Effect of the Civil Liability Act 2002
In Western Australia, the Civil Liability Act 2002 (CLA) limits liability for injury resulting from a recreational activity. A recreational activity includes any sport, whether organised or not, as well as activities that are pursued for enjoyment, relaxation and leisure. Therefore, the CLA will apply to many of the activities of sporting and recreational associations.
The CLA provides that a person accused of causing harm (the defendant) will not be held liable for harm caused to another person if the injured person was involved in a dangerous recreational activity and the harm is a result of an obvious risk of that activity.
A dangerous recreational activity is one that involves a significant risk of harm such as rugby and abseiling. An obvious risk includes risks that are commonly associated with an activity, even if the risk is not very observable.
If a risk is obvious, there is no duty to warn a person of the obvious risk. However, a person will not avoid liability if the injured person had specifically asked for advice about the risk or the person conducting the activity is required by law to warn the person of the risk.
A person is also not liable for harm that occurs as a result of an inherent risk, such as from something that cannot be avoided by the exercise of reasonable care and skill. For example, tackling is part of the game of rugby that can cause injury, however, the tackle must still be within the rules to avoid any liability.
Boxers can also expect to get hurt from punches to the body, as punching is inherent to the activity.
The CLA also provides that a person (the defendant) does not owe a duty of care to a person who engages in a recreational activity if the person was warned of the risks.
If a child is injured, the person who is accused of causing the harm may rely on a risk warning that was made to a parent or another person, if that parent or person is not deemed to be incompetent and the child was accompanied by the parent or other person (eg a guardian). A risk warning reasonably warns the person about the risks involved in the activity. A risk warning can be a general warning in oral or written form.
A person may not avoid liability by relying on a risk warning if the injured person was required to engage in the activity by the defendant (eg a compulsory school activity).