA further provides liability for negligence when the harm suffered by a person is a consequence of obvious risk in the participation of a dangerous recreational activity. The main point of the case highlights the liability defences available to an occupier of a recreational facility. Case 2- Action Paintball Games Pty Ltd (in liquidation) v Barker. 7 The plaintiff Ms Barker tripped on a tree root fracturing her elbow whilst playing Laser tag. Action Paintball was commanded to pay compensation to the district court, however the case was appealed due to the issue of liability. In circumstances where a duty of care is found to exist it is then necessary to determine the scope of that duty and whether it was breached. The party providing a warning outlining the risk involved to the recreational activity pursuant is subjected under section 5M of the CLA, to not provide a specific warning as to each and every possible risk at hand. When a defence pursuant to s 5M of the CLA is pleaded, the duty of care is exempt when a risk warning is provided. The main point of this case conveys that the provision of a risk warning does not need to outline every possible risk, however will exempt liability claims for the recreational facility. In applying the facts in regards to the law, the recreational activities within the AAC being (parasailing, paintballing and an obstacle course) are seen as activities that follow under the definition of ‘obvious risk’ evident in section 5 of the Civil Liability Act 2002  (NSW) to a ‘reasonable person’, concluding that the AAC is not subjected to indemnity and vulnerable to liable claims, also similarly noted in the outcome of Sharp v Parramatta City Council 8case. In applying the scenarios above, The AAC must evaluate the risks in participating in ‘dangerous recreational activities’.9 Aspects  of the waiver that could be problematic is not providing a risk warning. I would strongly advise that the AAC must inform the participants of the variety of risks prior to partaking in the ‘dangerous recreational activities’ either in oral form or in writing. 10 If these changes are not made it creates

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Sharp v Parramatta City Council [ 2015] NSWA 260. Civil Liability Act 2002 ( NSW) s 5F. 7 Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] N  SWCA 128. 8 Civil Liability Act 2002 ( NSW) ss 5K, 5M. 9 Ibid s 5K. 10 I bid.

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extensive arguments against that AAC that ‘risk warnings’ were not complied and provides reasonab grounds to take legal action and sue for liability and duty of care claims due to harm caused. 11 The AAC’s liability waiver effectively provides the terms and conditions of the recreational activities, which removes the issue of duty of care away by excluding liability in the case of harm and/or breaches of warranty.12 In summation, based on the analysis above I believe your waiver protects the AAC from a variety of liability issues, however in conjunction with divisions 4 and 5 of the Civil Liability Act 2 002 (NSW) and the relevant case analysis it has been evident that a risk warning must be included in the waiver to reinforce that the AAC is protected from claims related to liability and duty of care responsibilities. It is unlikely for the AAC to be indemnified, however it is essential that the company take into account the important changes above so that AAC is as indemnified as possible. Yours faithfully, Solicitor at Covid & Co Law Group. 

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Ibid. Ibid, s 5M....