PPRuNe Forums - View Single Post - Recreational Flying and Liability
View Single Post
Old 5th May 2013, 22:45
  #33 (permalink)  
Up-into-the-air
 
Join Date: May 2010
Location: More than 300km from SY, Australia
Posts: 817
Likes: 0
Received 0 Likes on 0 Posts
Liability

Well Found LookDown and worth putting here for all:

Risk Warnings

Section 5M of the CLA provides that if a "risk warning" is given there is no duty of care owed to a participant in a recreational activity in respect of the risk the subject of that warning.

A "risk warning" is a warning "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". A risk warning can be given orally or in writing including by means of a sign. A defendant is not required to establish that the plaintiff received or understood or was capable of receiving and understanding the warning although a risk warning can only be given to an incapable person (such as a child) if it was given to a legally competent parent or other person who was in control of or accompanied the incapable person. This is important because provided the warning is given to a parent, guardian or other adult supervisor, negligence liability to a child can be avoided by giving a risk warning.

It seems that there must be some coincidence between the risk which materialises and the risk against which the warning was given before liability is excluded. Even so, a risk warning "need not be specific to the particular risk and can be a general warning of the risks that includes the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)" - section 5M(5).

A risk warning cannot be relied on if contradicted by other representations. A defendant cannot rely on a risk warning unless it is given by or on its behalf or by or on behalf of the occupier of the place where the recreational activity is undertaken. A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety, eg WorkCover codes and regulations. Risk warnings cannot be relied on if the plaintiff was required to engage in a recreational activity by the defendant although what degree of power, authority and compulsion is necessary is not made clear.

In relation to any particular programme or event, if it is possible to devise a risk warning which gives a general warning of the particular risks, then liability for negligence will not be imposed if these risks occur.
Some important reading!
Up-into-the-air is offline