In brief - Councils should perform risk assessments and observe ongoing use of recreational facilities

Councils managing recreational facilities such as sports fields, children's playgrounds and skate parks will almost universally owe a duty of care to take precautions against a risk of harm arising from public use of those facilities.

Implementing reasonable measures to remove substantive risks

Good practice dictates that councils should consider ongoing risk assessment of these facilities and implementation of reasonable measures to remove any substantive risks, or face increasing liability exposure for injuries occasioned by their use.

What is an "obvious risk" under the Civil Liability Act?

In common with private entities, Queensland councils facing injury claims have the benefit of various defences under the Civil Liability Act. However, these defences do not have the wide ranging exculpatory effect that a cursory reading of the Act might suggest.

For example, the Act provides a defence for harm suffered as a result of an "obvious" risk of a "dangerous recreational activity". Courts are inclined to construe the concept of an "obvious risk" narrowly. (See State of Queensland v Kelly [2014] QCA 27.) An activity is said to be "dangerous" under the Act only if it involves a "significant risk of physical harm".

Risks posed to all members of the public, including children

Further, even if a risk appears to be "obvious" to an average person, taking preventative measures may still be prudent, particularly as councils are expected to take reasonable steps to remove risks posed to everyone who uses the facility, including children.

Accordingly, the Civil Liability Act defences do not provide a blanket "safe harbour" for all occasions. A council's culpability in each case will be assessed independently, in the particular circumstances of each case.

Councils should expect their actions in response to risks to be scrutinised

Early risk assessments and ongoing use observation are essential to identify the substantive risks for each council recreational facility. Once risks are identified, councils should expect that the actions they take will be scrutinised in the event of a claim to determine the adequacy of their response to the risk.

For further information, please see our earlier articles Obvious risk: an overview for casualty claims handlers and In full swing: obvious risks and dangerous recreational activity.

This article addresses Queensland legislation. Corresponding legislation in other states and territories may contain differing provisions.

 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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