Dangerous Recreational Activities | Contract Claims & Intentional Torts

What is a dangerous recreational activity?

Civil Liability Act 2003 (Qld)

The CLA QLD limits the ability of injured Plaintiffs to recover damages in negligence for personal injuries that arise out of dangerous recreational activities.

Under section 19 of the CLA QLD, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by a person.

Section 17 of the CLA QLD states:

’17  Application of div

This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.’

But proving that a Plaintiff was engaged in a dangerous recreational activity under the CLA QLD isn’t always straightfoward. A decision of the Supreme Court of Queensland last year highlighted an issue for Defendants seeking to raise the defence.

Ireland v B & M Outboard Repairs

In Ireland v B& M Outboard Repairs [2015] QSC 084, the Defendants argued that the Plaintiff was engaged in a dangerous recreational activity.

The Court rejected the Defendant’s submission that section 19 of the CLA QLD applied; principally, because the activity did not involve an obvious risk. However, the Court made an additional comment that section 19 would not apply because section 17 refers to liability in negligence only and not, to an action for breach of contract.

Liability in Negligence

Unlike the Civil Liability Act NSW (2002) (CLA NSW), the CLA QLD does not define the word ‘negligence’.

Without a definition, one might assume the phrase ‘liability in negligence’ means an action in negligence and not, an action in contract or, an intentional tort. In the first reading speech for the Civil Liability Bill 2003 (Qld), Parliament said that the dangerous recreational activities provisions would change the ‘conventional law of negligence’ – as opposed to the law of contract or, the law of torts.

Considerations for claims involving dangerous recreational activities

Plaintiffs may frame their claims to avoid the dangerous recreational activity defence under the CLA QLD. However, the interpretation of section 17 is yet to be judicially determined. The comments in Ireland were in obiter. That said, if Ireland’s reasoning is applied, Defendants will not be assisted by section 19 of the CLA QLD against a claim in contract.

Parties to claims involving recreational activities which may be ‘dangerous’ may wish to consider the following:

Can we help?

Book a consultation for advice and information about a claim involving a potentially dangerous recreational activity by calling (07) 3067 3025 or contact us online.