Not to be too pedantic ... but what exactly is a dangerous recreational activity?

Publication Type:
Journal Article
Australian and New Zealand Sports Law Journal, 2006, 1 (1), pp. 121 - 158
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This article examines the defence to a claim in negligence which is provided by Section 5L of the Civil Liability Act 2002 (NSW). The section was enacted as part of the extensive reform of tort law in New South Wales following the Review of the Law of Negligence Final Report, in late 2002 (the Ipp Report). The section provides a complete defence where a plaintiff is injured by an obvious risk of a dangerous recreational activity. Similar provisions exist in other states tort law reform legislation. This article examines in detail the decision of the New South Wales Court of Appeal in Fallas v Mourlas, the leading case so far in New South Wales, on the interpretation and application of section 5L and, in particular, the manner in which the Court of Appeal interpreted the key words used in the section. The definition of a dangerous recreational activity as one which involves a significant risk of physical harm is crucial to the application of the defence and the authors conclude that the interpretation of those words by Ipp JA in the New South Wales Court of Appeal is problematic. The authors consider some relevant rules of statutory interpretation as well as relevant parts of the IPP Report and other decisions in the Supreme Court of New South Wales and Court of Appeal concerning the `dangerous recreational activity defence. The authors conclude that the circumstances in which the defence will be available are far from certain and that further appellate consideration of section 5L or legislative amendment is needed.
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