Defined Terms   Impact of Civil Liability Act   Impact of Warnings and Exclusions

Civil Liability Act 2002 means bills enacted in Australian state and territory parliaments in 2002, which incorporate the maxim, volenti non fit injuria (the voluntary assumption of risk of injury).

For the state of NSW these were:

*         Civil Liability Bill - June 2002

*         Civil Liability Amendment (Personal Responsibility) Bill - Nov 2002

 

The following four events increased cost and diminished affordability/availability of public liability insurance progressively to 2002:

(i)         terrorist attacks on 9/11;

(ii)        collapse of the HIH insurance group;

(iii)       provisional liquidation of United Medical Protection Limited, Australia's largest medical indemnity provider; and

(iv)       “Santa Claus” judges finding modestly in favour of an injured party who should properly have failed.

The above, together with other adverse influences, increasingly discouraged from the late '90s onwards, community volunteer groups that had traditionally provided annual fun runs, ocean swims, triathlons, bush walks, horse gymkhanas, etc due to -

(a)        escalating public liability insurance premiums; and

(b)        mounting prospect of being litigated for material damages/costs by a participant(s)/Invitee(s) who Suffered Harm and alleged that the organiser of the associated community volunteer group's recreational activity had been Negligent which had contributed to their Suffered Harm.

Legislative reform to torts laws associated with civil liability and personal responsibility, hereinafter Civil Liability Act, across Australia in 2002 'inter alia' enabled such community volunteer groups to continue to provide community exercise activities by promoting the notion of personal responsibility.  The Civil Liability Act were designed to ensure that small clubs and councils could continue to provide sport and recreational facilities without running a risk of litigation that would have resulted in the loss of their insurance premiums and subsequent inability to operate.  As a result the Civil Liability Act render it far more difficult for an injured Invitee(s)/participant(s), as a plaintiff, to successfully litigate the pertinent Inviter(s)/organiser(s).

Hence, amendments introduced by the Civil Liability Act in Australian states and territories during 2002 transferred significant liability from the Inviter/organiser (of such community volunteer groups) to the Invitee(s)/participant(s) of associated Recreational Activities which reduced the cost of public liability insurance premiums.

Not everyone was enamoured with the significant rethink of civil liability through an increased focus on end-users accepting personal responsibility.  Allan Fels, the then chairman of the ACCC, stated in early 2003:

             “The reforms related to insurance that are being debated, and in some states introduced, include damage caps, easy liability waivers and a block on liability when there are obvious risks – even when those risks are the fault of a shoddy or reckless operator. These types of reforms transfer the cost of accidents and other damage from those best able to understand and cheaply control the risks to those least able to understand and control them. This is neither sensible or fair”.

Insignificant effort was expended by the judicial process to inform Inviters of a Recreational Activity which involves a Risk Of Harm of their legal obligation to Provide A Risk Warning to Invitees of the Risk Of Harm under these new tort laws. 

A fundamental Foreseeable, Non-Obvious, Explicit Risk which the majority of Inviters do not warn their Invitees about is the need for Invitees to hold third party insurance to cover them against Negligence whilst enjoying their Recreational Activities, because unlike when driving a motor car, there is no self-regulated CTP Green Slip cover when cycling a bicycle. 

In the case of Recreational Road Cycling, if a Invitee seriously injures another cyclist or other third party, that Invitee can be litigated for large damages/costs by the third party that the Invitee seriously injured.  If the Inviter didn't include in its Risk Warning to the Invitee the need to hold third party insurance, then the negligent Invitee may counter sue the Inviter.  The Inviter is not obliged to check that the Invitee holds third party insurance, but merely to provide a Risk Warning to the Invitee to hold third party insurance which covers any Negligence whilst cycling.

Merit also exists in reminding Invitees that whilst their insurance will normally cover negligence, such insurance will unlikely cover breaking a road rule. 

Focusing on NSW, Civil Liability Bill - June 2002 does not recognise claims for economic and non-economic loss if the claimant does not suffer from at least 15% whole of body impairment or serious mental disorder. 

The subsequent Civil Liability Amendment (Personal Responsibility) Bill - Nov 2002 in NSW seeks to limit liability arising from Recreational Activities where the Inviter(s)/organiser has Provided A Risk Warning to the Invitee(s)/participant(s) and in some circumstances also a Disclaimer Of Liability.  Furthermore the Risk Warning is deemed to be sufficient even if it is only a general warning.  A "general warning" is a grey area so, in order to minimise the possibility of a trauma accident and the Inviter(s)/organiser being litigated, best to include in all Risk Warnings  the Three Types Of Risks of Harm Sufferable.

In addition, contributory negligence is now also applied more strictly.  Under Division 4; voluntary assumption of risk is now an effective defence and therefore it is now harder to succeed in Negligence claims where injuries arise when an Obvious Risk can be voluntarily assumed.

Section 5B of Division 2 Duty Of Care says an Inviter/organiser is not Negligent in failing to take precautions against a Risk Of Harm, unless the risk was a Foreseeable, Non-Obvious, Explicit Risk and one where a reasonable person would have taken those precautions.


Fundamental changes are that an Inviter(s)/organiser(s) -

(a)        no longer owes a Duty Of Care for failure to warn of Obvious Risks, unless asked, and they are therefore not liable for any resultant Harm Suffered; and

(b)        is not liable in Negligence for Harm Suffered by a participant(s)/Invitee(s) as a result of the materialisation of an Inherent Risk.

 

Above is sourced from:

  1. Limit liability arising from recreational activities: risk warnings and waivers

  2. CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT 2002

  3. What Impact Has Civil Liability Act 2002 (NSW) Had On Damages and Personal Responsibility?

  4. New notions of personal responsibility in NSW civil liability