Dangerous recreational activities

Many people participate in recreational activities without the realisation that there is a risk that in the event they sustain an injury they may not be capable of claiming compensation. This is because the activity might be considered a Dangerous recreational activity.

What is considered a recreational activity?

A recreational activity under the Civil Liability Act 2002 (CLA) 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.

This definition is an almost all encompassing definition and creates an extremely large scope over what is considered a recreational activity.

What is considered a dangerous recreational activity?

According to the CLA a dangerous recreational activity is defined as a recreational activity that involves a significant risk of physical harm.

Various cases have helped create parameters around what is considered to be a dangerous recreational activity. Whilst participating in an activity similar to diving into uncertain depths of water, shooting rifles at night time, riding a Bicycle in a skate park or using a rope swing to swing into a river are all considered to be dangerous recreational activities.

What does this mean?

Under the CLA, a person is not liable in negligence for harm suffered by another person as a result of an obvious risk whilst engaging in an activity that is deemed a dangerous recreational activity. This means that where a risk is so obvious that a reasonable person in that position would have identified it, the defendant in a claim cannot be held accountable because a reasonable person would have identified the risk and not participated in the activity.

The CLA also provides that if a “risk warning” is given there is no duty of care owed to a participant in a recreational activity in respect of the risk which is the subject of that warning. 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.

Case Law Examples

There have been some noteworthy cases which have discussed the meaning and implications of the meaning of a “dangerous recreational activity.”

One notable case is Streller v Albury City Council [2012] NSWSC 729. Essentially the plaintiff suffered severe injuries, after attempting to do a flip of a rope swing into the Murray River. In this case the plaintiff argued that the Council had breached their duty of care for not taking reasonable precautions to prevent the plaintiff’s injuries. The plaintiff alleged that the council owed him a duty of care to take reasonable precautions to avoid a foreseeable risk of injury to him and that the duty of care was breached by the defendant’s failure to remove the rope swing, its failure to properly supervise the rope swing, its failure to ensure that the water in the area near the rope swing was sufficiently deep for the plaintiff and others to safely use the swing, its failure to warn the plaintiff it was dangerous for him to dive into the water or to use the swing, and by its failure to perform these alleged obligations, representing to the plaintiff that it was safe for him to use the swing in order to jump or dive into the water.

In short the court held that because the plaintiff had engaged in a dangerous recreational activity and that there was an obvious risk of harm associated with this recreational activity the plaintiff’s claim in negligence failed.

In acknowledging that this defence exists, every case is different and should be treated individually. This defence cannot be relied upon in every circumstance thus legal advice should be sought if you feel as though you may be entitled to compensation for injuries received even if you were participating in a dangerous recreational activity.

The High Court is presently considering the extent and reach of what is considered a dangerous recreational activity, and a judgement is expected in early 2016.

For specialist legal advice in relation to compensation for injuries contact Koffels Solicitors & Barristers, who are able and happy to advise, and help interpret situations of this nature.

William Yeo

Graduate Solicitor