Providers of Recreational Activities – Are you protected?
Warning- if you provide recreational activities and you have exclusion clauses regarding death or injury you should have these clauses reviewed as you may be at risk.
The area of liability for negligence and contract liability for provision of services is very complicated. particularly regarding providers of recreational activities. as it involves common law and legislation including the Civil Liability Act NSW 2002 and the Competition and Consumer Act 2010 ( in essence what was previously Trade Practices Act (C’th) 1974.
Actions may be commenced against you in tort for negligence or in contract for breach of contract. Despite provisions in the Civil Liability Act and Competition and Consumer Act enabling a provider of recreational activities to exclude liability for personal injury or death great care must be taken in the wording of your exclusion clause as one slip may mean your exclusion clause is ineffective and you may be liable for many hundreds of thousands or millions of dollars.
There are too many issues that need to be considered to be able to deal with them by this note. The purpose of the warning is to draw your attention to the recent Court of Appeal case decided in late October year of Motorcycling Events Group Australia Pty Ltd v Kelly 2013 NSWCA 361.As mentioned this area of the law is very complicated and a reading of the case establishes this. However the crucial issue to come out of the case is that the event provider could have excluded its liability in contract if it had used the words provided in the then Trade Practices Act, namely to exclude liability for death or personal injury rather than what the clause did which was to also exclude liability for property damage.
If you haven’t done so you should review your exclusion clause, not only to take advantage of legislative provisions but also to ensure it complies with common law decisions regarding the enforceability of exclusion clauses generally.