Not to be too pedantic ... but what exactly is a dangerous recreational activity?
- Publisher:
- Australian and New Zealand Sports Law Association
- Publication Type:
- Journal Article
- Citation:
- Thorpe David and Stewart Pamela 2006, 'Not to be too pedantic ... but what exactly is a dangerous recreational activity?', ANZSLA, vol. 1, no. 1, pp. 121-158.
- Issue Date:
- 2006
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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 Walesfollowing 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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