Recent New South Wales decisions have closely scrutinised the effectiveness of risk warnings, disclaimers and waivers. While warning signs and waivers may assist in limiting liability, their effectiveness depends on whether they address the risk that materialised and satisfy the statutory requirements of the Civil Liability Act 2002 (CLA) (NSW).   

Where the mechanism of injury is a commonplace hazard (e.g. unevenness of a footpath or pavement) and it is readily apparent to a reasonable person taking care, the courts are prepared to treat the risk as “obvious”, which eliminates any duty to warn.  

Whether a risk amounted to "obvious" was determined in Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161 where the Plaintiff tripped and fell on a one-centimetre height differential between a utility pit lid and its surrounding metal frame. The primary judge found Ausgrid (five different defendants were sued, all were operated by Ausgrid), liable for failing to warn of the hazard by highlighting the raised surface.  

The Court of Appeal subsequently overturned the primary judge's findings and ultimately found that a reasonable person would have anticipated the height differential. It was an obvious risk for which there was no duty to warn. 

This decision can be compared with the findings of the Court in Hornsby Shire Council v Salman [2024] NSWCA 155 where the Plaintiff was walking in the park towards a playground where her nephew was swinging. As she was traversing the mulch area to the wet pour rubber (soft play) area, she rolled her ankle on the uneven surface delineating between the areas. 

At first instance, the District Court found that Council was liable as an inspection report from the year prior to the incident identified that the level of mulch was low and needed to be filled/built up to the level of the wet pour rubber to eliminate any trip hazards. The Council failed to act on this recommendation.  

The Council's appeal was dismissed and the Court of Appeal affirmed that the risk of injury was not obvious as the height differential was not easily identifiable. Additionally, a reasonable person in Council's position would have acted on the recommendations in the inspection report.  

De Roma involved a commonplace and readily apparent uneven surface whereas in Salman, the hazard was difficult to identify and was compounded by the Council's prior knowledge of the defect and failure to rectify it. 

Section 5M of the CLA operates to negate the existence of a duty of care "to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff." There are qualifications to section 5M including if the circumstances involved an "incapable person", defined to include a person who because of the "person's young age or a physical or mental disability, lacks the capacity to understand the risk warning." 

In Sharp v Parramatta City Council [2015] NSWCA 260 the Plaintiff was injured when diving off a 10-metre diving platform. There were two signs affixed to the pillars of the diving tower structure, the first following the initial three steps and the second which was adjacent to the first flight of stairs to the 10-metre diving platform. The Court found the Plaintiff approached the platform via these steps and had to walk directly past the sign. 

The lifeguard had also verbally directed the Plaintiff to "fall vertically, feet first into the pool below". The risk of injury from impact with the water's surface from such a height was obvious. The Court also determined that the Council could rely on section 5L confirming that the injury was an obvious risk of a dangerous recreational activity. 

The decision in Sharp is to be contrasted with the decision in Coffs Harbour City Council v Polglase [2020] NSWCA 265 where a five-year-old boy fell approximately four metres off a jetty onto hard sand. He suffered orthopaedic injuries and a severe closed head injury. Justice Cavanagh's decision at first instance was that Council and the Coffs Jetty Foreshore Reserve Trust, were liable. His Honour dismissed the claims against the State of New South Wales and the Plaintiff's grandparent. The decision was upheld on appeal. The sign at the entrance of the jetty was as follows: 

Council was aware of a history of prior incidents where children had fallen from the jetty or had near misses. The risk, appropriately characterised, was of a young child falling from the jetty. The Court found that the sign did not warn of the general nature of the risk that eventuated, rather it was directed to warning of the risk of injury associated with diving off the jetty into water of variable depth. Additionally, the Plaintiff, being a child, was described as an incapable person.  

Ultimately, the sign failed to warn of the general nature of the particular risk that materialised so the risk warning defence in section 5M was not available. 

Section 5N permits recreational service providers to contract out of liability for breach of the implied or express warranty to exercise reasonable care and skill.  

In Moore v Keane [2026] NSWSC 475, the Plaintiff suffered serious spinal injuries when two yachts collided during a yacht race at Port Hacking. The Court found that the skipper of the Plaintiff's yacht, Brand X, was not negligent and had no reasonable opportunity to avoid the incident. The skipper of the second yacht, Knockabout, was solely liable for the collision due to failing to keep a proper lookout after becoming distracted by events on board his vessel. 

The Plaintiff was not a member of the Cronulla Sailing Club and did not personally complete a race entry. A temporary "SailPass membership" was obtained on behalf of the Plaintiff. The Defendant's Counsel submitted that the completion process by the Plaintiff's agent to obtain the temporary SailPass membership was "analogous to a traditional signature on a document." 

The Cronulla Sailing Club risk warning was contained within the registration process for the SailPass temporary membership and expressly identified both collision with other vessels and injury from equipment as risks of participation. The Plaintiff's Counsel submitted there was no evidence that the risk warning was brought to the Plaintiff's attention.  

The risk warnings and liability waivers were ultimately ineffective because the Plaintiff was not a party to any binding agreement containing those terms. There was also no evidence that the Plaintiff was aware of the risk warning or waiver terms. The Knockabout skipper was unable to rely on sections 5M or 5N. 

The Court additionally rejected reliance on the Civil Liability Act provisions relating to participating in a dangerous recreational activity. While yacht racing involves obvious risks, the Court held that it was not a "dangerous recreational activity" for the purposes of section 5L because the evidence did not establish a significant risk of physical harm. In reaching this determination, the Court referenced that "[t]here were 70,000 occurrences of yacht racing in the period during which there were 10 serious injuries". Yacht racing therefore did not involve a significant risk of physical harm, despite there being an obvious risk of some harm. 

The recent decisions from the New South Wales courts confirms that disclaimers, risk warnings and waivers are only effective where the statutory requirements of the Civil Liability Act are met which will depend on the facts and circumstances of each case.  

Obvious risks may eliminate a duty to warn, but a defendant may still be liable where a hazard is not readily apparent or where the defendant had prior notice of the risk and failed to act to guard against the risk materialising.  

Risk warnings must identify the general nature of the risk that eventuated, particularly where children or incapable persons are involved.  

Courts continue to scrutinise whether hazards are properly managed, rather than merely warned against.  

Finally, contractual waivers will only assist recreational service providers where there is a binding agreement and clear evidence that the participant accepted the relevant terms. 

If you would like to discuss the issues raised in this article or review the effectiveness of your organisation's risk warnings, disclaimers or waivers, please contact a member of our Insurance team.